ABLE Building Maintenance

National Labor Relations Board - Board Decisions

Apr 20, 2018

366 NLRB No. 68 (N.L.R.B. 2018)

366 NLRB No. 68
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.
Able Building Maintenance and Service Employees
International Union, Local 105. Case 27–CA–
168632
April 20, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. For the reasons explained below, we grant
the General Counsel’s motion in part.
The Respondent provides maintenance services to var-
ious commercial office buildings in Denver, Colorado,
and has been party to a collective-bargaining agreement
with Service Employees International Union, Local 105
(the Union) since at least 2012. In July 2015, the Union
requested to conduct a payroll review of the Respond-
ent’s union and nonunion employees in the Denver met-
ropolitan area, as permitted by the parties’ collective-
bargaining agreement. Following its usual practice, the
Union intended to perform an “initial review” based on a
sampling of employees; if that review showed a suffi-
cient number of errors, the Union would proceed to a full
review. The Respondent agreed and provided the Union
with an assortment of payroll records.
The initial review uncovered a number of errors and
issues related to wages, overtime, and dues deduction.
Accordingly, on October 16, 2015, the Union informed
the Respondent that it intended to proceed with the full
review. To that end, the Union requested that the Re-
spondent furnish or allow the Union access to the follow-
ing information, from September 2014 onward: (a) full
payroll reports that include, for all employees, name,
unique identifier, job title, union membership status,
wage rate, hours worked, location(s) worked, overtime
rate, overtime worked, hire date, and dues paid; and (b)
building lists of all union and nonunion buildings in the
Denver metropolitan area, as designated by the parties’
collective-bargaining agreement, with reports of addi-
tions and losses of buildings within the same period, and
addresses for all buildings.
In November 2015, at the Respondent’s request, the
Union provided documents showing the errors and issues
uncovered by the initial review. Thereafter, the Union
received no further response. Accordingly, on January
28, 2016, the Union filed an unfair labor practice charge
alleging that the Respondent had violated Section 8(a)(5)
and (1) of the Act by failing to provide the information
described above, which was relevant and necessary to the
Union’s fulfillment of its collective-bargaining duties.
On June 29, 2016, the Regional Director for Region 27
approved an informal settlement agreement between the
parties (the Agreement), pursuant to which the Respond-
ent agreed to furnish the Union with the requested infor-
mation and to post a Notice to Employees. The Agree-
ment also contained the following provision:
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 La-
bor 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 well as fil-
ing and service of the charge(s), commerce facts neces-
sary to establish Board jurisdiction, labor organization
status, appropriate bargaining unit (if applicable), and
any other allegations the General Counsel would ordi-
narily plead to establish the unfair labor practices.
Thereafter, the General Counsel may file a Motion for
Default Judgment with the Board on the allegations of
the Complaint. The Charged Party understands and
agrees that all of the allegations of the Complaint will
be deemed admitted and that it will have waived its
right to file an Answer to such Complaint. The only is-
sue that the Charged Party may raise before the Board
will be whether it defaulted on the terms of this Settle-
ment Agreement. The General 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, without necessity 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 allegations 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 appropriate to
remedy such violations. The parties further agree that a
U.S. Court of Appeals Judgment may be entered en-
forcing the Board Order ex parte, after service or at-
tempted service upon Charged Party at the last address
provided to the General Counsel.
As set forth in the General Counsel’s Motion for De-
fault Judgment, the Respondent fully complied with the
Agreement’s notice-posting requirement. The Respond-
ent also provided some information to the Union, but
none of it was responsive to the Union’s request. Specif-
ically, in July 2016 the Respondent started providing
monthly dues reports, as required by the parties’ recently
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
renewed collective-bargaining agreement, and in August
the Respondent furnished then-current lists of employees
and of union and nonunion buildings. Those materials,
however, did not cover the requested period (September
2014 to October 16, 2015) and thus did not satisfy the
Union’s request. Moreover, the dues reports did not con-
tain sufficient information to determine whether the Re-
spondent was paying the correct wages.
On September 14, 2016, the General Counsel issued a
Complaint Based on Breach of Affirmative Provisions of
Settlement Agreement, which alleged that the Respond-
ent had violated Section 8(a)(5) and (1) of the Act by
failing and refusing to provide the requested information
to the Union. Thereafter, on December 5, 2016, the
General Counsel filed the present Motion to Transfer
Case to the Board and for Default Judgment. On De-
cember 6, 2016, the Board issued an Order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed an opposition to the General Counsel’s motion, and
the General Counsel filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
In its opposition dated December 20, 2016, the Re-
spondent contends that, on that same day, it provided the
Union with a list of union and nonunion buildings and
payroll reports, all for the time period from September
2014 to October 2015. The Respondent submits that it
has thus fully complied with the Agreement, and that the
General Counsel’s motion for default judgment is moot.
In a response dated January 19, 2017, the General
Counsel acknowledges that the Respondent’s list of un-
ion and nonunion buildings satisfies the relevant portion
of the Union’s information request. By contrast, the
General Counsel asserts that what the Respondent de-
scribes as “payroll reports” is actually a large, company-
prepared spreadsheet that does not include any actual
payroll records (e.g., an employee list, copies of actual
pay stubs, and other records extracted from the Respond-
ent’s payroll system) such as were provided when the
Union conducted its initial review, and which the Union
logically expected to receive for the full review. The
General Counsel contends that the Respondent’s spread-
sheet is deficient in several ways. First, the lack of
source documents means there is no way for the Union to
substantiate the quality of the information provided.
Second, and for the same reason, the Union cannot eval-
uate whether the spreadsheet information is complete.
And third, the information is protected in a way that pre-
vents the Union from searching, sorting, or manipulating
the 188-page document as necessary to complete the pay-
roll-review process. The General Counsel also notes that
the spreadsheet does not include any information regard-
ing employees’ work locations, which was part of the
Union’s request.
Under the parties’ Agreement, the only issue the Re-
spondent may raise in this proceeding is “whether it de-
faulted on the terms of this Settlement Agreement.” Alt-
hough the Respondent claims to have fully complied
with that Agreement, we find that the General Counsel
has shown that the information the Respondent provided
does not satisfy the Union’s request. Indeed, with re-
spect to the requested payroll records, the Respondent
itself has not disputed any of the deficiencies identified
by the General Counsel. We observe, moreover, that the
Respondent plainly was aware of the types of documents
required for a full payroll review, as the Respondent had
provided those source materials for the Union’s initial
review. Accordingly, in light of the General Counsel’s
undisputed assertion that the Respondent has not provid-
ed all of the requested payroll records information and
thus has not fully complied with the terms of the Agree-
ment, we find that the Respondent has failed to raise any
material issue of fact warranting a hearing.1
Accordingly, we grant the General Counsel’s Motion
for Default Judgment and find, pursuant to the noncom-
pliance provisions of the Agreement set forth above, that
the Respondent violated Section 8(a)(5) and (1) of the
Act by failing to furnish or allow the Union access to full
payroll reports that include, for all employees, name,
unique identifier, job title, union membership status,
wage rate, hours worked, location(s) worked, overtime
rate, overtime worked, hire date, and dues paid.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
corporation with a principal office and place of business
in Englewood, Colorado, has been engaged in the busi-
ness of providing maintenance services to a variety of
businesses, including high-rise office buildings, banks,
universities, and other facilities. During the calendar

1 See, e.g., Bristol Manor Health Care Center, 360 NLRB 38, 39
(2013) (granting default judgment upon finding that respondent failed
to refute specific allegations—made in reply to respondent’s response
to the Board’s notice to show cause—that respondent breached settle-
ment agreement because much of the information covered by the
agreement remained outstanding despite last-minute submissions).
2 The Agreement stipulates that, in case of breach by the Respond-
ent, “[t]he Board may . . . find all allegations of the Complaint to be
true.” However, the General Counsel does not dispute that the Re-
spondent satisfied the Union’s request for a list of union and nonunion
buildings. Therefore, with the exception of that particular item, we find
all the remaining complaint allegations to be true.
ABLE BUILDING MAINTENANCE 3
year preceding the complaint, the Respondent, in con-
ducting its business operations described above, pur-
chased and received at its Englewood facility goods val-
ued in excess of $50,000 directly from points outside the
State of Colorado. 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:
Dan Jaster - Operations Manager
Viviana Mendoza - Human Resources Representa-
tive
The following employees of the Respondent (the Unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All employees working in buildings of more than
50,000 square feet in the following counties: Adams,
Arapahoe, Boulder, Broomfield, Denver, Jefferson and
Douglas; excluding clerical employees, management
employees, sales personnel, guards, and supervisors as
defined in the National Labor Relations Act.
Since at least July 1, 2012, and at all material times,
the Respondent has recognized the Union as the exclu-
sive collective-bargaining representative of the Unit.
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which
was effective from July 1, 2012 through July 2, 2016.3
At all times since at least July 1, 2012, the Union has
been the exclusive collective-bargaining representative of
the Unit based on Section 9(a) of the Act.
Since about October 16, 2015, the Union has requested
that the Respondent furnish or allow the Union access to
the following information:
(a) Full payroll reports that include, for all employees,
name, unique identifier, job title, union membership
status, wage rate, hours worked, location(s) worked,

3 Although not alleged in the Complaint, an affidavit submitted by
the Union’s financial specialist states that the parties have entered into
a successor collective-bargaining agreement, effective from July 2,
2016, until July 5, 2020. (Sanchez Aff. 1 ¶ 3.)
overtime rate, overtime worked, hire date, and dues
paid; and
(b) Building lists of all union and nonunion buildings
in the Denver metropolitan area, as designated by the
parties’ collective-bargaining agreement, with reports
of additions and losses of buildings within the same pe-
riod, and addresses for all buildings.
The requested information is necessary for, and rele-
vant to, the Union’s performance of its function as the
exclusive collective-bargaining representative of em-
ployees in the Unit.
Since about October 16, 2015, the Respondent has
failed and refused to provide the Union with the infor-
mation requested by it as described above in paragraph
(a).4
CONCLUSIONS OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees in violation of Section 8(a)(5)
and (1) of the Act. The Respondent’s unfair labor prac-
tices described above affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to take certain
affirmative action designed to effectuate the policies of
the Act. Specifically, we shall order the Respondent to
comply with the unmet terms of the settlement agreement
approved by the Regional Director for Region 27 on June
29, 2016, by furnishing or allowing the Union access to
full payroll reports that include, for all employees, name,
unique identifier, job title, union membership status,
wage rate, hours worked, location(s) worked, overtime
rate, overtime worked, hire date, and dues paid, from
September 2014 until October 16, 2015.
In limiting our affirmative remedies to those enumer-
ated above, we are mindful that the General Counsel is
empowered under the default provision of the settlement
agreement to seek “a full remedy for each unfair labor
practice identified in the Notice to Employees.” Howev-
er, the General Counsel’s Motion for Default Judgment
does not seek such additional remedies and we will not
include them sua sponte.5

4 The information described in paragraph (b) was provided to the
Union on December 20, 2016. See fn. 2, supra.
5 See, e.g., Benchmark Mechanical, Inc., 348 NLRB 576 (2006).
The General Counsel’s Motion for Default Judgment specifically re-
quests that the Board issue an order “requiring Respondent to comply
with the unmet terms of the Settlement Agreement.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The National Labor Relations Board orders that the
Respondent, Able Building Maintenance, Englewood,
Colorado, its officers, agents, successors, and assigns,
shall take the following affirmative actions necessary to
effectuate the policies of the Act.
1. Furnish or allow the Union access in a timely man-
ner to the information it requested on or about October
16, 2015, and which the Respondent has not already pro-
vided, specifically, full payroll reports that include, for
all employees, name, unique identifier, job title, union
membership status, wage rate, hours worked, location(s)
worked, overtime rate, overtime worked, hire date, and
dues paid, from September 2014 until October 16, 2015.
2. Within 21 days after service by the Region, file
with the Regional Director for Region 27 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. April 20, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD