Perkins Management Services Company, (2017)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Perkins Management Services Company and Unite

Here Local 1. Case 13–CA–173696

June 5, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

The General Counsel seeks a default judgment in this case pursuant to the terms of an informal settlement agreement. Following the filing of a charge and an amended charge by Unite Here Local 1 (the Union) on April 8 and July 27, 2016, respectively, alleging that Perkins Management Services Company (the Respondent) violated Section 8(a)(5) and (1) of the Act, the parties entered into a bilateral informal settlement agreement which was approved by the Regional Director for Region 13 on August 2, 2016. Among other things, the settlement agreement required the Respondent to: (1) on request, bargain with the Union as the exclusive collectivebargaining representative of the unit employees for a reasonable period of time from the date of the approval of the settlement agreement by the Regional Director as required by UGL-UNICCO Service Co., 357 NLRB 801 (2011); (2) meet for bargaining sessions with the Union once a month for no less than 6 hours a session for 6 months from the date the settlement was approved by the Regional Director, or until the parties execute a collective-bargaining agreement covering the terms and conditions of employment of the unit employees, whichever is sooner; (3) provide monthly summaries to the Region’s compliance officer regarding the parties’ progress and satisfaction with the bargaining progress; if the Region determines that continued monthly bargaining is necessary, the Region can require additional mandatory sessions of its choosing for one year; (4) provide the Union with the information it requested on July 7 and September 29, 2015 if it exists and promptly advise the Union if it does not exist; and (4) post appropriate notices in English and Spanish.

The settlement agreement also contained the following provision:

The Charged Party agrees that in case of noncompliance with any of the terms of this Settlement Agreement by the Charged Party, 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, the Regional Director will issue a Complaint that includes the allegations covered

by the Notice to Employees, as identified above in the Scope of Agreement section, as well as filing and service of the charge(s), commerce facts necessary to establish Board jurisdiction, labor organization status, appropriate bargaining unit (if applicable), and any other allegations the General Counsel would ordinarily plead to establish the unfair labor practices. 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 all of the allegations of the Complaint will be deemed admitted and that it will have waived its right to file an Answer to such Complaint. The only issue that the Charged Party may raise before the Board will be whether it defaulted on the terms of this Settlement Agreement. The General Counsel may seek, and the Board may impose, a full remedy for each unfair labor practice identified in the Notice to Employees. 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 service upon Charged Party at the last address provided to the General Counsel.

On August 5, 2016, the Region’s compliance officer sent the Respondent a copy of the conformed settlement agreement, with a cover letter advising the Respondent to take the steps necessary to comply with it. Also enclosed were copies of the Notices to Employees in English and Spanish, to be posted by the Respondent, and a Certification of Compliance form.

By email dated November 4, 2016, the compliance officer notified the Respondent that unless it fully complied with the terms of the settlement agreement within 14 days, the Region would issue a complaint and file a motion for default judgment with the Board. The email stated that “[a]lthough I have received information that the Respondent and Union have engaged in bargaining, based on information obtained from the Union regarding deficiencies in the information provided to it by Respondent; and in light of Respondent’s failure to provide evidence that it had executed and posted the required Spanish Notice to Employees, I am providing this notification of default.” Based on the Respondent’s email response of November 17, 2016, assuring the Region that

it intended to provide the requested information, the Region did not issue complaint or file a motion for default judgment at that time.

By email dated November 28, 2016, the compliance officer notified the Respondent that it had failed to provide the Region with its certification of compliance with the information request portion of the settlement and that absent the Respondent’s submission of evidence of full compliance further proceedings could be initiated. By email dated February 6, 2017, the compliance officer reminded the Respondent of its obligations to provide the Region with monthly summaries of the parties’ bargaining progress and to provide the Union with outstanding requested information by February 21, 2017.

By email dated February 28, 2017, the compliance officer informed the Respondent that unless it fully complied with the settlement agreement by March 14, 2017, he would recommend that the Regional Director issue a complaint and file a motion for default judgment with the Board. Specifically, the compliance officer advised the Respondent that it had failed to furnish the Union with the outstanding requested information and failed to provide the Region with monthly summaries of the progress of bargaining. The Respondent failed to comply.

Accordingly, pursuant to the terms of the noncompliance provisions of the settlement agreement, on March 28, 2017, the Acting Regional Director issued a Complaint Based on Breach of Affirmative Provisions of Settlement Agreement (the complaint). On March 29, 2017, the General Counsel filed a Motion for Default Judgment with the Board. On March 30, 2017, 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 motion are therefore undisputed.

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