Bartlett Heating & Air Conditioning

National Labor Relations Board - Board Decisions

Aug 20, 2003

339 N.L.R.B. 1044 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1044
Bartlett Heating & Air Conditioning, Inc., and
Robert Bartlett, Inc., successors, alter egos,
and/or single employer and Michael Bauer. Case
13–CA–39134
August 20, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The General Counsel seeks summary judgment in this
case pursuant to the terms of a settlement agreement.
Upon charges and amended charges filed by Michael
Bauer on February 8, April 4, and June 28, 2001, the
General Counsel issued the first amended complaint on
July 16, 2001, against the Respondents, Bartlett Heating
& Air Conditioning, Inc. (Bartlett Heating), and Robert
Bartlett, Inc. (Robert Bartlett), successors, alter egos,
and/or single employer. The complaint alleges that the
Respondents violated Section 8(a)(1) and (3) of the Act
by laying off and/or discharging, and refusing to rein-
state, employees Michael Bauer and Robert Wailley be-
cause they assisted Sheet Metal Workers’ International
Union, Local Union 73 (the Union), and engaged in con-
certed activities. The Respondents each filed an answer
to the complaint.
On October 4 and 10, 2001, respectively, Respondents
Robert Bartlett and Bartlett Heating entered into a set-
tlement agreement (agreement), which was approved by
the Regional Director for Region 13 on October 12,
2001. Under the terms of the agreement, the Regional
Director’s approval constituted withdrawal of the com-
plaint and the Respondents’ answers to the complaint.
The agreement required the Respondents to (1) make
Bauer whole by paying him backpay in the amount of
$21,054.08 and make Wailley whole by paying him
backpay in the amount of $945,92; and (2) post a notice
to employees regarding the complaint allegations. The
agreement also contains the following provisions:

The Charged Parties agree that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Parties, including but not
limited to, failure to make timely installment payments
of monies as set forth below, and after 15 days notice
from the Regional Director of the National Labor Rela-
tions Board, on motion for summary judgment by the
General Counsel, the Answers of the Charged Parties
shall be considered withdrawn. Thereupon, the Board
shall issue an Order requiring the Charged Parties to
Show Cause why said Motion of the General Counsel
shall not be Granted. The Board may then, without ne-
cessity 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 the
Charged Parties, on all issues raised by the pleadings.
The Board may then issue an Order providing full liq-
uidated remedy in the amount of $22,000, less any
amounts already paid by the Charged Parties, for the
violations found as is customary to remedy such viola-
tions, including but not limited to the provisions of this
Settlement Agreement. The parties further agree that a
Board Order and a U.S. Court of Appeals Judgment
may be entered hereon ex parte.

A) The Charged Parties will make whole Wailley in the
gross amount of $945.92 under the following terms:

On October 22, 2001, the Charged Parties will
submit to the National Labor Relations Board Thir-
teenth Regional Office the gross amount of $945.92
less taxes payable to Wailley.

B) The Charged Parties will make whole Bauer in the
gross amount of $21,054.08 under the following pay-
ment schedule:

On October 22, 2001, the Charged Parties will
submit to the National Labor Relations Board Thir-
teenth Regional Office the gross amount of
$1,054.08 less taxes payable to Bauer. Thereafter,
the Charged Parties will submit to Region 13 the
gross amount of $1,000.00 less taxes payable to
Bauer on a weekly basis each Monday beginning on
October 29, 2001 and continuing through and
including March 11, 2002.

By letter dated October 26, 2001, the compliance offi-
cer for Region 13 advised the Respondents that they
were in default of the settlement agreement because they
had failed to post a notice required by the agreement and
had failed to remit payments due under the agreement.
The letter further advised the Respondents that, if they
did not cure their default within 15 days, the compliance
officer would recommend that the Region immediately
seek the full amounts due Bauer and Wailley. The Re-
spondents did not comply.1
By letter dated December 12, 2001, the compliance of-
ficer once again advised the Respondents that they were
1 There apparently was an error in the notices provided to the Re-
spondents because, by letter dated November 5, 2001, the compliance
officer provided the Respondents with corrected notices. In addition,
the compliance officer reminded the Respondents of their obligation to
cure their default, giving them until November 8, 2001. He also re-
peated his warning that, absent compliance, he would recommend
immediate action to obtain the full outstanding balance due under the
settlement, then $21,000. The Respondents still did not comply.
339 NLRB No. 131
BARTLETT HEATING & AIR CONDITIONING 1045
in default of the settlement agreement because they had
failed to post the required notice and to remit moneys
due under the agreement.2 The compliance officer pro-
vided the Respondents with an additional 15 days to
comply with the agreement and, once again, warned that
their failure to do so would lead to the Region setting
aside the agreement and immediately instituting proceed-
ings to collect the debt owed.
Having received no additional payments from the Re-
spondents, on February 25, 2002, the General Counsel
filed a Motion for Summary Judgment with the Board.
The General Counsel submits that the Respondents de-
faulted on the settlement agreement by failing to post a
required notice and make required payments, and that
their answers should therefore be considered withdrawn.
On February 27, 2002, 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. The Re-
spondents filed no response. The allegations in the mo-
tion 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, although the Respondents
initially filed answers to the complaint, they subse-
quently entered into a settlement agreement, which pro-
vided for withdrawal of the answers in the event of non-
compliance with the settlement agreement. The Respon-
dents have failed to comply with the settlement agree-
ment by refusing to post the required notice to employees
and to remit the agreed-on backpay amount by failing to
pay $17,891.84 for Bauer. Consequently, we find that
the Respondents’ answers have been withdrawn by the
terms of the settlement agreement, and that, pursuant to
the provisions of the settlement agreement set forth
above, we find that all the allegations of the complaint
are true.3
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, Bartlett Heating, a corporation,
with an office and place of business in Mount Prospect,
Illinois, has been engaged in the business of fabricating

2 The outstanding balance under the settlement was then $17,891.84,
all of which appears to have been due Bauer.
3 JAE Consulting & Development, 326 NLRB No. 40 (1998) (not re-
ported in Board volumes); U-Bee, Ltd., 315 NLRB 667 (1994).
and installing sheet metal products used in heating venti-
lation and air-conditioning. During the calendar year
preceding issuance of the complaint, a representative
period, Respondent Bartlett Heating, in conducting its
business described above, derived gross revenues in ex-
cess of $500,000, and has purchased and received goods
and services valued in excess of $50,000 directly from
points located outside the State of Illinois.
At all material times, Robert Bartlett, an Illinois corpo-
ration, with an office and place of business in Mount
Prospect, Illinois, has been engaged in the business of
fabricating and installing sheet metal products used in
heating ventilation and air-conditioning. Based on a pro-
jection of its operations since about June 2001, when it
commenced operating, Robert Bartlett, in conducting its
business, will derive gross revenues in excess of
$500,000, and will purchase and receive goods and ser-
vices valued in excess of $50,000 directly from points
located outside the State of Illinois.
We find that Respondents Bartlett Heating and Robert
Bartlett are employers 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.
On about June 5, 2001, Robert Bartlett purchased the
business of Bartlett Heating, and since then has contin-
ued to operate the business in a basically unchanged
form, and has employed as a majority of its employees
former employees of Bartlett Heating. We find that
Robert Bartlett has continued the employing entity and is
a successor to Bartlett Heating within the meaning of the
Act.
At all material times, the Respondents have been af-
filiated business enterprises with common officers, own-
ership, directors, management, and supervision; have
administered a common labor policy; have shared com-
mon premises and facilities; have provided services for
and made sales to each other; have interchanged person-
nel with each other; and have held themselves out to the
public as single-integrated business enterprises. We find
that Bartlett Heating and Robert Bartlett constitute a sin-
gle employer within the meaning of the Act.
On about June 5, 2001, Bartlett Heating established
Robert Bartlett as a disguised continuation of Bartlett
Heating. We find that Bartlett Heating and Robert Bart-
lett are alter egos within the meaning of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their names and have
been supervisors of the Respondents within the meaning
of Section 2(11) of the Act and agents of the Respon-
dents within the meaning of Section 2(13) of the Act:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1046

Robert Bartlett Owner, Bartlett Heating;
President, Robert Bartlett
Corinne Bartlett Owner, Robert Bartlett
Jim Bartlett President and CEO and
Owner, Bartlett Heating;
Supervisor/Manager,
Robert Bartlett
Albert Ferraresi Superintendent
Deborah Martin Office Manager

On about February 1, 2001, the Respondents, by Jim
Bartlett, laid off and/or discharged, and since about that
date have refused to reinstate, their employees Michael
Bauer and Robert Wailley. The Respondents engaged in
this conduct because Bauer and Wailley assisted the Un-
ion and engaged in concerted activities, and to discour-
age employees from engaging in these activities.
CONCLUSION OF LAW
By laying off and/or discharging employees Bauer and
Wailley, and refusing to reinstate them, because they
assisted the Union and engaged in concerted activities,
and to discourage employees from engaging in these ac-
tivities, the Respondents have been discriminating in
regard to the hire, tenure, or terms and conditions of em-
ployment of its employees, thereby discouraging mem-
bership in a labor organization. The Respondents have
thereby engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondents have violated
Section 8(a)(1) and (3) by laying off and/or discharging
Michael Bauer and Robert Wailley, we shall order the
Respondents to make them whole for loss of earnings
and other benefits suffered as a result of the unlawful
discrimination against them by paying them the liqui-
dated damages amount set forth in the noncompliance
portion of the settlement agreement. The General Coun-
sel’s motion states that there is an outstanding balance in
the amount of $17,891.94. Accordingly, we shall order
the Respondents immediately to remit this amount to the
Region for payment to the discriminatees.4

4 The General Counsel’s motion indicates that this entire amount
represents money owed to Bauer, and that the Respondents have satis-
fied their backpay obligation to Wailley. We will, however, leave to
Although the General Counsel’s motion alleges that
the Respondents have failed to comply with the notice-
posting requirement of the settlement agreement, we will
not require the Respondents to post a notice in view of
the terms of the settlement agreement. As described
above, the settlement agreement provided that in the
event of noncompliance, the Respondents would be obli-
gated to pay a “full liquidated remedy in the amount of
$22,000, less any amounts already paid by the Charged
Parties, for the violations found as is customary to rem-
edy such violations, including but not limited to the pro-
visions of this Settlement Agreement.” We find that this
language is ambiguous regarding what remedies would
be warranted to remedy the Respondents’ violations in
the event of noncompliance. In the absence of clear and
unambiguous language in the settlement agreement that,
in the event of their noncompliance, the Respondents
undertook any obligation other than the payment of the
prescribed amount of backpay, we do not find it appro-
priate to provide for any remedies beyond the payment of
$22,000, less any amounts already remitted.
Thus, we do not agree with our dissenting colleague
that the ambiguity in the noncompliance clause should be
resolved by providing for the Board’s standard remedies.
Unlike our dissenting colleague, we find that this ambi-
guity limits the remedy that properly may be ordered
here. In a default judgment proceeding such as this, the
Board should be reluctant to impose a remedy by default
in the absence of clear language in the noncompliance
clause.5 Although it may be true, as stated by our col-
league, that the parties “contemplated something more
than the monetary payment” set forth in the noncompli-
ance clause, the parties did not, in fact, adequately pro-
vide in the clause for any further relief or for the Board’s
standard remedies. Instead, the noncompliance clause
expressly requires the Respondents to pay a specific
amount as the “full liquidated remedy.”6 We are unwill-
ing in these circumstances to go beyond the language of
the noncompliance clause, which we find is controlling
and must be distinguished from the substantive provi-
sions of the settlement agreement itself.7

the Region the matter of the proper disbursement of the amount due
under the settlement agreement.
5 Cf. Parks International Corp., 339 NLRB 285, 286 fn. 4 (2003)
(complaint found too ambiguous to impose joint employer liability for
discharges in default judgment proceeding).
6 Thus, L.J. Logistics, Inc., 339 NLRB 729 (2003), cited by our dis-
senting colleague, is distinguishable. In contrast to the limited remedy
set forth in the clause here, the noncompliance clause of the settlement
agreement in L.J. Logistics provided for a “full remedy for the viola-
tions so found as is customary to remedy such violations, not limited to
provisions of this Settlement Agreement.” Id..
7 Although a remedy normally accompanies the finding of a viola-
tion, finding a violation is not entirely meaningless without a remedy.
BARTLETT HEATING & AIR CONDITIONING 1047
ORDER
The National Labor Relations Board orders that the
Respondents, Bartlett Heating & Air Conditioning, Inc.,
and Robert Bartlett, Inc., successors, alter egos and/or
single employer, Mount Prospect, Illinois, their officers,
agents, successors, and assigns, shall
1. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately remit $17,891.94 to Region 13 to be
disbursed to employees Bauer and Wailley in accordance
with the terms of the settlement agreement.
(b) 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 Respondents have taken to
comply.

MEMBER LIEBMAN, dissenting in part.
I dissent from my colleagues’ failure to provide the
Board’s full standard remedies. Where the Board, as
here, finds all the allegations of a complaint to be true,
the standard remedies would include reinstatement and
full make-whole relief, an expungement requirement, a
cease-and-desist order, and the posting of a notice that
describes employees’ basic rights under the Act, indi-
cates the manner in which the respondent has violated
the Act, and gives assurances of actions required to rem-
edy the unfair labor practices.1
Indeed, language in the noncompliance clause here re-
flects that the parties contemplated something more than
the monetary payment provided by my colleagues. Thus,
the clause states that “in case of noncompliance with any
of the terms of this Settlement Agreement . . . including
but not limited to, failure to make” specified monetary
payments, the “Board may then issue an Order providing
full liquidated remedy . . . for the violations found as is
customary to remedy such violations, including but not
limited to the provisions of this Settlement Agreement.”
(Emphasis added.)

In the event of continuing misconduct, the violations found here may be
cited in any future case involving the Respondents to support issuance
of a broad cease-and-desist order.
1 See, e.g., JAE Consulting & Development, 326 NLRB No. 40
(1998) (not reported in Board volumes); U-Bee, Ltd., 315 NLRB 667
(1994); and F L Trucking Corp., 313 NLRB 1172 (1994).
My colleagues deny these standard remedies, including
the notice posting specifically provided for in the settle-
ment agreement. They do so without explanation save
that the noncompliance clause “is ambiguous regarding
what remedies would be warranted to remedy the Re-
spondents’ violations in the event of noncompliance.” In
their view,

[I]n the absence of clear and unambiguous language in
the settlement agreement that, in the event of their non-
compliance, the Respondent undertook any obligation
other than the payment of the prescribed amount of
backpay, we do not find it appropriate to provide for
any remedies beyond the payment of $22,000, less any
amounts already remitted.

The majority’s conclusion is counterintuitive.2 Where
a settlement agreement provides that in the case of non-
compliance the Board may find all allegations of the
Complaint to be true, the Board’s standard remedies (“as
is customary to remedy such violations”), including the
notice posting, should be afforded, unless clear and un-
ambiguous language in the noncompliance clause pro-
vides otherwise. Only in that case should those standard
remedies be withheld. Compare Henry’s Refrigeration,
Heating & Air, 339 NLRB 698, 704 (2003) (noncompli-
ance clause specifically provided that the specified liqui-
dated damages were “a full remedy as specified in the
Complaint”).3 Any ambiguity in the noncompliance
clause, in other words, should be resolved in favor of
following the Board’s customary approach and against
the wrongdoer. Accordingly, I would provide the stan-
dard remedies here.

2 Unlike Parks International Corp., 339 NLRB 285, relied on by my
colleagues, in this case there is no ambiguity in the underlying com-
plaint.
3 In L.J.Logistics, Inc., 339 NLRB 729, the settlement agreement
expressly provided that in the event of noncompliance, the Board could
issue an order “providing a full remedy for the violations so found as is
customary to remedy such violations, not limited to provisions of this
Settlement Agreement.” That language, although not identical to the
clause in the settlement agreement here, is close to it and certainly
different than the language in Henry’s Refrigeration, supra.