D2 Abatement, Inc. and Premier Environmental Solutions LLC, Alter Egos

National Labor Relations Board - Board Decisions

Oct 15, 2018

367 NLRB No. 9 (N.L.R.B. 2018)

367 NLRB No. 9
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.
D2 Abatement, Inc. and Premier Environmental Solu-
tions LLC, alter egos and District Council 1m, In-
ternational Union of Painters and Allied Trades
(IUPAT), AFL–CIO. Case 07–CA–133250
October 15, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement agree-
ment. Upon a charge filed by District Council 1M, Inter-
national Union of Painters and Allied Trades, AFL–CIO
(the Union), on July 22, 2014, and later amended on Au-
gust 19, October 7, 8, and 29, 2014, the General Counsel
issued a complaint on October 30, 2015, and an amended
complaint on June 29, 2016, against D2 Abatement, Inc.,
and Premier Environmental Solutions, LLC (the Respond-
ents), alleging that they were alter egos and had violated
Section 8(a)(5) and (1) of the National Labor Relations
Act. On November 13, 2015, Premier Environmental So-
lutions, LLC, filed an answer to the complaint.
Subsequently, the Respondents and the Union executed
an informal settlement agreement, which was approved by
the Regional Director for Region 7 on September 29,
2016. Pursuant to the terms of the settlement agreement,
the Respondents agreed, among other things, to (1) rein-
state employee Latoya Jackson, (2) recall employees
Roger Via, Robert Foster, Janita Williamson, Darryl Ells-
berry, Christopher Smith, and Antonieo Stevenson, (3) re-
move references to the discharge of Latoya Jackson and
suspensions of Janita Williamson, (4) make employees
whole for changes in wages, seniority, and vacation days,
(5) remit dues to the Union that were deducted from em-
ployees’ wages, and (6) post and mail an appropriate no-
tice.
The settlement agreement also contained the following
provision:
The Charged Parties agree that in case of non-compli-
ance with any of the terms of this Settlement Agreement
by the Charged Parties, and after 14 days notice from the
Regional Director of the National Labor Relations
Board of such non-compliance without remedy by the
Charged Parties, the Regional Director will reissue the
amended complaint and compliance specification previ-
ously issued on June 29, 2016 in the instant case(s).
Thereafter, the General Counsel may file a motion for
default judgment with the Board on the allegations of the
complaint. The Charged Parties understand and agree
that the allegations of the aforementioned amended
complaint and compliance specification will be deemed
admitted and any Answer to such amended complaint
and compliance specification will be considered with-
drawn. The only issue that may be raised before the
Board is whether the Charged Parties defaulted on the
terms of this Settlement Agreement. The Board may
then, without necessity of trial or any other proceeding,
find all allegations of the amended complaint to be true
and make findings of fact and conclusions of law con-
sistent with those allegations adverse to the Charged Par-
ties on all issues raised by the pleadings. The Board may
then issue an order providing a full remedy for the vio-
lations as provided for in the compliance specification.
The parties further agree that a U.S. Court of Appeals
Judgment may be entered enforcing the Board order ex
parte, after service or attempted service upon Charged
Parties/Respondents at the last address provided to the
General Counsel.
On October 13, 2016, the Compliance Officer for Re-
gion 7, on behalf of the General Counsel, sent a compli-
ance package to the Respondents and the Respondents’
counsel, by regular mail, containing copies of the Notice
to Employees, a Certification of Compliance form to be
completed by an official of the Respondents and returned
to Region 7, and a detailed letter of the Respondents’ ob-
ligations under the settlement agreement.
On November 8, 2016, the Regional Director sent a let-
ter to the Respondents, by regular mail, notifying the Re-
spondents that they had not complied with the terms of the
settlement agreement, and stating that unless the Respond-
ents provided evidence of compliance with the settlement
agreement within 14 days, the complaint would be reis-
sued and a motion for default judgment would be filed
with the Board.
On November 29, 2016, the Respondents provided
checks, post-dated December 2, 2016, constituting an
amount equal to the first 2 monthly installment payments
under the settlement agreement. On March 1, 2017, the
Respondents provided checks, dated January 13, 2017,
constituting an amount equal to a third monthly install-
ment payment. The Region determined, however, that the
associated checking account had been closed with a zero
balance. No other payments were received by the Region.
Accordingly, pursuant to the terms of the noncompli-
ance provision of the settlement agreement, on June 30,
2017, the Regional Director issued a Consolidated
Amended Complaint and Compliance Specification Based
on Breach of Affirmative Provisions of Settlement Agree-
ment (reissued complaint) and the General Counsel filed a
Motion for Default Judgment with the Board. On July 6,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
2017, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondents filed no re-
sponse. The allegations in the motion are therefore undis-
puted.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondents have failed to
comply with the terms of the settlement agreement. Con-
sequently, pursuant to the noncompliance provisions of
the settlement agreement set forth above, we find that all
of the allegations in the reissued complaint are true. Ac-
cordingly, we grant the General Counsel's Motion for De-
fault Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent D2 Abatement, Inc.,
has been a corporation with an office in Sterling Heights,
Michigan, and has operated within customer facilities
throughout Michigan and the United States, including the
Ford Dearborn Assembly Plant (Ford Plant) in Dearborn,
Michigan, and has been engaged in providing environ-
mental recycling services.
At all material times, Respondent Premier Environmen-
tal Solutions, LLC, has been a company with an office in
Sterling Heights, Michigan, and has operated within cus-
tomer facilities throughout Michigan and the United
States, including the Ford Plant in Dearborn, Michigan,
and has been engaged in providing environmental recy-
cling services.
At all material times, Respondent D2 Abatement, Inc.,
and Respondent Premier Environmental Solutions, LLC,
have had substantially identical management, business
purposes, operations, equipment, customers, supervision,
and ownership.
About February 25, 2014, Respondent Premier Envi-
ronmental Solutions, LLC, was established by Respondent
D2 Abatement, Inc., as a disguised continuation of Re-
spondent D2 Abatement, Inc.
Based on the operations and conduct described above,
Respondent D2 Abatement, Inc., and Respondent Premier
Environmental Solutions, LLC, are, and have been at all
material times, alter egos within the meaning of the Act.
Since about July 24, 2015, Respondent Premier Envi-
ronmental Solutions, LLC, has been a debtor-in-posses-
sion with full authority to continue its operations and to
exercise all powers necessary to administer its business.
During the calendar year ending December 31, 2014,
Respondent D2 Abatement, Inc., in conducting their oper-
ations described above, purchased and received at its Ster-
ling Heights, Michigan, facilities goods valued in excess
of $50,000 directly from points outside the State of Mich-
igan.
During the calendar year ending December 31, 2014,
Respondent Premier Environmental Solutions, LLC, in
conducting its operations described above, purchased and
received at its Sterling Heights, Michigan, facilities goods
valued in excess of $50,000 directly from points outside
the State of Michigan.
We find that at all material times, Respondent D2
Abatement, Inc., and Respondent Premier Environmental
Solutions, LLC, have each been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
We find that at all material times, the Union has been a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
1. At all material times, President Duane Jones has been
a supervisor of the Respondents within the meaning of
Section 2(11) of the Act and an agent of the Respondents
within the meaning of Section 2(13) of the Act.
2. At all material times, Latonya Kelley has been an
agent of the Respondents within the meaning of Section
2(13) of the Act.
3. (a) The following employees of the Respondents (the
unit) constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act:
All employees performing that certain type of work
hereinafter called "Specialized Services" shall incorpo-
rate general industrial plant cleaning, deep cleaning,
clean room cleaning, environmental cleaning, slug
cleanup, hydro-cleaning, sandblasting, wet and dry
cleaning, chemical cleaning, metallizing, power rodding
and bucket machining, and such other work that comes
under the trade jurisdiction of the Union done by the
Employer.
(b) Since about 2003, and at all material times, the Re-
spondents have recognized the Union as the exclusive col-
lective-bargaining representative of the unit. This recog-
nition has been embodied in successive collective-bar-
gaining agreements, the most recent of which was effec-
tive from April 1, 2014, through March 31, 2018.
(c) At all times since about 2003, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining of the unit.
D2 ABATEMENT, INC. 3
4. (a) Since about January 23, 2014, the Respondents
have deducted union dues and fees from the wages of unit
employees who have authorized such deductions, but have
failed to remit the deducted sums to the Union.
(b) The Respondents took these actions contrary to the
language of the unit employees' authorizations and with-
out the consent of the unit employees or the Union.
5. About July 14, 2014, the Respondents administered
a pre-employment drug test to employees working at the
Ford Plant.
6. As a result of the Respondents' conduct described
above in paragraph 5, on July 14, 2014, the Respondents
terminated the employment of Latoya Jackson and sus-
pended employee Janita Williamson.
7. (a) About July 18, 2014, the Respondents laid off
their employees working at the Ford Plant.
(b) About August 22, 2014, the Respondents laid off
their employees working at the Ford Plant.
8. About July 21, 2014, the Respondents lowered the
wages of employees working at the Ford Plant to the start-
ing wages outlined in the collective-bargaining agreement
described above in paragraph 3(b), reset the seniority date
of employees which resulted in some employees being
deemed ineligible for the quarterly bonuses they previ-
ously received, and took away employees' accrued vaca-
tion hours.
9. About September 19, 2014, the Respondents implemented
a new process for employees to follow to be recalled from a
layoff.
10. About September 22, 2014, the Respondents failed to re-
call employees Darryl Ellsberry, Robert Foster, Christopher
Smith, Antonieo Stevenson, Roger Via, and Janita Williamson.
11. The Respondents engaged in the conduct described above
in paragraph 10 as a result of the Respondents' conduct described
above in paragraph 9.
12. The subjects set forth above in paragraphs 4 through 10
relate to wages, hours, and other terms and conditions of employ-
ment of the unit and are mandatory subjects for the purposes of
collective bargaining.
13 (a) The Respondents engaged in the conduct described
above in paragraphs 4 through 6, 7(b), and 8 through 10 without
prior notice to the Union and without affording the Union an op-
portunity to bargain with the Respondents with respect to this
conduct and the effects of this conduct.
(b) The Respondents engaged in the conduct described above
in paragraph 7(a), without affording the Union a meaningful op-
portunity to bargain with respect to the effects of this conduct.
14. Since about July 14, 2014, by the conduct described above
in paragraphs 4 through 6, and 8 through 10, the Respondents

1 Although the General Counsel’s motion states that the Respondents
remitted the initial two monthly payments totaling $4,671.56, they failed
to remit any subsequent installment payments. Accordingly, the Re-
spondents shall remit the full remaining balance.
2 See, e.g., Benchmark Mechanical, Inc., 348 NLRB 576 (2006). The
General Counsel specifically requested in his motion for default
have failed to honor their collective bargaining agreements with
the Union.
CONCLUSION OF LAW
By the conduct described above in paragraphs 6 through
7(a), 8 through 11, 13, and 14, the Respondents have been
failing and refusing to bargain collectively and in good
faith with the exclusive collective-bargaining representa-
tive of their employees within the meaning of Section 8(d)
of the Act in violation of Section 8(a)(1) and (5) of the
Act.
The unfair labor practices of the Respondents described
above affect commerce within the meaning of 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 take
certain affirmative action designed to effectuate the poli-
cies of the Act. Specifically, we shall order the Respond-
ents to comply with the unmet terms of the settlement
agreement approved by the Regional Director for Region
7 on September 29, 2016.
Accordingly, we shall order the Respondents to offer
Latoya Jackson immediate and full reinstatement to her
former job without prejudice to her seniority or any other
rights and privileges she previously enjoyed; recall Roger
Via, Robert Foster, Janita Williamson, Darryl Ellsberry,
Christopher Smith, and Antonieo Stevenson to their for-
mer jobs without prejudice to their seniority or any other
rights and privileges they previously enjoyed; remove
from their files all references to the discharge of Latoya
Jackson and suspension of Janita Williamson and notify
the employees in writing that this has been done and that
the actions will not be used against them in any way.
In addition, we shall order the Respondents to make
whole the Union and employees by payment in the amount
agreed to in the settlement agreement of $84,088.08, to be
distributed to the Region in monthly installments.1
In limiting our affirmative remedies to those enumer-
ated above, we note that the General Counsel is empow-
ered under the noncompliance provisions of the settlement
agreement to seek a “full remedy for the violations” found.
However, in his Motion for Default Judgment, the General
Counsel has not sought such additional remedies and we
will not, sua sponte, include them.2
judgment that the Board order the Respondents to remit the balance of
the amount due as well as the remedies sought in the Settlement Agree-
ment. Therefore we construe the General Counsel’s motion as seeking
enforcement of the unmet provisions of the settlement agreement.
The General Counsel additionally requests a make-whole remedy that
includes reasonable consequential damages incurred as a result of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The National Labor Relations Board orders that the Re-
spondents, D2 Abatement, Inc., and its alter ego Premier
Environmental Solutions, LLC, Sterling Heights, Michi-
gan, their officers, agents, successors, and assigns, shall
take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Offer Latoya Jackson immediate and full reinstate-
ment to her former job without prejudice to her seniority
or any other rights and privileges she previously enjoyed;
and remove from their files all references to her discharge,
and notify her in writing that this has been done and that
the discharge will not be used in any way against her.
(b) Remove from their files all references to the sus-
pension of Janita Williamson, and notify her in writing
that this has been done and that the suspension will not be
used against her in any way.
(c) Recall Roger Via, Robert Foster, Janita Williamson,
Darryl Ellsberry, Christopher Smith, and Antonieo Ste-
venson to their former jobs without prejudice to their sen-
iority or any other rights and privileges they previously
enjoyed.
(d) Remit to Region 7 the amount set forth in the set-
tlement agreement approved by the Regional Director on
September 29, 2016, less any amounts that the Region ver-
ifies have already been paid, on behalf of the Union and
employees Latoya Jackson, Janita Williamson, Roger Via,
Robert Foster, Janita Williamson, Darryl Ellsberry, Chris-
topher Smith, and Antonieo Stevenson, in accordance
with the settlement agreement.
(e) Post at their facility and the Ford Sterling Axle Plant
in Sterling Heights, Michigan, and at the Ford Dearborn
Assembly Plant in Dearborn, Michigan, copies of the no-
tice that the parties agreed to post as part of the settlement
agreement. The notice shall be posted in the same manner
as agreed to in the settlement agreement.
(f) Copy and mail to employees the notice that the par-
ties agreed to copy and mail as part of the settlement
agreement. The notice shall be copied and mailed in the
same manner as agreed to in the settlement agreement.
(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 Respondents has taken to comply.
Dated, Washington, D.C. October 15, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

Respondents’ unfair labor practices and that the Respondents be ordered
to “expunge from their files and records the results of drug tests unlaw-
fully administered to employees.” We deny the General Counsel’s
requests because these additional remedies were not included in the set-
tlement agreement.