B&G Building Maintenance, Inc.

National Labor Relations Board - Board Decisions

May 30, 2003

339 N.L.R.B. 117 (N.L.R.B. 2003)

B&G BUILDING MAINTENANCE, INC. 117
B&G Building Maintenance, Inc. and Service Em-
ployees International Union, Local 82, AFL–
CIO. Case 5–CA–29225
May 30, 2003
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
This case is before the Board on the General Counsel’s
Motion to Vacate Decision and Motion for Summary
Judgment. The General Counsel’s motion requests that
we vacate the Board’s September 28, 2001 Decision and
Order in the above-entitled proceeding, which granted
the General Counsel’s motion for summary judgment
and found that B&G Building Maintenance, Inc., the
Respondent, had violated Section 8(a)(1) and (3) of the
Act in various respects.1
In his instant motion, filed March 5, 2003, the General
Counsel states that when the original Motion for Sum-
mary Judgment was filed on July 23, 2001, the certificate
of service contained an incorrect address for the Respon-
dent’s agent, Brett Tate. As a result of this inadvertent
error, when the Board issued its July 25, 2001 Order
Transferring Proceeding to the Board and Notice to
Show Cause why the General Counsel’s motion should
not be granted, the Order and notice to be served on the
Respondent was returned to the Board. Therefore, the
Respondent was not served with a copy of the Order and
Notice to Show Cause before the Respondent’s response
was due.
The General Counsel filed an application for summary
entry of judgment enforcing the Board’s September 28,
2001 Decision and Order with the United States Courts
of Appeals for the Fourth Circuit on September 5, 2002.
The Respondent’s response to this motion raised issues
concerning the lack of service, as indicated above. Ac-
cordingly, by motion dated September 30, 2002, the
General Counsel moved to withdraw his application
without prejudice so that the service issues raised by the
Respondent could be addressed by the Board. The court
granted this motion by Order dated October 8, 2002.
The General Counsel thereafter filed the instant mo-
tion. In order to correct any prior problems with service,
the General Counsel requests that we vacate the Board’s
September 28, 2001 Decision and Order, and issue a new
Decision and Order Granting Summary Judgment with
respect to the complaint allegations.
Upon consideration of the entire record in this pro-
ceeding, the Board has decided to vacate its previous

1 336 NLRB No. 17 (2001) (not reported in Board volumes).
Decision and Order, and to grant the Motion for Sum-
mary Judgment, as set forth below.2
BACKGROUND
Upon a charge filed by the Union on September 8,
2000, the General Counsel issued a complaint against the
Respondent on October 25, 2000, alleging that it has
violated Section 8(a)(1) and (3) of the 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 eight of the discriminatees.3
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
discriminatees named above at any time during the
one year following the approval of this Settlement
Agreement 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 to-
tal 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 Relations Board, on motion for
summary judgment by the General Counsel, Re-
spondent’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 General Counsel should not
be granted. The Board may, without necessity 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 respon-
dent on all issues raised by the pleadings. The
Board may then issue an Order providing full rem-
edy as specified in the Complaint. The parties fur-
ther agreed that a Board Order and U.S. Court of
Appeals Judgment may be entered thereon ex parte.
2 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 Discriminatee Bernardo Ventura was not included in the settlement
agreement.
339 NLRB No. 21
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 118
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 layoffs 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 the Re-
gional Office that it would make payment only to those
discriminatees “deemed as deserving of the payment.”
As of the date the present Motion for Summary Judg-
ment was filed, discriminatees Ciro Fuentes, Mabel
Aparicio, and Idalia Hernandez had received no backpay
payment from the Respondent, nor had any payment
been sent to the Regional Office for these three discrimi-
natees. 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 agreement.
On March 5, 2003, the General Counsel filed the in-
stant Motion for Summary Judgment with the Board.4
On March 6, 2003, the Board issued an Order Transfer-
ring the Proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no timely response.5 The allegations in
the motion are therefore undisputed.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides 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.6
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

4 A certificate of service showing the correct address for the Re-
spondent is attached to the motion.
5 On May 14, 2003, the Board majority denied the Respondent’s
Motion to Accept Respondent’s Response to Notice to Show Cause on
the basis it was filed 1 day late and because the Respondent’s explana-
tion for the late filing did not rise to the level of excusable neglect.
Chairman Battista dissented. He would not have ruled on the Respon-
dent’s motion, but would have permitted the Respondent to file a sup-
plemental affidavit in support of its position.
6 See U-Bee, Ltd., 315 NLRB 667 (1994).

B&G BUILDING MAINTENANCE, INC. 119
preceding issuance of the complaint, the Respondent, in
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
received at its WRMC location goods and materials val-
ued in excess of $5000 directly from points outside the
District 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.
(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.
(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.
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
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 August 18, 2000, the Respondent offered
the employees named above reinstatement to employ-
ment. However, about August 30, 2000, before any em-
ployees named above resumed employment with the Re-
spondent pursuant to the offer of August 18, 2000, the
Respondent laid off the employees.

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 ac-
tivities.
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
Section 7 of the Act and has been discriminating in re-
gard to the hire or tenure, or terms or conditions of em-
ployment of its employees, thereby discouraging mem-
bership 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 Apari-
cio, Clara Cruz, Argelia Damas, Lidia Flores, Ciro

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120
Fuentes, Maria Gonzales, Idalia Hernandez, Julian
Turcios, and Bernardo Ventura, we shall order the Re-
spondent to offer these employees full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed, and to make them whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them. Backpay shall be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).7
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.
The Respondent shall also be required to removed
from its files any and all references to the unlawful dis-
charges and layoffs, and to notify the employees in writ-
ing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, 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 tell-
ing 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
Respondent 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
buttons and threatening them with discharge if they did.
(f) Telling its employees they could no longer leave
the premises at lunchtime.

in
an
7 Any backpay monies 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.
(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.
(j) Terminating and, after making a reinstatement of-
fer, laying off employees because of their union activi-
ties.
(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
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Mabel Aparicio, Clara Cruz, Argelia Damas, Lidia Flo-
res, 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
substantially equivalent positions, without prejudice to
their seniority 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 Ventura whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, with interest, in
the manner set forth in the remedy section of this deci-
sion.
(c) Restore the lunch hours of the employees named
above and make them whole for any loss of earnings
attributable to its unlawful conduct, in the manner set
forth in the remedy section of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful dis-
charges and layoffs of Mabel Aparicio, Clara Cruz,
Argelia 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
y way. (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, so-
cial security payment records, timecards, personnel re-
cords 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.

B&G BUILDING MAINTENANCE, INC. 121
(f) Within 14 days after service by the Region, post at
its facility in Silver Spring, Maryland, copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,
on forms provided by the Regional Director for Region
5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice 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 re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the Decision and Order
reported at 336 NLRB No. 17 (2001), is hereby vacated.

CHAIRMAN BATTISTA, dissenting.
Contrary to my colleagues, I would deny the General
Counsel’s Motion for Summary Judgment. Consistent
with my dissent from the Order of May 14, I would per-
mit Respondent the opportunity to file a supplemental
affidavit in support of its Motion to Accept Respondent’s
Response to Notice to Show Cause.
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 Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union

8 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.”

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 our employees with discharge
and tell them the Union does not represent them.
WE WILL NOT inform our employees it would be futile
for them to select the Union as their bargaining represen-
tative, by telling them we will not accept or bargain with
the Union.
WE WILL NOT tell our employees that they have be-
trayed us by engaging in union activities and that we
cannot forgive 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.
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 represen-
tative.
WE WILL NOT promulgate and maintain the following
rule: Employees may not wear union buttons at work.
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 reduce the lunch hours of our employees
because of their union activities.
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.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122
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.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful discharges 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 discharges and layoffs will not be used against them
in any way.

B&G BUILDING MAINTENANCE, INC.