Leroy Tate, d/b/a The Green Machine Lawn & Landscaping

National Labor Relations Board - Board Decisions

Aug 30, 2016

364 NLRB No. 119 (N.L.R.B. 2016)

364 NLRB No. 119
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.
Leroy Tate d/b/a The Green Machine Lawn & Land-
scaping and Charles Boyd
Leroy Tate d/b/a The Green Machine Lawn & Land-
scaping and Marcell Jones
Leroy Tate d/b/a The Green Machine Lawn & Land-
scaping and Charlando Hargrove. Cases 14–
CA–157587, 14–CA–157596, and 14–CA–163528
August 30, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon charges filed by individuals Charles
Boyd, Marcell Jones, and Charlando Hargrove (the
Charging Parties) on dates between August 10, and No-
vember 6, 2015, and an amended charge filed by Har-
grove on December 28, 2015, the General Counsel issued
an order further consolidating cases, second consolidated
complaint and notice of hearing (the original complaint)
on December 28, 2015, alleging that the Respondent vio-
lated Section 8(a)(1) of the Act. The Respondent filed an
answer on January 11, 2016, admitting in part and deny-
ing in part the allegations of the original complaint.
Subsequently, the Respondent and the Charging Par-
ties entered into an informal settlement agreement, which
was approved by the Regional Director for Region 14 on
February 29, 2016. Among other things, the Respondent
agreed to make whole Boyd, Jones, Hargrove, and Da-
mon Chandler by paying backpay in the total amount of
$9584, to be paid in specified installments to the Region
beginning on May 15, 2016.
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 after 14 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
reissue the complaint previously issued on December
28, 2015 in the instant case(s). Thereafter, the General
Counsel may file a motion for default judgment with
the Board on the allegations of the complaint. The
Charged Party understands and agrees that the allega-
tions of the aforementioned complaint will be deemed
admitted and its Answer to such complaint will be con-
sidered withdrawn. The only issue that may be raised
before the Board is whether the Charged Party default-
ed on 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 appropriate to remedy
such violations. The parties further agree that a U.S.
Court of Appeals Judgment may be entered enforcing
the Board order ex parte, after service or attempted ser-
vice upon Charged Party/Respondent at the last address
provided to the General Counsel.
By letter dated May 18, 2016, the Regional Director
for Region 14 notified the Respondent that it was in non-
compliance with the terms of the settlement agreement
by not making its first installment payment on May 15,
2016. The letter advised the Respondent of its obligation
to pay the amounts owed within 14 days of the Respond-
ent’s receipt of the letter, and warned that failure to do so
would result in the reissuance of the December 28, 2015
original complaint and the filing of a motion for default
judgment.1
Accordingly, pursuant to the terms of the noncompli-
ance provisions of the settlement agreement, on June 8,
2016, the Regional Director issued a consolidated com-
plaint based on breach of affirmative provisions of set-
tlement agreement (the reissued complaint). On July 11,
2016, the General Counsel filed a Motion for Default
Judgment with the Board. On July 13, 2016, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not

1 On May 25, 2016, in a telephone conversation with the compli-
ance officer for Region 14, the Respondent’s owner, Leroy Tate, as-
serted, among other things, that business had declined and that he might
be able to pay the amounts agreed to in the settlement agreement if
given a year to do so. The compliance officer reminded Tate of his
obligations under the terms of the agreement and the consequences of
non-compliance, and suggested that Tate put his position and/or pro-
posals in writing if he wished the Regional Director to take them under
consideration. The Respondent did not do so. On June 15, 2016, the
Region received notification that the Respondent filed for Chapter 7
Bankruptcy on June 8, 2016.
It is well established that the institution of bankruptcy proceedings
does not deprive the Board of jurisdiction or authority to entertain and
process an unfair labor practice case to its final disposition. See, e.g.,
Cardinal Services, 295 NLRB 933, 933 fn. 2 (1989), and cases cited
therein. Board proceedings fall within the exception to the automatic
stay provisions for proceedings by a governmental unit to enforce its
police or regulatory powers. See NLRB v. 15th Avenue Iron Works,
Inc., 964 F.2d 1336 (2d Cir. 1992); Cardinal Services, supra; accord
Ahrens Aircraft, Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
be granted. The Respondent filed no response. The alle-
gations in the motion are therefore undisputed.
Ruling on Motion for Default Judgment
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with the terms of the settlement agreement by,
among other things, failing to remit the first installment
payment as set forth in the installment payment portion
of the settlement agreement. Consequently, pursuant to
the noncompliance provisions of the settlement agree-
ment set forth above, we find that all of the allegations in
the reissued complaint are true.2 Accordingly, 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 owned
by Leroy Tate, a sole proprietorship, doing business as
The Green Machine Lawn & Landscaping, with an office
and place of business in East St. Louis, Illinois (the Re-
spondent’s facility), and has been engaged in providing
residential and commercial lawn and landscaping ser-
vices.
In conducting its operations during the 12-month peri-
od ending August 31, 2015, the Respondent provided
services valued in excess of $50,000 for the City of
O’Fallon, Illinois, a municipality located within the State
of Illinois.
In conducting its operations during the 12-month peri-
od ending August 31, 2015, the City of O’Fallon, Illinois
purchased and received goods and services valued in
excess of $50,000 directly from points outside the State
of Illinois.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Leroy Tate held the position of
Respondent’s owner and has been a supervisor of the
Respondent within the meaning of Section 2(11) of the
Act and an agent of the Respondent within the meaning
of Section 2(13) of the Act.
About July 10, 2015, at the Respondent’s facility, the
Respondent, through Tate, threatened an employee with
discharge for complaining about the Respondent’s re-
fusal to pay employees holiday pay.

2 See U-Bee, Ltd., 315 NLRB 667, 668 (1994). Also pursuant to the
noncompliance provisions, the Respondent’s answer to the original
complaint has been withdrawn.
About July 11, 2015, at the Respondent’s facility, the
Respondent, through Tate, threatened employees with
discharge for complaining about the Respondent’s re-
fusal to pay employees holiday pay.
About July 11, 2015, by text message, the Respondent,
through Tate, informed an employee that the employee
was discharged for complaining about the Respondent’s
refusal to pay employees holiday pay.
About late August 2015, Tate made statements to dis-
courage employees from supporting employees’ com-
plaints about the Respondent’s refusal to pay holiday pay
and the Respondent’s discharge of employees.
About July 11, 2015, employees Boyd, Jones, and
Hargrove concertedly complained and/or expressed sup-
port for employees’ complaints regarding the wages,
hours, and working conditions of the Respondent’s em-
ployees, including the Respondent’s refusal to pay them
holiday pay.
About July 11, 2015, the Respondent discharged Boyd
and Jones, and suspended employees Hargrove and Da-
mon Chandler.
About September 19, 2015, the Respondent discharged
Hargrove.
The Respondent discharged Boyd, Jones, and Har-
grove and suspended Hargrove and Chandler because
Boyd, Jones, and Hargrove engaged in the conduct de-
scribed above, and to discourage employees from engag-
ing in these or other concerted activities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7
of the Act in violation of Section 8(a)(1) of the Act. 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.3 Specifically, having

3 In this regard, we find that the backpay due to Boyd, Jones, Har-
grove, and Chandler should not be limited to the amount specified in
the settlement agreement. As set forth above, the settlement agreement
provided that, in the event of noncompliance, the Board could “issue an
order providing a full remedy for the violations found as is appropriate
to remedy such violations.” The General Counsel has requested in his
Motion for Default Judgment that the Board issue an order providing
for a full remedy for the unfair labor practices alleged. Thus, under this
language, it is appropriate to provide the Board’s customary remedies,
including reinstatement, full backpay and benefits, expungement of the
Respondent’s personnel records, and a notice posting. See L.J. Logis-
tics, Inc., 339 NLRB 729, 730-731 (2003).
LEROY TATE D/B/A THE GREEN MACHINE LAWN AND LANDSCAPING 3
found that the Respondent violated Section 8(a)(1) by
discharging Charles Boyd, Marcell Jones, and Charlando
Hargrove, and suspending Hargrove and Damon Chan-
dler, we shall order the Respondent to offer Boyd, Jones,
and Hargrove full reinstatement to their former jobs, or if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed. In addition,
we shall order the Respondent to make Boyd, Jones,
Hargrove, and Chandler whole for any loss of earnings
and other benefits they may have suffered as a result of
the Respondent’s unlawful actions against them. Back-
pay shall be computed as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
We shall further order the Respondent to compensate
Boyd, Jones, Hargrove, and Chandler for any adverse tax
consequences of receiving lump-sum backpay awards
and to file a report with the Regional Director for Region
14 allocating backpay to the appropriate calendar years
for each employee. AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016). In accordance with our recent
decision in King Soopers, Inc., 364 NLRB No. 93
(2016), we shall also order the Respondent to compen-
sate Boyd, Jones, and Hargrove for their search-for-work
and interim employment expenses regardless of whether
those expenses exceed interim earnings. Search-for-
work and interim employment expenses shall be calcu-
lated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded
daily as prescribed in Kentucky River Medical Center,
supra.4
The Respondent shall also be ordered to remove from
its files any references to the unlawful discharges of
Boyd, Jones, and Hargrove and the unlawful suspensions
of Hargrove and Chandler and to notify them in writing
that this has been done and that the unlawful actions will
not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Leroy Tate d/b/a The Green Machine Lawn
& Landscaping, East St. Louis, Illinois, its officers,
agents, successors, and assigns, shall take the following
affirmative action necessary to effectuate the policies of
the Act.

4 For the reasons stated in his separate opinion in King Soopers, 364
NLRB No. 93, slip op. at 9-16, Member Miscimarra would adhere to
the Board’s former approach, treating search-for-work and interim
employment expenses as an offset against interim earnings.
1. Cease and desist from
(a) Threatening employees with discharge for com-
plaining about the Respondent’s refusal to pay employ-
ees holiday pay.
(b) Informing employees they are being discharged
for complaining about the Respondent’s refusal to pay
employees holiday pay.
(c) Making statements to discourage employees from
supporting employees’ complaints about the Respond-
ent’s refusal to pay employees holiday pay and the Re-
spondent’s discharge of employees.
(d) Discharging or suspending employees because
they complained and/or expressed support for employ-
ees’ complaints regarding wages, hours, and working
conditions, including the Respondent’s failure to pay
employees holiday pay and the Respondent’s discharge
of employees, and to discourage employees from engag-
ing in these or other concerted activities.
(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, offer
Charles Boyd, Marcell Jones, and Charlando Hargrove
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 priv-
ileges previously enjoyed.
(b) Make Charles Boyd, Marcell Jones, and Charlando
Hargrove whole for any loss of earnings and other bene-
fits suffered as a result of their unlawful discharges, and
make Hargrove and Damon Chandler whole for any loss
of earnings and other benefits suffered as a result of their
unlawful suspensions, in the manner set forth in the rem-
edy section of this decision.
(c) Within 14 days from the date of this Order, re-
move from its files any references to the unlawful dis-
charges of Boyd, Jones, and Hargrove and unlawful sus-
pensions of Hargrove and Chandler, and within 3 days
thereafter, notify them in writing that this has been done
and that the unlawful actions will not be used against
them in any way.
(d) Compensate Boyd, Jones, Hargrove, and Chandler
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file with the Regional
Director for Region 14, within 21 days of the date the
amount of backpay is fixed, either by agreement or by
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 electron-
ic copy of such records if stored in an electronic form,
necessary to analyze the amount of backpay due under
the terms of this order.
(f) Within 14 days after service by the Region, post at
its East Saint Louis, Illinois facility copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
14, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily 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
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent 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 cur-
rent employees and former employees employed by the
Respondent at any time since July 10, 2015.
(g) 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.
Dated, Washington, D.C. August 30, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member

5 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.”
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative 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 threaten you with discharge for com-
plaining about our refusal to pay employees holiday pay.
WE WILL NOT inform you that you are being dis-
charged for complaining about our refusal to pay em-
ployees holiday pay.
WE WILL NOT make statements to discourage you from
supporting employees’ complaints about our refusal to
pay employees holiday pay and our discharge of employ-
ees.
WE WILL NOT discharge or suspend you because you
complained and/or expressed support for employees’
complaints regarding wages, hours, and working condi-
tions, including our failure to pay employees holiday pay
and our discharge of employees, and to discourage you
from engaging in these or other concerted activities.
WE WILL NOT in any like or related manner interfere
with the rights listed above.
WE WILL, within 14 days of the Board’s Order, offer
Charles Boyd, Marcell Jones, and Charlando Hargrove
immediate and full reinstatement to their former jobs, or
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL make Charles Boyd, Marcell Jones, and
Charlando Hargrove whole for any loss of earnings and
other benefits resulting from their unlawful discharges,
less any net interim earnings, plus interest, plus reasona-
ble search-for-work and interim employment expenses.
WE WILL make Charlando Hargrove and Damon
Chandler whole for any loss of earnings and other bene-
fits suffered as a result of their unlawful suspensions, less
any net interim earnings, plus interest.
LEROY TATE D/B/A THE GREEN MACHINE LAWN AND LANDSCAPING 5
WE WILL compensate Boyd, Jones, Hargrove, and
Chandler for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 14, within 21 days
of the date the amount of backpay is fixed, either by
agreement or by Board order, a report allocating the
backpay awards to the appropriate calendar years for
each employee.
WE WILL, within 14 days from the date of this Order,
remove from our files any references to the unlawful
discharges and suspensions of Boyd, Jones, Hargrove,
and Chandler, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
the unlawful actions will not be used against them in any
way.
LEROY TATE D/B/A THE GREEN MACHINE LAWN
& LANDSCAPING
The Board’s decision can be found at
www.nlrb.gov/case/14-CA-157587 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.