Biosource Landscaping Services, LLC

National Labor Relations Board - Board Decisions

Sep 8, 2011

357 NLRB No. 89 (N.L.R.B. 2011)

357 NLRB No. 89
NOTICE: This opinion is subject to formal revision before publication in the
boumd 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.
Biosource Landscaping Services, LLC and Laborers
International Union of North America, Local
1410, AFL–CIO. Case 9–CA–46347
September 9, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has failed
to file an answer to the complaint. Upon a charge filed
by Laborers International Union of North America, Local
1410, AFL–CIO (the Union) on April 1, 2011, the Acting
General Counsel issued the complaint on June 16, 2011,
against Biosource Landscaping Services, LLC (the Re-
spondent), alleging that it has violated Section 8(a)(5)
and (1) of the Act.1 The Respondent failed to file an
answer.
On July 12, 2011, the Acting General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on July 13, 2011, 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. On August
16, 2011, the Board issued a revised Notice to Show
Cause and served it by certified mail on the Respondent,
noting that the original Notice was served on the Re-
spondent only by regular mail. The Respondent filed no
response. The allegations in the motion are therefore
undisputed.

1 The Acting General Counsel’s Motion for Default Judgment indi-
cates that the complaint was served on the Respondent by certified and
regular mail, and by facsimile, and to its counsel of record by regular
mail. However, on June 23, 2011, the copy sent to the Respondent by
certified mail was returned with a notation that it had been refused.
There is no indication that the copies of the complaint sent by regular
mail have been returned. On June 30, 2011, the Respondent’s counsel
of record sent a letter to the Region advising that she no longer repre-
sented the Respondent. It is well settled that a respondent’s failure or
refusal to accept certified mail or to provide for receiving appropriate
service cannot serve to defeat the purposes of the Act. See, e.g., I.C.E.
Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003), and cases cited therein.
Further, the failure of the Postal Service to return documents served by
regular mail indicates actual receipt of those documents by the Respon-
dent. Id.; Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. 843 F.2d
1392 (6th Cir. 1988). Moreover, the Respondent’s lack of representa-
tion does not excuse it from its obligation to file an appropriate answer
to the complaint. See generally Newark Symphony Hall, 323 NLRB
1297 (1997).
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a 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 stated
that unless an answer was received by June 30, 2011, the
Board may find, pursuant to a motion for default judg-
ment, that the allegations in the complaint are true. Fur-
ther, the undisputed allegations in the Acting General
Counsel’s motion disclose that the Region notified the
Respondent that unless an answer was received by July
8, 2011, a motion for default judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations in the
complaint to be admitted as true, and we grant the Acting
General Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged as a contractor performing commercial
and residential landscaping and in the production and
sale of landscaping products at its Xenia, Ohio location.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations
described above, derived gross revenues in excess of
$500,000 and purchased and received goods and materi-
als valued in excess of $10,000 directly from points out-
side the State of Ohio. 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, Theresa Lee held the position of
the Respondent’s president and has been a supervisor of
the Respondent within the meaning of Section 2(11) of
the Act and an agent of the Respondent within the mean-
ing of Section 2(13) of the Act.
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 engaged in work within the chartered
trade jurisdiction of the Laborers International Union of
North America, AFL–CIO, and employed in Highway-
Heavy-Municipal and Utility Construction in the State
of Ohio.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
At all times since May 14, 2009, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the unit and has been recog-
nized as such by the Respondent. Such recognition is
embodied in the terms of the current collective-
bargaining agreement, which became effective May 14,
2009.
About March 5, 2011, the Union, by letter, requested
that the Respondent provide an itemized list of all unit
employees who have worked any hours during the period
June 2009 through September 2010 within the Union’s
jurisdiction, which would include the following Ohio
counties: Champaign, Clark, Darke, Green, Logan, Mi-
ami, Montgomery, and Preble.
The information requested by the Union is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit.
Since about March 5, 2011, the Respondent has failed
and refused to furnish the Union with the information it
requested.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively with the
exclusive collective-bargaining representative of its em-
ployees, and has thereby engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(5) and (1) and 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)(5)
and (1) by failing and refusing to furnish the Union with
requested information that is necessary for, and relevant
to, the performance of its duties as the exclusive collec-
tive-bargaining representative of the unit employees, we
shall order the Respondent to furnish the Union with the
information it requested since March 5, 2011.
ORDER
The National Labor Relations Board orders that the
Respondent, Biosource Landscaping Services, LLC, Xe-
nia, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Laborers International Union of North
America, Local 1410, AFL–CIO by failing and refusing
to furnish it with requested information that is necessary
for, and relevant to, the performance of its duties as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All employees engaged in work within the chartered
trade jurisdiction of the Laborers International Union of
North America, AFL–CIO, and employed in Highway-
Heavy-Municipal and Utility Construction in the State
of Ohio.
(b) 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) Furnish the Union with the information it requested
since March 5, 2011.
(b) Within 14 days after service by the Region, post at
its facility in Xenia, Ohio, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representa-
tive, 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. 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.3 Rea-
sonable 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 pend-
ency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since March 5, 2011.
(c) 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.
Dated, Washington, D.C. September 9, 2011

2 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.”
3 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
BIOSOURCE LANDSCAPING SERVICES 3
Mark Gaston Pearce, Chairman
Craig Becker, Member
Brian E. Hayes, 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 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
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with Laborers International Union of
North America, Local 1410, AFL–CIO by failing and
refusing to furnish it with requested information that is
necessary for, and relevant to, the performance of its
duties as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
All employees engaged in work within the chartered
trade jurisdiction of the Laborers International Union of
North America, AFL–CIO, and employed in Highway-
Heavy-Municipal and Utility Construction in the State
of Ohio.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish the Union with the information it re-
quested since March 5, 2011.
BIOSOURCE LANDSCAPING SERVICES, LLC