B&G Building Maintenance

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 17 (N.L.R.B. 2001)

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.
B&G Building Maintenance, Inc. and Service Em­
ployees International Union, Local 82, AFL–
CIO . Case 5–CA–29225
September 28, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND WALSH
Upon a charge filed by the Union on September 8,
2000, the General Counsel of the National Labor Rela ­
tions Board issued a complaint on October 25, 2000,
against B&G Building Maintenance, Inc., the Respon­
dent, alleging that it has violated Section 8(a)(1) and (3)
of the National Labor Relations Act. On February 20,
2001, the Respondent filed an answer admitting in part
and denying in part the allegations in the complaint.
Thereafter, on March 2, 2001, the Respondent entered
into an informal settlement agreement, which was ap­
proved by the Regional Director on March 22, 2001.
The settlement agreement provided, in pertinent part, that
the Respondent would make four scheduled payments of
$7000 each on March 30, April 30, May 31, and June 30,
2001, to be distributed to the eight discriminatees. The
settlement agreement further provided as follows:
In consideration of the Regional Director approving
this Settlement Agreement, Respondent agrees that, in
the event that Respondent, for any reason other than a
bona fide economic reason, lays off any of the dis­
criminatees named above at any time during the one
year following the approval of this Settlement Agree­
ment by the Regional Director, or in the event of any
non-compliance to make required payments on the
dates specified, or to cure any such failure within 14
days of the specified payment date, the total amount of
backpay plus interest, shall become immediately due
and payable. Respondent agrees after 14 days notice
from the Regional Director of the National Labor Rela­
tions Board, on motion for summary judgment by the
General Counsel, Respondent’s answer to the instant
Complaint shall be considered withdrawn. Thereupon,
the Board may issue an order requiring Respondent to
show cause why said Motion of the Ge neral Counsel
should not be granted. The Board may, without neces­
sity of trial, find all allegations of the Complaint to be
true, and make findings of fact and conclusions of law
consistent with those allegations adverse to respondent
on all issues raised by the pleadings. The Board may
then issue an Order providing full remedy as specified
in the Complaint. The parties further agreed that a
Board Order and U.S. Court of Appeals Judgment may
be entered thereon ex parte.
By letter dated April 5, 2001, the Respondent was ad-
vised of the approval of the settlement agreement. The
Respondent was further advised that the first of four
scheduled payments to be sent to the Regional Office to
satisfy its backpay obligation, which it agreed to send no
later than March 30, 2001, was already past due. The
letter further advised the Respondent that to cure its fail­
ure to make the first scheduled payment, the payment
should be received by the Regional Office by no later
than April 11, 2001, and that failure to make the payment
by this date would result in a recommendation to the Re­
gional Director to find that the settlement agreement had
been breached and that further action be taken.
As of April 18, 2001, no payments had been made to
either the Regional Office or directly to the discrimina­
tees. By letter of the same date, the Respondent was
advised that it had breached its obligations under the
settlement agreement by failing to make its first sched­
uled payment. The letter further advised the Respondent
that pursuant to the settlement agreement, the Respon­
dent was being given notice that a Motion for Summary
Judgment would be filed 14 days from the date of the
letter upon failure to make the scheduled payment or
upon any unlawful layoff of the discriminatees.
The Respondent offered reinstatement to all eight dis­
criminatees in March 2001. However, it did not offer
positions substantially equivalent to the eight discrimina­
tees’ former positions. Three of the discriminatees, Ciro
Fuentes, Mabel Aparicio, and Idalia Hernandez, did not
return to work for the Respondent. The Respondent laid
off discriminatees Clara Cruz, Adelia Damas, and Maria
Gonzalez on May 10, 2001.
Since about April 23, 2001, the Respondent made two
direct payments to five of the discriminatees: Clara Cruz,
Adelia Damas, Lidia Flores, Maria Gonzalez, and Julian
Turcios. These discriminatees each received the pro rata
share, or one-eighth, of the $7000 due in the first and
second payments. However, no payment was made to
the other three discriminatees, Ciro Fuentes, Mabel
Aparicio, and Idalia Hernandez.
By letter dated April 25, 2001, in response to the
Board agent’s April 18, 2001 letter notifying the Re­
spondent of its obligation to make payments to these
three discriminatees, the Respondent advised th e Re­
gional Office that it would make payment only to those
discriminatees “deemed as deserving of the payment.”
As of the date the Motion for Summary Judgment was
filed, discriminatees Ciro Fuentes, Mabel Aparicio, and
336 NLRB No. 17
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Idalia Hernandez had received no backpay payment from
the Respondent, nor had any payment been sent to the
Regional Office for these three discriminatees. Further,
no payments other than those set forth above had been
made to any of the discriminatees. The Respondent has
thereby breached the March 22, 2001 settlement agree­
ment.
On July 23, 2001, the General Counsel filed a Motion
for Summary Judgment with the Board. On July 25,
2001, the Board issued an order transferring the proceed­
ing to the Board and a Notice to Show Cause why the
motion should not be granted. 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 Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted.
According to the uncontroverted allegations in the Mo­
tion for Summary Judgment, although the Respondent
initially submitted an answer to the complaint, it subse­
quently entered into a settlement agreement, which pro­
vided for the withdrawal of the answer in the event of
noncompliance with the settlement agreement, and such
noncompliance has occurred. We therefore find that the
Respondent’s answer has been withdrawn by the terms of
the March 22, 2001 settlement agreement, and that, as
further provided in that settlement agreement, all the
allegations of the complaint are true. 1
Accordingly, we grant the 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 District of Co­
lumbia corporation with an office and place of business
in Silver Spring, Maryland, has been engaged in the
business of providing building maintenance and janitorial
services to a variety of public and private entities, includ­
ing the Walter Reed Medical Center (WRMC), located in
the District of Columbia. During the 12-month period
preceding issuance of the complaint, the Respondent, in
1 See U-Bee, Ltd., 315 NLRB 667 (1994).
conducting its business operations, performed services
valued in excess of $50,000 at the WRMC, a facility of
the United States government, pursuant to a contract with
the United States government, and purchased and re­
ceived at its WRMC location goods and materials valued
in excess of $5000 directly from points outside the Dis­
trict of Columbia. 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:
Kamili Miller Manager, Human Resources
Rita Muentes Project Manager
On or about May 24, 2000, the Respondent, by Rita
Muentes on level G, in the WRMC:
(a) threatened its employees with discharge and told
them the Union did not represent them;
(b) informed its employees it would be futile for them
to select the Union as their bargaining representative, by
telling them that the Respondent would not accept or
bargain with the Union; and
(c) told its employees that they had betrayed the Re­
spondent by engaging in union activities and thus she
could not forgive them.
On or about May 24, 2000, the Respondent, by Kamili
Miller in a laboratory on level G, at the WRMC:
(a) solicited employees’ complaints and grievances,
thereby promising its employees increased benefits and
improved terms and conditions of employment if they
refrained from union organizing activity;
(b) told its employees they could not wear union but-
tons and threatened them with discharge if they did;
(c) told its employees they could no longer leave the
premises at lunchtime; and
(d) informed its employees it would be futile for them
to select the Union as their bargaining representative.
On or about May 26, 2000, the Respondent, by oral
announcements by Kamili Miller, promulgated and, since
then, has maintained, the following rule: Employees may
not wear union buttons at work. The Respondent prom­
ulgated this rule to discourage its employees from joining
the Union or engaging in other concerted activities.
B&G BUILDING MAINTENANCE 3
On or about May 26, 2000, the Respondent, by Kamili
Miller, reduced the lunch hours of the following employ­
ees: Mabel Aparicio, Clara Cruz, Argelia Damas, Lidia
Flores, Ciro Fuentes, Maria Gonzales, Idalia Hernandez,
Julian Turcios, and Bernardo Ventura. The Respondent
engaged in this conduct because these employees formed,
joined, and/or assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in
these activities.
On or about June 1, 2000, the Respondent terminated
the following employees: Mabel Aparicio, Clara Cruz,
Argelia Damas, Lidia Flores, Ciro Fuentes, Maria Gonza­
les, Idalia Hernandez, Julian Turcios, and Bernardo Ve n­
tura. The Respondent engaged in this conduct because
these employees formed, joined, and/or assisted the Union
and engaged in concerted activities, and to discourage
employees from engaging in these activities.
On or about August 18, 2000, the Respondent offered
the employees named above reinstatement to employment.
However, about August 30, 2000, before any employees
resumed employment with the Respondent pursuant to the
offer of August 18, 2000, the Respondent laid off the em­
ployees.
The Respondent engaged in the conduct described
above because these employees formed, joined, and/or
assisted the Union and engaged in concerted activities, and
to discourage employees from engaging in these activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon­
dent has been interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in Sec­
tion 7 of the Act and has been discriminating in regard to
the hire or tenure, or terms or conditions of employment of
its employees, thereby discouraging membership in the
labor organization in violation of Section 8(a)(1) and (3)
of the Act. The unfair labor practices of the Respondent
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 has violated Section 8(a)(3) and
(1) by terminating, and, prior to their return to work upon
reinstatement, laying off employees Mabel Aparicio, Clara
Cruz, Argelia Damas, Lidia Flores, Ciro Fuentes, Maria
Gonzales, Idalia Hernandez, Julian Turcios, and Bernardo
Ventura, we shall order the Respondent to offer these em­
ployees full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, and to make them whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New Ho­
rizons for the Retarded, 283 NLRB 1173 (1987).2 The
Respondent shall also be required to expunge from its files
any and all references to the unlawful discharges and lay­
offs, and to notify the employees in writing that this has
been done.
We shall also order the Respondent to restore the lunch
hours of the employees named above and make them
whole for any loss of earnings attributable to its unlawful
conduct. Backpay shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons, supra.
ORDER
The National Labor Relations Board orders that the Re­
spondent, B&G Building Maintenance, Inc., Silver Spring,
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening its employees with discharge and telling
them the Union did not represent them.
(b) Informing its employees it would be futile for them
to select the Union as their bargaining representative, by
telling them the Respondent would not accept or bargain
with the Union.
(c) Telling its employees that they had betrayed the Re­
spondent by engaging in union activities and that it could
not forgive them.
(d) Soliciting employees’ complaints and grievances,
thereby promising its employees increased benefits and
improved terms and conditions of employment if they
refrained from union organizing activity.
(e) Telling its employees they could not wear union but-
tons and threatening them with discharge if they did.
(f) Telling its employees they could no longer leave the
premises at lunchtime.
(g) Informing its employees it would be futile for them
to select the Union as their bargaining representative.
(h) Promulgating and maintaining the following rule:
Employees may not wear union buttons at work.
(i) Reducing the lunch hours of employees because of
their union activities.
2 Any backpay moneys already paid by the Respondent to the dis­
criminatees shall be credited toward the Respondent’s backpay obliga­
tion. The validity of the Respondent’s offers of reinstatement and the
reinstatements themselves shall be left for determination in a later
compliance proceeding, if necessary.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(j) Terminating and, after making a reinstatement offer,
laying off employees because of their union activities.
(k) 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 ef­
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Mabel Aparicio, Clara Cruz, Argelia Damas, Lidia Flores,
Ciro Fuentes, Maria Gonzales, Idalia Hernandez, Julian
Turcios, and Bernardo Ventura full reinstatement to their
former jobs or, if those jobs no longer exist, to substan­
tially equivalent positions, without prejudice to their sen­
iority or any other rights or privileges previously enjoyed.
(b) Make Mabel Aparicio, Clara Cruz, Argelia Damas,
Lidia Flores, Ciro Fuentes, Maria Gonzales, Idalia Her­
nandez, Julian Turcios, and Bernardo Ve ntura whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them, with interest, in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, expunge
from its files any and all references to the unlawful dis­
charges and layoffs of Mabel Aparicio, Clara Cruz, Arge­
lia Damas, Lidia Flores, Ciro Fuentes, Maria Gonzales,
Idalia Hernandez, Julian Turcios, and Bernardo Ventura,
and, within 3 days thereafter, notify them in writing that
this has been done and that the discharges and layoffs will
not be used against them in any way.
(d) Restore the lunch hours of the employees named
above and make them whole for any loss of earnings at­
tributable to its unlawful conduct.
(e) 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 an electronic
copy of such records if stored in electronic form, necessary
to analyze the amount of backpay due under the terms of
this Order.
(f) Within 14 days after service by the Region, post at its
facility in Silver Spring, Maryland, copies of the attached
notice marked “Appendix.” 3 Copies of the notice, on
forms provided by the Regional Director for Region 5,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
3 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.”
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent 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 current employees and former employees em­
ployed by the Respondent at any time since May 24, 2000.
(g) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi­
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. September 28, 2001
Wilma B. Liebman, Member
John C. Truesdale, Member
Dennis P. Walsh, 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
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.
WE WILL NOT threaten our employees with discharge
and tell them the Union does not repres ent them.
WE WILL NOT inform our employees it would be futile
for them to select the Union as their bargaining representa­
tive, by telling them we will not accept or bargain with the
Union.
WE WILL NOT tell our employees that they have betrayed
us by engaging in union activities and that we cannot for-
give them.
WE WILL NOT solicit employees’ complaints and griev­
ances, thereby promising our employees increased bene­
fits and improved terms and conditions of employment if
they refrain from union organizing activity.
B&G BUILDING MAINTENANCE 5
WE WILL NOT tell our employees they cannot wear un­
ion buttons and threaten them with discharge if they do.
WE WILL NOT tell our employees they can no longer
leave the premises at lunchtime.
WE WILL NOT inform our employees it would be futile
for them to select the Union as their bargaining
representative.
WE WILL NOT promulgate and maintain the following
rule: Employees may not wear union buttons at work.
WE WILL NOT reduce the lunch hours of our employees
because of their union activities.
WE WILL NOT terminate or, after a reinstatement offer,
lay off employees because they formed, joined, and/or
assisted the Union and engaged in concerted activities
and to discourage employees from engaging in these ac­
tivities.
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, within 14 days from the date of the Board’s
Order, offer Mabel Aparicio, Clara Cruz, Argelia Damas,
Lidia Flores, Ciro Fuentes, Maria Gonzales, Idalia Her­
nandez, Julian Turcios, and Bernardo Ventura full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi­
leges previously enjoyed.
WE WILL make Mabel Aparicio, Clara Cruz, Argelia
Damas, Lidia Flores, Ciro Fuentes, Maria Gonzales, Ida­
lia Hernandez, Julian Turcios, and Bernardo Ventura
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, with inter­
est.
WE WILL, within 14 days from the date of the Board’s
Order, expunge from our files any and all references to
the unlawful discharge and layoffs of Mabel Aparicio,
Clara Cruz, Argelia Damas, Lidia Flores, Ciro Fuentes,
Maria Gonzales, Idalia Hernandez, Julian Turcios, and
Bernardo Ventura, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
the discharge and layoffs will not be used against them in
any way.
WE WILL restore the lunch hours of the employees
named above, and WE WILL make them whole for any loss
of earnings attributable to our unlawful conduct, with
interest.
B&G BUILDING MAINTENANCE, INC.