Amerigal Construction Co., Inc.

372 NLRB No. 104 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. Amerigal Construction Co., Inc. and Construction and Master Laborers’ Local Union 11 a/w La- borers’ International Union of North America, AFL–CIO. Case 05–CA–303129 July 7, 2023 DECISION AND ORDER1 BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY The General Counsel seeks a default judgment in this case on the ground that Amerigal Construction Co., Inc. (the Respondent) has failed to file an answer to the com- plaint. Upon a charge and a first amended charge filed by Construction and Master Laborers’ Local Union 11 a/w Laborers’ International Union of North America, AFL-CIO (the Union) on September 8, 2022, and Febru- ary 8, 2023, respectively, the General Counsel issued a complaint on February 17, 2023, against the Respondent, alleging that it had violated Section 8(a)(5) and (1) of the Act.2 The Respondent failed to file an answer. On May 8, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. Thereafter, on May 9, the Board issued an order, as amended on May 11, transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no re- sponse. The allegations in the motion are therefore un- disputed. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that a respondent “must specifically admit, de- ny, or explain each of the facts alleged in the complaint, unless the Respondent is without knowledge, in which case the Respondent must so state, such statement oper- ating as a denial.” It also provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint here affirmatively stated that unless an answer was received by March 3, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undisputed allegations in the Gen- eral Counsel’s motion disclose that by letter dated March 13, the Respondent was advised that unless an answer 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 Hereinafter, all dates are in 2023 unless otherwise indicated. was received by March 20, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer. In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations in the complaint to be admitted as true, and we grant the Gen- eral 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 Glenn Dale, Maryland, where it has been engaged in the busi- ness of road and utility construction. During the 12-month period ending January 31, the Respondent has provided services valued in excess of $50,000 in States other than the State of Maryland. During the period described above, the Respondent has conducted its business operations in Washington, D.C., and the Board asserts plenary jurisdiction over Washing- ton, D.C. enterprises. Accordingly, we find that at all material times the Re- spondent has been 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, Luis Ezequiel held the position of the Respondent’s owner and president and has been a supervisor of the Respondent within the meaning of Sec- tion 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. At all material times, Bassem Ahmed has been 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: Included: All craft construction workers, including la- borers, operators, and flaggers. Excluded: office cleri- cals, managerial and confidential employees, guards, and supervisors as defined by the Act. On July 8, 2022, the Board certified the Union as the exclusive collective-bargaining representative of the unit. At all times since July 8, 2022, based on Section 9(a) of the Act, the Union has been the exclusive collective- bargaining representative of the unit. About July 26, 2022, the Union, by letter and email, requested that the Respondent recognize it as the exclu- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 sive collective-bargaining representative of the unit and bargain collectively with the Union as the exclusive col- lective-bargaining representative of the unit. Since about July 26, 2022, and continuing to date, the Respondent has failed and refused to recognize and bar- gain with the Union as the exclusive collective- bargaining representative of the unit. About August 17, 2022, the Union, by letter and email, renewed its requests described above. About September 9, 2022, the Respondent, by email, communicated to the Union its refusal to recognize and bargain with the Union as the exclusive collective- bargaining representative of the unit. Since about July 26, 2022, the Union has requested in writing that the Respondent furnish the Union with the following information:3 1. Any written job descriptions for the positions within the bargaining unit. 2. Any written training materials related to the posi- tions within the bargaining unit. 3. A copy of all employee policies, handbooks, manu- als, safety guidelines, or written work rules currently applicable to bargaining unit employees. 4. Any documents that set out the regular work hours for employees within the bargaining unit. 5. A roster of all full-time and regular part-time bar- gaining unit employees, including all employees listed on the Voter Eligibility Lost that the Employer submit- ted in Case No. 05-RC-294473, that includes their date of hire and current or most recent rate of pay. 6. A list of all and address for current active projects where members of the bargaining unit work. 7. For each currently active project that is subject to prevailing wage requirements under Davis-Bacon and related Acts, or under the policies of DC Water, a copy the wage determination applicable to each covered pro- ject. 8. 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. 9. A statement of the monthly premium that a bargain- ing unit employee is responsible for paying for either self-only or family coverage by any employer- sponsored health plan(s) for which bargaining unit em- ployees are eligible to participate. 3 We note that the Union’s information request jumped from 7 to 9, skipping number 8. We have renumbered the list accordingly. 10. 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. 11. 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. 12. A description of any other benefits that the Em- ployer provides to employees, including but not limited to paid vacation, sick days, or holidays, uniforms, gloves, personal protective equipment, access to clean- ing products, and job training. The information requested by the Union, as described above, is necessary for, and relevant to, the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the unit. Since about July 26, 2022, and continuing to date, the Respondent has failed and refused to furnish the Union with the information requested. By the conduct described above, the Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining repre- sentative of its employees in violation of Section 8(a)(5) and (1) of the Act. The unfair labor practices of the Respondent described above affect commerce within the meaning of Section 2(6) and (7) of the Act. CONCLUSION OF LAW By the conduct described above, the Respondent has been failing and refusing to meet and bargain collectively and in good faith with the exclusive collective- bargaining representative of its employees in violation of Section 8(a)(5) and (1) of the Act. The unfair labor prac- tices of the Respondent described above 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, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, AMERIGAL CONSTRUCTION CO., INC. 3 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). Further, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that is necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employees, we shall order the Respondent to furnish the Union with the information that it requested on July 26, 2022. Additionally, the General Counsel requests that the Respondent be ordered to comply with a bargaining schedule requiring a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session, until an agreement or lawful impasse is reached or until the parties agree to a respite in bargaining. The General Counsel also requests that the Respondent be required to submit written bargaining progress reports to the Region and the Union every 15 days. As discussed above, the Respondent has unlawfully failed and refused to bargain with the Union for an initial collective-bargaining agreement despite the Union’s repeated requests to bar- gain over many months. In fact, the Respondent has failed and refused even to meet and/or to schedule any meetings to bargain since July 2022. It also has unlaw- fully failed and refused to furnish presumptively relevant information that goes to the core of the Union’s duties as the exclusive collective-bargaining representative of the unit employees. Given these circumstances, we find that a bargaining schedule requiring the Respondent to meet and bargain with the Union on a regular and timely basis is appropriate and would best effectuate the purposes of the Act. See Serenethos Care Center LLC d/b/a St. Christopher Convalescent Hospital, 371 NLRB No. 54, slip op. at 2–3 (2022) (ordering employer to comply with a bargaining schedule to remedy its unlawful conduct), enfd. mem. NLRB v. Serenethos Care Ctr. LLC, No. 22- 70014, 2022 U.S. App. LEXIS 5285 (9th Cir. Feb. 28, 2022); All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2 (2011) (same), enfd. mem. 540 Fed.Appx. 484 (6th Cir. 2013). Accordingly, we shall order the Respondent, within 15 days of the Union’s request, to bargain for a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session until the parties reach agreement, lawful impasse, or an agreed- upon respite in bargaining. We shall also require the Respondent to submit written bargaining progress reports to the compliance officer for Region 5 every 15 days and to serve copies of those reports on the Union. The General Counsel also requests that the Respondent be ordered to mail a copy of the notice to its unit em- ployees because these employees are construction work- ers who work primarily at locations away from the Re- spondent’s facility. The General Counsel asserts that a notice mailing is necessary to ensure that all unit em- ployees are informed of the Board’s order. We agree that this remedy is particularly appropriate to the work situa- tion here and shall order the Respondent to mail a copy of the notice to all unit employees employed since July 26, 2022, when the Respondent began its unlawful con- duct. See Bevilacqua Asphalt Corp., 369 NLRB No. 96, slip op. at 2 (2020) (ordering notice mailing where em- ployer operated a quarry and asphalt plant and certain employees, particularly truckdrivers, did not regularly enter respondent’s office); Abramson, LLC, 345 NLRB 171, 171 fn. 3 (2005) (ordering notice mailing where unit employees worked on individual construction sites across a two-state region).4 ORDER The National Labor Relations Board orders that the Respondent, Amerigal Construction Co., Inc., Glenn Dale, Maryland, its officers, agents, successors, and as- signs, shall 1. Cease and desist from 4 The General Counsel requests several additional remedies, includ- ing a notice reading in English and Spanish; posting the Board’s Expla- nation of Employee Rights poster, in English and Spanish, alongside the Notice to Employees for a period of 60 days; granting the Union reasonable access to nonwork areas of the Respondent’s worksites during employees’ nonwork periods to communicate with employees free from interference by the Respondent; granting the Union reasona- ble access to the Respondent’s bulletin boards at the Respondent’s facility and worksites and all other places where notices to employees are customarily posted; providing employee contact information to the Union, including employees’ personal email addresses; telephone num- bers and home addresses; and Board agent-conducted training for man- agers and supervisors on their obligations under the Act. We grant the General Counsel’s request that the notice be posted in English and Spanish. See Teamsters Local Union No. 455 (Cargill Meat Solutions), 364 NLRB 1788, 1790 fn. 3 (2016). However, be- cause it has not been demonstrated that the remaining remedies are necessary to effectuate the policies of the Act, we deny those requests. See H.W. Weidco/Ren LLC d/b/a South Jersey Extended Care, 371 NLRB No. 115, slip op. at 3 (2022); Fallbrook Hospital Corporation d/b/a Fallbrook Hospital, 360 NLRB 644, 644, fn. 3 (2014), enfd. 785 F.3d 729 (D.C. Cir. 2015); Bruce Packing Co., 357 NLRB 1084, 1084 fn. 4 (2011), enfd. in part 795 F.3d 18 (D.C. Cir. 2015). Member Prouty would order the notice reading remedy requested by the General Counsel. He would order that the notice be read to the workforce in English and Spanish and further, he would require the Board agent to distribute the notice to employees at the meeting before the reading. See, Noah’s Ark Processors, 372 NLRB No. 80, slip op. at 7 fn. 27 (2023). Such distribution will facilitate employee comprehen- sion as employees will be able to follow along as the notice is read aloud. Lastly, it offers employees a chance to retain the documents for future reference and to review them in private free from their employ- er's possible observation should they choose to do so. A copy of the notice distributed by the Board agent to all attendees is a neutral meth- od of providing them with the information they need to understand their rights and the offending party's obligations. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 (a) Failing and refusing to recognize and bargain in good faith with Construction and Master Laborers’ Local Union 11 a/w Laborers’ International Union of North America, AFL-CIO (the Union) as the exclusive collec- tive-bargaining representative of the Respondent’s unit employees. (b) Failing and refusing to furnish the Union with re- quested information that is necessary for and relevant to the performance of its functions as the collective- bargaining representative of the Respondent’s unit em- ployees. (c) 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) Within 15 days of the Union’s request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appro- priate unit concerning terms and conditions of employ- ment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All craft construction workers, including la- borers, operators, and flaggers. Excluded: office cleri- cals, managerial and confidential employees, guards, and supervisors as defined by the Act. Bargaining sessions shall be held for a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session, until an agreement or lawful impasse is reached or until the parties agree to a respite in bargaining. The Re- spondent shall submit written bargaining progress reports to the compliance officer for Region 5 every 15 days and to serve copies of those reports on the Union. (b) Furnish to the Union in a timely manner the in- formation it requested, as described above, since July 26, 2022. (c) Post at the Respondent’s facility copies of the at- tached notice marked “Appendix” in English and Span- ish.5 Copies of the notice, on forms provided by the Re- 5 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- gional Director for Region 5, in English and Spanish, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since July 26, 2022. (d) Within 14 days after service by the Region, dupli- cate and mail, at its own expense and after being signed by the Respondent’s authorized representative, copies of the attached notice marked “Appendix,” to the Union and to all unit employees who were employed by the Re- spondent at any time since July 26, 2022. (e) 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 Respondent has taken to comply. Dated, Washington, D.C. July 7, 2023 ______________________________________ Lauren McFerran, Chairman ________________________________________ Gwynne A. Wilcox, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD ment of a United States court of appeals, the words in the notice read- ing “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” AMERIGAL CONSTRUCTION CO., INC. 5 APPENDIX NOTICE TOEMPLOYEES POSTED 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 fail and refuse to bargain collectively and in good faith with Construction and Master Labor- ers’ Local Union 11 a/w Laborers’ International Union of North America, AFL–CIO (the Union) as your exclusive collective-bargaining representative. WE WILL NOT fail and refuse to bargain collectively and in good faith with the Union by failing and refusing to furnish requested information that is necessary for and relevant to the performance of its duties. 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, within 15 days from the date of the Union’s request, bargain with the Union as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit concerning terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All craft construction workers, including la- borers, operators, and flaggers. Excluded: office cleri- cals, managerial and confidential employees, guards, and supervisors as defined by the Act. Bargaining sessions shall be held for a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session, until an agreement or lawful impasse is reached or until the parties agree to a respite in bar- gaining. WE WILL submit written bargaining progress reports to the compliance officer for Region 5 every 15 days and serve copies of those reports on the Union. WE WILL furnish to the Union in a timely manner the information requested by the Union on July 26, 2022. AMERIGAL CONSTRUCTION CO., INC. The Board’s decision can be found at https://www.nlrb.gov/case/ 05-CA-303129 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., Washing- ton, D.C. 20570, or by calling (202) 273-1940