CG Janitorial and Lawn Services

National Labor Relations Board - Board Decisions

Feb 28, 2013

359 N.L.R.B. 588 (N.L.R.B. 2013)

588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 64

CG’s Lawn & Janitorial Service, LLC and Industrial
Technical & Professional Employees Union,
OPEIU Local 4873. Cases 15–CA–019117 and
15–CA–019314
February 28, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting General Counsel seeks summary judgment
in this case on the ground that the admissions in the Re-
spondent’s answer are sufficient to establish that the Re-
spondent violated the Act as alleged in the consolidated
complaint. The Acting General Counsel therefore argues
that there are no issues of fact and that an evidentiary
hearing is unnecessary.
Upon charges and amended charges filed by Industrial
Technical & Professional Employees Union, OPEIU
Local 4873 (the Union), the General Counsel issued the
consolidated complaint on November 19, 2009, against
CG’s Lawn & Janitorial Service, LLC (the Respondent),
alleging that the Respondent violated Section 8(a)(1) and
Section 8(a)(3) and (1) of the Act. The Respondent, act-
ing pro se, filed an answer on January 27, 2010, admit-
ting all of the allegations in the consolidated complaint
except the allegations that the Respondent violated the
Act and that its unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On February 23, 2010, the General Counsel filed with
the Board a Motion for Summary Judgment. On Febru-
ary 25, 2010, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. On March 11,
2010, the Respondent filed a response to the Notice to
Show Cause. However, contrary to Section 102.114 of
the Board’s Rules and Regulations, the Respondent
failed to file with the Board an affidavit of service show-
ing that its response had been served on the Union and
the Region. By letter dated September 28, 2012, the
Board explained the service requirement to the Respond-
ent and advised that failure to file an affidavit of service
by October 12, 2012, could result in the rejection of the
Respondent’s response to the Notice to Show Cause.
The Respondent did not file an affidavit of service. On
December 7, 2012, the Board issued a second order
transferring the proceeding to the Board and a Notice to
Show Cause why the General Counsel’s motion should
not be granted. The Respondent did not file a response.
The allegations in the motion are therefore undisputed.
Ruling on Motion for Summary Judgment
As stated above, the Respondent’s answer admits all
the material factual allegations in the consolidated com-
plaint. Thus, the Respondent admits that it issued disci-
pline to certain named employees and terminated em-
ployee Richard Jones because the employees engaged in
the concerted activity of participating in a work stop-
page, in order to discourage them from engaging in such
activities. The Respondent further admits that it disci-
plined certain named employees and terminated employ-
ee Richard Jones because the employees assisted the Un-
ion and engaged in concerted activities, in order to dis-
courage them from engaging in such activities. The Re-
spondent has not raised any defenses. Further, the Re-
spondent did not file an appropriate response to the first
Notice to Show Cause and has not responded to the se-
cond Notice to Show Cause. Accordingly, we find that
all the allegations of the consolidated complaint are true
and we grant the Motion for Summary Judgment.
1

On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a limited liability
company, with an office and place of business in Ft.
Rucker, Alabama, has been engaged in the business of
providing grounds maintenance services to the Federal
Government at Ft. Rucker, Alabama. Annually, in con-
ducting its operations described above, the Respondent
has been engaged in providing grounds maintenance ser-
vices to the United States valued in excess of $50,000
and has a substantial impact on the national defense of
the United States.
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 held the
positions set forth opposite their respective names and
have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Curtis McDaniel - Owner and President
Robert Williams - Project Manager
On about June 8 through 9, 2009, the Respondent’s
employees, Bryon Belin, Willie Bigham, Tony Brown,

1 Black Bear Mining, 325 NLRB 960 (1998).
CG’S LAWN & JANITORIAL SERVICE 589

Michael Clark, Robert Demoss, Larry Douglas, Virgil
Hall Jr., Michael Harpis, Richard Jones, Steven King,
Walter Ludlum, Brian Lynn, Glen Meissner, Mark
Moonschein, Maurice Pringle, Steve Rhodes, Blake Sex-
ton, Christopher Sexton, Ward Stewart, Jason Testerman,
and other currently unknown similarly situated employ-
ees engaged in concerted activities with each other for
the purposes of mutual aid and protection, by engaging in
a work stoppage.
On June 8, 9, and 16, 2009, the Respondent issued dis-
cipline to employee Richard Jones. On June 9, 2009, the
Respondent issued discipline to the remaining employees
named above who engaged in the work stoppage and to
other currently unknown similarly situated employees.
On about June 19, 2009, the Respondent terminated
employee Richard Jones.
The Respondent disciplined the employees named
above and other currently unknown similarly situated
employees, and terminated Richard Jones because the
employees engaged in the concerted activity of partici-
pating in a work stoppage, and in order to discourage the
employees from engaging in these or other concerted
activities.
The Respondent disciplined the employees named
above and other currently unknown similarly situated
employees, and terminated Richard Jones because the
employees assisted the Union and engaged in concerted
activity, and in order to discourage the employees from
engaging in these or other concerted activities.
CONCLUSIONS OF LAW
1. By disciplining the employees named above and
other currently unknown similarly situated employees,
and terminating Richard Jones because the employees
engaged in the concerted activity of participating in a
work stoppage, in order to discourage the employees
from engaging in these and other concerted activities, the
Respondent has been interfering with, restraining, and
coercing 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 disciplining the employees named above and
other currently unknown similarly situated employees,
and terminating Richard Jones because the employees
assisted the Union and engaged in concerted activities, in
order to discourage the employees from engaging in the-
se and other concerted activities, the Respondent has
been discriminating in regard to the hire or tenure or
conditions of employment of its employees, thereby dis-
couraging membership in a labor organization in viola-
tion of Section 8(a)(3) and (1) of the Act.
3. The Respondent’s unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(1) of the
Act by disciplining the employees named above and oth-
er similarly situated employees for engaging in a con-
certed work stoppage, and violated Section 8(a)(3) and
(1) of the Act by disciplining the employees named
above and other similarly situated employees for assist-
ing the Union and engaging in concerted activity, we
shall order that the Respondent remove from its files any
and all references to the unlawful discipline of these em-
ployees, and notify them in writing that this has been
done and that the unlawful discipline will not be used
against them in any way.
Further, having found that the Respondent violated
Section 8(a)(1) of the Act by terminating employee
Richard Jones for engaging in a concerted work stop-
page, and violated Section 8(a)(3) and (1) of the Act by
terminating him for assisting the Union and engaging in
concerted activity, we shall order the Respondent to offer
Jones full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed, and to make Jones whole
for any loss of earnings and other benefits suffered as a
result of the Respondent’s unlawful actions against him.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
Additionally, in accordance with our recent decision in
Latino Express, 359 NLRB 518 (2012), we shall order
the Respondent to compensate Jones for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award and to file a report with the Social Security Ad-
ministration allocating the backpay award to the appro-
priate calendar quarters.
The Respondent shall also be required to remove from
its files any and all references to the unlawful termina-
tion of Richard Jones and to notify him in writing that
this has been done and that the unlawful termination will
not be used against him in any way.
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ORDER
The National Labor Relations Board orders that the
Respondent, CG’s Lawn & Janitorial Service, LLC, Ft.
Rucker, Alabama, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Issuing discipline to employees because they en-
gaged in concerted activities for the purpose of mutual
aid and protection.
(b) Issuing discipline to employees because they as-
sisted the Union and engaged in concerted activities.
(c) Discharging or otherwise discriminating against
employees because they engaged in concerted activities
for the purpose of mutual aid and protection.
(d) Discharging or otherwise discriminating against
employees because they assisted the Union and engaged
in concerted activity.
(e) 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 14 days from the date of this Order, remove
from its files all references to the discipline of Bryon
Belin, Willie Bigham, Tony Brown, Michael Clark, Rob-
ert Demoss, Larry Douglas, Virgil Hall Jr., Michael
Harpis, Richard Jones, Steven King, Walter Ludlum,
Brian Lynn, Glen Meissner, Mark Moonschein, Maurice
Pringle, Steve Rhodes, Blake Sexton, Christopher Sex-
ton, Ward Stewart, Jason Testerman, and other similarly
situated employees, to the extent that such documents
exist, and within 3 days thereafter, notify them in writing
that this has been done and that the discipline will not be
used against them in any way.
(b) Within 14 days from the date of this Order, offer
Richard Jones full reinstatement to his former job, or if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privilege previously enjoyed.
(c) Make Richard Jones whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of this decision.
(d) Compensate Jones for the adverse tax consequenc-
es, if any, of receiving a lump-sum backpay award, and
file a report with the Social Security Administration allo-
cating the backpay award to the appropriate calendar
quarters.
(e) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful ter-
mination of Richard Jones, and within 3 days thereafter,
notify him in writing that this has been done and that the
unlawful termination will not be used against him in any
way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords 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.
(g) Within 14 days after service by the Region, post at
its facility in Ft. Rucker, Alabama, copies of the attached
notice marked “Appendix.”
2
Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentatives, 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. In the event that, during the
pendency of these proceedings, 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 June 8, 2009.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 15 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.
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.

2 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.”
CG’S LAWN & JANITORIAL SERVICE 591

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 issue discipline to you because you en-
gage in concerted activities for the purpose of mutual aid
and protection.
WE WILL NOT issue discipline to you because you as-
sist the Union and engage in concerted activities for mu-
tual aid and protection.
WE WILL NOT terminate or otherwise discriminate
against you because you engage in concerted activities
for mutual aid and protection.
WE WILL NOT terminate or otherwise discriminate
against you because you assist the Union and engage in
concerted activities for mutual aid and protection.
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 14 days of the date of the Board’s
Order, remove from our files any and all references to the
unlawful discipline of Bryon Belin, Willie Bigham, Tony
Brown, Michael Clark, Robert Demoss, Larry Douglas,
Virgil Hall Jr., Michael Harpis, Richard Jones, Steven
King, Walter Ludlum, Brian Lynn, Glen Meissner, Mark
Moonschein, Maurice Pringle, Steve Rhodes, Blake Sex-
ton, Christopher Sexton, Ward Stewart, Jason Testerman,
and other similarly situated employees, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and that the discipline will not be
used against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer Richard Jones reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Richard Jones whole for any loss of
earnings and other benefits suffered as a result of our
unlawful conduct, plus interest.
WE WILL compensate Richard Jones for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful termination of Richard Jones, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the termination will not be used
against him in any way.

CG’S LAWN & JANITORIAL SERVICE, LLC