R.J. Houle Mechanical Contractors

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342 NLRB No. 60 646 R. J. Houle Mechanical Contractors and Kenneth Modlin. Case 5–CA–31343 July 29, 2004 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG The General Counsel seeks summary judgment in this case pursuant to the terms of a settlement agreement. Upon charges filed by employee Kenneth Modlin on July 14, 2003, the General Counsel issued the complaint and the amended complaint on October 27 and December 31, 2003, respectively, against the Respondent, R.J. Houle Mechanical Contractors, alleging that it has violated Sec- tion 8(a)(1) of the Act by terminating Modlin because he engaged in concerted activities. The Respondent filed an answer to the complaint and to the amended complaint. Thereafter, the Charging Party, the Respondent, and counsel for the General Counsel entered into a settlement agreement, which was approved by Administrative Law Judge Richard A. Scully on January 30, 2004. The set- tlement required the Respondent to: (1) make Modlin whole by payment to him of $20,000, with $5000 due on March 20, 2004, and 13 payments of $1154 due on a biweekly basis thereafter;1 and (2) post a notice to em- ployees regarding the complaint allegations. The agree- ment also contained the following further provisions: In consideration of the Administrative Law Judge ap- proving this Settlement Agreement, Respondent agrees that, in the event of any non-compliance to make re- quired payments on the date specified, or to cure any such failure within fourteen (14) days of the specified payment date, the total amount of backpay ($28,000) plus interest to date of payment shall become immedi- ately due and payable. Respondent agrees after four- teen (14) days notice from the Regional Director of the National Labor Relations Board, on motion for sum- mary judgment by the General Counsel, Respondent’s Answer and Amended Answer to the instant Amended Complaint shall be considered withdrawn. Thereupon, the Board may issue an order requiring Respondent to show cause why said Motion of the General Counsel should not be granted. The Board may, without the ne- cessity of trial, find all allegations of the Amended Complaint to be true, make findings of fact and conclu- sions of law consistent with those allegations adverse to Respondent on all issues raised by the pleadings. The Board may then issue an Order providing full remedy 1 The lump-sum payment of $5000 and the 13 installment payments of $1154 add up to $20,002, rather than $20,000 as indicated in the settlement. as specified in the Amended Complaint. The parties further agree that a Board Order and U.S. Court of Ap- peals Judgment may be entered thereon ex parte. By letter dated March 29, 2004, the compliance officer for Region 5 advised the Respondent that it was in de- fault of the settlement agreement because it had failed to perform any of its obligations under the agreement. The letter further advised the Respondent that to cure its de- fault, it should, by April 2, 2004, remit the first sched- uled payment of $5000; post the notice to employees; complete and return a certificate of posting indicating where and for how long the notice was posted; expunge all references to Modlin’s unlawful termination from its files; and notify Modlin that it had done this and that his unlawful termination would not be used against him in any way. By letter dated April 6, 2004, the compliance officer again requested the Respondent to comply with the set- tlement agreement. The compliance officer extended the date for compliance to April 9, 2004. By letter dated April 14, 2004, the compliance officer once again requested the Respondent to comply with the agreement, and advised that the Region would initiate summary judgment proceedings in accordance with the terms of the agreement unless the Respondent complied by April 16, 2004. By facsimile transmission dated April 16, 2004, the Respondent returned to the Region a certificate of post- ing and a copy of a letter to Modlin informing him that all references to his unlawful termination were removed from its files and would not be used against him in any way. The Respondent stated that it intended to remit payments due under the settlement agreement on or about May 15, 2004. On May 17, 2004, the Region sent a courtesy copy of the Motion for Summary Judgment to the Respondent’s counsel of record, along with a letter advising that unless the Respondent complied with the settlement agreement by remitting payments due under the agreement by May 24, 2004, the motion would be filed with the Board. On the same date, the Respondent’s counsel of record or her office returned the motion to the Region. On May 19, 2004, the Region sent a courtesy copy of the Motion for Summary Judgment to the Respondent at its place of business in Rockville, Maryland, along with a letter indicating that a copy of the motion had been sent to the Respondent’s legal counsel of record but was re- turned, and notifying the Respondent that unless it com- plied with the settlement agreement by remitting pay- ments due under the agreement by May 24, 2004, the R. J. HOULE MECHANICAL CONTRACTORS 647 motion would be filed with the Board. The Respondent did not comply. Having received no payment from the Respondent, on May 28, 2004, the General Counsel filed a Motion for Summary Judgment with the Board. The General Coun- sel submits that the Respondent defaulted on the settle- ment agreement by failing to make required payments and that its answers should therefore be considered with- drawn. On June 4, 2004, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed no response. The allegations in the mo- tion 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 According to the uncontroverted allegations in the Mo- tion for Summary Judgment, although the Respondent initially submitted an answer to the complaint and amended complaint, it subsequently entered into a set- tlement agreement, which provided for the withdrawal of the answers in the event of noncompliance with the set- tlement agreement. The Respondent has failed to com- ply with the settlement agreement by failing to pay any moneys toward the backpay, plus interest to date, which is now due and owed to the Charging Party. We there- fore find that the Respondent’s answers have been with- drawn by the terms of the January 30, 2004 settlement agreement, and that, as further provided in that settle- ment agreement, all the allegations of the complaint and amended complaint are true.2 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 Maryland cor- poration with an office and place of business in Rock- ville, Maryland (the Respondent’s facility), has been engaged in the business of mechanical contracting pro- viding heating, air conditioning, and ventilation services and units. During the 12-month period preceding issuance of the amended complaint, the Respondent, in conducting its business operations, sold and shipped from its Rockville, Maryland facility goods and supplies valued in excess of $50,000 directly to points located outside the State of Maryland and performed services valued in excess of $50,000 in states other than the State of Maryland. Dur- 2 See U-Bee, Ltd., 315 NLRB 667 (1994). ing the same period, the Respondent, in conducting its business operations, sold and shipped from its Rockville, Maryland facility goods valued in excess of $50,000 di- rectly to International Builders, Inc., an enterprise lo- cated within the District of Columbia. At all material times, International Builders, Inc., a Maryland corporation with an office and place of busi- ness in Washington, D.C., has been engaged in the con- struction industry as a general contractor. During the 12-month period preceding issuance of the amended complaint, the Respondent, in conducting its business operations described above, provided services valued in excess of $50,000 for International Builders, Inc., an enterprise located within the District of Colum- bia. During the same period, International Builders, Inc., in conducting its business operations, purchased goods and supplies at its Washington, D.C. facility in excess of $50,000 directly from points located outside the District of Columbia, and purchased services valued in excess of $50,000, which were furnished to it at its Washington, D.C. facility directly from points located outside the Dis- trict of Columbia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) 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: Robert J. Houle - President George Mills - Superintendent Troy Sakraida - Plumbing Foreman Since on or about June 6, 2003, Kenneth Modlin, the Charging Party, engaged in protected, concerted activi- ties by discussing the Respondent’s failure to pay em- ployees overtime pay with other coworkers, and was selected by them as their spokesman to bring their com- plaints regarding this matter to the Respondent. On or about June 6, 2003, the Charging Party concert- edly presented employee complaints to the Respondent regarding the Respondent’s failure to pay employees overtime pay. On June 6, 2003, the Respondent terminated the em- ployment of Modlin. The Respondent terminated Modlin because he en- gaged in the conduct set forth above and to discourage DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648 employees from engaging in protected concerted activi- ties. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has interfered with, restrained, and coerced employ- ees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act, in violation of Section 8(a)(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 take cer- tain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respon- dent has violated the Act by terminating Kenneth Mod- lin, we shall order the Respondent to make him whole for any loss of earnings and other benefits suffered as a re- sult of his unlawful discharge by paying him the liqui- dated damages amount set forth in the noncompliance clause of the settlement agreement. As described above, the settlement agreement provided that in the event of noncompliance, “the total amount of backpay ($28,000) plus interest to date of payment shall become immedi- ately due and payable.” Accordingly, we shall order the Respondent immediately to remit to the Region $28,000, plus interest as prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987), for payment to Modlin. The standard Board remedies for the violation found here ordinarily also include a cease-and-desist order, reinstatement and full make-whole relief, expungement, and notice posting. However, the General Counsel’s motion indicates that the Respondent has already com- plied with the notice posting provisions of the settlement, expunged the illegal discharge from its files, and notified Modlin that it has done so and that the discharge will not be used against him in any way. In addition, Modlin has declined the Respondent’s offer of reinstatement. Moreover, the noncompliance clause in the settlement agreement is ambiguous with regard to whether any re- lief is warranted beyond the payment of liquidated dam- ages. Thus, the noncompliance clause, in addition to providing for the payment of $28,000 plus interest in liquidated damages, provides that the Board may “issue an Order providing full remedy as specified in the Amended Complaint.” However, the amended complaint does not specify any remedy. In these circumstances, we conclude that the Respondent is obligated only to pay the liquidated damages specified in the settlement agree- ment.3 See Bartlett Heating & Air Conditioning, 339 NLRB 1044 (2003) (remedy limited to liquidated dam- ages specified in breached settlement agreement; non- compliance clause was ambiguous regarding whether other remedies would be warranted). Compare L. J. Lo- gistics, Inc., 339 NLRB 729 (2003) (remedy not limited to backpay amount specified in breached settlement agreement; noncompliance clause specified that the Board could issue an Order “providing a full remedy for the violations so found as is customary to remedy such violations, not limited to provisions of this Settlement Agreement”). ORDER The National Labor Relations Board orders that the Respondent, R. J. Houle Mechanical Contractors, Rock- ville, Maryland, its officers, agents, successors, and as- signs, shall 1. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Immediately remit $28,000 plus interest to Region 5 to be disbursed to employee Modlin, in accordance 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 responsi- ble official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 3 This is consistent with the limited relief requested in the General Counsel’s motion. The General Counsel requests that the Board “issue an order requiring Respondent to comply with the remaining terms of the settlement agreement by immediately paying twenty-eight thousand dollars ($28,000), plus interest to date, to the Charging Party.” Member Liebman agrees that the limited relief requested in the Gen- eral Counsel’s motion is appropriate here where, as the General Counsel’s motion indicates, the Respondent already has otherwise complied with the Board’s full standard remedies. Compare Bartlett Heating & Air Condi- tioning, 339 NLRB 1044, 1047–1048 (2004 (dissenting opinion).