BSC Development Buf

National Labor Relations Board - Board Decisions

Dec 17, 2008

353 N.L.R.B. 605 (N.L.R.B. 2008)

353 NLRB No. 63
1
BSC Development Buf, LLC and Connex
Construction, LLC and LIUNA, Laborers Local
210. Cases 3–CA–26442, 3–CA–26460, 3–CA–
26499, and 3–CA–26562
December 17, 2008
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
DECISION AND ORDER
The General Counsel seeks summary judgment in this
case pursuant to the terms of a settlement agreement.
Upon charges and amended charges filed by LIUNA,
Laborers Local 210 (the Union), the General Counsel
issued the consolidated complaint on April 30, 2008,
against BSC Development Buf, LLC (Respondent BSC)
and Connex Construction, LLC (Respondent Connex),
(collectively, the “Respondents”), alleging that they have
violated Section 8(a)(5), (3), and (1) of the Act.
Subsequently, the Respondents and the Union entered
into a settlement agreement, which was approved by the
Acting Regional Director for Region 3 on June 3, 2008.
Pursuant to the terms of the settlement agreement, the
Respondents agreed to the following, among other
things: (1) the payment of $78,384.44 in backpay; (2) an
installment payment agreement, which is incorporated by
reference in the settlement agreement and made a part
thereof; (3) the execution of a promissory note by the
Respondents and Bashar Al Issa, an individual, incorpo-
rated by reference in the settlement agreement and made
a part thereof, guaranteeing payment of the backpay
amounts set forth in the installment agreement; (4) im-
mediate notice by the Respondents to the Board’s Re-
gional Director, in the event that the Respondents
planned to sell any of their assets, and the Respondents’
agreement to refrain from completing any such sale less
than 2 weeks from the date of such notice; and (5) post-
ing of a notice to employees. The settlement agreement
also contained the following provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party and/or Bashar Al Issa,
an Individual, including but not limited to failing to
make timely installment payments of moneys as set
forth above, and after 14 days notice from the Regional
Director of the National Labor Relations Board of such
non-compliance without remedy by the Charged Party,
and/or Bashar Al Issa, an Individual, the Regional Di-
rector may re-issue complaint previously issued in the
instant cases on April 30, 2008, based upon the allega-
tions of the charge(s) and amended charge(s) in the in-
stant case(s) which were found to have merit. Thereaf-
ter, the General Counsel may file a motion for default
judgment with the Board on the allegations of the just
re-issued complaint concerning the violations of the
Act alleged therein. The Charged Party understands
and agrees that the allegations of the aforementioned
complaint may be deemed to be true by the Board, that
it waives the right to file an answer to the aforemen-
tioned complaint or amended complaint or otherwise
contest the validity of any such allegations, and the
Board may enter findings of fact, conclusions of law,
and an order on the allegations of the aforementioned
complaint. On receipt of said motion for default judg-
ment the Board shall issue an Order requiring the
Charged Party to show cause why said Motion of the
General Counsel should not be granted. The only issue
that may be raised in response to the Board’s Order to
Show Cause is whether the Charged Party defaulted
upon the terms of this Settlement Agreement. The
Board may then, without necessity of trial or any other
proceeding, 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 Board may then issue an Order providing a full
remedy for the violations found as is customary to rem-
edy such violations, including, but not limited to the
remedial provisions of this Settlement Agreement. The
parties further agree that the Board’s Order may be en-
tered thereon ex parte and that, upon application by the
Board to the appropriate United States Court of Ap-
peals for enforcement of the Board’s order, judgment
may be entered thereon ex parte and without opposition
from the Charged Party. (Emphasis added.)
By letter dated September 23, 2008, the compliance
officer for Region 3 advised the Respondents that they
were in default of the settlement agreement because they
had failed to remit the payment due on September 19,
2008. The letter further advised the Respondents that if
they did not cure their breach within 14 days, the entire
remaining backpay amount of $15,874.34 would become
immediately due, and that the Region would take all nec-
essary action to collect the debt. The Respondents did
not comply. Accordingly, on October 7, 2008, the Act-
ing Regional Director reissued the consolidated com-
plaint.
On October 9, 2008, the Respondents, by their chief
executive officer, Bashar Al Issa, submitted an answer to
the reissued consolidated complaint asserting that “[d]ue
to the financial position of the company, [the Respon-
dents were] not at this time able to pay the remainder of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the settlement,” but that the Respondents intended to pay
the amounts due after the sale of certain property.1
On October 17, 2008, the Region notified the Respon-
dents that an inability to pay is not a legitimate defense
for failing to comply with the terms of the settlement
agreement and that the Region intended to file a Motion
for Summary Judgment.
On October 23, 2008, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. Thereafter,
on October 29, 2008, the Board issued an order transfer-
ring 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.
Ruling on Motion for Summary Judgment2
According to the uncontroverted allegations in the Mo-
tion for Summary Judgment, the Respondents have failed
to comply with the terms of the settlement agreement by
failing to pay the installment payment of $7,912.10 due
on September 19, 2008, or to remit the entire remaining
backpay amount of $15,874.34, which became due im-
mediately after the Respondents failed to pay the Sep-
tember 19, 2008 installment. In addition, the terms of
the settlement clearly state that the Respondents waived
the right to file an answer. Consequently, we find, pur-
suant to the provisions of the settlement agreement set
forth above, that all the allegations of the reissued con-
solidated complaint are true.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent BSC, a corporation
with an office and place of business located at 107 Dela-
ware Avenue, Buffalo, New York, has been engaged in
the business of performing construction, renovation and
redevelopment services.
At all material times, Respondent Connex, a corporation
with an office and place of business located at 107 Dela-

1 On September 18, 2008, the Region discovered that Respondent
BSC was in the process of selling some property without first notifying
the Region as required by the settlement agreement.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 See U-Bee, Ltd., 315 NLRB 667 (1994).
ware Avenue, Buffalo, New York, has been engaged in the
business of performing general construction services.
At all material times, Respondent BSC and Respon-
dent Connex have been affiliated business enterprises
with common officers, ownership, directors, manage-
ment, and supervision; have formulated and administered
a common labor policy; have shared common premises
and facilities; have provided services for and made sales
to each other; have interchanged personnel with each
other; and have held themselves out to the public as a
single-integrated business enterprise.
Based on their operations described above, Respondent
BSC and Respondent Connex constitute a single-
integrated business enterprise, and are a single employer
within the meaning of the Act.
During the 12-month period preceding the issuance of
the reissued consolidated complaint, the Respondents, in
conducting their business operations described above,
collectively purchased and received at their Buffalo, New
York facility goods valued in excess of $50,000, directly
from points located outside the State of New York.
We find that the Respondents have been an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that LIUNA, Laborers
Local 210, 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 held the
positions set forth opposite their respective names, and
have been supervisors of the Respondents within the
meaning of Section 2(11) of the Act and agents of the Re-
spondents within the meaning of Section 2(13) of the Act:
 Bashar Issa CEO
 David Rycyna Operations Coordinator, from
about May 2007 until about November 1, 2007.
 Kyle R. Raczka Operations Manag-
er/Package Manager, from about June 2007,
until about November 1, 2007; Operations
Coordinator, from about November 1, 2007
until the present.
 Keith L. Szczygiel Labor Manager, from
about August 20, 2007, until about mid-
November 2007; Project Manager, from
about mid-November 2007 until the present.
 Patrick Ogiony Operations Manag-
er/Package Manager, from about May 2007,
until about Fall, 2007.
BSC DEVELOPMENT BUF, LLC 3
 Robert C. Carbone Operations Manager,
from about August 6, 2007, until about Janu-
ary, 2008.
 Brian W. Conrad Operations Manager,
from about May 2007, until the present.
 Eric Mayer Labor Manager, from
about May 2007, until about September 6,
2007.
 Matt Doherty Labor Manager,
since about October 29, 2007, until the pre-
sent.
 Mark Chmarney Assistant Labor
Manager, from about May 2007, until about
September 3, 2007.
 Dr. Susan Fennick Human Resource
Manager, at all material times, to about Sep-
tember 2007.
 Melissa Smith Human Resource
Manager, from about September 2007, until
the present.
At all material times, from about July 31, 2007, until
November 1, 2007, James Wolford held the position of
the Respondents’ Health and Safety Coordinator, and has
been an agent of the Respondents’ within the meaning of
Section 2(13) of the Act.
1. The Respondents, by the individuals named below,
at the Respondents’ Buffalo, New York facility, about
dates opposite their names, interrogated employees about
their union activities.
(a) David Rycyna about August 27, 2007
(b) Kyle Raczka about September 2007
(c) David Rycyna about mid-September 2007
(d) Keith Szczygiel about October 2007
2. About August or September 2007, the Respondents,
by Bashar Issa, during the course of a meeting held with
employees at the Respondents’ Buffalo, New York facil-
ity, promised employees health insurance benefits in or-
der to discourage employees from supporting the Union.
3. About August or September 2007, the Respondents,
by James Wolford, at the Respondents’ Buffalo, New
York facility, created the impression among their em-
ployees that their union activities were under surveil-
lance by the Respondents.
4. About the end of January 2008, the Respondents,
by Matt Doherty, at the Respondents’ Buffalo, New York
facility, informed employees that it was futile for them to
have selected the Union as their collective-bargaining
representative.
5. On several dates in mid-September 2007, the Re-
spondents, by David Rycyna, at the Respondents’ Buf-
falo, New York facility:
(a) Proposed that employees form an in-house union
and offered assistance to employees in the formation of
an in-house union;
(b) Impliedly threatened an employee with unspecified
reprisals if the employees selected the Union as their
collective-bargaining representative;
(c) told employees that they should form an in-house
union, to avoid losing their jobs to the Union.
6. About October 5, 2007, the Respondents in a letter
to their employees:
(a) Promised that the Respondents would institute a
health insurance plan for employees;
(b) Threatened employees with loss of work if they se-
lected the Union as their collective-bargaining repre-
sentative;
7. About October 10, 2007, the Respondents, by Pat-
rick Ogiony, at the Respondents’ Buffalo, New York
facility:
(a) Interrogated an employee concerning his protected
concerted activities and union activities;
(b) Impliedly threatened employees with unspecified
reprisals if they engaged in protected concerted activi-
ties.
8. About October 11, 2007, the Respondents, by
David Rycyna, in a meeting with employees at the Re-
spondents’ Buffalo, New York facility:
(a) Promised benefits to employees to discourage em-
ployees’ support for the Union;
(b) Threatened employees with loss of employment if
the employees voted in the Union;
(c) Threatened employees with loss of opportunities
for advancement or training in other trades and that
they would remain laborers if the employees voted for
the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
9. The Respondents, by Keith Szczygiel, at the Re-
spondents’ Buffalo, New York facility:
(a) About October 19, 2007, told employees that there
was a lack of work and that employees were being laid
off because employees supported the Union.
(b) About October 25, 2007, implied to employees that
selecting a union would be futile.
(c) About the week of November 18, 2007, threatened
an employee with loss of a pay raise if the employee
discussed the pay raise with other employees.
10. From about August through about September
2007, Demetrius Calhoun, an employee of the Respon-
dents, engaged in concerted activities with other employ-
ees of the Respondents for the purpose of mutual aid and
protection, by questioning the Respondents, during an
employee meeting conducted by the Respondents and on
other occasions, about employees’ terms and conditions
of employment.
About September 18, 2007, the Respondents termi-
nated employee Demetrius Calhoun. The Respondents
engaged in the conduct described above because Calhoun
engaged in the conduct described above, he formed,
joined or assisted the Union or engaged in concerted ac-
tivities, and to discourage employees from engaging in
these and other protected concerted activities.
11. About the weeks of September 26, October 1, and
October 8, 2007, the Respondents, by Keith Szczygiel
and David Rycyna, imposed more onerous working con-
ditions on employees Kevin Mejia and Jeffrey Hill.
12. About October 2, 2007, the Respondents, by Keith
Szczygiel, temporarily laid off employees Kevin Mejia
and Jeffrey Hill.
13. About October 25, 2007, the Respondents, by
Keith Szczygiel and David Rycyna, disciplined em-
ployee Jeffrey Hill.
14. About October 26, 2007, the Respondents laid off
employees Kevin Mejia and Jeffrey Hill.
15. Since about October 26, 2007, and about Decem-
ber 15, 2007, the Respondents failed to recall from layoff
employees Kevin Mejia and Jeffrey Hill.
The Respondents engaged in the conduct described in
paragraphs 11–15 because Mejia and Hill formed, joined
or assisted the Union or engaged in concerted activities,
and to discourage employees from engaging in these ac-
tivities.
The following employees of the Respondents (the
unit), constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time general laborers, in-
cluding construction foremen, employed by the Em-
ployer at their facility located at 107 Delaware Avenue,
Buffalo, New York; excluding all master electricians,
master plumbers, drywallers, painters, tile setters, plas-
terers, carpenters, electricians, plumbers and welders,
office clerical employees, guards and all professional
employees and supervisors as defined in the Act.
About October 12, 2007, a majority of employees in
the unit designated and selected the Union as their repre-
sentative for the purpose of collective bargaining with
the Respondents. About November 8, 2007, the Union
was certified as the exclusive collective-bargaining rep-
resentative of the unit. Since about October 12, 2007,
based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the unit.
16. From about October 12, 2007, until about January
2008, the Respondents unilaterally subcontracted bar-
gaining unit work.
17. About the week of October 22, 2007, the Respon-
dents unilaterally laid off certain of the employees in the
unit.
18. About November 10, 2007, the Respondents uni-
laterally granted a wage increase to certain of the em-
ployees in the unit.
19. About December 15, 2007, the Respondents uni-
laterally recalled to work employees in the unit.
The subjects set forth above in paragraphs 16–19 relate
to wages, hours, and other terms and conditions of em-
ployment of the unit and are mandatory subjects for the
purpose of collective bargaining. The Respondents en-
gaged in the conduct described above without prior no-
tice to the Union and without affording the Union an
opportunity to bargain with the Respondents with respect
to this conduct and the effects of this conduct.
20. On various dates from about December 19, 2007
through April 2008, the Respondents and the Union met
for the purpose of collective bargaining with respect to
wages, hours, and other terms and conditions of em-
ployment of employees in the unit. During this period,
the Respondents designated as their bargaining represen-
tative an individual without authority to negotiate or en-
ter into binding agreements.
By their overall conduct, including the conduct de-
scribed above in paragraph 20, the Respondents have
failed and refused to bargain in good faith with the Union
as the exclusive collective-bargaining representative of
the unit.
CONCLUSIONS OF LAW
1. By the acts and conduct described in paragraphs 1–
9, the Respondents have interfered with, restrained, and
BSC DEVELOPMENT BUF, LLC 5
coerced employees in the exercise of the rights guaran-
teed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
2. By the conduct described in paragraphs 10–15, the
Respondents have discriminated in regard to the hire or
tenure or terms or conditions of employment of their
employees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) and (1) of
the Act.
3. By the conduct described in paragraphs 16–20, the
Respondents have failed and refused to bargain collec-
tively and in good faith with the exclusive collective-
bargaining representative of their employees, in violation
of Section 8(a)(5) and (1) of the Act.
4. The Respondents have engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 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. Specifi-
cally, having found that the Respondents have violated
Section 8(a)(3) by terminating Demetrius Calhoun, and
by laying off and failing to recall from layoff Kevin
Mejia and Jeffrey Hill, and having further found that the
Respondents have violated Section 8(a)(5) by unilaterally
laying off certain unit employees about the week of Oc-
tober 22, 2007, we shall order the Respondents to make
these employees whole for any loss of earnings and other
benefits suffered as a result of the Respondents’ unlawful
actions against them.
In this regard, the Respondents agreed in the settle-
ment agreement that the Respondents would pay a total
of $78,384.44 in backpay. The General Counsel’s mo-
tion states that there is an outstanding balance in the
amount of $15,874.34. Accordingly, we shall order the
Respondents to immediately remit this amount to the
Region for payment to the proper parties.4
We find, however, that the backpay due the employees
should not be limited to this amount. As set forth above,
the settlement agreement provided that, in the event of
noncompliance, the Board could “issue an Order provid-
ing a full remedy for the violations found as is customary
to remedy such violations, including, but not limited to
the remedial provisions of this Settlement Agreement.”

4 In the reissued consolidated complaint, the General Counsel seeks
compound interest computed on a quarterly basis for any backpay
awarded. Having duly considered the matter, we are not prepared at this
time to deviate from our current practice of assessing simple interest.
See, e.g., Glen Rock Ham, 352 NLRB No. 69, slip op. at fn. 1 (2008),
citing Rogers Corp., 344 NLRB 504 (2005).
Thus, under this language, it is appropriate to provide the
“customary” remedies of reinstatement, full backpay,
expungement of the Respondents’ personnel records and
notice posting.5
The additional backpay due the employees shall be
computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon to be computed
in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). However, because we
shall order the Respondents to pay the damages remain-
ing under the settlement agreement, the applicable back-
pay period will commence on June 3, 2008, the day the
Acting Regional Director approved the settlement
agreement. We find it necessary to impose this limita-
tion to prevent an unintended double recovery for the
period running from the date that the employees were
discharged or laid off to the effective date of the settle-
ment agreement.
We shall also order the Respondents, to the extent that
it has not already done so, to offer these employees full
reinstatement to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
Further, Respondents shall also be required to remove
from their files all references to the unlawful termination
of Demetrius Calhoun, the unlawful layoffs and failure to
recall from layoff of Kevin Mejia and Jeffrey Hill, and
the unlawful discipline of Jeffery Hill, and notify them in
writing that this has been done and that the unlawful ref-
erences will not be used against them in any way.
Further, having found that Respondents violated Sec-
tion 8(a)(5) by failing and refusing to bargain collec-
tively and in good faith with the Union as the exclusive
collective-bargaining representative of the unit employ-
ees, including by designating as their bargaining repre-
sentative an individual without authority to negotiate or
enter into binding agreements, we shall order the Re-
spondents, on request, to meet and bargain collectively
and in good faith with the Union with respect to wages,
hours and other terms and conditions of employment,
through a designated bargaining representative with the
authority to negotiate and enter into a binding agreement,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondents begin to
bargain in good faith with the Union. Mar-Jac Poultry

5 See L.J. Logistics, Inc., 339 NLRB 729, 730 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
In addition, having found that the Respondents unlaw-
fully granted a wage increase to certain unit employees
without notifying the Union or affording it an opportu-
nity to bargain, we shall order the Respondents, if re-
quested by the Union, to rescind the unilateral wage in-
crease.
Further, having found that the Respondents unlawfully
subcontracted bargaining unit work, laid off certain unit
employees about the week of October 22, 2007, and re-
called unit employees to work without notifying the Un-
ion or affording it an opportunity to bargain, we shall
order the Respondents, on request, to bargain with the
Union concerning these actions and their effects.
Finally, we shall order the Respondents to preserve
and, within 14 days of a request, or such additional time
as the Regional Director may allow for good cause
shown, provide at the office designated by the Board or
its agents, a copy of all payroll records, social security
payment records, timecards, personnel records and re-
ports, and all other records including an electronic copy
of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of
this Order.
ORDER
The National Labor Relations Board orders that the
Respondents BSC Development Buf, LLC and Connex
Construction, LLC, Buffalo, New York, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with LIUNA, Laborers Local 210, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following unit:
All full-time and regular part-time general laborers, in-
cluding construction foremen, employed by the Em-
ployer at their facility located at 107 Delaware Avenue,
Buffalo, New York; excluding all master electricians,
master plumbers, drywallers, painters, tile setters, plas-
terers, carpenters, electricians, plumbers and welders,
office clerical employees, guards and all professional
employees and supervisors as defined in the Act.
(b) Promising employees health insurance or other
benefits in order to discourage employees from support-
ing the Union.
(c) Creating the impression among employees that
their union activities were under surveillance by the Re-
spondents.
(d) Informing employees or otherwise implying that it
is futile to select the Union as their exclusive collective-
bargaining representative.
(e) Proposing that employees form an in-house union,
offering assistance to employees in the formation of an
in-house union, and telling employees that they should
form an in-house union to avoid losing their jobs to the
Union.
(f) Threatening or impliedly threatening employees
with loss of work, loss of employment, loss of opportuni-
ties for advancement or training, or other unspecified
reprisals if the employees selected the Union as their
exclusive collective-bargaining representative or partici-
pate in other protected concerted activities.
(g) Interrogating employees concerning their pro-
tected concerted activities and union activities.
(h) Telling employees that there was a lack of work
and that employees were being laid off because employ-
ees supported the Union.
(i) Threatening employees with loss of a pay raise if
the employees discussed the pay raise with other em-
ployees.
(j) Terminating employees because they formed, joined
or assisted the Union or engaged in any protected con-
certed activities, or to discourage employees from engag-
ing in these and other protected concerted activities.
(k) Imposing more onerous working conditions on
employees because they formed, joined or assisted the
Union or engaged in any protected concerted activities,
or to discourage employees from engaging in these and
other protected concerted activities.
(l) Laying off employees because they formed, joined,
or assisted the Union or engaged in any protected con-
certed activities, or to discourage employees from engag-
ing in these and other protected concerted activities.
(m) Disciplining employees because they formed,
joined, or assisted the Union or engaged in any pro-
tected concerted activities, or to discourage employees
from engaging in these and other protected concerted
activities.
(n) Failing to recall from layoff their employees be-
cause they formed, joined, or assisted the Union or en-
gaged in any protected concerted activities, or to discour-
age employees from engaging in these and other pro-
tected concerted activities.
(o) Unilaterally subcontracting bargaining unit work,
laying off certain unit employees, granting a wage in-
crease to certain unit employees, and recalling unit em-
ployees to work without prior notice to the Union and
BSC DEVELOPMENT BUF, LLC 7
without affording the Union an opportunity to bargain
with respect to, and the effects of, this conduct.
(p) Designating as their bargaining representative in-
dividuals without authority to negotiate or enter into
binding agreements.
(q) 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 collectively and in good faith
with the Union as the exclusive collective-bargaining
representative of the unit employees with respect to
wages, hours and other terms and conditions of employ-
ment, through a designated bargaining representative
with authority to negotiate or enter into binding agree-
ments, and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) If requested by the Union, rescind the wage in-
crease unlawfully granted to certain unit employees
without notifying the Union or affording it an opportu-
nity to bargain; provided, however, that nothing in this
Order shall be construed as requiring the Respondent to
rescind the wage increase unless the Union requests such
action.
(c) On request, bargain with the Union concerning the
Respondents’ decisions with respect to subcontracting of
bargaining unit work, layoffs of certain unit employees,
recalling unit employees to work, and the effects of these
decisions.
(d) Remit to Region 3 the payment of $15,874.34 to
be disbursed to employees Demetrius Calhoun, Kevin
Mejia, Jeffrey Hill, and certain unit employees laid off
about the week of October 22, 2007, in accordance with
the June 3, 2008 settlement agreement, and make those
employees whole for any loss of earnings and other
benefits suffered since June 3, 2008, as a result of the
Respondents’ unlawful actions against them, with inter-
est, as set forth in the remedy section of this decision.
(e) Within 14 days from the date of this Order, if it has
not already done so, offer Demetrius Calhoun, Kevin
Mejia, Jeffrey Hill, and the unit employees laid off about
October 22, 2007, full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed.
(f) Within 14 days from the date of this Order, remove
from their records any reference to the unlawful dis-
charge of Demetrius Calhoun, the unlawful layoffs and
failure to recall from layoffs of Jeffrey Hill and Kevin
Mejia, and the unlawful discipline of Jeffrey Hill, and
within 3 days thereafter, notify each of them in writing
that this has been done and that the unlawful termination,
layoffs, failure to recall from layoffs and discipline will
not be used against them in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at the office designated by
the Board or its agents, a copy of all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
their facility in Buffalo, New York, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
3, after being signed by the Respondent's authorized rep-
resentative, 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. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since about August 2007.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
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 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

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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
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 LIUNA, Laborers Local 210, as
the exclusive collective-bargaining representative of the
employees in the unit. The appropriate unit is:
All full-time and regular part-time general laborers, in-
cluding construction foremen, employed by us at our
facility located at 107 Delaware Avenue, Buffalo, New
York; excluding all master electricians, master plumb-
ers, drywallers, painters, tile setters, plasterers, carpen-
ters, electricians, plumbers and welders, office clerical
employees, guards and all professional employees and
supervisors as defined in the Act.
WE WILL NOT promise you health insurance or other
benefits in order to discourage you from supporting the
Union.
WE WILL NOT create the impression that your union ac-
tivities are under surveillance.
WE WILL NOT inform you or otherwise imply that it is
futile to select the Union as your exclusive collective-
bargaining representative.
WE WILL NOT propose that you form an in-house un-
ion, offer assistance to you in the formation of an in-
house union, or tell you that you should form an in-house
union to avoid losing your jobs to the Union.
WE WILL NOT threaten or impliedly threaten you with
loss of work, loss of employment, loss of opportunities
for advancement or training, or other unspecified repri-
sals if you select the Union as your exclusive collective-
bargaining representative or participate in other protected
concerted activities.
WE WILL NOT interrogate you concerning your pro-
tected concerted activities and union activities.
WE WILL NOT tell you that there is a lack of work and
that employees were being laid off because they sup-
ported the Union.
WE WILL NOT threaten you with loss of a pay raise if
you discuss the pay raise with other employees.
WE WILL NOT terminate you because you form, join or
assist the Union or engage in any protected concerted
activities, or to discourage you from engaging in these
and other protected concerted activities.
WE WILL NOT impose more onerous working condi-
tions on you because you form, join or assist the Union
or engage in any protected concerted activities, or to dis-
courage you from engaging in these and other protected
concerted activities.
WE WILL NOT lay off employees because you form,
join, or assist the Union or engage in any protected con-
certed activities, or to discourage you from engaging in
these and other protected concerted activities.
WE WILL NOT discipline you because you form, join, or
assist the Union or engage in any protected concerted
activities, or to discourage you from engaging in these
and other protected concerted activities.
WE WILL NOT fail to recall you from layoff because
you formed, joined, or assisted the Union or engaged in
any protected concerted activities, or to discourage you
from engaging in these and other protected concerted
activities.
WE WILL NOT unilaterally subcontract bargaining unit
work, layoff unit employees, grant a wage increase to
unit employees, or recall unit employees to work without
prior notice to the Union and without affording the Un-
ion an opportunity to bargain with respect to, and the
effects of, this conduct.
WE WILL NOT designate as our bargaining representa-
tive an individual with no authority to negotiate or enter
into binding agreements.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively and in good
faith with the Union as the exclusive collective-
bargaining representative of the employees in the unit
with respect to wages, hours, and other terms and condi-
tions of employment, through a designated bargaining
representative with authority to negotiate or enter into
binding agreements, and, if an understanding is reached,
embody the understanding in a signed agreement.
WE WILL, if requested by the Union, rescind the wage
increase unlawfully granted to certain unit employees
without notifying the Union or affording it an opportu-
nity to bargain.
WE WILL, on request, bargain with the Union concern-
ing the our decisions with respect to subcontracting of
bargaining unit work, layoffs of certain unit employees,
recalling unit employees to work, and the effects of these
decisions.
WE WILL remit to Region 15 the payment of $15,874.34
to be disbursed to employees Demetrius Calhoun, Kevin
Mejia, Jeffrey Hill, and certain unit employees laid off
about the week of October 22, 2007, in accordance with
the June 3, 2008 settlement agreement, and make those
employees whole for any loss of earnings and other bene-
fits suffered since June 3, 2008, as a result of our unlawful
actions against them, with interest.
BSC DEVELOPMENT BUF, LLC 9
WE WILL, within 14 days from the date of this Order,
offer Demetrius Calhoun, Kevin Mejia, Jeffrey Hill, and
the employees laid off about October 22, 2007, full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privi-
leges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our records any reference to the
unlawful discharge of Demetrius Calhoun, the unlawful
layoffs and failure to recall from layoffs of Jeffrey Hill
and Kevin Mejia, and the unlawful discipline of Jeffrey
Hill, and within 3 days thereafter, notify each of them in
writing that this has been done and that the unlawful ter-
mination, layoffs, failure to recall from layoffs and disci-
pline will not be used against them in any way.
BSC DEVELOPMENT BUF, LLC AND CONNEX
CONSTRUCTION, LLC