Morris Glass & Construction

National Labor Relations Board - Board Decisions

Mar 22, 2016

363 NLRB No. 150 (N.L.R.B. 2016)

363 NLRB No. 150
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.
Morris Glass & Construction, Inc. and International
Union of Painters & Allied Trades, District
Council 5. Case 36–CA–010804
March 22, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. International Union of Painters & Allied
Trades, District Council 5 (the Union) filed a charge and
amended charges on February 25 and 28, March 7 and
21, and May 9, 2011, respectively, against Morris Glass
& Construction, Inc. (the Respondent), alleging that the
Respondent violated Section 8(a) (3) and (1) of the Act.
Subsequently, prior to the issuance of a complaint, the
Respondent and the Union entered into an informal set-
tlement agreement, which was approved by the Regional
Director for Region 19 and signed by the Officer-in-
Charge for Subregion 36 on June 30, 2011. Among other
things, the settlement agreement required the Respondent
to: (1) post the notice and distribute it electronically, (2)
mail copies of the notice to employees who worked for
the Respondent at any time from December 1, 2010, to
June 30, 2011, the date of the settlement agreement, and
(3) make whole employees John Townsend and Brian
Townsend within 7 days of receipt of the Subregion’s
backpay computations, with appropriate withholdings for
each employee.
The settlement agreement 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 no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
issue the complaint that will include the allegations
spelled out above in the Scope of Agreement section.
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 aforementioned
complaint will be deemed admitted and it will have
waived its right to file an Answer to such complaint.
The only issue that may be raised before the Board is
whether the Charged Party 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 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 is-
sue 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 enforcing the Board order ex
parte, after service or attempted service upon Charged
Party/Respondent at the last address provided to the
General Counsel.
By letter dated June 30, 2011, the Board agent sent the
Respondent a copy of the approved settlement agreement
and advised the Respondent to take the steps necessary to
comply and to inform the Subregion when it had done
so.1 Subsequently, the Subregion and the Respondent
entered into a Backpay Installment Payment Agreement
(payment agreement) and a Security Agreement (security
agreement) approved by the Regional Director and
signed by the Subregion’s officer-in-charge on October
15, 2012.
Under the terms of the payment agreement, the Re-
spondent agreed to pay a total of $22,326 in backpay,
and $536.82 in interest. Specifically, the Respondent
agreed to pay John Townsend $13,792 in backpay, less
Federal and State tax, and $347.90 in interest. The Re-
spondent also agreed to pay Brian Townsend $8,534 in
backpay, less Federal and State tax, and $188.93 in inter-
est. The payment agreement provided that “[t]he Settle-
ment Amount shall bear simple interest, at the rate of 3%
per annum, starting from the date of approval of this
agreement, until the Settlement Amount is paid ("In-
stallment Interest”).”2 The payment agreement also pro-
vided that the death of either employee “shall not reduce,
forgive, or in any way alter the obligations of the
Charged Party to make all payments specified in this
Settlement Agreement and Appendices.”

1 The uncontested assertions in the motion for default judgment in-
dicate that on July 11, 2011, the Respondent submitted a certification of
posting indicating that it had posted the notice. On August 10 and 11,
2011, the Board agent reminded the Respondent to submit a report
verifying that it had initiated all affirmative provisions of the settlement
agreement, and requested that the Respondent provide the records
necessary to calculate backpay for John Townsend and Brian Town-
send. Thereafter, the Board agent and the Respondent exchanged addi-
tional information before agreeing to the amounts owed.
2 The payment agreement further provided that the Respondent
would make the payments in installments beginning on October 5,
2012, and continuing for 17 months thereafter, from November 5, 2012,
until March 5, 2014, as set forth in an appendix. Any unpaid amounts,
plus interest, would be added to the remaining balance due on March 5,
2014.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
John Townsend died in May 2013. Despite its contin-
uing obligation under the settlement agreement, the Re-
spondent ceased making payments owed to him after
April 2013.3 By email dated August 16, 2013, the Board
agent notified the Respondent that it had failed to comply
with the settlement agreement by failing to make the
required payments and that if the Respondent did not
remedy its noncompliance within 14 days, the Regional
Director would institute default proceedings.
During the fall of 2013, the Board agent contacted the
Respondent on multiple occasions to obtain its full com-
pliance with the settlement agreement. The Respondent
made some additional payments, but ceased payments
owed to both Brian Townsend and the estate of John
Townsend after December 2013. During 2014 and early
2015, the Board agent made further attempts to secure
the Respondent’s compliance and to obtain information
about the assets identified in the security agreement;
however, the Respondent failed to comply.
By letter dated January 8, 2015, the Acting Regional
Director notified the Respondent that it had failed to
comply with the terms of the settlement agreement and
that absent the Respondent’s full compliance by January
23, 2015, the Region would initiate default proceedings,
including issuing a complaint and filing a motion for
default judgment with the Board. The Respondent failed
to comply.
Accordingly, pursuant to the terms of the noncompli-
ance provision of the settlement agreement, the Regional
Director issued the complaint on February 26, 2015.
Also on February 26, the General Counsel filed a Motion
for Default Judgment with the Board. On March 3,
2015, the Board issued an order transferring the proceed-
ing to the Board and Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed no
response. The allegations in the motion are therefore
undisputed.
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 Respondent has failed to
comply with the terms of the settlement agreement by
failing to: (1) make whole the estate of John Townsend
by paying the amounts set forth in the payment agree-
ment, (2) make whole Brian Townsend by paying the
amounts set forth in the payment agreement, and (3) mail

3 When John Townsend died, his son, Logan Townsend, became the
sole heir to the estate. Logan Townsend filed a claim against the Unit-
ed States for amounts due in the case of a deceased creditor on Septem-
ber 17, 2013.
copies of the notice to employees employed by the Re-
spondent between December 10, 2010, and June 30,
2011. Consequently, pursuant to the noncompliance
provision of the settlement agreement set forth above, we
find that all of the allegations in the complaint are true.4
Accordingly, we grant the General Counsel’s Motion for
Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent has been a State of Oregon corpora-
tion engaged as a glazing contractor in the building and
construction industry with an office and place of business
in Astoria, Oregon.
In conducting its business operations during the 12
months ending February 2011, the Respondent derived
gross revenue in excess of $500,000, and purchased ma-
terials or services valued in excess of $50,000 directly
from entities located outside the State of Oregon.
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, Ryan Morris held the position of
the Respondent’s president-owner and has been a super-
visor of the Respondent within the meaning of Section
2(11) of the Act and an agent of the Respondent within
the meaning of Section 2(13) of the Act.
In December 2010, and January 2011, the Respond-
ent’s employees Brian Townsend and John Townsend
engaged in concerted activities with other employees for
the purpose of mutual aid and protection when they
complained to the Respondent about the Respondent’s
failure to pay a December 22, 2010 wage draw and Janu-
ary 2011 paychecks.
About December 2010, and since that date, the Re-
spondent, by Morris, discharged and/or has withheld
work from its employees John Townsend and Brian
Townsend.
The Respondent engaged in this conduct because Brian
Townsend and John Townsend engaged in the protected,
concerted activity described above.
About January 26, 2011, the Respondent, by Morris, at
the Issaquah High School in Issaquah, Washington:
(i) interrogated an employee by asking about his sup-
port for the Union’s petition;

4 See U-Bee, Ltd., 315 NLRB 667 (1994).
MORRIS GLASS & CONSTRUCTION, INC. 3
(ii) told an employee that he needed to revoke his sup-
port for the Union;
(iii) told an employee not to sign any more paperwork
from the Union without talking to him first; and
(iv) made coercive statements to an employee by stat-
ing that if employees wanted to work for the Respond-
ent they should not have signed the Union’s petition.
About January 27, 2011, the Respondent, by Morris, at
the Issaquah High School in Issaquah, Washington,
asked an employee if he had revoked his support for the
Union.
About March 3, 2011, the Respondent, by Morris, at
Les Schwab Tire in Longview, Washington, promised an
employee increased wages and benefits if he voted
against the Union in the representation election.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7
of the Act in violation of Section 8(a)(1) of the Act.5
The Respondent’s unfair labor practices affect com-
merce 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 take cer-
tain 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 agree-
ment approved by the Regional Director for Region 19
on June 30, 2011, and the payment agreement approved
by the Regional Director on October 15, 2012. Accord-
ingly, we shall order the Respondent to make Brian
Townsend whole by payment to him of the remaining
balance of backpay and interest as provided for in the
payment agreement in the amount of $2043.18, with in-
terest on that outstanding amount as described in the
payment agreement. We shall also order the Respondent
to make whole the estate of John Townsend by payment
to the estate of the remaining balance of backpay and
interest as provided for in the payment agreement in the
amount of $7560.20, with interest on that outstanding
amount as described in the payment agreement. Finally,
we shall order the Respondent to mail copies of the no-
tice to all employees employed by the Respondent at any
time from December 1, 2010, to June 30, 2011.

5 Although the charge and amended charges alleged that certain
conduct by the Respondent violated Sec. 8(a)(3) and (1), the complaint
alleges only that the Respondent’s conduct violates Sec. 8(a)(1), and we
so find.
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 the violations found
as is appropriate to remedy such violations,” including
backpay beyond that specified in the agreement.6 How-
ever, in his Motion for Default Judgment, the General
Counsel has not sought such additional remedies and we
will not, sua sponte, include them.7
ORDER
The National Labor Relations Board orders that the
Respondent, Morris Glass & Construction, Inc., Astoria,
Oregon, its officers, agents, successors, and assigns, shall
take the following affirmative action necessary to effec-
tuate the policies of the Act.
1. Remit $2043.18 in wages and interest, with interest
on that outstanding amount to the date of payment as
described in the payment agreement, to Region 19 of the
National Labor Relations Board to be disbursed to Brian
Townsend, in accordance with the terms of the settle-
ment agreement approved by the Regional Director for
Region 19 on June 30, 2011.
2. Remit $7560.20 in wages and interest, with interest
on that outstanding amount to the date of payment as
described in the payment agreement, to Region 19 of the
National Labor Relations Board to be disbursed to the
estate of John Townsend, in accordance with the terms of
the settlement agreement approved by the Regional Di-
rector for Region 19 on June 30, 2011.
3. Mail copies of the attached Notice to Employees to
all its employees employed from December 10, 2010, to
June 30, 2011.
4. Within 21 days after service by the Region, file with
the Regional Director for Region 19 a sworn certification
of a responsible official on a form provided by the Re-
gion attesting to the steps that the Respondent has taken
to comply.

6 As set forth above, the settlement agreement provided that, in case
of noncompliance, the Board could “issue an order providing a full
remedy for the violations found as is appropriate to remedy such viola-
tions.”
7 See, e.g., Benchmark Mechanical, Inc., 348 NLRB 576 (2006).
The General Counsel specifically requested in his motion for default
judgment here that the Board order the Respondent to “promptly mail
copies of the Notice to Employees to all its employees employed since
December 10, 2010”; “pay Brian Townsend $2,043.18 representing the
backpay and interest owed pursuant to the Payment Agreement, as well
as compounded interest on that outstanding amount”; “pay John Town-
send's estate $7,560.20 representing the backpay and interest owed
pursuant to the Payment Agreement, as well as compounded interest on
that outstanding amount; and… such other relief as the Board deems
just and proper.” Despite the General Counsel’s request for compound
interest, we shall order that simple interest be paid, as provided for in
the payment agreement entered into on October 15, 2012.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Dated, Washington, D.C. March 22, 2016
Mark Gaston Pearce, Chairman
Kent Y. Hirozawa, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to mail 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these rights,
and more specifically:
WE WILL NOT refuse to recall you from layoff for com-
plaining about our payroll practices or other terms or
conditions of employment.
WE WILL NOT ask you about your support for the Inter-
national Union of Painters & Allied Trades District
Council No. 5 (the “Union”).
WE WILL NOT tell you not to sign any paperwork from
the Union without consulting us first.
WE WILL NOT tell you that if you want to work for us,
you should not support the Union.
WE WILL NOT promise you increased wages and bene-
fits if you vote against the Union.
WE WILL respect your right to talk about your wages or
other terms and conditions of employment.
WE WILL make decisions about who to recall from
layoff without considering whether you have complained
about our payroll practices or other terms and conditions
of employment.
WE WILL respect your right to support or not support
the Union.
WE WILL remove from all our files, including person-
nel files of John Townsend and Brian Townsend, all ref-
erences to their termination from employment, ineligibil-
ity for rehire, and/or ineligibility for recall, and WE WILL
notify them, in writing, that we have done so.
WE WILL offer John Townsend and Brian Townsend
their jobs back along with all applicable rights and privi-
leges. In the event that we do not currently have work
available to give them, WE WILL place John Townsend
and Brian Townsend on a preferential hiring list, and WE
WILL notify them, in writing, that we have done so.
WE WILL pay John Townsend and Brian Townsend for
any wages and other benefits they have lost because we
refused to recall them from layoff, and WE WILL notify
them, in writing, that we have done so.
MORRIS & GLASS CONSTRUCTION, INC.
The Board’s decision can be found at
www.nlrb.gov/case/36-CA-010804 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.