Tri-City Fire Protection, LLC

National Labor Relations Board - Board Decisions

Nov 15, 2019

368 N.L.R.B. 114 (N.L.R.B. 2019)

368 NLRB No. 114
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.
Tri-City Fire Protection Services, LLC and Road
Sprinkler Fitters Local Union No. 669, U.A.,
AFL–CIO. Cases 01–CA–222718
November 15, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge and amended charges filed by
Road Sprinkler Fitters Local Union 669, U.A., AFL–CIO
(the Union) on June 25, September 5, and September 20,
2018, respectively, alleging that the Respondent violated
Section 8(a)(1), (3), and (5) of the Act,1 the Respondent
and the Union entered into an informal settlement
agreement, which the Regional Director for Region 1
approved on December 4, 2018. Among other things, the
settlement agreement required the Respondent to: (1)
post the Notice to Employees for 60 consecutive days in
places where notices to employees are customarily post-
ed; (2) mail the Notice to all current employees and for-
mer employees who were employed at any time since
June 15, 2018, and provide written confirmation of the
date of mailing and a list of all of the recipients’ address-
es to the Acting Regional Director; and (3) make whole
two named employees as identified in the backpay para-
graph of the settlement agreement by paying to them,
within 14 days from the settlement agreement’s approval,
the amounts set forth therein, including interest as speci-
fied.
The settlement agreement also contained the following
provision:
The Charged Party agrees that in case of non-
compliance with the terms of this Settlement Agree-
ment that requires it to post the Notice, pay the amounts
listed above to Michael Donovan and Christopher
Dean, and, upon their unconditional offer to return to
work to reinstate them to their former positions, and af-
ter 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 will issue a Complaint that includes
the allegations covered by the Notice to Employees, as
identified above in the Scope of Agreement section, as

1 The 8(a)(5) allegation in the second amended charge was subse-
quently withdrawn and is no longer part of the case.
well as filing and service of the charge(s), commerce
facts necessary to establish Board jurisdiction, labor
organization status, appropriate bargaining unit (if ap-
plicable), and any other allegations the General Coun-
sel would ordinarily plead to establish the unfair labor
practices. Thereafter, the General Counsel may file a
Motion for Default Judgment with the Board on the al-
legations of the Complaint. The Charged Party under-
stands and agrees that all of the allegations of the Com-
plaint will be deemed admitted and that it will have
waived its right to file an Answer to such Complaint.
The only issue that the Charged Party may raise before
the Board will be whether it defaulted on the terms of
this Settlement Agreement described above. The Gen-
eral Counsel may seek, and the Board may impose, a
full remedy for each unfair labor practice identified in
the Notice to Employees. The Board may then, with-
out necessity of trial or any other proceeding, find all
allegations of the Complaint to be true and make find-
ings of fact and conclusions of law consistent with
those allegations adverse to the Charged Party on all is-
sues raised by the pleadings. The Board may then issue
an Order providing a full remedy for the violations
found as is appropriate to remedy such violations. The
parties further agree that a U.S. Court of Appeals
Judgment may be entered enforcing the Board Order ex
parte, after service or attempted service upon Charged
Party at the last address provided to the General Coun-
sel.
On December 28, 2018, the compliance officer for Re-
gion 1, by email, sent to the Respondent’s then-counsel
and the Respondent’s owner a letter soliciting compli-
ance and notified them that the Respondent was in dan-
ger of defaulting on the settlement agreement, as the Re-
spondent had neither notified the Region that it had post-
ed and mailed the required notices nor submitted to the
Region the agreed-upon payments to distribute to the
employees named in the agreement. The compliance
officer asked whether the Respondent intended to com-
ply with the agreement and when the Region could ex-
pect the required payments and documentation, and she
advised that failure to comply with the agreement could
result in the Regional Director issuing complaint and
invoking the default language in the agreement. The
compliance officer having received no response from the
Respondent,2 the Region’s compliance supervisor, by
email dated February 4, 2019,3 again sent the Respond-
ent’s owner a copy of the letter soliciting the Respond-

2 The Respondent’s former counsel apparently responded and ad-
vised the Region that he was no longer representing the Respondent.
3 All subsequent dates are in 2019, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ent’s compliance, detailed the Respondent’s failure to
comply with the agreement’s terms and the Region’s
repeated efforts to reach the Respondent, and advised
that, if the Respondent did not contact the compliance
supervisor by February 6, she would recommend that the
Regional Director invoke the agreement’s default provi-
sions. The Respondent failed to respond or comply.
Accordingly, pursuant to the terms of the non-
compliance provisions of the settlement agreement, on
April 3, the Acting Regional Director issued a Com-
plaint. On June 17, the General Counsel filed a Motion
for Default Judgment with the Board. On June 18, the
Board issued an order transferring the proceeding to the
Board, and on July 25 it issued a Notice to Show Cause
why the motion should not be granted.4 The Respondent
filed no response. The allegations 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 Default Judgment
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with the terms of the settlement agreement.
Consequently, pursuant to the noncompliance provisions
of the settlement agreement set forth above, we find that
all of the allegations of the complaint are true.5 Accord-
ingly, we grant the General Counsel’s Motion for Default
Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a lim-
ited liability company with an office and place of busi-
ness in Tolland, Connecticut (its facility), and has been
engaged in providing service, inspection, and installation
of fire protection systems.
Annually, in conducting its business operations, the
Respondent purchases and receives at its facility goods
valued in excess of $50,000 directly from points outside
the State of Connecticut.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and

4 On June 12, the General Counsel had filed a Motion for Summary
Judgment, which was rejected on June 18 as an improper filing. That
motion was superseded by the otherwise identical Motion for Default
Judgment filed on June 17. On June 18, the Board issued an order
transferring the proceeding to the Board but the included Notice to
Show Cause inadvertently referenced the rejected Motion for Summary
Judgment. On July 25, therefore, the Board reissued the Notice to
Show Cause in regard to the Motion for Default Judgment.
5 See U-Bee, Ltd., 315 NLRB 667 (1994).
(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
1. At all material times, David Fusco was the Re-
spondent’s owner and has been a supervisor of the Re-
spondent within the meaning of Section 2(11) of the Act
and an agent of the Respondent within the meaning of
Section 2(13) of the Act.
2. At all material times, Alex Salony held the position
of the Respondent’s office manager and has been an
agent of the Respondent within the meaning of Section
2(13) of the Act.
3. About mid-June 2018, the Respondent, by Salony,
at its facility, threatened employees that the Respondent
would close or operate under a different name if the em-
ployees selected the Union as their bargaining repre-
sentative.
4. About July 9, 2018, the Respondent, by Fusco, at a
jobsite in Waterbury, Connecticut:
(a) interrogated employees about how they were going
to vote in an upcoming representation election;
(b) promised employees benefits if they did not vote
for the Union;
(c) threatened employees that it would be futile to se-
lect the Union as their bargaining representative; and
(d) threatened employees with closure of the facility if
they selected the Union as their bargaining representa-
tive.
5. From about June 15, 2018, to August 3, 2018, the
Respondent reduced the work hours of its employees
Michael Donovan and Christopher Dean.
6. Respondent engaged in the conduct described
above in paragraph 5 because Donovan and Dean sup-
ported the Union and engaged in concerted activities, and
to discourage employees from engaging in these activi-
ties.
CONCLUSIONS OF LAW
1. By the conduct described above in paragraphs 3 and
4, the Respondent has been interfering with, restraining,
and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act.
2. By the conduct described above in paragraphs 5 and
6, 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 unfair labor practices of the Respondent de-
scribed above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
TRI-CITY FIRE PROTECTION SERVICES, LLC 3
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to take cer-
tain affirmative action designed to effectuate the policies
of the Act, as requested by the General Counsel.
Specifically, having found that the Respondent violat-
ed Section 8(a)(1) of the Act by threatening the employ-
ees with company or facility closure or operation under a
different name if the employees selected the Union as
their bargaining representative; interrogating employees
about how they were going to vote in an upcoming repre-
sentation election; promising employees benefits if they
did not vote for the Union; and threatening employees
that it would be futile to select the Union as their bar-
gaining representative, we will order the Respondent to
cease and desist from such conduct and to post a remedi-
al notice.
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by reducing the work hours of
Michael Donovan and Christopher Dean, we will order
the Respondent to make Donovan and Dean whole for
any loss of earnings and other benefits suffered as a re-
sult of the unlawful action against them, to the extent that
the Respondent has not already done so.6 Backpay shall
be computed in accordance with Ogle Protection Service,
Inc., 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010). We shall further order the Respondent to com-
pensate Donovan and Dean for any adverse tax conse-
quences of receiving lump-sum backpay awards, to the
extent that the Respondent has not already done so, and
to file with the Regional Director for Region 1 a report
allocating the backpay award to the appropriate calendar
years for each employee. AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016). The Respondent shall also
be required to remove from its files any reference to the
unlawful reduction of work hours for Donovan and Dean
and to notify them in writing that this has been done and
that the unlawful reduction in hours will not be used
against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Tri-City Fire Protection Services, LLC, Tol-

6 Because it is unclear whether the total amounts set forth in the set-
tlement agreement constitute a full make-whole remedy, we leave to
compliance a determination of the proper amount due to Donovan and
Dean.
land, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening to close the company or facility or op-
erate under a different name if the employees select the
Union as their bargaining representative.
(b) Interrogating employees about how they are going
to vote in an upcoming representation election.
(c) Promising employees benefits if they do not vote
for the Union.
(d) Threatening employees that it would be futile to
select the Union as their bargaining representative.
(e) Reducing the work hours of employees because
they support the Union or engage in concerted activities,
or to discourage employees from engaging in these activ-
ities.
(f) 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) Make Michael Donovan and Christopher Dean
whole, to the extent it has not already done so, for any
loss of earnings and other benefits suffered as a result of
the unlawful reduction in their work hours, in the manner
set forth in the remedy section of this decision.
(b) Compensate Michael Donovan and Christopher
Dean, to the extent it has not already done so, for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for
Region 1, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years for each employee.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful reduc-
tion in the work hours of Michael Donovan and Christo-
pher Dean, and within 3 days thereafter, notify Donovan
and Dean in writing that this has been done and that the
reduction in their work hours will not be used against
them in any way.
(d) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including electronic
copies of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at
its Tolland, Connecticut facility copies of the attached
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 1,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
The Respondent shall take reasonable steps to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since June 15, 2018.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. November 15, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel 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

7 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.”
The National Labor Relations Board has found that we
violated 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 threaten to close the company or facility
or operate under a different name if you select the Union
as your bargaining representative.
WE WILL NOT interrogate you about how you are going
to vote in an upcoming representation election.
WE WILL NOT promise you benefits if you do not vote
for the Union.
WE WILL NOT threaten you that it would be futile to se-
lect the Union as your bargaining representative.
WE WILL NOT reduce your work hours because you
support the Union or engage in concerted activities, 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
listed above.
WE WILL make Michael Donovan and Christopher
Dean whole, to the extent that we have not already done
so, for any loss of earnings and other benefits suffered as
a result of our unlawful reduction in their work hours,
plus interest.
WE WILL, to the extent that we have not already done
so, compensate Michael Donovan and Christopher Dean
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and WE WILL file with the
Regional Director for Region 1, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to
the appropriate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful reduction in the work hours of Michael Donovan and
Christopher Dean, and WE WILL, within 3 days thereafter,
notify them that this has been done and that our reduction
in their work hours will not be used against them in any
way.
TRI-CITY FIRE PROTECTION SERVICES,
LLC
TRI-CITY FIRE PROTECTION SERVICES, LLC 5
The Board’s decision can be found at
https://www.nlrb.gov/case/01-CA-222718 or by using
the QR code below. Alternatively, you can obtain a copy
of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.