Testa Construction

National Labor Relations Board - Board Decisions

Nov 30, 2010

356 NLRB No. 31 (N.L.R.B. 2010)

356 NLRB No. 31
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Testa Construction Company, Inc. and International
Union of Operating Engineers, Local 478. Case
34–CA–12525
November 29, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
The Acting General Counsel seeks summary judgment
in this case pursuant to the terms of a settlement agree-
ment. Upon a charge and amended charge filed by the
International Union of Operating Engineers, Local 478,
the Union, on November 20, 2009 and January 25, 2010,
respectively, the General Counsel issued the original
complaint on February 26, 2010, against Testa Construc-
tion Company, Inc., the Respondent, alleging that it had
violated Section 8(a)(3) and (1) of the Act.
Subsequently, the Respondent and the Union entered
into a settlement agreement, which was approved by the
Acting Regional Director for Region 34 on May 7, 2010.
Among other things, the settlement agreement required
the Respondent to (1) post a notice to employees and (2)
pay employees Phillip A. Cooper and Terry Nichols
backpay and benefits in the amounts of $16,268.80 and
$21,149.46, respectively, to be paid in 6 monthly in-
stallments of $2,711.47 to Cooper and $3,524.91 to
Nichols from July 20 to December 20, 2010.
The settlement agreement also contained the following
provision:
PERFORMANCE—Performance by the Charged
Party with the terms and provisions of this Agreement
shall commence as set forth above and after the Agree-
ment is approved by the Regional Director. The
Charged Party agrees that in case of non-compliance
with any of the terms of this Settlement Agreement by
the Charged Party and after 14 days notice from the
Regional Director of the National Labor Relations
Board of such non-compliance without remedy by the
Charged Party, the Regional Director may issue a com-
plaint based upon the allegations set forth in the Notice
to Employees. Thereafter, the General Counsel may
file a motion for summary judgment with the Board on
the allegations of the just-issued complaint concerning
the violations of the Act alleged therein. The Charged
Party understands and agrees that the allegations of the
aforementioned complaint may be deemed to be true
by the Board, that it will not contest the validity of any
such allegations, and the Board may enter findings of
fact, conclusions of law, and an order on the allegations
of the aforementioned complaint. On receipt of said
motion for summary judgment the Board shall issue an
Order requiring the Charged Party to show cause why
said Motion of the General Counsel should not be
granted. The only issue that may be raised in response
to the Board’s Order to Show Cause is whether the
Charged Party defaulted upon the terms of this settle-
ment agreement. The Board may then, without neces-
sity of trial or any other proceeding, find all allegations
of the complaint to be true and make findings of fact
and conclusions of law consistent with those allega-
tions adverse to the Charged Party, on all issues raised
by the pleadings. The Board may then issue an order
providing a full remedy for the violations found as is
customary to remedy such violations. The parties fur-
ther agree that the Board’s order may be entered
thereon ex parte and that, upon application by the
Board to the appropriate United States Court of Ap-
peals for enforcement of the Board’s order, judgment
may be entered thereon ex parte and without opposition
from the Charged Party.
By letter dated July 23, 2010, the compliance officer
for Region 34 advised the Respondent that the Region
had not received the first installment of the payment plan
for backpay set forth in the settlement agreement. The
compliance officer further stated that the letter served as
the required 14-day notice of its failure to comply with
the terms of the settlement agreement by failing to remit
the first backpay installment due July 20, 2010, and
stated that unless the Respondent remedied its admitted
failure to comply with the settlement agreement within
14 days, a complaint and notice of hearing would issue.
The Respondent failed to comply.1 Accordingly, pursu-
ant to the terms of the noncompliance provisions of the
settlement agreement, on August 11, 2010, the Regional
Director for Region 34 reissued the complaint.
On September 14, 2010, the Acting General Counsel
filed a Motion for Summary Judgment with the Board.
Thereafter, on September 16, 2010, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be

1 By email to the Region dated August 25, 2010, the Respondent’s
counsel advised that the Respondent “will be closing its doors shortly
because of a heavy debt load that the company is unable to address”
and that it was considering bankruptcy. In his Motion for Summary
Judgment, the Acting General Counsel states that the Respondent has
not come forward with any evidence that it has sought bankruptcy
protection or is unable to comply with the settlement agreement, and at
the time of the motion, had not filed any bankruptcy petitions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
granted. The Respondent filed no response. The allega-
tions in the motion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
According to the uncontroverted allegations in the Mo-
tion for Summary Judgment, the Respondent has failed
to comply with the financial terms of the settlement
agreement by failing to remit the agreed-upon amounts
due employees Phillip A. Cooper and Terry Nichols.
Consequently, pursuant to the noncompliance provisions
of the settlement agreement set forth above, we find that
all the allegations in the reissued complaint are true.2
Accordingly, we grant the Acting General Counsel’s
Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Connecticut
corporation with its principal offices located in Stamford,
Connecticut, and with operations at construction jobsites
at other Connecticut locations, has been engaged as a
contractor in the building and construction industry.
During the 12-month period ending January 31, 2010,
the Respondent, in conducting its operations described
above, purchased and received goods at its Stamford
facility and Connecticut jobsites valued in excess of
$50,000 directly from points outside the State of Con-
necticut.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Richard Testa Jr. — President, Director
Richard Testa Sr. — Vice President, Director
John ____ (last name
known to the Re-
spondent)
— Foreman, Science Park
jobsite in Bridgeport,
Connecticut
1. About June 3, 2009, the Respondent, by Richard
Testa Jr., at its Science Park jobsite:

2 See U-Bee, Ltd., 315 NLRB 667 (1994).
(a) Informed its employees that it was terminating
them for engaging in union and other protected concerted
activities.
(b) Threatened its employees with discharge for engag-
ing in union and other protected concerted activities;
(c) In the presence of employees, impliedly threatened
an agent of the Union with physical harm.
2. About June 4, 2009, the Respondent, by Richard
Testa Sr., at its Science Park jobsite, informed employees
that it was terminating them for engaging in union and
other protected concerted activities.
3. About June 3, 2009, the Respondent terminated the
employment of employee Terry Nichols.
4. About June 5, 2009, the Respondent terminated the
employment of employee Phillip A. Cooper.
The Respondent engaged in the conduct described in
paragraphs 3 and 4 because the named employees joined,
supported, or assisted the Union, and engaged in con-
certed activities, and to discourage employees from en-
gaging in these activities.
CONCLUSIONS OF LAW
1. By the conduct described in paragraphs 1 and 2, the
Respondent has been interfering with, restraining, and
coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
2. By the conduct described in paragraphs 3 and 4, the
Respondent has been discriminating in regard to the hire,
or tenure, or terms and conditions of employment of its
employees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) and (1) of
the Act.
3. The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(3)
and (1) by terminating employees Terry Nichols and
Phillip A. Cooper on June 3 and 5, 2009, respectively,
we shall order the Respondent to make them whole for
any loss of earnings and other benefits suffered as a re-
sult of the Respondent’s unlawful actions against them.
In this regard, the Respondent agreed in the settlement
agreement to pay Phillip A. Cooper $16,268.80 and
Terry Nichols $21,149.46 to be distributed into 6
monthly installments of $2,711.47 to Cooper and
$3,524.91 to Nichols. As indicated above, the Respon-
TESTA CONSTRUCTION CO. 3
dent has failed to make any backpay installment pay-
ments. The Acting General Counsel’s motion states that
there is an outstanding balance in the amount of
$16,268.80 owed to Cooper and $21,149.46 owed to
Nichols. Accordingly, we shall order the Respondent to
immediately remit these amounts to the Region for pay-
ment to Cooper and Nichols, plus daily compound inter-
est as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
We shall also provide for the remedies typically im-
posed for the violations found. As set forth above, the
settlement agreement provided that, in the event of non-
compliance, the Board could “issue an order providing a
full remedy for the violations found as is customary to
remedy such violations.” Thus, under this language, it is
appropriate to provide the “customary” remedies of ex-
pungement of the Respondent’s personnel records and
notice posting.3 Therefore, the Respondent shall also be
required to remove from its files any reference to the
unlawful terminations of Phillip A. Cooper and Terry
Nichols, and notify them in writing that this has been
done and that the unlawful terminations will not be used
against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Testa Construction Company, Inc., Stam-
ford, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Informing employees that they are being terminated
for engaging in union or other protected concerted activi-
ties.
(b) Threatening employees with discharge because of
their union or other protected concerted activities.
(c) Impliedly threatening an agent of the Union with
physical harm in the presence of employees.
(d) Terminating or otherwise discriminating against
any employee for engaging in protected concerted activi-
ties or assisting the International Union of Operating
Engineers, Local 478, or any other labor organization, or

3 See L.J. Logistics, Inc., 339 NLRB 729, 730–731 (2003). The Act-
ing General Counsel states in his Motion for Summary Judgment that
because the job in which Cooper and Nichols had been working at the
time of their unlawful termination had ended by the time of the settle-
ment agreement, there is no need for a reinstatement order or any addi-
tional backpay. Accordingly, we shall not order these customary reme-
dies in this proceeding. In addition, although the settlement agreement
required the Respondent to post a notice to employees, the Motion for
Summary Judgment is silent regarding the Respondent’s compliance
with that requirement. Further, the settlement notice differs in material
respects from the notice that is warranted in view of our findings and
Order herein. Accordingly, we find that a notice-posting remedy is
appropriate here.
to discourage employees from engaging in these activi-
ties.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remit to Region 34 the amounts of $16,268.80
owed to Phillip A. Cooper and $21,149.46 owed to Terry
Nichols to be disbursed in accordance with the May 7,
2010 settlement agreement, plus interest, as set forth in
the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful terminations
of Phillip A. Cooper and Terry Nichols, and within 3
days thereafter, notify the employees in writing that this
has been done and that the unlawful terminations will not
be used against them in any way.
(c) Within 14 days after service by the Region, post at
its facility in Stamford, Connecticut, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means.5 Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 3, 2009. In addition,
pursuant to the terms of the settlement agreement, the
notice may include notices in more than one language as
deemed appropriate by the Regional Director.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
5 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C., November 29, 2010
Wilma B. Liebman, Chairman
Craig Becker, Member
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT inform you that you are being terminated
for engaging in union or other protected concerted activi-
ties.
WE WILL NOT threaten you with discharge because of
your union or other protected concerted activities.
WE WILL NOT impliedly threaten an agent of the Union
with physical harm in your presence.
WE WILL NOT terminate or otherwise discriminate
against you for engaging in protected concerted activities
or supporting the Union or any other labor organization,
or to discourage you from engaging in these activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL remit to Region 34 the amounts of
$16,268.80 owed to Phillip A. Cooper and $21,149.46
owed to Terry Nichols to be disbursed in accordance
with the May 7, 2010, settlement agreement, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful terminations of Phillip A. Cooper and Terry Nichols,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the unlawful ter-
minations will not be used against them in any way.
TESTA CONSTRUCTION COMPANY, INC.