Quisquea Construction

1 327 NLRB No. 26 NOTICE: This opinion is subject to formal revision before publication in the Board 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. Salvador Almonte d/b/a Quisquea Construction and Quisquea Contracting and Jeronimo Pena Go- mez. Case 34–CA–8308 (1–2) October 30, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Upon charges and amended charges filed by Charging Party Jeronimo Pena Gomez on April 3, May 8, and May 12, 1998, the Acting General Counsel issued a consoli- dated complaint on May 29, 1998, against Salvador Al- monte d/b/a Quisquea Construction and Quisquea Con- tracting (Almonte), the Respondent, alleging that it has violated Section 8(a)(1) of the Act.1 Although properly served copies of the charges, amended charges and the complaint, Respondent Almonte has failed to file an an- swer. On August 21, 1998, the Acting General Counsel filed a Motion for Summary Judgment, with attached exhibits. On August 25, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the Acting General Counsel’s motion should not be granted. Respondent Almonte has not filed any response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. The consolidated complaint states that unless an answer is filed within 14 days of service, “all the allega- tions in the consolidated complaint shall be considered to be admitted to be true and shall be so found by the Board.” Further, the undisputed allegations in the mo- tion for summary judgment disclose that by letter and facsimile transmission dated July 15, the Respondent was advised by counsel for the Acting General Counsel that an answer to the consolidated complaint had not yet been received and that if no answer was received by close of 1 The consolidated complaint also included unfair labor practice al- legations in Case 34–CA–8161 against Flintlock Construction, Inc. On September 8, in response to the Acting General Counsel's motion for summary judgment, Flintlock filed an opposition to the motion for summary judgment, an answer to the complaint, and a cross–motion to remand this case to the Board's regional office. By unpublished order, the Board has this day accepted Flintlock's answer, denied the motion for summary judgment against it, severed Case 34–CA–8161 from this proceeding, and remanded that case to the Regional Director for further appropriate action. business July 23, a Motion for Summary Judgment would be filed. In the absence of good cause for failure to file a timely answer, we grant the Acting General Counsel’s Motion for Summary Judgment against the Respondent. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION Respondent Almonte is a sole proprietorship, owned by Salvador Almonte, and is engaged as a labor contrac- tor in the building and construction industry. It has an office and place of business in Brooklyn, New York. During the 12-month period ending December 31, 1996, Respondent Almonte, in the course and conduct of its business operations, provided services valued in excess of $50,000 to Flintlock Construction, Inc. at its New York jobsites. Flintlock is a corporation engaged as a construction manager in the building and construction industry. It has an office and place of business in Greenwich, Connecti- cut and jobsites in Yonkers and Greenburgh, New York. During the 12-month period ending on April 30, 1998, Flintlock, in the course and conduct of its business op- erations, purchased and received at its New York jobsites goods valued in excess of $50,000 directly from points outside the State of New York. We find that Respondent Almonte and Flintlock are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.2 II. ALLEGED UNFAIR LABOR PRACTICES During the period covered by the complaint, Respon- dent Almonte had an agreement to provide Flintlock with construction laborers for employment at Flintlock’s job- sites in New York.3 About December 3 and 10, 1997, Respondent, through its president and owner, Salvador Almonte, threatened employees with termination if they engaged in protected concerted activities. About De- cember 11, Respondent, acting through Salvador Al- monte, engaged in surveillance of its employees' pro- tected concerted activities. Also about December 11, Rafael Regalado, Fausto Munoz, Jorge Luis Garcia, Jose Delio Munoz, Francisco Anciany Garcia, Martin Domin- quez, Virgilio Pena, and Luis Maria Aragones engaged in protected concerted activities by attempting to file com- plaints with the United States Department of Labor 2 We note that Flintlock's answer to the then–consolidated complaint admits the complaint's jurisdictional allegations. 3 Flintlock's answer to the then–consolidated complaint denies the allegation that Flintlock and Respondent Almonte have been joint em- ployers of the employees of Respondent Almonte at Flintlock's jobsites. It is unnecessary to decide the joint employer issue in this proceeding, which involves severable unfair labor practice allegations against Re- spondent Almonte. We leave to further proceedings in Case 34–CA– 8161 the issue of whether Flintlock has any liability as a joint employer for Respondent Almonte's unfair labor practices. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 against Almonte. On December 12, Respondent termi- nated the above-named employees because they engaged in the protected concerted activity described above and in order to discourage employees from engaging in these activities. We find that, by the aforementioned threats, surveil- lance, and discharge actions affecting employees en- gaged in protected concerted activities, Respondent Al- monte has violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW By engaging in surveillance of employees’ protected concerted activities, and by threatening to terminate and then terminating employees if they engaged in such ac- tivity, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that Respondent Almonte has engaged in violations of Section 8(a)(1) of the Act, we shall order it to cease and desist and to take certain affirmative ac- tion designed to effectuate the policies of the Act. Having found that the Respondent unlawfully dis- charged employees Rafael Regalado, Fausto Munoz, Jorge Luis Garcia, Jose Delio Munoz, Francisco Anciany Garcia, Martin Dominquez, Virgilio Pena, and Luis Maria Aragones, we shall order it to offer them full rein- statement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and to make them whole for any loss of earnings and other benefits they may have suffered as a result of the Respondent's unlawful con- duct. Backpay shall be computed in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 259 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The Respondent, Salvador Almonte d/b/a Quisquea Construction and Quisquea Contracting, Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Surveilling employees as they engage in protected concerted activities. (b) Threatening employees with termination if they engage in protected concerted activity. (c) Terminating employees because they engage in protected concerted activity and in order to discourage employees from engaging in such activities. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2.Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Within 14 days from the date of this Order offer employees Rafael Regalado, Fausto Munoz, Jorge Luis Garcia, Jose Delio Munoz, Francisco Anciany Garcia, Martin Dominquez, Virgilio Pena, and Luis Maria Ara- gones, full reinstatement to their former positions of em- ployment or, if those positions are no longer available, to substantially equivalent positions, without loss of senior- ity or other rights or privileges previously enjoyed. (b) Make the above-named employees whole for any loss of earnings or other benefits suffered as a result of their unlawful termination, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful dis- charges, and within 3 days thereafter notify the above- named employees in writing that this has been done and that the unlawful terminations will not be used against them in any way. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the region, post at its facility in Brooklyn, New York, and at its jobsites in Yonkers and Greenburgh, New York, copies of the no- tice, marked “Appendix.”4 Copies of the notice on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized representa- tives, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, copies of the notices to all current employ- ees and former employees employed by the Respondent at any time since December 3, 1997. 4 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.” SALVADOR ALMONTE d/b/a QUISQUEA CONSTRUCTION 3 (f) 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 Respondents have taken to comply. Dated, Washington, D.C. October 30, 1998 Sarah M. Fox, Member Wilma B. Liebman, Member Peter J. Hurtgen, Member (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 The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT engage in surveillance of employees’ protected concerted activities. WE WILL NOT threaten employees with termination if they engage in protected concerted activities. WE WILL NOT terminate employees because they en- gage in protected concerted activity and in order to dis- courage employees from engaging in such activities. 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, within 14 days from the date of the Board’s Order, offer Rafael Regalado, Fausto Munoz, Jorge Luis Garcia, Jose Delio Munoz, Francisco Anciany Garcia, Martin Dominquez, Virgilio Pena, and Luis Maria Ara- gones, full reinstatement to their former positions of em- ployment, or, if those positions are no longer available, to substantially equivalent positions, without loss of seniority or other rights or privileges they previously enjoyed. WE WILL make the above-named employees whole for any losses or other benefits suffered as a result of their unlawful termination, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful termination of the employees named above, and WE WILL, within 3 days thereafter notify each of them in writing that this has been done and that the unlawful ter- minations will not be used against them in any way. SALVADOR ALMONTE D/B/A QUISQUEA CONSTRUCTION AND QUISQUEA CONTRACTING