Indy Core, Inc.

373 NLRB No. 70 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. Indy Core, Inc. and Laborers’ International Union of North America, AFL–CIO, Local Union No. 120 a/w Laborers’ International Union of North America. Case 25–CA–307386 June 21, 2024 ORDER DENYING MOTION1 BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY The General Counsel seeks a default judgment in this case pursuant to the terms of a settlement agreement. The Union filed a charge on November 16, 2022, alleging that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with requested infor- mation regarding wages and benefits of bargaining unit employees and whether the Respondent complied with the subcontracting provisions of the collective-bargaining agreement. On June 7, 2023, the General Counsel issued a complaint against the Respondent based on that charge. Thereafter, the parties entered into an informal settlement agreement resolving the complaint allegations, which the Regional Director for Region 25 approved on October 25, 2023. The settlement agreement required the Respondent to provide information, which the Union had requested in correspondence dated September 19 and October 11, 2022, and to post a notice to employees in its facility. The settlement agreement contained the following perfor- mance clause: Performance by the Charged Party with the terms and provisions of this Agreement shall commence immedi- ately after the Agreement is approved by the Regional Director, or if the Charging Party does not enter into this Agreement, performance shall commence immediately upon receipt by the Charged Party of notice that no re- view has been requested or that the General Counsel has sustained the Regional Director. The Charged Party agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party, and after l4 days’ notice from the Regional Direc- tor of the National Labor Relations Board of such non- compliance without remedy by the Charged Party, the Regional Director will reissue the complaint previously issued on June 7, 2023, in the instant case(s). Thereafter, the General Counsel may file a motion for default judg- ment with the Board on the allegations of the complaint. The Charged Party understands and agrees that the alle- gations of the aforementioned complaint will be deemed admitted and its Answer to such complaint will be 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceed- ing, find all allegations of the complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party on all issues raised by the pleadings. The Charged Party agrees that the Board may then issue an order providing, as elected by the Regional Director, a full remedy for the violations found as is appropriate to remedy such viola- tions, and/or an order requiring the Charged Party to per- form terms of this settlement agreement as specified by the Regional Director. The parties further agree that a U.S. Court of Appeals Judgment may be entered enforc- ing the Board order ex parte, after service or attempted service upon Charged Party/Respondent at the last ad- dress provided to the General Counsel. In its information requests, the Union sought, among other things, contact information, payroll information, and benefit information for “employees who have performed work as a Laborer.” On November 9, 2023, the Respond- ent submitted a letter and documents to the Union in re- sponse to the information requests. In the letter, the Re- spondent stated that it did not employ laborers during the relevant time period and provided no further information for those requests. The Respondent also submitted a Cer- tification of Compliance to the Region on November 9, 2023. On December 18, 2023, Region 25 notified the Re- spondent that it had failed to comply with the terms of the settlement agreement and that if the Respondent did not comply with the terms of the settlement within 14 days, the Region would reissue the complaint previously issued on June 7, 2023, and move for a default judgment on the complaint allegations. By email dated December 18, 2023, the Respondent responded to the Region, stating that it had provided the requested information, and that it did not employ “laborers or individuals who perform those duties as requested.” On April 8, 2024,2 in accordance with the noncompli- ance provisions of the settlement agreement, the Regional Director issued a “Complaint Based on Breach of Affirm- ative Provisions of Settlement Agreement,” which as- serted that the Respondent had breached the settlement agreement and reiterated the allegations in the June 7, 2023 complaint. On April 10, the Respondent filed an an- swer to the complaint, asserting that it had provided the requested information to the Union. Also on April 10, the General Counsel filed a motion to transfer the case to the Board and for default judgment. The General Counsel stated that the parties’ collective- bargaining agreement covers “all concrete coring, drilling 2 All dates are 2024 unless otherwise specified. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and sawing for any purpose in the area of the United States and its territories.” The General Counsel contended that it was clear that the Union’s requests for information per- taining to laborers referred to bargaining unit employees and so the information that the Respondent provided to the Union was not fully responsive to the Union’s requests. The General Counsel therefore asserted that the Respond- ent did not comply with the terms of the settlement agree- ment. On April 12, the Respondent filed an opposition to the General Counsel’s Motion for Default Judgment. The Re- spondent contended that the term “laborers” has a specific meaning within the construction industry, that the unit does not include laborers, and that the Respondent did not employ laborers. The Respondent maintained that it fully responded to the Union’s information requests and com- plied with the settlement agreement. On April 15, the Board issued an order transferring the proceeding to the Board and notice to show cause why the motion for default judgment should not be granted. On April 17, the Respondent again filed its opposition to the General Counsel’s Motion for Default Judgment. On April 23, the General Counsel filed a response to the Respondent’s opposition to the motion for default judg- ment. The General Counsel asserted that the Respond- ent’s arguments are without merit and do not bar default judgment. Ruling on Motion for Default Judgment To warrant a default judgment, the General Counsel, as the moving party, has the burden of establishing that there are no genuine issues of material fact regarding whether the Respondent violated the settlement agreement. See, e.g., ThyssenKrupp Stainless USA, LLC, 362 NLRB 621, 622 (2015) (denying default judgment motion where gen- uine issues of material fact existed as to whether settle- ment agreement had been breached); Vocell Bus Co., 357 NLRB 1730, 1731 (2011) (denying default/summary judgment motion given factual dispute about noncompli- ance with settlement). Having duly considered the matter, we find that the Re- spondent has sufficiently stated the basis for its disagree- ment with the General Counsel’s contention that it has not complied with the terms of the settlement agreement re- garding its response to the Union’s information requests. Accordingly, we find that default judgment is not appro- priate under the circumstances of this case because, based on the conflicting representations of the parties, genuine issues of material fact exist which prevent a final determi- nation as to whether the terms of the settlement agreement have been breached. ORDER For the foregoing reasons, it is ordered that the General Counsel’s Motion for Default judgment is denied. It is further ordered that this proceeding is remanded to the Re- gional Director for Region 25 for the purpose of issuing a notice of hearing and scheduling a hearing before an ad- ministrative law judge, limiting such proceeding to deter- mining whether the complaint should be dismissed on the ground that the Respondent complied with the terms of the settlement agreement relating to the Respondent’s re- sponse to the Union’s information requests. Dated, Washington, D.C. June 21, 2024 ______________________________________ Lauren McFerran, Chairman _____________________________________ Marvin E. Kaplan, Member _____________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD