Retro Environmental, Inc. / Green JobWorks, LLC (Joint Employers)

National Labor Relations Board - Board Decisions

Mar 26, 2018

366 NLRB No. 45 (N.L.R.B. 2018)

366 NLRB No. 45
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.
Retro Environmental, Inc./Green JobWorks, LLC
and Construction and Master Laborers’ Local
Union 11, a/w Laborers International Union of
North America (LIUNA). Case 05–CA–199590
March 26, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of
material fact as to the allegations in the complaint, and
that the Board should find, as a matter of law, that the
Respondents—Retro Environmental, Inc. (Retro) and
Green JobWorks, LLC (GJW)—failed and refused to
bargain with the Union in violation of Section 8(a)(5)
and (1) of the Act by failing and refusing to furnish the
Union with requested information that is relevant and
necessary to the Union’s performance of its functions as
the exclusive collective-bargaining representative of the
Respondents’ unit employees.
Pursuant to a charge filed on May 26, 2017, by Con-
struction and Master Laborers’ Local Union 11, a/w La-
borers’ International Union of North America (the Un-
ion), alleging that the Respondents have violated Section
8(a)(5) and (1) of the Act by failing and refusing to fur-
nish the Union with requested information, the General
Counsel issued the instant complaint on July 31, 2017.
The Respondents each filed an answer, admitting in part
and denying in part the allegations of the complaint and
asserting affirmative defenses.
On September 21, 2017, the Board issued a Decision
and Order granting the General Counsel’s Motion for
Summary Judgment in a related refusal-to-bargain case
in which the Respondents contested the Union’s certifi-
cation on the basis of their contentions, raised and reject-
ed in the underlying representation proceeding (Case 05–
RC–153468), that they are not joint employers of the unit
employees and that the unit is not appropriate. Retro
Environmental, Inc./Green JobWorks, LLC, 365 NLRB
No. 133 (2017) (Retro I). In that case, the Board found
that since March 1, 2017, the Respondents failed and
refused to recognize and bargain with the Union in viola-
tion of Section 8(a)(5) and (1) of the Act.1 Id., slip op. at
2.
On November 3, 2017, the General Counsel filed a
Motion to transfer case to the Board and for Summary
Judgment in the current proceeding. On November 7,
2017, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. Neither Respondent filed a
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 Summary Judgment
The Respondents admit their refusal to furnish the Un-
ion with information the Union requested on March 1,
2017, but they contest the validity of the Union’s certifi-
cation, and their obligation to bargain with the Union, on
the basis of their contentions, raised and rejected in the
underlying representation proceeding, that they are not
joint employers of the unit employees and that the unit is
not appropriate.2
All representation issues raised by the Respondents
were or could have been litigated in the prior representa-
tion proceeding. The Respondents do not offer to adduce
at a hearing any newly discovered and previously una-
vailable evidence, nor do they allege any special circum-
stances that would require the Board to reexamine the

1 On March 5, 2018, the General Counsel filed an application for
enforcement of its order in Retro I with the United States Court of
Appeals for the Fourth Circuit.
2 In addition, the Respondents have asserted as affirmative defenses
that the complaint fails to state a claim upon which relief can be grant-
ed; the complaint allegations are insufficient to state a violation of the
Act; the complaint was issued, in whole or in part, without substantial
justification; some or all of the allegations in the complaint fall outside
the scope of the underlying charge; and the complaint is vague and
lacking in detail. The Respondents have not offered any explanation or
evidence to support these bare assertions. Thus, we find that these
affirmative defenses are insufficient to warrant denial of the General
Counsel’s Motion for Summary Judgment in this proceeding. See Retro
I, supra, slip op. at 2 fn. 2. Accordingly, we find it unnecessary to pass
on the General Counsel’s request that we strike the Respondents’ af-
firmative defenses.
Retro also asserts as an affirmative defense that some or all of the
complaint allegations are barred by Sec. 10(b) of the Act. However,
Retro’s answer admits that it has refused to furnish the Union with
requested information since March 3, 2017, and that the charge was
filed on May 26, 2017. Retro thus admits that the alleged unlawful
conduct occurred within 6 months of the filing of the charge. Therefore,
we find that Retro’s 10(b) defense is without merit.
Finally, Retro asserts as an affirmative defense that it did not pur-
posefully fail or refuse to bargain with the Union. However, Retro
admits par. 8 of the complaint, which alleges that Retro failed and
refused to furnish the Union with the information it requested. We find
that this affirmative defense does not raise an issue of fact warranting a
hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
decision made in the representation proceeding. We
therefore find that the Respondents have not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no factual issues warranting
a hearing with respect to the Union’s information re-
quest. The complaint alleges, and the Respondents admit,
that since about March 1, 2017, the Union, by letter and
email, requested that the Respondents furnish the Union
with the following information:
(1) A copy of any contracts, agreements, or memoranda
of understanding between GJW and Retro relating to
the provision of temporary labor by GJW to Retro;
(2) Any written job descriptions for the positions within
the bargaining unit;
(3) Any written training materials related to the posi-
tions within the bargaining unit;
(4) A copy of all employee policies, handbooks, manu-
als, safety guidelines, or written work rules currently
applicable to bargaining unit employees;
(5) Any documents that set out the regular work hours
for employees within the bargaining unit;
(6) A roster of all full-time and regular part-time bar-
gaining-unit employees, including all employees listed
on the Voter Eligibility List that [Respondents] submit-
ted in Case No. 05-RC-153468, that includes their date
of hire and current or most recent rate of pay;
(7) A copy of the summary plan description and sum-
mary of benefits for any employer-sponsored health
plan(s) for which bargaining-unit employees are eligi-
ble to participate;
(8) A statement of the monthly premium that a bargain-
ing unit employee is responsible for paying either self-
only or family coverage by any employer-sponsored
health plan(s) for which bargaining unit employees are
eligible to participate;
(9) A statement of the monthly premium that the em-
ployer is responsible for paying for an employee with
self-only or family coverage by any employer-
sponsored health plan(s) for which bargaining unit em-
ployees are eligible to participate;
(10) A copy of the summary plan description for any
401(k) or other form of retirement benefit plan(s) for
which bargaining unit employees are eligible to partici-
pate; and
(11) A description of any other benefits that [the Re-
spondents] provide to employees, including but not
limited to paid vacation, sick days, or holidays, uni-
forms, gloves, personal protective equipment, access to
cleaning products and job training.
The Respondents deny the allegation that this request-
ed information is relevant to the Union’s performance of
its functions as the exclusive collective-bargaining repre-
sentative of the unit employees. It is well established,
however, that information of this type is relevant for pur-
poses of collective bargaining and must be furnished,
because it concerns terms and conditions of employment
of unit employees.3 We find, therefore, that there are no
material issues of fact warranting a hearing.
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDING OF FACT
I. JURISDICTION
At all material times, Retro has been a corporation
with an office and place of business in Sykesville, Mary-
land, and has been engaged in the business of providing
demolition and environmental services to private and
governmental entities, including at sites in Washington,
D.C.
At all material times, GJW has been a limited liability
corporation with an office and place of business in Bal-
timore, Maryland, and has been a temporary staffing
agency engaged in the business of demolition and envi-
ronmental remediation, including asbestos remediation.
From about May 1, 2013, through May 1, 2014, Retro
and GJW were parties to a contract which provided that
GJW was the agent for Retro in connection with hiring
employees for its projects located in Washington, D.C.,
Maryland, and Virginia.
Since about May 1, 2014, Retro and GJW have contin-
ued to operate consistent with the contract described
above.4

3 See, e.g., CVS Albany, LLC d/b/a CVS, 364 NLRB No. 122, slip
op. at 1 (2016), enfd. mem. 709 Fed. Appx. 10 (D.C. Cir. 2017) (per
curiam); Metro Health Foundations, Inc., 338 NLRB 802, 803 (2003).
With respect to par. 1, above, the relevance of this information has
been established because, as found in the underlying representation
proceeding, GJW supplied employees to perform bargaining unit work
for Retro. Moreover, the Board found that the Respondents are joint
employers and certified the Union as the exclusive collective-
bargaining representative of unit employees jointly employed by the
Respondents. Retro Environmental, Inc./Green JobWorks, LLC, 364
NLRB No. 70, slip op. at 1 (2016).
4 Although the Respondents deny this allegation, the Board found in
the underlying representation proceeding that “[f]rom May 2013 to
May 2014, Green JobWorks and Retro operated under a lease of ser-
vices agreement,” and that after the agreement expired, “the two com-
panies continue[d] to operate essentially in the same manner[.]” Retro
Environmental, Inc./Green JobWorks, LLC, 364 NLRB No. 70, slip op.
at 1 (2016). Accordingly, we find that the Respondents’ denials do not
raise an issue of fact warranting a hearing with respect to this complaint
allegation.
RETRO ENVIRONMENTAL, INC./GREEN JOBWORKS, LLC 3
At all material times, Retro has possessed control over
the labor relations policy of GJW, exercised control over
the labor relations policy of GJW, and administered a
common labor policy with GJW for the employees of the
Respondents.5
At all material times, Retro and GJW have been joint
employers of the employees of Respondents.
In conducting its operations during the 12-month peri-
od ending June 30, 2017, Retro performed services val-
ued in excess of $50,000 in states other than the State of
Maryland.
In conducting its operations during the 12-month peri-
od ending June 30, 2017, GJW performed services val-
ued in excess of $50,000 in states other than the State of
Maryland.
We find that the Respondents are employers engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. We further find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of Respondents (the Unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time laborers, including
demolition and asbestos workers, jointly employed by
Retro Environmental, Inc. and Green JobWorks, LLC;
excluding office clericals, confidential employees,
managerial employees, guards, and supervisors as de-
fined in the Act.
On December 2, 2016, the Board certified the Union as
the exclusive collective-bargaining representative of the
Unit. At all times since December 2, 2016, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the Unit.
By letter and email dated March 1, 2017, the Union
requested that the Respondents furnish the Union with
information that is relevant and necessary to the Union’s
performance of its duties as the exclusive collective-
bargaining representative of the unit. Since about March
3, 2017, the Respondents have failed and refused to fur-
nish the Union with the requested information. We find

5 The Respondents deny this allegation and the allegation that they
are joint employers. As noted above, the Board addressed the joint
employer issue in the underlying representation proceeding.
Chairman Kaplan did not participate in the underlying representation
proceeding. He agrees that summary judgment is appropriate here, but
expresses no opinion on whether the underlying representation issues
were correctly decided.
that the Respondents’ conduct constitutes an unlawful
refusal to bargain collectively with the Union in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since March 3, 2017, to furnish
the Union with requested information that is relevant and
necessary to the Union’s performance of its functions as
the exclusive collective-bargaining representative of the
Respondents’ unit employees, the Respondents have en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 8(a)(5) and (1) and 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
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifical-
ly, having found that the Respondents violated Section
8(a)(5) and (1) of the Act by failing and refusing to fur-
nish the Union with information that is relevant and nec-
essary to the Union’s performance of its functions as the
exclusive collective-bargaining representative of the Re-
spondents’ unit employees, we shall order the Respond-
ents to furnish the Union with information requested in
its letter and email dated March 1, 2017.
ORDER
The National Labor Relations Board orders that the
Respondents, Retro Environmental, Inc., Sykesville,
Maryland, and Green JobWorks, LLC, Baltimore, Mary-
land, joint employers, and their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Construction
and Master Laborers’ Local Union 11, a/w Laborers’
International Union of North America (the Union), by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondents’ unit employees.
(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 to the Union in a timely manner the infor-
mation requested by the Union on March 1, 2017.
(b) Within 14 days after service by the Region, post at
their facilities in Sykesville, Maryland, and Baltimore,
Maryland, copies of the attached notice marked “Appen-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
dix.”6 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by the
Respondents’ authorized representative, shall be posted
by the Respondents 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 dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondents customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondents to ensure that the notices are
not altered, defaced, or covered by any other material. If
the Respondents have gone out of business or closed the
facilities involved in these proceedings, the Respondents
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees
employed by the Respondents at any time since March 3,
2017.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondents have
taken to comply.
Dated, Washington, D.C. March 26, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, 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

6 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.”
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 refuse to bargain collectively with Con-
struction and Master Laborers’ Local Union 11, a/w La-
borers’ International Union of North America (the Un-
ion), by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
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 to the Union in a timely manner the
information requested by the Union on March 1, 2017.
RETRO ENVIRONMENTAL, INC./GREEN
JOBWORKS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/05-CA-199590 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.