SWYEAR AMUSEMENTS, INC.

370 NLRB No. 82 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. Swyear Amusements, Inc. and Comite De Apoyo A Los Trabajadores Agricolas (CATA). Case 01– CA–130018 February 9, 2021 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS EMANUEL AND RING The General Counsel seeks summary judgment in this compliance proceeding on the basis that the Respond- ent’s answers to the compliance specification are insuffi- cient under the Board’s Rules and Regulations. We agree and grant the General Counsel’s Motion for Sum- mary Judgment.1 On December 28, 2017, the National Labor Relations Board issued a Decision and Order in this proceeding, approving the parties’ Formal Settlement Stipulation providing for a consent order that the Respondent, Swyear Amusements, Inc., violated Section 8(a)(3), (2), and (1) of the National Labor Relations Act by giving unlawful assistance to the Association of Mobile Enter- tainment Workers (AMEW), unlawfully recognizing it as the representative of its H-2B foreign worker carnival employees, and unlawfully entering into a collective- bargaining agreement covering those employees without their majority support.2 The Board ordered that the Re- spondent make whole its H-2B employees employed during the 2014 carnival season as a result of its unlawful recognition of AMEW.3 On February 21, 2020,4 a controversy having arisen over the amount of backpay owing by the Respondent under the Board’s Order, the Acting Regional Director for Region 1 issued a compliance specification and no- tice of hearing alleging the amounts owed under the Board’s Order, and notifying the Respondent of its obli- gation to file a timely answer complying with the Board’s Rules and Regulations. The Respondent filed a timely answer on March 13. On March 25, the General Counsel advised the Re- spondent that its answer did not satisfy the standards set forth in Section 102.56(b) of the Board’s Rules and Reg- 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 JKJ Workforce Agency, Inc., 01–CA–129948, 2017 WL 6729350. 3 In a widespread unlawful scheme, Swyear Amusements was one of 34 respondents in the underlying proceeding found to have violated the Act and subject to the Board’s Order. 4 All dates are in 2020 unless otherwise noted. ulations. The General Counsel further advised that if the Respondent did not file an amended answer by April 1, he would file a motion to strike and for summary judg- ment in whole or in part. On April 1, the Respondent filed its amended answer to the compliance specification, admitting in part and denying in part the allegations in the specification. On June 17, the General Counsel filed with the Board a motion to strike Respondent’s answers to paragraphs 1 through 6 and 9 through 11 of the compliance specifica- tion and for Summary Judgment, with exhibits attached. On August 3, the Board issued an Order Transferring the Proceeding to the Board and Notice to Show Cause why the motion should not be granted. On September 20, the Respondent filed an opposition to the motion and re- sponse to the notice to show cause.5 On September 22, the General Counsel filed a reply to the Respondent’s opposition. On the entire record, the Board makes the following Ruling on Motion for Summary Judgment Sections 102.56(b) and (c) of the Board’s Rules and Regulations provide as follows: (b) Form and contents of answer. The answer to the specification must be in writing, signed and sworn to by the Respondent or by a duly authorized agent with appropriate power of attorney affixed, and contain the address of the Respondent. The answer must specifical- ly admit, deny, or explain each allegation of the speci- fication, unless the Respondent is without knowledge, in which case the Respondent must so state, such statement operating as a denial. Denials must fairly meet the substance of the allegations of the specifica- tion at issue. When a Respondent intends to deny only a part of an allegation, the Respondent must specify so much of it as is true and deny only the remainder. As to all matters within the knowledge of the Respondent, in- cluding but not limited to the various factors entering into the computation of gross backpay, a general denial will not suffice. As to such matters, if the Respondent disputes either the accuracy of the figures in the speci- fication or the premises on which they are based, the answer must specifically state the basis for such disa- greement, setting forth in detail the Respondent’s posi- tion and furnishing the appropriate supporting figures. (c) Failure to answer or to plead specifically and in de- tail to backpay allegations of specification. If the Re- spondent fails to file any answer to the specification 5 The Respondent argues that the Board lacks jurisdiction over this matter under the parties’ settlement. The Board’s December 28, 2017 Decision and Order expressly retains compliance jurisdiction. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allegations of the specification and without fur- ther notice to the Respondent, find the specification to be true and enter such order as may be appropriate. If the Respondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by paragraph (b) of this section, and the failure to deny is not adequately explained, such al- legation will be deemed admitted as true, and may be so found by the Board without the taking of evidence supporting such allegation, and the Respondent will be precluded from introducing any evidence controverting the allegation. The compliance specification at issue here sets forth and applies a formula for calculating the amounts owed by the Respondent to its 2014 H-2B carnival employees as a result of the Respondent’s entering into an unlawful collective-bargaining agreement. The Respondent em- ployed the carnival workers pursuant to the H-2B visa program permitting temporary employment of foreign workers in the United States.6 The H-2B program man- dates payment of prevailing wages to H-2B foreign workers absent a lawful collective-bargaining agreement negotiated at arms’ length.7 In the unfair labor practice case, the Respondent conceded, and the Board found, that the collective-bargaining agreement was the unlaw- ful product of the Respondent’s impermissible assistance to and recognition of a non-majority union. The Re- spondent’s unlawful collective-bargaining agreement therefore cannot constitute a bona fide agreement that satisfies the requirements of the H-2B visa program for payment of contractual wages in lieu of prevailing wag- es.8 Consequently, the compliance specification alleges 6 See 20 CFR § 655 et seq. The majority of employees were Mexi- can nationals. 7 20 CFR § 655.10 provides in pertinent part as follows: § 655.10 Determination of prevailing wage for temporary labor certi- fication purposes. (b) Determinations. Prevailing wages shall be determined as follows: (1) [I]f the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms' length between the un- ion and the employer, the wage rate set forth in the CBA is considered as not adversely affecting the wages of U.S. workers, that is, it is con- sidered the “prevailing wage” for labor certification purposes. (2) If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean of the wages of workers similarly employed in the area of intended em- ployment using the wage component of the BLS Occupational Em- ployment Statistics Survey (OES)[.] 8 Indeed, the unlawful collective-bargaining agreement has been dissolved pursuant to the parties’ settlement. that the backpay owed by the Respondent to its H-2B carnival employees is measured by the difference be- tween the unlawful contractual rate it paid them and the required prevailing wages. The Respondent offers no alternative compliance methodology as required by Sec- tion 102.56.9 The Respondent nevertheless generally denies the key allegations of the compliance specification. These alle- gations, set forth in paragraphs 1 through 6 and 9 through 11, include the number of carnival shows worked by the H-2B employees, the dates of those shows, the hours worked on each day, the start and end work dates for the employees, the total number of hours worked at each carnival location to be paid at prevailing wage straight time and at prevailing wage overtime, the employees’ interim earnings under the unlawful collective- bargaining agreement, and gross and net backpay owed. However, the Respondent has failed to support its denials with specific alternative formulas for computing back- pay, supporting figures for the hours worked or amounts owed, or alternative calculations.10 As the Board has recognized, It is well settled that a respondent’s general denial of the backpay computations contained in a compliance specification will be deemed insufficient if the answer fails to specify the basis for the disagreement with the backpay computations contained in the specification, fails to offer any alternative formula for computing backpay, fails to furnish appropriate supporting figures for amounts owed, or fails adequately to explain any failure to do so. Mining Specialists, Inc., 330 NLRB 99, 101 (1999); accord Michael Cetta, Inc. d/b/a Sparks Restaurant, 370 NLRB No. 46, slip op. at 2 (2020) (collecting cases). We agree with the General Counsel that the Respondent’s answers11 9 The General Counsel’s uncontested method of calculating backpay owed is reasonable. See Performance Friction Corp., 335 NLRB 1117 (2001); Kansas Refined Helium Co., 252 NLRB 1156, 1157 (1980), enfd. sub nom. Angle v. NLRB, 683 F.2d 1296 (10th Cir. 1982). 10 For example, the Respondent denies the number and dates of car- nivals worked, but it does not dispute that it performed any specific show(s). It denies the start and end work dates for the carnival employ- ees but presents no alternate work dates. Its denial that it employed the carnival employees named in the compliance specification is entirely unsubstantiated. It denies that employees worked 12 hours a day each day there was a work location scheduled, again without substantiation, claiming only that “work hours varied by location.” It denies the pre- vailing wage rates alleged without setting forth any alternative figures. It denies the wages paid pursuant to the unlawful collective-bargaining agreement but presents no alternatives and does not substantiate its claim of additional compensation. 11 We have also considered the Respondent’s opposition to the Gen- eral Counsel’s motion. SWYEAR AMUSEMENTS, INC. 3 amount to a general denial, which cannot withstand sum- mary judgment under the established criteria set forth in Section 102.56 of the Board’s Rules and Regulations. The Respondent seeks to legitimate its general denials based on its asserted lack of employment records, citing its owner’s medical treatment, and further claiming with- out support that it is exempt from record-keeping obliga- tions. The Respondent’s blanket claim of illness fails to assert a sufficient basis for excusing its deficient answers in this case. The Respondent fails to explain the duration of the owner’s condition, or why its wage and employ- ment records, which pertain to matters within the Re- spondent’s knowledge,12 are beyond the reach of its other employees, agents, or counsel. The Respondent does not explain why it does not possess the records or cite any efforts it made to obtain them.13 Regarding its record- keeping obligation, contrary to the arguments made by the Respondent, we note that the Respondent was subject to a 3-year record-keeping obligation under the H-2B program contemporaneous with the inception of the NLRB proceedings.14 Further, the Respondent ignores that it has been subject to the Board’s record-keeping Order since the Board issued its underlying decision in this proceeding on December 28, 2017.15 The Respond- ent’s asserted lack of records cannot constitute an ade- quate explanation for its failure to answer the allegations in the compliance specification as prescribed by the Board’s rules. We reject as meritless the Respondent’s argument that it owes zero backpay because it is a seasonal amusement company exempt from the Fair Labor Standards Act (FLSA), 29 U.S.C. 203 et seq.16 This argument fails 12 See, e.g., Michael Cetta, Inc. d/b/a Sparks Restaurant, supra, slip op. at 2; Baumgardner Co., 298 NLRB 26, 27 (1990), enfd. 972 F.2d 1332 (3d Cir. 1992); Denart Coal Co., 301 NLRB 391, 392 (1991); Schnabel Associates, 286 NLRB 630, 631 (1987). 13 If such information is not in its possession, a respondent is re- quired to make an effort to locate it from other sources. See Schnabel Associates, supra at 631. 14 See 20 CFR § 655.56. The underlying unfair labor practice charg- es were filed against the Respondent in December 2014. 15 The Board ordered that the Respondent, in lieu of production of documents, “may produce . . . a sworn statement, notarized or signed under penalty of perjury, affirming . . . “if accurate, that [it does] not possess, and did not maintain, any records of hours worked by [its] employees during the 2014 season.” JKJ Workforce Agency, supra, slip op. at 10. The Respondent does not claim, and the record does not show, that it complied with the Board’s Order in this regard. 16 29 U.S.C. 213(a)(3) exempts from Secs. 206 and 207 of the FLSA (3) any employee employed by an establishment which is an amusement or recreational establishment . . . if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33 1/3 per centum of its average receipts for the other six months of such year[.] because backpay liability here does not arise from the FLSA. It arises from the Respondent entering into an unlawful collective-bargaining agreement under the NLRA, and is measured by the prevailing wages required under 20 CFR § 655.10(b)(2) where, as here, there is no lawful collective-bargaining agreement. This predicate for liability and concomitant measurement for determin- ing backpay attach even if the Respondent were exempt from the FLSA. In any event, the Respondent has not presented a scin- tilla of evidence in support of its conclusory assertion that it meets the FLSA exemption requirements for a seasonal amusement company. The Respondent’s argu- ment is entirely unsupported and is patently insufficient to defeat summary judgment under Section 102.56 of the Board’s Rules and Regulations. See, e.g., Ornamental Iron Works Co, 307 NLRB 20 (1992) (respondent’s an- swer that no backpay due because of offers of reinstate- ment insufficient to defeat summary judgment because respondent did not specify any details about the offers and did not document the offer letters). Because the Respondent has failed to deny the allega- tions in paragraphs 1 through 6 and 9 through 11 of the compliance specification as prescribed in Section 102.56(b) of the Board’s Rules, and its failure to do so has not been adequately explained, we deem those alle- gations to be admitted as true under Section 102.56(c). Accordingly, we grant the General Counsel’s Motion for Summary Judgment and to Strike as to the allegations in each such paragraph. See Michael Cetta, Inc. d/b/a Sparks Restaurant, supra, 370 NLRB No. 46, slip op. at 2; Flaum Appetizing Corp., 357 NLRB 2006, 2007 (2011); Ybarra Construction Co., 347 NLRB 856, 857 (2006); Paolicelli, 335 NLRB 881, 883 (2001). The Re- spondent has admitted the remaining paragraphs of the compliance specification. We therefore conclude that the amounts due are as set forth in the compliance specifica- tion, and we will order the Respondents to pay these amounts, plus interest accrued to the date of payment. ORDER The National Labor Relations Board orders that the Respondent, Swyear Amusements, Inc., New Athens, Illinois, its officers, agents, successors, and assigns, shall (a) Make whole the individuals named below by pay- ing them the amount following their names, plus interest accrued to the date of payment as prescribed in New Ho- rizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), minus withholdings required by Federal and State laws. Borges Tzab, Jose $10,541 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Cutz Couoh, Ricardo $10,541 Flores Calleja, Marciano $10,541 Herrera Segura, Rafael $10,541 Madrid Galicia, Jhair $10,541 Mendez Corona, Maria $10,541 Pereanez Bastian, Oscar $10,541 Rendon Perdomo, Jovita $10,541 Rodriguez Santiago, Jesus $10,541 Tzab Borges, Gabriel $10,541 Ventura Arallano, Amalia $10,541 Cruz Dzul, Maria $10,403 Dzul Pina, Glendi $10,403 Guzman Landa, Gaudenci $10,403 Hernandez Luna, Laurencio $10,403 Hernandez Sanchez, Juana 10,403 Lucas Julian, Antonio $10,403 Mendoza, Reymundo $10,403 Ramirez Hernandez, Eligio $10,403 Guevara Reyes, Erika $10,075 Borgues Dzib, Manuel $8,669 Flores Calleja, Ambrosio $8,669 Garcia Salamanca, Martin $8,669 Hernandez Alarcon, Porfirio de Jesus $8,669 Munoz Garcia, Elit $8,669 Murrieta Murrieta, Rodolfo $8,669 Pereanez Ortega, Jonathan $8,669 Martinez Campos, David Enrique $8,502 Mendez Montiel, Jesus $8,502 Quijano Gutierrez, Jose Alfonso $8,502 Tejeda Hernandez, Paulino $8,502 Altamirano Mota, Suleyma $8,169 Benavides Aburto, Alma Rose $8,169 Rendon Mendez, Ana Maria $8,169 Rodriquez Salazary, Francisca $8,169 Torres Hernandez, Marie del Carmen $8,169 Trujillo Ramirez, Delfina $8,169 Tzab Borges, Jesus $8,169 Hernandez, Ricardo $7,134 Quijano Mendoza, Josefina $6,281 Quirino Monfil, Abigail $6,281 Martinez, Candelerio $2,992 (b) Within 21 days after service by the Region, file with the Regional Director for Region 1 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. February 9, 2021 ______________________________________ Lauren McFerran, Chairman ______________________________________ William J. Emanuel, Member _____________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD