KATZ METALS FABRICATORS INC. d/b/a MAJOR METALS COMPANY OR MAJOR DEEGAN COMPANY

MAJOR SHEET METALS CO. 587 Katz Metals Fabricators, Inc. d/b/a Major Sheet Met- als Company, single employers and alter egos and Local 810 International Brotherhood of Teamsters, AFL–CIO. Cases 02–CA–095920, 02– CA–102038, and 02–CA–103101 April 15, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA The General Counsel seeks a default judgment in this case pursuant to the terms of an informal settlement agreement. Upon charges and amended charges filed by Local 810 International Brotherhood of Teamsters, AFL– CIO (the Union) on various dates between January 7 and July 16, 2013, the General Counsel issued the consoli- dated complaint on January 29, 2014, against Katz Met- als Fabricators, Inc. d/b/a Major Sheet Metals Company (Respondent Katz and Respondent Major, collectively the Respondent), alleging that the Respondent violated Section 8(a)(5), (3), and (1) of the Act. The Respondent filed an answer to the consolidated complaint on Febru- ary 10, 2014, admitting in part and denying in part the allegations of the consolidated complaint. Subsequently, on April 10, 2014, the Respondent and the Union entered into an informal settlement agreement, which was approved by the Regional Director for Region 2 on that day. Among other things, the settlement agreement required the Respondent to: (1) make discrim- inatee Daniel Soliber whole by paying him specified amounts of backpay and interest; (2) offer reinstatement to Soliber, along with seniority and all other rights or privileges; and (3) post appropriate notices. 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 issue a complaint that will include the allegations spelled out above in the Scope of Agreement section. 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 it will have waived its right to file an Answer to such complaint. The only issue that may be raised before the Board is whether the Charged Party defaulted on the terms of this Settlement Agree- ment. 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 con- clusions of law consistent with those allegations ad- verse to the Charged Party on all issues raised by the pleadings. The Board may then issue an order provid- ing a full remedy for the violations found as is appro- priate 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/Respondent at the last address provided to the General Counsel. Pursuant to several letters between the Region and the Respondent, the Region confirmed that the Respondent was refusing to reinstate Soliber, reminded the Respond- ent that its conduct constituted noncompliance with the settlement agreement, and advised that, if the Respond- ent did not fully comply with the settlement terms by July 17, 2014, the Regional Director would initiate de- fault proceedings with the Board. The Respondent failed to comply or to provide evidence in support of its de- fense that it has no available position for Soliber because it no longer operates a business employing individuals who perform installation work. Accordingly, pursuant to the terms of the noncompli- ance provisions of the settlement agreement, on October 20, 2014, the Regional Director reissued the consolidated complaint. On October 22, 2014, the General Counsel filed a Motion for Default Judgment with the Board. On October 31, 2014, the Board issued an order transferring the proceeding to the Board and Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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 failing to provide a valid offer of reinstatement to Daniel Soliber. Consequently, pursuant to the noncompliance provisions of the settlement agreement set forth above, we find that the Respondent’s answer to the original con- solidated complaint has been withdrawn, and that all of the allegations in the consolidated complaint are true.1 1 See Dreamclinic, LLC, 361 NLRB No. 112, slip op. at 2 (2014) (not reported in Board volumes) (citing U-Bee, Ltd., 315 NLRB 667, 668 (1994)). We note that the informal settlement agreement here includes standard precomplaint noncompliance language even though the informal settlement agreement was actually executed after the Gen- 362 NLRB No. 67 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588 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, Respondent Katz and Respond- ent Major have had substantially identical management, business purposes, operations, equipment, customers, supervision, and ownership. Since about January 2012 and continuing to at least October 20, 2014, Respondent Major was established and/or used by Respondent Katz, as a disguised contin- uation of Respondent Katz. Respondent Katz established and/or used Respondent Major for the purpose of evad- ing its responsibilities under the Act. At all material times, Respondent Katz and Respond- ent Major have been affiliated business enterprises with common officers, ownership, directors, management, and supervision; have formulated and administered a com- mon labor policy; have shared common premises and facilities; have provided services for and made sales to each other; have interchanged personnel with each other; have had interrelated operations with shared equipment, insurance, and office space, and have held themselves out to the public as a single-integrated business enter- prise. Respondent Katz and Respondent Major are, and have been at all material times, alter egos and a single em- ployer within the meaning of the Act. At all material times Respondent Katz and Respondent Major, as corporations, have had an office and place of business located at 434 East 165th Street, Bronx, New York (the Respondents’ facility), and have been engaged in the business of manufacturing and installing air- eral Counsel had issued a complaint and the Respondent had filed an answer. Thus, the agreement states that the Respondent “will have waived its right to file an Answer” rather than stating that a previously filed answer “will be considered withdrawn.” Consistent with Dreamclinic, which involved similar circumstances, we find the entry of default judgment to be appropriate. Among other provisions in the informal settlement agreement, the parties here agreed that, in the event of the Respondent’s noncompliance, the General Counsel “may file a motion for default judgment,” “the allegations of the complaint will be deemed admitted,” the Respondent “will have waived its right to file an Answer,” and the Board may “without necessity of trial or any other proceeding, find all allegations of the complaint to be true” and issue an appropriate order. Through the agreement, the parties objectively man- ifested assent to the entry of a default-judgment order in the event of the Respondent’s noncompliance and to the withdrawal of any previ- ously filed answer. As stated above, it is undisputed that the Respond- ent is in noncompliance. Because the agreement objectively manifested assent to the entry of a default-judgment order in the event of the Re- spondent’s noncompliance, and the Respondent is undisputedly non- compliant, entry of default judgment is appropriate. condition ducts and ventilators for commercial and resi- dential buildings. Annually, Respondent Katz and Respondent Major (together, the Respondent) in the course and conduct of their business operations purchase and receive at their facility goods and materials valued in excess of $50,000 directly from suppliers located outside of the State of New York. 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 The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full time mechanics, helpers, apprentices, draftsmen and truck drivers employed by the Employer, excluding all other employees, guards and supervisors as defined in the Act. At all material times since at least 1998, the Union has been the designated exclusive collective-bargaining rep- resentative of the unit and since then the Union has been recognized as the representative by Respondent Katz. This recognition has been embodied in successive collec- tive-bargaining agreements with respect to the terms and conditions of employment of the unit, the most recent of which was effective from August 1, 2012, through July 31, 2015. At all material times, and at least since around 1998, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. At all material times, the following individuals held the positions set forth opposite their 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, acting on its behalf: Isaac Kubersky Shareholder and Officer Michael Miranda Officer Aubrey Faulkner Officer Michael Kubersky Officer Andrzej Gaja Supervisor 1. In or around December 2012 or January 2013, the Respondent, through Isaac Kubersky, informed employ- ees that, in order to continue their employment, they MAJOR SHEET METALS CO. 589 would have to work as nonunion employees of Respond- ent Major without the benefits of the union contract. 2. In or around January 2013, the Respondent trans- ferred certain of its employees from Respondent Katz to Respondent Major. The Respondent did so because the employees were members of the Union and covered by the union contract described above and to discourage employees from engaging in these activities. 3. In or around January 2013, the Respondent laid off employees Daniel Soliber and Luis Flores in order to evade its contractual obligations with the Union. The Respondent did so because the employees were members of the Union and covered by the union contract described above and to discourage employees from engaging in these activities. 4 By the following conduct, the Respondent, without the Union’s consent, failed to continue in effect the terms and conditions of employment set forth in the collective- bargaining agreement: (a) On around April 25, 2012, the Respondent changed the union-security clause (art. 5), the dues-checkoff pro- visions (art. 6), and provisions related to the Pension Fund and Health and Welfare Fund (art. 18) by hiring employees at Respondent Major to perform work on pro- jects of Respondent Katz and without applying the union contract to those individuals. (b) In around January 2013, the Respondent changed the seniority provision (art. 13) of the union contract by laying off employees out of seniority order. (c) In around February 2013, the Respondent changed the grievance and arbitration procedure (arts. 20 and 21) in the union contract by failing and refusing to respond to the Union’s requests to meet on grievances it had filed concerning the layoffs of Daniel Soliber and Luis Flores and other employees. (d) On around April 12, 2013, the Respondent changed the access provision (art. 19.3) of the union contract by refusing Union Agent Nelson Silva’s access to the facili- ty. (e) The subjects set forth above in subsections (a) through (d) relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purposes of collective bargaining. (f) The Respondent engaged in the conduct described in subsections (a) through (d) without the Union’s con- sent. CONCLUSIONS OF LAW 1. By the conduct described above in paragraph (1), the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 2. By the conduct described above in paragraphs (2) and (3), the Respondent has been discriminating in re- gard to the hire, or tenure, or terms and conditions of employment of its employees, thereby discouraging membership in a labor organization in violation of Sec- tion 8(a)(3) and (1) of the Act. 3. By the conduct described above in paragraph (4), the Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collec- tive-bargaining representative of its employees within the meaning of Section 8(d) of the Act in violation of Sec- tion 8(a)(5) and (1) of the Act. 4. The unfair labor practices of the Respondent de- scribed above 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) by informing employees that, in order to continue their em- ployment, they would have to work as nonunion employ- ees of Respondent Major without the benefits of the un- ion contract, we shall order the Respondent to cease and desist from making such coercive statements. Additionally, having found that the Respondent has violated Section 8(a)(3) and (1) by laying off employees Daniel Soliber and Luis Flores in order to evade its con- tractual obligations with the Union and to discourage employees from engaging in union activities, we shall order the Respondent to offer these employees full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or any other rights or privileges previously enjoyed. We shall also order the Respondent to make Daniel Soliber and Luis Flores whole for any loss of earnings and other benefits suffered as a result of the Respondent’s unlawful layoffs. The backpay due under this part of our order shall be computed as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). The Respondent additionally shall be ordered to re- move from its files any references to the unlawful layoffs of these employees 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. Having further found that the Respondent has violated Section 8(a)(5) and (1) by refusing to continue in effect all of the terms and conditions of the 2012–2015 agree- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 590 ment by, inter alia, failing to meet and respond to griev- ances, refusing to permit Union Agent Nelson Silva to access the facility, and changing the union-security clause, dues-checkoff provisions, and provisions related to the Pension Fund and Health & Welfare Fund by hir- ing employees to perform work on projects of Respond- ent Katz without applying the union contract to those individuals, and by changing the seniority provision by laying off employees out of seniority, we shall order the Respondent to honor and abide by the terms of the 2012– 2015 agreement during its term. We shall also order the Respondent to make the unit employees whole for any loss of earnings and other benefits they may have suf- fered as a result of these unlawful changes, in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. We shall also order the Respondent to offer immediate reinstatement to employees who would not have been laid off in or around January 2013 if the contractual sen- iority provision had been followed or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or any other rights or privi- leges. The Respondent is also ordered to make whole those employees for any loss of earnings and other bene- fits suffered as a result of the Respondent’s breach of the contractual seniority provision, in the manner set forth in F. W. Woolworth Co., supra, with interest at the rate pre- scribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. The Respondent additionally shall be ordered to re- move from its files any references to the unlawful layoffs of these employees 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. In addition, we shall order the Respondent to compen- sate employees, including Daniel Soliber and Luis Flo- res, for the adverse tax consequences, if any, of receiving lump-sum backpay awards and to file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters for each em- ployee. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). Further, we shall order the Respondent to make all contractually-required contributions to fringe benefit funds that it failed to make, if any, including any addi- tional amounts due the funds on behalf of the unit em- ployees in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). The Respondent shall also reimburse unit employees for any expenses ensuing from its failure to make any required contribu- tions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protection Service, supra, with interest as prescribed in New Horizons, supra, and Kentucky Riv- er Medical Center, supra.2 ORDER The National Labor Relations Board orders that the Respondent, Katz Metals Fabricators Inc. d/b/a Major Sheet Metals Company, a single employer and alter egos, Bronx, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Informing employees that, in order to continue their employment, they would have to work as nonunion employees without the benefits of a union contract. (b) Laying off employees to evade its contractual ob- ligations with the Union or to otherwise discourage em- ployees from engaging in union activities. (c) Failing and refusing to bargain collectively and in good faith with Local 810, International Brotherhood of Teamsters, AFL–CIO by failing to continue in effect the terms and conditions of employment set forth in the col- lective-bargaining agreement, effective August 1, 2012, through July 31, 2015, and covering the following ap- propriate unit: All full time mechanics, helpers, apprentices, draftsmen and truck drivers employed by the Employer, excluding all other employees, guards and supervisors as defined in the Act. (d) 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) Honor and comply with the terms of the collective- bargaining agreement, effective August 1, 2012, through July 31, 2015. (b) Within 14 days from the date of this Order, offer Daniel Soliber and Luis Flores full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously en- joyed. 2 To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the Respondent’s delin- quent contributions during the period of delinquency, the Respondent will reimburse the employee, but the amount of such reimbursement will constitute a setoff to the amount the Respondent otherwise owes the fund. MAJOR SHEET METALS CO. 591 (c) Make Daniel Soliber and Luis Flores whole for any loss of earnings or benefits they may have suffered as a result of their unlawful layoffs in the manner set forth in the remedy section of this decision. (d) Within 14 days of the date of this Order, offer to those employees who would not have been laid off in or around January 2013 had the contractual seniority provi- sion been followed 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 or privileges previously enjoyed. (e) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful layoffs, including those of Daniel Soliber and Luis Flores, and within 3 days thereafter, notify the unlawfully laid-off individuals in writing that this has been done and that the layoffs will not be used against them in any way. (f) Make the unit employees whole for any loss of earnings or other benefits they may have suffered as a result of the Respondent’s unlawful failure to comply with the 2012–2015 collective-bargaining agreement, with interest, in the manner set forth in the remedy sec- tion of this decision. (g) Compensate employees for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters for each employee. (h) Make all contractually-required contributions to fringe benefit funds that it has failed to make since about April 25, 2012, if any, as set forth in the remedy section of this decision. (i) 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. (j) Within 14 days after service by the Region, post at its facility in Bronx, New York, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- 3 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.” 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. 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 current em- ployees and former employees employed by the Re- spondent at any time since April 25, 2012. (k) Within 21 days after service by the Region, file with the Regional Director for Region 2 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. 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 inform you that, in order to continue your employment, you would have to work as nonunion employees without the benefits of a union contract. WE WILL NOT lay you off to evade our contractual obli- gations with the Union or to otherwise discourage you from engaging in union activities. WE WILL NOT fail to bargain collectively and in good faith with Local 810, International Brotherhood of Team- sters, AFL–CIO by failing to continue in effect the terms and conditions of employment set forth in the collective- bargaining agreement, effective August 1, 2012, through July 31, 2015, and covering the following appropriate unit: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 592 All full time mechanics, helpers, apprentices, draftsmen and truck drivers employed by the Employer, excluding all other employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL honor and comply with the terms of the col- lective-bargaining agreement, effective August 1, 2012, through July 31, 2015. WE WILL, within 14 days from the date of the Board’s order, offer Daniel Soliber and Luis Flores full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Daniel Soliber and Luis Flores whole for any loss of earnings and other benefits resulting from their unlawful layoffs, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, offer to those employees who would not have been laid off in or around January 2013 had the contrac- tual seniority provision been followed full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlaw- ful layoffs, including those of Daniel Soliber and Luis Flores, and WE WILL, within 3 days thereafter, notify all unlawfully laid-off individuals that this has been done and that the layoffs will not be used against them in any way. WE WILL make you whole for any loss of earnings or other benefits you may have suffered as a result of our unlawful failure to comply with the 2012–2015 collec- tive-bargaining agreement, with interest. WE WILL compensate employees for any adverse tax consequences of receiving lump-sum backpay awards, and WE WILL file a report with the Social Security Ad- ministration allocating backpay awards to the appropriate calendar quarters for each employee. WE WILL make all contractually-required contributions to the fringe benefit funds that we have failed to make since about April 25, 2012. KATZ METALS FABRICATORS, INC. D/B/A MAJOR SHEET METALS COMPANY The Board’s decision can be found at www.nlrb.gov/case/02-CA-095920 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.