Omni Excavators, Inc.

373 NLRB No. 18 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. Omni Excavators, Inc. and Construction and Master Laborers’ Local Union 11 a/w Laborers’ Interna- tional Union of North America, AFL–CIO. Cases 05–CA–291774 and 05–CA–292168 February 9, 2024 DECISION AND ORDER BY MEMBERS KAPLAN, PROUTY, AND WILCOX The General Counsel seeks a default judgment in this case on the ground that Omni Excavators, Inc. (the Re- spondent) has failed to file an answer to the consolidated complaint. Upon two charges filed by Construction and Master Laborers’ Local Union 11 a/w Laborers’ Interna- tional Union of North America, AFL–CIO (the Union) and served upon the Respondent on March 8 and March 15, 2022, the General Counsel issued a consolidated com- plaint and notice of hearing on May 9, 2023, against the Respondent alleging that it violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file an answer. On August 7, 2023, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On August 11, 2023, 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 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 Default Judgment Section 102.20 of the Board’s Rules and Regulations 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 affirmatively states that unless an answer is received on or before May 23, 2023, the Board may find, pursuant to a motion for default judg- ment, that the allegations in the complaint are true. Fur- ther, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter sent via email and by UPS Next Day Air and dated May 24, 2023, ad- vised the Respondent that it had not received an answer and that its failure to file and serve its answer by May 31, 2023, would result in Region 5 filing a motion for default judgment asking the Board to find the allegations in the complaint to be admitted as true.1 Nevertheless, the Re- spondent failed to file an answer. 1 The complaint was served on the Respondent by regular mail, email, and UPS Second Day Air. None of these was returned as undeliverable, and UPS tracking shows that the complaint was successfully delivered. Because service is accomplished when documents are deposited in the In the absence of good cause being shown for the failure to file an answer, we deem the allegations of the complaint to be admitted as true, and 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 corpo- ration with an office and place of business in Washington, D.C. (the Respondent’s facility) and has been in the busi- ness of construction excavation and digging foundations. During the 12-month period ending April 30, 2023, the Respondent provided services valued in excess of $50,000 in states outside of Washington, D.C. During that period, the Respondent has conducted its business operations de- scribed above in Washington, D.C., and the Board asserts plenary jurisdiction over enterprises in Washington, D.C. 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 have 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/or agents of the Respondent within the meaning of Section 2(13) of the Act: Angela Cantos - Office Manager Manuel Dias - Co-Owner Rob Rafi - President Name Presently - Safety Officer/Mana- Unknown ger 1. The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time laborers, including foremen, power equipment operators, drivers, and traffic flaggers, excluding mechanics, office clerical employ- ees, professional employees, managerial employees, guards, and supervisors as defined in the Act. 2. On October 18, 2021, the Board certified the Union as the exclusive collective-bargaining representative of the unit. At all times since October 18, 2021, based on mail to a respondent’s last known address, we find service sufficient here. See Keystone Printing, Inc. d/b/a Keystone Millbrook Printing Group, 369 NLRB No. 35, slip op. at 1 & fn. 2 (2020) (citing cases). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. 3. About October 25, 2021, the Union, by letter and email, requested that the Respondent bargain collectively with the Union as the exclusive collective-bargaining rep- resentative of the unit. 4. About November 10, 2021, the Union, by letter and email, renewed its request that the Respondent bargain collectively with the Union as the exclusive collective- bargaining representative of the unit. 5. Since about December 9, 2021, and continuing to date, the Respondent has failed and refused to bargain with the Union as the exclusive collective-bargaining rep- resentative of the unit. 6. About mid-December 2021, the Respondent, by its safety officer/manager, at the Respondent’s jobsite in Southeast Washington, D.C.: (a) interrogated employees about their sympathies and/or support for the Union. (b) interrogated employees about their sympathies and/or support for the Union by soliciting employees’ signatures on a survey regarding membership in the Un- ion. 7. About mid-December 2021, the Respondent, by its safety officer/manager, at the Respondent’s jobsite in Southeast Washington, D.C., bypassed the Union and dealt directly with its employees in the unit by asking em- ployees to declare their preferences regarding the pur- ported transfer of their fringe benefits to the Union. 8. About March 1, 2022, Respondent, by email, com- municated to the Charging Party its refusal to recognize and bargain with the Charging Party as the exclusive col- lective-bargaining representative of the unit. CONCLUSION OF LAW By the conduct described above in paragraph 6, the Re- spondent has been interfering with, restraining, and coerc- ing employees in the exercise of the rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. By the conduct described above in paragraphs 5, 7, and 8, the Respondent has been failing and refusing to bar- gain collectively and in good faith with the exclusive col- lective-bargaining representative of its employees in vio- lation 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. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist from engaging in this conduct, and, in any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(5) by failing and refusing to bargain with the Union as the exclusive collective-bargaining representative of the unit and by bypassing the Union and dealing directly with its employees in the unit by asking employees to declare their preferences regarding the purported transfer of their fringe benefits to the Union, we shall order the Respondent to recognize and bargain in good faith with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. Additionally, the General Counsel requests that we or- der the Respondent to comply with a bargaining schedule requiring a minimum of 24 hours of bargaining per calen- dar month, for at least 6 hours per session, until an agree- ment or lawful impasse is reached or the parties agree to a respite in bargaining. As stated above, the Respondent has unlawfully failed and refused to bargain with the Union for a collective-bargaining agreement despite the Union’s repeated requests to bargain over many months. Given these circumstances, we find that a bargaining schedule requiring the Respondent to meet and bargain with the Un- ion on a regular and timely basis is appropriate and would best effectuate the purposes of the Act. See All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2 (2011) (ordering employer to comply with a bargaining schedule to remedy its unlawful conduct), enfd. mem. 540 F.Appx. 484 (6th Cir. 2013). Accordingly, we shall order the Re- spondent, upon the Union’s request, to bargain for a min- imum of 24 hours per calendar month, for at least 6 hours per session, until an agreement or lawful impasse is reached or the parties agree to a respite in bargaining. We shall also require the Respondent to submit written bar- gaining progress reports every 15 days from the beginning of good-faith bargaining until a complete collective-bar- gaining agreement or lawful impasse is reached, or the parties agree to a respite in bargaining, to the complia nce officer for Region 5 and to serve copies of those reports on the Union. We also grant the General Counsel’s request to extend the certification year pursuant to Mar-Jac Poultry, 136 NLRB 785, 787 (1962). The Respondent began unlaw- fully interrogating employees and soliciting their signa- tures regarding their support for the Union only 6 weeks after certification and refused to bargain with the Union. Under these circumstances, the Respondent effectively denied the Union its full opportunity to bargain during the entirety of the certification year. See Northwest Graphics, Inc., 342 NLRB 1288, 1289 (2004) (stating the length of an extension is determined by considering the nature of the violations; the number, extent, and dates of the collec- tive-bargaining sessions; the impact of the unfair labor practices on the bargaining process; and the conduct of the union during negotiations), enfd. mem. 156 F.Appx. 331 (D.C. Cir. 2005). Therefore, to ensure that the employees are accorded the services of their selected bargaining OMNI EXCAVATORS, INC. 3 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 and continuing for 12 months. Mar-Jac Poultry Co., 136 NLRB at 787; Burrows Paper Corp., 332 NLRB 82, 82 fn. 3 (2000); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964).2 The Respondent shall be required to post the notice to employees, in English and Spanish, in the Respondent’s facility in all places where notices to employees are cus- tomarily posted for 60 days and to electronically distribute the notice to employees, if Respondent customarily com- municates with employees by such means.3 Because the unit is comprised of craft construction employees who pri- marily work at locations away from the Respondent’s fa- cility and may not see the notice, we also order the Re- spondent to mail the notice to all employees who have been employed by the Respondent since December 9, 2021. United Parcel Service, 372 NLRB No. 70, slip. op. at 1 fn. 1 (2023), citing Air 2, LLC, 341 NLRB 176, 176 fn. 2 (2004), enfd. mem. 122 Fed.Appx. 987 (11th Cir. 2004); Aerotek, Inc., 365 NLRB No. 2, slip op. at 5 (2016) (“‘The Board provides for the mailing of individual no- tices when posting will not adequately inform the employ- ees of the violations that have occurred and their rights under the Act.’”), (quoting Bill’s Electric, Inc., 350 NLRB 292, 297 (2007)), enfd. in relevant part 883 F.3d 725 (8th Cir. 2018).4 Inasmuch as the Respondent’s unfair labor practices are likely to have a continuing coercive effect on employees’ 2 Member Kaplan finds that the Board’s traditional remedies are suf- ficient to redress the violations found and declines to join his colleagues in ordering the Respondent to bargain on a set schedule and furnish writ- ten progress reports to the Region, or in ordering certain other extraordi- nary remedies as discussed infra. 3 In view of the additional notice-related remedies, we find no need to extend the traditional notice-posting period from 60 days to 90 days, as the General Counsel requests. 4 Mailing the notice to employees helps ensure that current employees who may not, and former employees who likely do not, have access to the Respondent’s intranet site and facilities will be informed of their rights and the Respondent’s unfair labor practices. See Chino Valley Medical Center, 363 NLRB 963, 964 (2016) (former employees lack[ed] access to respondents’ facility), enfd. in relevant part, 895 F.3d 69 (D.C. Cir. 2018). 5 The Respondent shall provide for a Spanish interpreter to be present to translate the notice as it is read to employees. 6 Member Kaplan does not find that the mailing or reading of the notice is warranted in the circumstances of this case. As he explained in Amerinox Processing, Inc., 371 NLRB No. 105, slip op. at 4 fn. 10, no- tice posting is the Board's traditional means of advising employees of their Sec. 7 rights and of a respondent's unlawful conduct. See, e.g., Consolidated Edison Company of New York, Inc., 323 NLRB 910, 912 (1997) (finding that notice mailing was unnecessary where there was no evidence that traditional notice posting was insufficient to inform em- ployees of their rights and of the employer’s unfair labor practices). In- deed, a notice-mailing remedy that is not contingent on the respondent’s free exercise of their Section 7 rights long after the viola- tions have occurred, we shall require additional remedial action designed to dissipate as much as possible the lin- gering atmosphere of fear created by the Respondent’s un- lawful conduct. Given the severe and corrosive effect of the Respondent’s repudiation of the employees’ chosen bargaining representative immediately after certification, the mere posting and even mailing of notices would not serve this purpose. See Amerinox Processing, Inc., 371 NLRB No. 105, slip op. at 2, 6 (2022); Sunbelt Rentals, Inc., 370 NLRB No. 102, slip op. at 6 (2021). Accord- ingly, we shall order the Respondent to convene all unit employees during worktime, distribute to them a copy of the notice and Explanation of Employee Rights, and have a high-ranking responsible management official of the Re- spondent, in the presence of a Board agent, read, or, at the Respondent’s option, be present as a Board agent reads, the notice and Explanation of Employee Rights.5 As we stated in Federated Logistics & Operations, the “presence of a responsible management official when a government official informs employees of the terms of [the] remedial order is not demeaning, but only a minimal acknowledg- ment of the obligations that have been imposed by law.” 340 NLRB 255, 258 fn. 12 (2003), affd. 400 F.3d 920, 929–930 (D.C. Cir. 2005). In our view, these remedies ensure that each employee will be made individually aware of their statutory rights and will be personally as- sured by the same high-ranking officials that infringed on their rights that their rights will be respected going for- ward. United Dairy Farmers Cooperative Assn., 242 NLRB 1026, 1030 (1979), enfd. in relevant part 633 F.2d 1054 (3d Cir. 1980). 6 having gone out of business or having closed the facility involved in the proceeding is seldom granted. Mondelez Global, LLC, 369 NLRB No. 46, slip op. at 5 (2020), citing Delta Sandblasting Co., 367 NLRB No. 17, slip op. at 1 fn. 3 (2018). In directing a notice mailing here, his col- leagues infer from the nature of the work performed that the unit employ- ees primarily work at locations away from the Respondent’s facility and may not see the posted notice. Here, however, the Respondent is ordered to distribute the notice electronically in addition to traditional notice posting, which is more than sufficient to reach the Respondent’s employ- ees and makes the mailing of the notice unnecessary. Member Kaplan also would not order that the notice be read aloud to employees. He finds that the unfair labor practices were not “so perva- sive and egregious that a notice reading is warranted.” See, e.g., Postal Service, 339 NLRB 1162, 1163 (2003). Here, the Respondent failed to bargain with the Union, interrogated employees about their union sup- port, and on one occasion dealt directly with employees by asking about their preferences for fringe benefits. Cf. Crushin’ It LLC, 372 NLRB No. 100 (2023) (declining to order notice reading and mailing in default judgement case where the respondent unlawfully discharged eight em- ployees for protected concerted activities; refused to bargain with the un- ion; and made multiple unlawful threats including threats of job loss, lawsuits, calling police, and reduction of hours). The unfair labor prac- tices here do not even remotely approach the gravity of those in Crushin’ It and, notably, do not include threats, unlawful discharges, or other ad- verse employment actions. Moreover, for the reasons he stated in Ameri- nox, above, slip op. at 3 n. 9, Member Kaplan would be open to recon- sidering the notice-reading remedy in a future appropriate case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 The General Counsel also requests that the Respondent be ordered to furnish the Union with the names and con- tact information—including personal email addresses, tel- ephone numbers, and home addresses—of the current em- ployees in the unit and to update this information weekly until a complete collective-bargaining agreement or law- ful impasse is reached or the parties agree to a respite in bargaining. As the certified bargaining representative, the Union is presumptively entitled to this information.7 We grant the General Counsel’s request to afford the Union an opportunity to represent current bargaining unit employ- ees and reach those who are affected by the lingering ef- fects of the Respondent’s violations.8 Finally, for the reasons he explained in Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80, slip op. at 18 (2023) (Member Kaplan, dissenting), Member Kaplan would not order the distribution and reading of the Explanation of Rights. He observes that the Respond- ent’s unlawful conduct is not “repeated, egregious, or widespread,” as his colleagues in that decision described their standard for posting the explanation. See id., slip op. at 5–6. The majority there also stated that cases warranting a broad order will “often satisfy the criteria for an ex- planation of rights.” But no broad order is warranted here, and as his colleagues indicated in Noah’s Ark, even in broad order cases an expla- nation of rights is not always warranted. Here, in Member Kaplan’s view, unit employees’ rights under the Act as affected by the Respond- ent’s unfair labor practices are amply described in the notice. Accord- ingly, he finds no valid basis to require the distribution and reading of an explanation of rights in this case. Member Prouty notes that he would have ordered a notice-reading in Crushin-It, cited by his colleague above. 7 See NP Sunset LLC d/b/a Sunset Station Hotel Casino, 367 NLRB No. 62, slip op. at 1–2 (2019) (holding that “a list of current employees including their names, dates of hire, rates of pay, job classification, last known address, phone number, date of completion of any probationary period” is presumptively relevant information for the employees’ certi- fied bargaining representative). Contrary to our dissenting colleague’s view, the Board is not attempting to remedy an unalleged unfair labor practice, i.e., a refusal to provide information. Nearly 28 months have passed since the Union’s certification in Case 05–RC–280884 and its re- quests to bargain and the Respondent’s refusal to do so. During this pe- riod, the Respondent interrogated employees about their support for the Union and bypassed the Union completely to ask employees about their fringe benefits. The employees have waited 2-1/2 years since selecting the Union as their collective-bargaining representative while the Re- spondent has shirked its legal obligations by refusing to recognize and bargain with their choice of a statutory representative. The Respondent has unlawfully stymied the Union’s statutory right to represent the em- ployees. In such circumstances, requiring the Respondent to provide the Union with updated information regarding the unit employees is an ap- propriate part of the remedy for the Respondent’s rejection of the em- ployees’ statutory right to collective-bargaining representation. As he explained in Amerinox, above, slip op. at 5 fn. 11, Member Kaplan does not believe that the extraordinary remedy of ordering an employer to provide a union with unit employees’ contact information should also include the employees’ telephone numbers and personal email addresses. NP Sunset LLC d/b/a Sunset Station Hotel Casino, su- pra, on which his colleagues rely, is inapposite. That was specifically an information-request case in which the respondent had unlawfully refused to provide relevant employee contact information that the union had re- quested. The Board accordingly ordered the respondent to furnish the information, which is the standard remedy in information-request cases. But the Union made no such request here. If the Union desires such information, it has every opportunity to request it as the unit employees’ certified bargaining representative. In Member Kaplan’s view, by order- ing the Respondent to provide information with no underlying request by ORDER The National Labor Relations Board orders that the Re- spondent, Omni Excavators, Inc., Washington, D.C. its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Construction and Master Laborers’ Local Union 11 a/w Laborers’ International Union of North America, AFL– CIO (the Union) as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) Coercively interrogating employees about their sympathies and/or support for the Union, including the Union, his colleagues effectively remedy an unfair labor practice that has not been alleged. Further, they assume an advocacy role by deciding, on the Union’s behalf, that such information is necessary for the Union to fulfill its bargaining duties even though the Union could request such information on its own but has not done so. In addition, the fact that the Union is the certified bargaining representative distinguishes this from cases such as Amerinox, supra, where a respondent’s unfair labor prac- tices during an organizing campaign may cause the union to lose major- ity support prior to an election. In such cases, the union is not the bar- gaining representative and has no recourse beyond a Board order for ob- taining contact information that it may need in order to reach out to em- ployees and try to redress the impact of a respondent’s unfair labor prac- tices. In a future appropriate case, Member Kaplan would consider whether unit employee contact information should be provided to the employees’ bargaining representative as a remedy for a refusal-to-bar- gain violation where there is no finding that a respondent has unlawfully refused to provide such information on request. Finally, Member Kaplan does not find that the additional remedy of providing weekly updates to the Union is warranted without evidence that the Respondent experiences frequent turnover and without a corre- sponding information request by the Union. 8 We deny the General Counsel’s requests that we order the Respond- ent to (1) permit a Board agent to conduct a training session for the Re- spondent’s managers and supervisors on their obligations under the Act; (2) grant the Union or any “outside organization that is assisting employ- ees in the exercise of their statutory rights” reasonable access to nonwork areas of the Respondent’s facility and worksites where employees repre- sented by the Union work, during employees’ nonwork periods; (3) grant the Union access to bulletin boards at the Respondent’s facility and worksites and to all other places where notices to employees are custom- arily posted; and (4) reimburse the Union for collective-bargaining costs incurred during the period of bad-faith bargaining. The General Counsel has not shown that these additional measures are needed to remedy the effects of the Respondent’s unfair labor practices. See, e.g., Titan Health, LLC d/b/a Tweedleaf, 372 NLRB No. 96, slip op. at 3 fn. 2 (2023); Environmental Contractors, Inc., 366 NLRB No. 41, slip op. at 4 fn. 6 (2018); Guy Brewer 43 Inc. d/b/a Checkers, 363 NLRB No. 173, slip op. at 2 fn. 2 (2016). Because he believes that the unfair labor prac- tices we have found related to the Respondent’s refusal to bargain require additional measures beyond those ordered above in order to level the playing field and maximize the opportunity for meaningful and lawful collective bargaining to occur, Member Prouty would grant the General Counsel’s requests for union access set forth in items (2) and (3), above, for the duration of the time in which the written bargaining progress re- port requirement is in place. We also deny the General Counsel’s request that we adopt a compensatory remedy requiring the Respondent to make its employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act because to do so would require over- ruling Ex-Cell-O Corp., 185 NLRB 107 (1970), which we have previ- ously severed and retained for future consideration. See, e.g., Longmont United Hospital, 371 NLRB No. 162, slip. op. at 2 (2022). OMNI EXCAVATORS, INC. 5 soliciting employees’ signatures on a survey regarding membership in the Union. (c) Bypassing the Union and dealing directly with its employees in the unit, including by asking employees to declare their preferences regarding the purported transfer of their fringe benefits to the Union. (d) 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) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time laborers, including foremen, power equipment operators, drivers, and traffic flaggers employed by Omni Excavators, Inc. (the Re- spondent); but excluding mechanics, office clerical em- ployees, professional employees, managerial employ- ees, guards and supervisors as defined by the Act. Upon the Union’s request, such bargaining sessions shall be held for a minimum of 24 hours per calendar month, for at least 6 hours per session, until an agreement or lawful im- passe is reached or the parties agree to a respite in bargaining. The Respondent shall submit written bargaining progress re- ports every 15 days to the Regional Director for Region 5, serving copies thereof on the Union. (b) Post at its facility in Washington, D.C., copies of the attached notice marked “Appendix A” in English and Spanish. Copies of the notice, on a form provided by the Regional 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, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, 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 customarily 9 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted and read within 14 days after service by the Region. If the facility involved in these proceed- ings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted and read within 14 days after the facility reopens and a sub- stantial complement of employees has returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is com- municating with its employees by electronic means, the notice must also be posted by such electronic means communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered 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 employees and former em- ployees employed by the Respondent at its Washington, D.C. facility at any time since December 9, 2021. (c) Within 14 days after service by the Region, duplicate and mail, at its own expense, after being signed by the Re- spondent’s authorized representative, copies of the at- tached notice marked “Appendix A” in both English and Spanish to all current and former unit employees em- ployed by the Respondent at its Washington, D.C. facility at any time since December 9, 2021, at their home ad- dresses. (d) Hold a meeting or meetings during work hours at its facility in Washington, D.C., scheduled to ensure the widest possible attendance of bargaining unit employees, at which the attached Notice to Employees marked “Ap- pendix A” and the attached Explanation of Rights marked “Appendix B” will be read to employees in English and Spanish by a high-ranking responsible management offi- cial in the presence of a Board Agent and, if the Union so desires, a union representative, or, at the Respondent’s op- tion, by a Board agent in the presence of a high-ranking responsible management official and, if the Union so de- sires, a union representative. A copy of the notice and the Explanation of Rights, in English and Spanish will be distributed by a Board agent during this meeting or meet- ings to each unit employee in attendance before the notice and Explanation of Rights are read.9 (e) Supply the Union, on its request, with the full names, home addresses, telephone numbers, and personal email addresses of its current unit employees, updated weekly, until a complete collective-bargaining agreement or lawful impasse is reached or the parties agree to a res- pite in bargaining. (f) Within 21 days after service by the Region, file with the Regional Director for Region 5 a sworn certification of a responsible official on a form provided by the Region 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 no- tice 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 judgment of a United States court of appeals, the words in the notice reading “Posted, Read, and Mailed by Order of the Na- tional Labor Relations Board” shall read “Posted, Read, and Mailed Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. February 9, 2024 ______________________________________ Marvin E. Kaplan, Member ______________________________________ David M. Prouty, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO EMPLOYEES POSTED, READ, 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 vio- lated 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 ac- tivities. WE WILL NOT fail and refuse to recognize and bargain with Construction and Master Laborers’ Local Union 11 a/w Laborers’ International Union of North America, AFL–CIO (the Union) as the exclusive collective-bargain- ing representative of our employees in the bargaining unit. WE WILL NOT interrogate you about your sympathies and/or support for the Union in any way, including solic- iting your signatures on surveys regarding membership in the Union. WE WILL NOT bypass the Union and deal directly with you, including by asking you to declare your preferences regarding the purported transfer of your fringe benefits to the Union. 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, on request, bargain with the Union and put in writing and sign any agreement reached on terms and con- ditions of employment for our employees in the following appropriate bargaining unit: All full-time and regular part-time laborers, including foremen, power equipment operators, drivers, and traffic flaggers, excluding mechanics, office clerical employ- ees, professional employees, managerial employees, guards, and supervisors as defined in the Act. Upon the Union’s request, such bargaining sessions shall be held for a minimum of 24 hours per calendar month for at least six hours per session, until an agreement or lawful impasse is reached or the parties agree to a res- pite in bargaining. WE WILL submit written bargaining progress reports every 15 days to the compliance officer for Region 5, serv- ing copies thereof on the Union. WE WILL post this notice at our facility in Washington, D.C. for a period of 60 days. In addition, WE WILL post the notice electronically, including email, and by any such means as we generally use to communicate with you. WE WILL, within 14 days from the date of the Board’s order, mail a copy of this notice to the homes of all current and former unit employees employed by us at any time since December 9, 2021. WE WILL maintain proofs of mail- ing as required by the Board. WE WILL hold a meeting or meetings during working hours and have this notice and the Board’s Explanation of Rights read to you and your fellow workers in English and Spanish, and any other languages deemed appropriate by the Regional Director by a high-ranking responsible man- agement official in the presence of a Board agent and, if the Union so desires, a union representative, or, at our op- tion, by a Board agent in the presence of a high-ranking responsible management official and, if the Union so de- sires, a union representative. A copy of the notice and the Explanation of Rights, in English and Spanish, will be dis- tributed by a Board agent during this meeting or meetings to each unit employee in attendance before the notice is read. WE WILL, upon request, supply the Union with the full names, home addresses, telephone numbers, and personal e-mail addresses of our unit employees, updated weekly until a complete collective-bargaining agreement or law- ful impasse is reached or until we agree with the Union to a respite in bargaining. OMNI EXCAVATORS, INC. The Board’s decision can be found at www.nlrb.gov/case/05-CA-292168 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. OMNI EXCAVATORS, INC. 7 APPENDIX B EXPLANATION OF RIGHTS READ AND MAILED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Employees covered by the National Labor Relations Act have the right to join together to improve their wages and working conditions, including by organizing a union and bar- gaining collectively with their employer, and also the right to choose not to do so. This Explanation of Rights contains im- portant information about your rights under this Federal law. The National Labor Relations Board has ordered Omni Ex- cavators, Inc. to provide you with the Explanation of Rights to describe your rights and provide examples of illegal be- havior. UNDER THE NATIONAL LABOR RELATIONS ACT, YOU HAVE THE RIGHT TO: • Contact a union and, if they become your repre- sentative, have them negotiate with your employer concerning your wages, hours, and working condi- tions. • Support your union in negotiations. • Discuss your wages, benefits, other terms and con- ditions of employment, and negotiations between the union and your employer with your coworkers or your union. • Take action with one or more coworkers to improve your working conditions. • Strike and picket, depending on the purpose or means used. • Choose not to do any of these activities. It is illegal for your employer to: Make unilateral changes in your terms and condi- tions of employment by implementing a collective- bargaining proposal without first bargaining with the Union to an overall good-faith impasse for a succes- sor collective-bargaining agreement. There are rules that govern your employer’s conduct during collective bargaining with your union: • Your employer must meet with your union at rea- sonable times to bargain in good faith about wages, hours, vacation time, insurance, safety practices, and other mandatory subjects. • Your employer must participate actively in the ne- gotiations with a sincere intent to reach an agree- ment. • Your employer must not change existing working terms and conditions while bargaining is ongoing. • Your employer must honor any collective-bargain- ing agreement that it reaches with your union. • Your employer cannot retaliate against you if you participate or assist your union in collective bar- gaining. Illegal conduct will not be permitted. The National La- bor Relations Board enforces the Act by prosecuting vio- lations. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within 6 months of the unlawful activity. You may ask about a possible vi- olation without your employer or anyone else being in- formed that you have done so. The NLRB will conduct an investigation of possible violations if a charge is filed. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. You can contact the NLRB’s resident office, located at: 1015 Half Street SE, Washington, D.C. 20570. The Board’s decision can be found at www.nlrb.gov/case/05-CA-292168 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.