Ace Green, LLC

National Labor Relations Board - Board Decisions

Mar 1, 2011

356 N.L.R.B. 754 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
ACE Green, LLC and Service Employees Interna-
tional Union, Local 32BJ. Case 2–CA–39331
March 1, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
The Acting General Counsel seeks a default judgment
in this case on the grounds that the Respondent has failed
to file a legally sufficient and timely answer to the com-
plaint. On a series of charges filed by the Union,1 the
Acting General Counsel issued a complaint on June 29,
2010, against Ace Green, LLC, the Respondent, alleging
that it violated Section 8(a)(1), (3), and (5) of the Act.
The complaint affirmatively stated that unless an answer
was received by July 13, 2010, or postmarked by July 12,
2010, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the complaint are
true. The Region, by letter dated July 17, 2010, notified
the Respondent that unless an answer was filed by July
30, 2010, a motion for default judgment would be filed.
On July 29, 2010, the Respondent, by and through its
counsel, filed an answer denying the allegations in the
complaint.
On September 14, 2010, the Acting General Counsel
issued an Amended Complaint and Notice of Resched-
uled Hearing, repeating the allegations in the original
complaint and asserting a new allegation. The amended
complaint affirmatively stated that unless an answer was
received by the Region by September 28, 2010, or post-
marked by September 27, 2010, the Board may find, pur-
suant to a motion for default judgment, that the allega-
tions in the complaint are true. The Region, by letter
dated September 16, 2010, reminded the Respondent of
its duty to file an answer specifically addressing the alle-
gations in the amended complaint and advised the Re-
spondent that unless an answer was filed by September
28, 2010, a Motion for Default Judgment would be filed.
Thereafter, the Respondent filed its answer dated Sep-
tember 27, 2010, postmarked September 28, 2010, and
received September 30, 2010, denying the allegations in
the amended complaint.
On October 8, 2010, the Acting General Counsel filed
a Motion for Default Judgment with the Board. Thereaf-
ter, on October 12, 2010, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On Octo-
ber 25, 2010, the Respondent submitted by facsimile an
1 The Union filed charges against the Respondent on June 4, 2009,
and later amended on July 13, 2009, September 15, 2009, October 28,
2009, and March 25, 2010.
Objection to the Transference of This Matter to the
Board contending that the Board’s Order was improper
because it was not properly served with the Acting Gen-
eral Counsel’s Motion for Default Judgment. By letter
dated October 26, 2010, the Associate Executive Secre-
tary informed the Respondent that the Board’s Order was
properly issued because proper service was achieved by
the Acting General Counsel, and therefore the due date
for responding to the Notice to Show Cause remained
October 26, 2010. The Respondent filed no response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that a respondent “shall specifically admit, de-
ny, or explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in which
case the respondent shall so state, such statement operat-
ing as a denial.” Section 102.20 further provides that
“any allegation in the complaint not specifically denied
or explained in an answer filed, unless the respondent
shall state in the answer that he is without knowledge,”
shall be deemed admitted unless good cause is shown.
Both the Respondent’s July 29, 2010 answer to the origi-
nal complaint and September 30, 2010 answer to the
amended complaint stated, “The Respondent hereby de-
nies the allegations in the Complaint and leaves the
Complainant to their proof. Respondent reserves the
right to Amend his Answer.” In his Motion, the Acting
General Counsel contends that the Respondent’s general
denial is legally insufficient because it fails to specifical-
ly admit, deny, or address any of the factual or legal alle-
gations in the complaints.
We find that the Respondent’s general denial, without
regard to timeliness, does not constitute a proper answer
to the complaint allegations under Section 102.20 of the
Board’s Rules and Regulations because it fails to address
any of the factual or legal allegations of the complaint,
and therefore is legally insufficient under the Board’s
Rules.2
In the absence of good cause being shown for the fail-
ure to file a legally sufficient answer, we grant the Acting
General Counsel’s Motion for Default Judgment.
On the entire record, the National Labor Relations
Board makes the following
2 See Dunbinclipped, Inc., 339 NLRB 1104 (2003) (finding insuffi-
cient an answer stating, “The allegations in the Complaint are denied.
Respondent demands strict proof thereof”). See also Service Chemical
Supply Corp., 325 NLRB 647 (1998) (answer by respondent’s attorney
that respondent “denies any unfair labor practices”, found legally insuf-
ficient); Autospa Express, Inc., 355 NLRB 1273 (2010); K & D Paint-
ing, Inc., 316 NLRB 1196 (1995), enfd. 62 F.3d 1418 (6th Cir. 1995).
356 NLRB No. 97

ACE GREEN, LLC 755
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Connecticut
corporation, with an office and principal place of busi-
ness in Norwalk, Connecticut, has been engaged in the
business of providing cleaning services to commercial
buildings.
Annually, the Respondent, in conducting its business
operations described above, performed services valued in
excess of $50,000 to clients located outside the State of
Connecticut. We find that the Respondent is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union, Service
Employees International Union, Local 32BJ, is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
1. At all material times, the following individuals have
held the positions set forth opposite their respective
names and have been supervisors within the meaning of
Section 2(11) of the Act, and/or agents within the mean-
ing of Section 2(13) of the Act, acting on behalf of the
Respondents:

Ricardo Soria President
Eric Soria Vice President
Ivan Carranza Supervisor

2. (a) On about April 24, 2009, the Respondent ac-
quired the cleaning contract of United Service of Ameri-
ca (United), to provide cleaning services for Philips’
Electronics North America Corporation at its offices lo-
cated at 345 Scarborough Road, Briarcliff Manor, New
York (the Philips’ building), located in Westchester
County, New York, beginning on May 1, 2009, and since
then the Respondent has continued to operate the busi-
ness of United at the Philips’ building in essentially un-
changed form.
(b) But for the conduct described below in paragraph
4, the Respondent would have employed, as a majority of
its employees, individuals who were previously employ-
ees of United at the Philips’ building.
(c) Based on the conduct described below in paragraph
4 and the operation described above in paragraphs 2(a)
and (b), the Respondent has continued as the employing
entity at the Philips’ building and is a successor to Unit-
ed.
3. (a) The service employees employed by the Re-
spondent at the Philips’ building (called the unit), consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
(b) From about January 2008 until on or about April
30, 2009, the Union had been the exclusive collective-
bargaining representative of the unit, and during that
period of time the Union had been recognized as such
representative by United. This recognition was embodied
in a collective-bargaining agreement, effective from Jan-
uary 1, 2008 through December 31, 2011.
(c) Based on the facts described above in paragraphs
3(a) and (b), and Section 9(a) of the Act, the Union has
been the designated exclusive collective-bargaining rep-
resentative of the unit.
(d) Based on the conduct described below in paragraph
4, the operations described above in paragraph 3, and
based on Section 9(a) of the Act, at all material times
since May 1, 2009, the Union has been the exclusive
collective-bargaining representative of the unit.
4. (a) From about May 1, 2009, and continuing to
date, the Respondent refused to consider for hire at the
Philips’ building the following employees who were em-
ployed by United at the Phillips’ building:

John Mejia Argenis Lozano
Claudia Paola Ansalas Irma Murcia
Rosa Sari Edgar Maita

(b) Beginning around May 1, 2009, and continuing to
date, the Respondent refused to hire the employees, listed
above in paragraph 4(a), to work at the Philips’ building.
(c) The Respondent engaged in the conduct described
above in paragraphs 4(a) and (b) because the employees
were in the unit, and were members of and supported the
Union, and to discourage employees from engaging in
these activities.
5. (a) Based on the conduct described above in para-
graph 4, any request made by the Union to bargain would
have been futile.
(b) Since about May 1, 2009, the Respondent has
failed and refused to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the unit.
6. (a) Beginning around May 1, 2009, the Respondent
changed wage rates, health and welfare and pension con-
tributions, and other benefits for its newly hired employ-
ees in the unit.
(b) The subjects set forth in paragraph 6(a) relate to
wages, hours, and other terms and conditions of em-
ployment of the unit and are mandatory subjects for the
purposes of collective bargaining.
(c) The Respondent engaged in the conduct described
above in paragraph 6(a) without providing prior notice to
the Union and without affording the Union an opportuni-
ty to bargain with the Respondent with respect to this
conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
7. About April 28, 2009, the Respondent, by Ricardo
Soria, on the second floor of the Philips’ building, threat-
ened to call and report employees to immigration if the
Respondent hired the unit employees at the Philips’
building and they subsequently sought the representation
of the Union.
CONCLUSIONS OF LAW
1. By threatening to call and report employees to im-
migration if the Respondent hired the unit employees at
the Philips’ building and they subsequently sought the
representation of the Union, the Respondent has been
interfering with, restraining, and coercing 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 refusing to consider for hire, and failing and re-
fusing to hire, the above-named employees who were em-
ployed by United at the Phillips’ building, the Respondent
has been discriminating in regard to the hire or tenure or
terms or 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. By failing and refusing to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of the unit and by changing wage rates,
health and welfare and pension contributions, and other
benefits for its newly hired employees in the unit without
providing prior notice to the Union and without affording
the Union an opportunity to bargain with the Respondent
with respect to this conduct, the Respondent has been
failing and refusing to bargain collectively and in good
faith with the exclusive collective-bargaining representa-
tive of its employees within the meaning of Section 8(d)
of the Act in violation of Section 8(a)(5) and (1) of the
Act.
4. The Respondent’s unfair labor practices described
above affect commerce 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 unlawfully refused to hire or
to consider for hire the individuals named above, we
shall order the Respondent to offer to these employees
positions for which they would have been hired, absent
the Respondent’s unlawful discrimination, or, if those
positions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority and other rights
and privileges previously enjoyed, discharging if neces-
sary any employees hired in their place. The employees
listed above shall be made whole for any loss of earnings
they may have suffered due to the discrimination prac-
ticed against them. Backpay shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons for the Retarded, 283 NLRB 1187 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). The Respondent shall also
be required to expunge from its files any references to
the unlawful refusal to hire or consider for hire and to
notify the discriminatees in writing that this has been
done.
Further, having found that the Respondent unlawfully
refused to bargain collectively with the Union, we shall
order that the Respondent, on request, recognize and bar-
gain with the Union concerning wages, hours, benefits,
and other terms and conditions of employment, and if an
agreement is reached reduce the agreement to a signed
written contract. Additionally, the Respondent shall, on
request of the Union, rescind any departures from terms
of employment that existed before the Respondent’s
takeover and retroactively restore preexisting terms and
conditions of employment, including wage rates and con-
tributions to benefit funds, that would have been paid
absent the Respondent’s unlawful conduct, until the Re-
spondent negotiates in good faith with the Union to
agreement or to impasse. New Concept Solutions LLC,
349 NLRB 1136, 1161 (2007). Backpay shall be com-
puted as in Ogle Protection Service, 183 NLRB 602
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest
as prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra.
The Respondent shall also remit all payments it owes to
employee benefit funds in the manner set forth in Mer-
ryweather Optical Co., 240 NLRB 1213 (1979), and re-
imburse its employees for any expenses resulting from
the Respondent’s failure to make such payments as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra.3
The Respondent’s backpay liability for both its unlaw-
ful discrimination in hiring and its unlawful unilateral
changes in employees’ preexisting terms and conditions
3 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Respondent’s owed
contributions, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.

ACE GREEN, LLC 757
of employment shall be subject to the Respondent’s
demonstrating in a compliance hearing that, had it law-
fully bargained with the Union, it would have, at some
identifiable time, lawfully imposed or reached agreement
on less favorable terms than those that existed prior to its
commencing operations at the Philips’ building. See
Planned Building Services, 347 NLRB 670, 676 fn. 25
(2006).4
ORDER
The National Labor Relations Board orders that the
Respondent, Ace Green, LLC, Norwalk, Connecticut,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to call and report employees to immi-
gration if they are hired and subsequently seek union
representation.
(b) Refusing to consider for hire or to hire bargaining-
unit employees of United Services of America (United),
the predecessor employer, because they were members of
and supported the Union, and to discourage employees
from engaging in these activities.
(c) Refusing to recognize and bargain in good faith
with Service Employees International Union, Local 32BJ
as the exclusive collective-bargaining representative of
its employees in the following appropriate unit:

All service employees employed by the Respondent at
the Philips’ Electronics North America Corporation
building located at 345 Scarborough Road, Briarcliff
Manor, New York.

(d) Unilaterally changing wages, hours, and other
terms and conditions of employment of the employees in
the above-described unit without first giving notice to
and bargaining with the Union about these changes.
(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) Notify the Union in writing that it recognizes the
Union as the exclusive representative of its unit employ-
ees under Section 9(a) of the Act and that it will bargain
with the Union concerning terms and conditions of em-
ployment for employees in the above-described appro-
priate unit.
4 In the context of a default judgment proceeding, Member Hayes
agrees to apply extant remedial precedent for unlawful successorship
avoidance. He therefore does not pass on the validity of the Love’s
Barbecue doctrine underlying this remedy (Love’s Barbecue Restau-
rant No. 62, 245 NLRB 78, 82 (1979), enfd. in part 640 F.2d 1094 (9th
Cir. 1981) ) or the burden of proof and duration of bargaining discussed
in Planned Building Services, supra at 676.
(b) Recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the
above-described appropriate unit concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(c) On request of the Union, rescind any departures
from terms and conditions of employment that existed
immediately prior to the Respondent’s takeover of pre-
decessor United’s operation, retroactively restoring
preexisting terms and conditions of employment, includ-
ing wage rates and welfare and pension contributions,
and other benefits, until it negotiates in good faith with
the Union to agreement or to impasse.
(d) Make whole, in the manner set forth in the remedy
section of this decision, the unit employees for losses
caused by the Respondent’s failure to apply the terms
and conditions of employment that existed immediately
prior to its takeover of predecessor United’s operation.
(e) Within 14 days of the date of this Order, offer em-
ployment to the following named former unit employees
of the predecessor, United, who would have been em-
ployed by the Respondent but for the unlawful discrimi-
nation against them, in their former positions or, if such
positions no longer exist, in substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, discharging if
necessary any employees hired in their place.

John Mejia Argenis Lozano
Claudia Paola Ansalas Irma Murcia
Rosa Sari Edgar Maita

(f) Make the employees referred to in paragraph 2(e)
whole for any loss of earnings and other benefits they
may have suffered by reason of the Respondent’s unlaw-
ful refusal to hire them, in the manner set forth in the
remedy section of the decision.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
the employees named in the paragraph 2(e) and, within 3
days thereafter, notify them in writing that this has been
done and that the refusal to hire them will not be used
against them in any way.
(h) 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, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
(i) Within 14 days after service by the Region, post at
its Briarcliff Manor, New York facility copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, 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.6 Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respond-
ent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since April 28, 2009.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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.

5 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.”
6 We have provided for the posting of the notice in accord with J.
Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his
dissenting opinion in J. Picini Flooring, Member Hayes would not
require electronic distribution of the notice.
WE WILL NOT threaten to call and report employees to
immigration if they are hired and subsequently seek un-
ion representation.
WE WILL NOT refuse to consider for hire or to hire bar-
gaining-unit employees of United Services of America
(United), the predecessor employer, because they were
members of and supported the Union, and to discourage
employees from engaging in these activities.
WE WILL NOT refuse to recognize and bargain in good
faith with the Union as the exclusive collective-
bargaining representative of its employees in the follow-
ing appropriate unit:

All service employees employed by the Respondent at
the Philips’ Electronics North America Corporation
building located at 345 Scarborough Road, Briarcliff
Manor, New York.

WE WILL NOT unilaterally change wages, hours, and
other terms and conditions of employment of the em-
ployees in the above-described unit without first giving
notice to and bargaining with the Union about these
changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL notify the Union in writing that we recognize
it as the exclusive representative of its unit employees
under Section 9(a) of the Act and that we will bargain
with it concerning terms and conditions of employment
for employees in the above-described appropriate unit.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of the employees in
the above-described appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
WE WILL, on request of the Union, rescind any depar-
tures from terms and conditions of employment that ex-
isted immediately prior to our takeover of predecessor
United’s operation, retroactively restoring preexisting
terms and conditions of employment, including wage
rates and benefit plans, until we negotiate in good faith
with the Union to agreement or to impasse.
WE WILL make whole the unit employees for losses
caused by our failure to apply the terms and conditions of
employment that existed immediately prior to our takeo-
ver of predecessor United’s operation, subject to our
demonstrating in a compliance hearing that, had we law-
fully bargained with the Union, we would have, at some
identifiable time, lawfully imposed less favorable terms
than those that had existed under our predecessor.

ACE GREEN, LLC 759
WE WILL within 14 days of the date of this Order, offer
employment to the following named former unit employ-
ees of the predecessor, United, who would have been
employed by us but for the unlawful discrimination
against them, in their former positions or, if such posi-
tions no longer exist, in substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, discharging if
necessary any employees hired in their place.

John Mejia Argenis Lozano
Claudia Paola Ansalas Irma Murcia
Rosa Sari Edgar Maita

WE WILL make the above-named employees referred
whole for any loss of earnings and other benefits they
may have suffered by reason of our unlawful refusal to
hire them, less any net interim earnings, plus interest,
subject to our demonstrating in a compliance hearing
that, had we lawfully bargained with the Union, we
would have, at some identifiable time, lawfully imposed
less favorable terms than those that had existed under our
predecessor.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to hire the above-named employees and WE
WILL, within 3 days thereafter, notify them in writing that
we have done so and that the refusal to hire them will not
be used against them in any way.

ACE GREEN, LLC