PCT Services, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 2005

344 N.L.R.B. 42 (N.L.R.B. 2005)

344 NLRB No. 42
PCT Services, Inc. and International Union of Oper-
ating Engineers, Local Union #147, AFL–CIO.
Case 5–CA–31610
March 24, 2005
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 a charge and first amended charge filed by the Un-
ion on November 21 and December 5, 2003, respec-
tively, the General Counsel issued the complaint on
January 29, 2004, against PCT Services, Inc., the Re-
spondent, alleging that it has violated Section 8(a)(1) and
(5) of the Act.
Thereafter, on May 4, 2004, the Regional Director ap-
proved a bilateral informal settlement agreement entered
into by the Respondent and the Union. Among other
things, the settlement required the Respondent to make
whole 27 bargaining unit employees by paying them cer-
tain amounts of backpay and health and welfare benefits,
plus interest, and to make contributions to the Union’s
pension fund on behalf of the employees. The settlement
agreement also required the Respondent to post a notice
to employees that set forth its obligations under the set-
tlement agreement. In addition, the settlement agreement
contained the following provision:
COMPLIANCE WITH NOTICE–The Charged Party
will comply with all the terms and provisions of said
Notice. The Charged Party will notify the Region in
writing upon completion of all affirmative obligations.
In the event of non-compliance with this Settlement
Agreement, the allegations in a Complaint issued with
regard to the violations covered by the Settlement
Agreement will be deemed admitted. Upon Motion for
Summary Judgment the Board may, without the neces-
sity of trial, find all allegations of the Complaint to be
true, adopt findings of fact and conclusions of law con-
sistent with the Complaint allegations, and issue an ap-
propriate Order. Subsequently, a judgment from a U.S.
Court of Appeals may be entered ex parte.
On June 11, 2004, the Respondent posted the notice to
employees in accordance with the terms of the settlement
agreement. Thereafter, on or about September 8, 2004,
checks representing backpay, benefits, and interest pay-
ments due under the terms of the settlement agreement
were forwarded to the Regional Office. The checks sup-
plied by the Respondent, however, were not backed by
funds in the bank account on which they were drawn.
By letter dated October 5, 2004, the compliance officer
for Region 5 advised the Respondent that it had failed to
comply with the terms of the settlement agreement by
supplying checks that were not backed by sufficient
funds. The letter also stated that the Respondent’s failure
to remit the moneys owed by October 19, 2004, could
result in a recommendation that the Regional Director
file a Motion for Summary Judgment as allowed under
the settlement agreement. To date, the Respondent has
neither replied to the compliance officer’s letter nor fully
complied with the terms of the settlement agreement by
satisfying its make-whole obligations to the employees
named in the settlement agreement.1
On December 6, 2004, the General Counsel filed a
Motion for Summary Judgment with the Board. On De-
cember 9, 2004, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
Ruling on Motion for Summary Judgment
According to the uncontroverted allegations in the
General Counsel’s motion, the Respondent has failed to
comply with the settlement agreement approved by the
Regional Director on May 4, 2004, by failing to remit the
agreed-upon backpay and benefit payment amounts due
the employees listed in the settlement agreement. Con-
sequently, pursuant to the noncompliance provision of
the settlement agreement set forth above, we find that all
of the allegations of the complaint are true.
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 Georgia cor-
poration, has maintained an office and place of business
at Fort Eustis, Virginia (the Respondent’s facility), where
it has been engaged as a contractor providing hospital
and housekeeping services.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, performed services valued in
excess of $50,000 for the United States Department of
the Army, at Fort Eustis, Virginia.

1 In addition to posting the required Notice, the Respondent was re-
quired, under the settlement agreement, to make pension fund contribu-
tions on behalf of the 27 unit employees. Because the General Coun-
sel’s Motion does not seek an order with respect to pension fund con-
tributions, we assume that the Respondent has complied with that as-
pect of the settlement agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 International Union of Operating
Engineers, Local Union #147, AFL–CIO (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, Melvin Johnson has held the po-
sition of the Respondent’s general manager 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 meaning 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 of the Respondent’s Housekeepers located at Fort
Eustis, Virginia, and covered by Army Contract
DABT5700-C-0005, and its successor contracts; ex-
cluding office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.
At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
the unit, and the Union has been recognized as the repre-
sentative by the Respondent. This recognition has been
embodied in successive collective-bargaining agree-
ments, the most recent of which is effective from June 1,
2003 through May 31, 2005 (the Agreement).
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
The Agreement, described above, contains the follow-
ing provisions:
(a) ARTICLE XXIV – WAGES
Section 1. The regular straight time hourly rates
for all employees under this contract shall be as fol-
lows:
6/01/03 -– Housekeepers $9.65
6/01/03 –- Group Leaders $10.40
ARTICLE XXVII – HEALTH AND WELFARE
Employees shall receive health and welfare bene-
fits hourly in the amount shown in the following
schedule:
6/1/03 -- $2.32
ARTICLE XXVIII – PENSION
Section 1. Commencing on the 1st day of June, 2003
and for the duration of this Collective Bargaining
Agreement, including any renewals or extension
thereof, the Company agrees that for each hour of pay
paid to each employee to whom this Agreement is ap-
plicable, for any reason provided for in this Collective
Bargaining Agreement, it will pay to the Central Pen-
sion Fund of the International Union of Operating En-
gineers and Participating Employers the sum of ninety-
five cents ($.95) per hour.
Since on or about June 1, 2003, the Respondent has
failed and refused to implement the terms and conditions
of employment described above, as required by the
Agreement.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct, and without the
Union’s consent.
The terms and conditions of employment described
above are mandatory subjects for the purposes of collec-
tive bargaining.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
failed and refused to bargain collectively and in good
faith with the exclusive collective-bargaining representa-
tive of its employees within the meaning of Section 8(d)
of the Act, in violation of Section 8(a)(5) and (1) of the
Act. The Respondent’s unfair labor practices 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)(5) and (1) by failing, since on or
about June 1, 2003, to implement the provisions of the
parties’ collective-bargaining agreement covering wages,
health and welfare benefits, and pension payments, we
shall order the Respondent to adhere to those contractual
provisions and to make the unit employees whole for
losses they have suffered as a result of the Respondent’s
conduct. The only affirmative remedy sought by the
General Counsel is the payment to unit employees of the
amounts set forth in the backpay table attached to the
parties’ settlement agreement, which requires the pay-
ment of a total of $10,607.76, plus interest, to the 27
named employees. In these circumstances, we will limit
the make-whole remedy accordingly.
PCT SERVICES 3
ORDER
The National Labor Relations Board orders that the
Respondent, PCT Services, Inc., Fort Eustis, Virginia, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with International Union of Operating Engi-
neers, Local Union #147, AFL–CIO, as the exclusive
bargaining representative of the employees in the appro-
priate bargaining unit by failing to implement articles
XXIV (Wages), XXVII (Health and Welfare), and
XXVIII (Pension) of its collective-bargaining agreement
with the Union. The appropriate unit is:
All of the Respondent’s Housekeepers located at Fort
Eustis, Virginia, and covered by Army Contract
DABT5700-C-0005, and its successor contracts; ex-
cluding office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.
(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) Immediately remit $10,607.76, plus interest, to Re-
gion 5 to be disbursed to the unit employees, in accor-
dance 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 Respondent has taken to com-
ply.