PRO WORKS CONTRACTING, INC.

National Labor Relations Board - Board Decisions

Dec 13, 2017

365 NLRB No. 150 (N.L.R.B. 2017)

365 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.
Pro Works Contracting, Inc. and Iron Workers Local
229, International Association of Bridge, Struc-
tural, Ornamental and Reinforcing Iron Work-
ers, AFL–CIO. Cases 21–CA–161599 and 21–
CA–162578
December 13, 2017
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
agreement. Upon a charge and an amended charge in
Case 21–CA–161599 filed by Iron Workers Local 229,
International Association of Bridge, Structural, Orna-
mental and Reinforcing Iron Workers, AFL–CIO (the
Union), on October 8 and November 17, 2015, respec-
tively, and a charge and an amended charge in Case 21–
CA–162578 filed by the Union on October 22 and No-
vember 17, 2015, respectively, the General Counsel is-
sued the consolidated complaint on May 4, 2016, against
Pro Works Contracting, Inc. (the Respondent), alleging
that the Respondent violated Section 8(a)(3) and (1) of
the Act.
Subsequently, the Respondent entered into a unilateral
informal settlement agreement, which was approved by
the Regional Director on June 21, 2016.1 The settlement
agreement required the Respondent to post at its facilities
a Board Notice to Employees, in English and Spanish,
for 60 days and to mail the notice to all current employ-
ees and former employees employed at any time since
September 1, 2015. The settlement agreement further
required that the Respondent’s president and owner, Earl
Register, would read the Board notice to all current em-
ployees during regular work time. The settlement
agreement also contained the following provision:
Performance by the Charged Party with the terms
and provisions of this Agreement shall commence
immediately after the Agreement is approved by the
Regional Director, or if the Charging Party does not
enter into this Agreement, performance shall com-
mence immediately upon receipt by the Charged
Party of notice that no review has been requested or
that the General Counsel has sustained the Regional
Director.

1 The Union did not enter into the settlement agreement, and ap-
pealed the Regional Director’s approval of it. On July 21, 2016, the
Office of Appeals sustained the Regional Director’s approval.
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
notice from the Regional Director of the National
Labor Relations Board of such non-compliance
without remedy by the Charged Party, the Regional
Director will reissue the Consolidated Complaint
(Complaint) previously issued on May 4, 2016, in
the instant cases. 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 Complaint will be deemed admit-
ted and that it will have waived its right to file an
Answer to such Complaint. The only issue that the
Charged Party may raise before the Board will be
whether it defaulted on the terms of this Settlement
Agreement. The General Counsel may seek, and the
Board may impose, a full remedy for each unfair la-
bor practice identified in the Notice to Employees.
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 issue 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 Par-
ty at the last address provided to the General Coun-
sel.
On August 8, 2016, the Region sent a compliance
package to the Respondent containing copies of the con-
formed settlement agreement, the Notice to Employees,
and a letter describing the Respondent’s obligations un-
der the settlement agreement. The Region also emailed,
on August 8 and 9, respectively, copies of the compli-
ance package to Gary Lane, the Respondent’s office
manager, and to Register. The Region received no re-
sponse from the Respondent.
In January and February 2017, the Region again solic-
ited the Respondent, through multiple emails to Lane, to
comply with its obligations under the settlement agree-
ment and provided instructions and deadlines for the Re-
spondent in this regard. On April 6, 2017, the Regional
Director sent the Respondent, by emails to Register and
Lane and by UPS shipment, a default warning letter,
along with another copy of the compliance package. The
Respondent refused delivery of the UPS shipment. On
June 15, 2017, the Regional Director sent the Respond-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ent, by emails to Register and Lane and by certified mail,
a revised default warning letter and another copy of the
compliance package. The Respondent refused delivery
of the certified mail. The June 15 letter advised the Re-
spondent that if its noncompliance was not cured by June
29, 2017, the Region would invoke the default provision
in the settlement agreement, reissue the consolidated
complaint, and file a motion for default judgment with
the Board. The Respondent failed to comply.
Accordingly, pursuant to the terms of the noncompli-
ance provisions of the settlement agreement, on July 31,
2017, the Regional Director reissued the consolidated
complaint. On August 1, 2017, the General Counsel
filed a Motion for Default Judgment with the Board. On
August 4, 2017, 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.
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 post, mail, and read the Notice to Employees in
the manner prescribed in 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 consolidated complaint
are true.2 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
At all material times, the Respondent has been a cor-
poration with an office and place of business in Santee,
California, and has been engaged in the business of gen-
eral contracting and steel reinforcement subcontracting in
the building and construction industry.
In conducting its operations, during the 12-month pe-
riod ending October 21, 2015, the Respondent per-
formed services valued in excess of $50,000 to Lusardi
Construction Company (Lusardi), an enterprise engaged
in the business of general contracting in the building and
construction industry, with an office and place of busi-
ness in San Marcos, California. During the 12-month
period ending October 21, 2015, Lusardi, in conducting
its operations described above, purchased and received at

2 See U-Bee, Ltd., 315 NLRB 667 (1994).
its San Marcos facility goods valued in excess of $50,000
directly from points outside the State of California.
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:
Earl Register President
Tom Coker Superintendent/Representative
Brian Payne - Foreman
Patrick Brown Foreman
The Respondent engaged in the following conduct,
giving rise to these proceedings.
1. About July 29, 2015, the Respondent, by Earl Reg-
ister, during a telephone call, interrogated an employee
about the employee's union activities and support.
2. About September 4, 2015, at the Respondent's
Kearny Mesa Sun Road project (Sun Road project), the
Respondent, by Brian Payne, interrogated an employee
about the employee's activities and support.
3. About September 10, 2015, at the Sun Road pro-
ject, the Respondent, by Payne, coerced an employee by
ripping up a union representative's business card and
telling an employee not to have union materials at the
work place.
4. About September 10, 2015, at the Sun Road pro-
ject, the Respondent, by Payne, directed an employee to
report the union activities of other employees to the Re-
spondent.
5. About September 10, 2015, at the Sun Road pro-
ject, the Respondent, by Payne, threatened an employee
with termination because of the employee’s union activi-
ties and support.
6. About September 27, 2015, during a telephone
conversation, the Respondent, by Payne, threatened to
isolate an employee by giving the employee work as-
signments away from others because of the employee's
union activities and support.
7. Since about September 10, 2015, the Respondent,
by Register and Payne, has prohibited union activity at
the Sun Road project by requiring employees wearing
clothing with union insignia to wear vests over such
clothing.
8. About September 10, 2015, the Respondent as-
signed its employee Robert Whitman more onerous work
PRO WORKS CONTRACTING, INC. 3
duties (bending z-bars) because Whitman joined or as-
sisted the Union and engaged in concerted activities, and
to discourage employees from engaging in these activi-
ties.
9. From about October 15 to about October 21, 2015,
the Respondent assigned its employee Marc Barry more
onerous work duties (punking rebar) because Barry
joined or assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in
these activities.
CONCLUSIONS OF LAW
By the conduct described above in paragraphs 1, 2, 3,
4, 5, 6, and 7, the Respondent has been interfering with,
restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
By the conduct described above in paragraphs 8 and 9,
the Respondent has been discriminating in regard to the
hire or tenure or terms or conditions of employment of its
employees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) and (1) of
the Act.
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 actions designed to effectuate the poli-
cies of the Act. Specifically, we shall order the Re-
spondent to comply with the unmet terms of the settle-
ment agreement approved by the Regional Director for
Region 21 on June 21, 2016, by posting, mailing, and
reading the notices provided by the Board in the manner
prescribed in the settlement agreement.3

3 In his motion for default judgment, the General Counsel stated that
the Respondent has failed to post, mail, or read the notice to employees
under the terms of the settlement agreement. The General Counsel
requested that the Board “[i]ssue a Decision and Order against Re-
spondent containing Findings of Fact and Conclusions of Law based
on, and in accordance with, the allegations of the Re-issued Consolidat-
ed Complaint, and provide a full remedy for each and every unfair
labor practice violation.” The General Counsel further specifically
requested “that the Board-ordered Notice, along with the mechanics of
the Notice-mailing and/or Notice-reading obligation, track the terms
and Notice of the Settlement Agreement.” In the particular circum-
stances of this case, we construe the General Counsel's motion as a
request to enforce the unmet terms of the settlement agreement. See,
e.g., Perkins Management Services, 365 NLRB No. 90 (2017) (constru-
ing General Counsel’s motion for default judgment to seek enforcement
of unmet settlement terms when he specifically requested an order
requiring the respondent to fulfill its undertakings in that agreement);
Benchmark Mechanical, Inc., 348 NLRB 576 (2006).
ORDER
The National Labor Relations Board orders that the
Respondent, Pro Works Contracting, Inc., Santee, Cali-
fornia, its officers, agents, successors, and assigns shall
take the following affirmative action necessary to effec-
tuate the policies of the Act.
Post at its Santee facility copies of the attached notice
marked “Appendix,”4 in English and Spanish and signed
and dated by Earl Register (Owner), for 60 consecutive
days.
Mail, at its own expense, the attached notice, in Eng-
lish and Spanish and signed and dated by Earl Register,
to all current employees and all former employees em-
ployed at any time since September 1, 2015.
During the 60-day posting period, have Earl Register
read the notice, in English, to all current employees con-
vened at the Respondent’s facility located at 10612 Pro-
spect Avenue, Suite 105, Santee, California. This read-
ing will occur during the employees’ regular work time.
The date of the scheduled reading must be approved by
the Regional Director for Region 21. The Respondent
will notify employees, in writing, at least 5 days before
the scheduled reading, as to the location, time, and date
of the reading. The written notification will also inform
employees that they will be paid their regular hourly
rate/salary for the time it takes employees to travel
to/from the reading location, as well as for the time they
are at the office for the reading. The Respondent will
provide Region 21 with a copy of the draft notification
letter before sending it to employees. The draft must be
approved by the Regional Director for Region 21 before
the final version is sent to employees. A Board agent
will be present during the reading. After Earl Register

In its joinder to the General Counsel's Motion for Default Judgment,
the Union requests that the Board order the Respondent to post the
appropriate Board notice for the time period between the filing of the
unfair labor practice charges and the date the notices are actually post-
ed; to post the Board’s Employee Rights Notice Posting for 5 years; to
buy 10 copies of the book “California Workers’ Rights” and distribute
them to employees; and to allow the Union to visit job sites for 30
minutes per week for 1 year. We deny these requests because the Un-
ion has not shown that these additional measures are needed to remedy
the effects of the Respondent's unfair labor practices. See generally
Alstyle Apparel, 351 NLRB 1287, 1288 (2007). Finally, the Union
requests that the remedial notice state that the Respondent has been
found to have violated the National Labor Relations Act. With respect
to this request, we note that the attached notice, which conforms to the
Board’s standard remedial language, states that the Respondent “violat-
ed Federal labor law.”
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted and Mailed by Order
of the National Labor Relations Board” shall read “Posted and Mailed
Pursuant to a Judgment of the United States Court of Appeals Enforc-
ing an Order of the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
reads the notice to employees in English, the Board agent
will then read the notice in Spanish.
Within 21 days after service by the Region, file with
the Regional Director for Region 21 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.
Dated, Washington, D.C. December 13, 2017
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED AND 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
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate employees about their un-
ion activities or support.
WE WILL NOT, unless required by a general contrac-
tor, require employees to wear vests at projects so as to
cover up union insignia they are wearing, or inform
employees that they have to wear vests to cover union
insignia.
WE WILL NOT assign employees more onerous work
duties (such as bending z-bars or punking rebar) be-
cause of their union activities or support
WE WILL NOT threaten to isolate, discipline, or ter-
minate employees because of their union activities or
support.
WE WILL NOT direct employees to report the union
activities or sympathies of other employees to us.
WE WILL NOT in any like or related manner interfere
with your rights under Section 7 of the Act.
PRO WORKS CONTRACTING, INC.
The Board’s decision can be found at
www.nlrb.gov/case/21-CA-161599 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.