Santos Cruz LLC, d/b/a Filiberto's

368 NLRB No. 78 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. Santos Cruz LLC d/b/a Filiberto’s and Jairo E. Aguirre, an individual. Case 28–CA–221286 September 24, 2019 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS MCFERRAN AND EMANUEL The General Counsel seeks a default judgment in this case pursuant to the terms of an informal settlement agreement. Upon a charge filed by Jairo E. Aguirre on May 30 and amended on August 30, 2018,1 the General Counsel issued a complaint on September 25, alleging that Santos Cruz LLC d/b/a Filiberto’s (the Respondent) violated Section 8(a)(1) of the Act by various actions. The Respondent did not file an answer to the complaint. Subsequently, the parties executed a bilateral informal settlement agreement, which the Regional Director for Region 28 approved on November 7. Pursuant to the terms of the settlement agreement, the Respondent agreed to post a notice to employees at its facility in An- them, Arizona. It also agreed to comply with the provi- sions of the notice to employees, which included making Aguirre whole for any loss of earnings and other benefits suffered as a result of his discharge,2 removing from its files all references to his discharge, and notifying Aguir- re in writing that it had taken such action and that the discharge would not be used against him in any way. The Respondent also agreed that it would make Aguirre whole by paying him backpay in the amount of $7896, minus appropriate deductions, and interest in the amount of $95. Finally, it agreed to notify the Regional Director of the steps it had taken to comply with the settlement agreement. The settlement agreement also contains the following noncompliance 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’ notice from the Regional Director of the National La- bor Relations Board of such non-compliance without remedy by the Charged Party, the Regional Director will reissue the complaint previously issued on Sep- tember 25, 2018 in the instant case(s). Thereafter, the General Counsel may file a motion for default judg- ment with the Board on the allegations of the com- plaint. The Charged Party understands and agrees that 1 All subsequent dates are in 2018 unless otherwise indicated. 2 Aguirre waived reinstatement in the settlement. the allegations of the aforementioned complaint will be deemed admitted and its Answer to such complaint will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party defaulted 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. On November 9, a Board agent sent the Respondent a package of information containing copies of the notice to employees and a certification of compliance form detail- ing the Respondent’s obligations under the settlement agreement, to be signed by an official of the Respondent. Thereafter, by letter dated December 11, the Board agent notified the Respondent that it had failed to comply with the terms of the settlement agreement and that the set- tlement agreement provided that if it failed to comply with any of its terms after 14 days’ notice, the Regional Director would issue a complaint and thereafter file a motion for default judgment with the Board on the alle- gations of the complaint. The Board agent stated that unless the Respondent initiated compliance by December 26, the Region would issue a complaint. On January 23, 2019, the Board agent, by letter, informed the Respond- ent and its non-attorney representative that it had failed to comply with the settlement agreement and that if it had not complied by January 30, 2019, the Regional Di- rector would issue a complaint and institute default judgment proceedings as provided in the “Performance” paragraph of the settlement agreement. The Respondent failed to cure its lack of compliance. Accordingly, on March 20, 2019, pursuant to the non- compliance provision set forth above, the Regional Di- rector issued a complaint based on breach of affirmative provisions of settlement agreement (the reissued com- plaint). On March 27, 2019, the General Counsel filed a Motion for Default Judgment with the Board. On March 29, 2019, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file a response. The allegations in the motion are therefore undisputed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 Agreement. Consequently, pursuant to the noncompliance provisions of the settle- ment agreement set forth above, we find that all of the allegations in the complaint are true. Accordingly, we grant the General Counsel’s Motion for Default Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a lim- ited liability company with an office and place of busi- ness in Anthem, Arizona (the Respondent’s facility), and has been engaged in the business of operating a public restaurant selling food and beverages. In conducting its business operations during the 12-month period ending May 30, 2018, the Respondent purchased and received at its facility goods valued in excess of $5000 directly from points outside the State of Arizona. In conducting its operations during the same 12-month period, the Re- spondent derived gross revenues in excess of $500,000. 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, 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: Manuel Santos Cruz Owner Jose Santos Owner At all material times, the following individuals held the positions set forth opposite their respective names and have been agents of the Respondent within the meaning of Section 2(13) of the Act: Margarita Santos -Wife of Manuel Santos Cruz Antonio Padilla -Accountant for the Respondent On various dates between about May 6 and 24, the Re- spondent’s employee Aguirre engaged in concerted ac- tivities with other employees for the purposes of mutual aid and protection and concertedly complained to the Respondent about the terms and conditions of employ- ment of the Respondent’s employees, by raising concerns with other employees and with the Respondent about the employees’ wages, hours, and working conditions. These concerns included conflicts between Manuel San- tos Cruz and Margarita Santos in the workplace that cre- ated a hostile work environment for the employees, mis- treatment of and disrespect shown to employees by su- pervisors, and practices concerning the sharing of tips. About May 22, 2018, the Respondent, by Manuel San- tos Cruz, at its facility, (1) directed its employees to in- vestigate other employees’ protected concerted activities and report them to the Respondent; (2) threatened its employees with unspecified reprisals for engaging in protected concerted activities; (3) directed its employees to refrain from engaging in such activities; and (4) invit- ed its employees to quit in response to their protected concerted activities. About May 24, 2018, the Respondent discharged Aguirre. About June 25, 2018, the Respondent, by Antonio Pa- dilla at Padilla’s office, interrogated its employees about the protected concerted activities of employees in two separate conversations. The Respondent engaged in this conduct because Aguirre engaged in the conduct described above and to discourage employees from engaging 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. Specifically, having found that the Respondent violat- ed Section 8(a)(1) of the Act by directing its employees to investigate other employees’ protected concerted ac- tivities and report them to the Respondent; threatening employees with unspecified reprisals for engaging in protected concerted activities; directing its employees to refrain from engaging in protected concerted activities; inviting its employees to quit in response to their protect- ed concerted activities; discharging Jairo E. Aguirre; and coercively interrogating employees about the protected concerted activities of employees, we shall order the Re- SANTOS CRUZ LLC D/B/A FILIBERTO’S 3 spondent to cease and desist from such conduct and to post a remedial notice. To remedy the Respondent’s unlawful discharge of Aguirre, we shall order the Respondent, to the extent that it has not already done so, to offer Aguirre full rein- statement to his former job or, if that job no longer ex- ists, to a substantially equivalent position, without preju- dice to his seniority or any other rights or privileges he previously enjoyed.3 In addition, we shall order the Re- spondent to make Aguirre whole for any loss of earnings and other benefits suffered as a result of the unlawful action against him, to the extent that the Respondent has not already done so.4 Backpay shall be computed in ac- cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Hori- zons, 283 NLRB 1173 (1987), compounded daily as pre- scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with our decision in King Soop- ers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part, 859 F.3d 23 (D.C. Cir. 2017), we shall also order the Respondent to compensate Aguirre for his search-for- work and interim employment expenses regardless of whether those expenses exceed interim earnings. Search- for-work and interim employment expenses shall be cal- culated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, com- pounded daily as prescribed in Kentucky River Medical Center, supra.5 We shall further order the Respondent to compensate Aguirre for any adverse tax consequences of receiving a lump-sum backpay award, to the extent that the Respondent has not already done so, and to file with the Regional Director for Region 28 a report allocating the backpay award to the appropriate calendar years. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). Finally, we shall order the Respondent to re- move from its files any reference to the unlawful dis- charge of Aguirre and to notify him in writing that this has been done and that the unlawful discharge will not be used against him in any way. 3 Although Aguirre waived reinstatement for the purposes of the set- tlement, we shall order it as part of a full remedy for his unlawful dis- charge. 4 Because it is unclear whether the total amount set forth in the set- tlement agreement constitutes a full make-whole remedy, we leave to compliance a determination of the proper amount due to Aguirre. 5 The General Counsel additionally seeks reasonable consequential damages incurred as a result of the Respondent’s unfair labor practices. This issue, which was not briefed, would involve a change in Board law. We are not prepared at this time to deviate from our current reme- dial practice. Accordingly, we decline to order this relief. See, e.g., Laborers International Union of North America, Local Union No. 91 (Council of Utility Contractors), 365 NLRB No. 28, slip op. at 1 fn. 2 (2017). ORDER The National Labor Relations Board orders that the Respondent, Santos Cruz, LLC, d/b/a Filiberto’s, An- them, Arizona, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Directing employees to investigate other employ- ees’ protected concerted activities and report them to the Respondent. (b) Threatening employees with negative consequenc- es for engaging in protected concerted activities. (c) Directing employees not to engage in protected concerted activities. (d) Inviting employees to quit in response to their pro- tected concerted activities. (e) Discharging employees because they engage in protected concerted activities. (f) Coercively questioning employees about their pro- tected concerted activities or the protected concerted activities of other employees. (g) 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 Jairo E. Aguirre 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. (b) To the extent it has not already done so, make whole Jairo E. Aguirre for any loss of earnings and other benefits suffered as a result of his discharge, in the man- ner set forth in the remedy section of this decision, plus reasonable search-for-work and interim employment expenses. (c) Compensate Jairo E. Aguirre for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 28, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar years. (d) Within 14 days from the date of this Order, re- move from its files all references to the discharge of Aguirre and, within 3 days thereafter, notify him in writ- ing that this has been done and that the discharge will not be used against him in any way. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director for Region 28 may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 records, social security payment records, timecards, per- sonnel records and reports, and all other records, includ- ing an electronic copy of such records if stored in elec- tronic 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 facility in Anthem, Arizona, copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent, in English and in additional languages if the Regional Director de- cides that it is appropriate to do so, and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily post- ed. In addition to physical posting of paper notices, no- tices 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 com- municates with its employees by such means. Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of busi- ness or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 6, 2018. (g) Within 21 days after service by the Region, file with the Regional Director for Region 28 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. Dated, Washington, D.C. September 24, 2019 ______________________________________ John F. Ring, Chairman ______________________________________ Lauren McFerran, Member ________________________________________ William J. Emanuel Member 6 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 TOEMPLOYEES 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 violated 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 do anything to prevent you from exercis- ing the above rights. WE WILL NOT do anything to prevent you from engag- ing in protected concerted activities, including raising concerns with other employees about your wages, hours, and working conditions, or acting together with other employees to raise such concerns with us. WE WILL NOT direct you to investigate other employ- ees’ protected concerted activities and report them to us. WE WILL NOT threaten you with negative consequences for engaging in protected concerted activities. WE WILL NOT direct you not to engage in protected concerted activities. WE WILL NOT invite you to quit in response to your protected concerted activities. WE WILL NOT fire you for engaging in protected con- certed activities. WE WILL NOT coercively question you about your pro- tected concerted activities or the protected concerted activities of other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights under Section 7 of the National Labor Relations Act. WE WILL, within 14 days from the date of the Board’s Order, offer Jairo E. Aguirre full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges enjoyed. WE WILL make Aguirre whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest, to the extent this has SANTOS CRUZ LLC D/B/A FILIBERTO’S 5 not already been done, and WE WILL also make Aguirre whole for reasonable search-for-work and interim em- ployment expenses, plus interest. WE WILL compensate Aguirre for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 28, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years. WE WILL, within 14 days of the date of the Board’s Order, remove from our files all references to the dis- charge of Aguirre, and WE WILL, within 3 days therafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. SANTOS CRUZ LLC, D/B/A FILIBERTO’S The Board’s decision can be found at www.nlrb.gov/case/28-CA-221286 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.