Art to Frames, Inc.

370 NLRB No. 96 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. Art to Frames, Inc. and Catholic Migration Services. Case 29–CA–266298 March 16, 2021 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS EMANUEL AND RING The Acting General Counsel seeks a default judgment in this case on the ground that Art to Frames, Inc. (the Re- spondent) has failed to file an answer to the complaint. Upon a charge and amended charges filed by Catholic Mi- gration Services on September 17, September 29, October 9, and December 10, 2020, respectively, the General Counsel issued a complaint and notice of hearing against the Respondent on December 15, 2020, alleging that it has violated Section 8(a)(1) of the Act. The Respondent failed to file an answer. On January 27, 2021, the Acting General Counsel filed with the National Labor Relations Board a Motion for De- fault Judgment. On January 28, 2021, the Board issued an order transferring the proceeding to the Board and a No- tice 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 Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively states that unless an answer is received on or before December 29, 2020, the Board may find, pursuant to a motion for default judg- ment, that the allegations in the complaint are true. Fur- ther, the undisputed allegations in the Acting General Counsel’s motion disclose that the Region, by letter dated January 8, 2021 (which enclosed a copy of the complaint), advised the Respondent that unless an answer was re- ceived by January 15, 2021,1 a motion for default judg- ment would be filed. Nevertheless, the Respondent failed to file an answer. In the absence of good cause being shown for the failure to file an answer, we deem the allegations of the complaint 1 The motion for default judgment inadvertently states that the dates for this letter and its given response date are in “2020” rather than in 2021. to be admitted as true, and we grant the Acting 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, the Respondent has been a domes- tic corporation with an office and place of business located at 770 5th Avenue, Brooklyn, New York (Brooklyn facil- ity), and has been engaged in the retail sale of custom pic- ture frames and home decor. In conducting its business operations described above during the 12-month period preceding issuance of the complaint, a period which is representative of its annual operations generally, the Respondent derived gross reve- nues in excess of $500,000, and purchased and received goods and materials valued in excess of $5000 at its Brooklyn facility directly from entities located outside 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. 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 mean- ing of Section 2(11) of the Act and agents of the Respond- ent within the meaning of Section 2(13) of the Act: Schneur Minsky - Owner Yossi Prus - Production Manager The following events occurred giving rise to this pro- ceeding. 1. About March 19, 2020, the Respondent’s employees Enrique Maza, Araceli Pulido, Awilda Jiminian, Digna Rivera, Betzaida Arellano, Dulce Maria Nunez, Eddy Lopez, Laura Escalante, Ramon Rosario Begazo, Socorro Hernandez, Tayde Flores, Jesus Rivera Lopez, Yolanda Arias, Veronica Rodriguez, Maria Santos, Mandy Wil- liams, Jose Luis Garcia, Jonathan Garcia, Isiah Lopez, Di- ego Lopez, Denny Cruz, Fanny Alvarado, Carlos Mar- tinez, and Paola de la Cruz engaged in the following con- duct: a) concertedly complained to the Respondent’s Produc- tion Manager Prus regarding the wages, hours, and working conditions of the Respondent’s employees, in- cluding the lack of safe working conditions due to the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Respondent’s failure to provide employees with per- sonal protective equipment; and b) concertedly ceased work and commenced protesting on a public sidewalk outside of the Respondent’s Brook- lyn facility regarding the Respondent’s employees’ un- safe working conditions. 2. (a) About March 20, 2020, the Respondent laid off its em- ployees named in paragraph 1 above. (b) From about March 20 to about December 4, 2020, the Respondent failed or refused to reinstate its employees Enrique Maza, Araceli Pulido, Awilda Jiminian, Digna Rivera, Betzaida Arellano, Dulce Maria Nunez, Laura Es- calante, Ramon Rosario Begazo, Socorro Hernandez, Tayde Flores, Jesus Rivera Lopez, Yolanda Arias, Veron- ica Rodriguez, Maria Santos, Mandy Williams, Jose Luis Garcia, Isiah Lopez, Diego Lopez, Denny Cruz, Fanny Al- varado, Carlos Martinez, and Paola de la Cruz. (c) From about March 20 to about April 23, 2020, the Respondent failed or refused to reinstate its employee Eddy Lopez. (d) From about March 20 to a date presently unknown in April 2020, the Respondent failed or refused to reinstate its employee Jonathan Garcia. 3. The Respondent engaged in the conduct described above in paragraph 2 because the employees named above in paragraph 1 engaged in the conduct described in para- graph 1, and to discourage employees from engaging in these or other concerted activities. CONCLUSION OF LAW By the conduct described above in paragraphs 2 and 3, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. The unfair labor practices of the Respondent described 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 lay- ing off the following employees on March 20, 2020, and by failing or refusing to reinstate them for the following time periods—for employees Enrique Maza, Araceli Pu- lido, Awilda Jiminian, Digna Rivera, Betzaida Arellano, Dulce Maria Nunez, Laura Escalante, Ramon Rosario Be- gazo, Socorro Hernandez, Tayde Flores, Jesus Rivera Lopez, Yolanda Arias, Veronica Rodriguez, Maria Santos, Mandy Williams, Jose Luis Garcia, Isiah Lopez, Diego Lopez, Denny Cruz, Fanny Alvarado, Carlos Martinez, and Paola de la Cruz from about March 20 to December 4, 2020; for employee Eddy Lopez from about March 20 to April 23, 2020; and for employee Jonathan Garcia from about March 20 to a date presently unknown in April 2020—because they engaged in protected concerted activ- ity, we shall order the Respondent to make these employ- ees whole for any loss of earnings and other benefits suf- fered as a result of the unlawful layoffs. Backpay shall be computed in accordance with 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). In accordance with our decision in King Soopers, 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 the above employees for their 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. In addition, we shall order the Respondent to compen- sate the affected employees for any adverse tax conse- quences of receiving a lump-sum backpay award and to file a report with the Regional Director for Region 29 al- locating the backpay award to the appropriate calendar year(s) for each employee. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). In addition to the backpay- allocation report, we shall order the Respondent to file with the Regional Director for Region 29 a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. Cascades Containerboard Packag- ing, 370 NLRB No. 76 (2021). The Respondent shall also be required to remove from its files any reference to the unlawful layoffs of the above employees and the failure and refusal to reinstate them, 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. ORDER The National Labor Relations Board orders that the Re- spondent, Art to Frames, Inc., Brooklyn, New York, its officers, agents, successors, and assigns shall: 1. Cease and desist from (a) Laying off or otherwise discriminating against em- ployees because they engage in protected concerted ART TO FRAMES, INC. 3 activities or to discourage other employees from engaging in these activities. (b) Failing or refusing to reinstate employees because they engage in protected concerted activities or to discour- age other employees from engaging in these activities. (c) 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) Make Enrique Maza, Araceli Pulido, Awilda Jimin- ian, Digna Rivera, Betzaida Arellano, Dulce Maria Nunez, Eddy Lopez, Laura Escalante, Ramon Rosario Begazo, Socorro Hernandez, Tayde Flores, Jesus Rivera Lopez, Yolanda Arias, Veronica Rodriguez, Maria Santos, Mandy Williams, Jose Luis Garcia, Jonathan Garcia, Isiah Lopez, Diego Lopez, Denny Cruz, Fanny Alvarado, Car- los Martinez, and Paola de la Cruz whole for any loss of earnings and other benefits suffered as a result of the un- lawful layoffs, in the manner set forth in the remedy sec- tion of this decision. (b) Compensate the affected employees for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocat- ing the backpay award to the appropriate calendar year(s) for each employee. (c) File with the Regional Director for Region 29 a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoffs of and the failure or refusal to reinstate Enrique Maza, Araceli Pulido, Awilda Jiminian, Digna Rivera, Betzaida Arel- lano, Dulce Maria Nunez, Eddy Lopez, Laura Escalante, Ramon Rosario Begazo, Socorro Hernandez, Tayde Flo- res, Jesus Rivera Lopez, Yolanda Arias, Veronica Rodri- guez, Maria Santos, Mandy Williams, Jose Luis Garcia, Jonathan Garcia, Isiah Lopez, Diego Lopez, Denny Cruz, Fanny Alvarado, Carlos Martinez, and Paola de la Cruz, and within 3 days thereafter, notify them in writing that this has been done and that the layoffs and failure or re- fusal to reinstate will not be used against them in any way. 2 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the physical posting (e) 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, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (f) Post at its facility in Brooklyn, New York, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Re- gion 29, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained 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 customarily communicates with its employees by such means. Rea- sonable 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 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 employees and former em- ployees employed by the Respondent at any time since March 20, 2020. (g) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. March 16, 2021 ______________________________________ Lauren McFerran, Chairman ______________________________________ William J. Emanuel, Member of paper notices also applies to the electronic distribution of the notice if the Respondent customarily communicates with its employees by elec- tronic means. 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 National 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 _____________________________________ John F. Ring, 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 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 ac- tivities. WE WILL NOT layoff or otherwise discriminate against any of you because you engage in protected concerted ac- tivities or to discourage other employees from engaging in these activities. WE WILL NOT fail or refuse to reinstate any of you be- cause you engage in protected concerted activities or to discourage other employees from engaging in these activ- ities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL make Enrique Maza, Araceli Pulido, Awilda Jiminian, Digna Rivera, Betzaida Arellano, Dulce Maria Nunez, Eddy Lopez, Laura Escalante, Ramon Rosario Be- gazo, Socorro Hernandez, Tayde Flores, Jesus Rivera Lopez, Yolanda Arias, Veronica Rodriguez, Maria Santos, Mandy Williams, Jose Luis Garcia, Jonathan Garcia, Isiah Lopez, Diego Lopez, Denny Cruz, Fanny Alvarado, Car- los Martinez, and Paola de la Cruz whole for any loss of earnings and other benefits suffered as a result of their un- lawful layoffs, less any net interim earnings, plus interest, and WE WILL also make them whole for reasonable search- for-work and interim employment expenses, plus interest. WE WILL compensate the affected employees for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Direc- tor for Region 29, 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 cal- endar year(s) for each employee. WE WILL file with the Regional Director for Region 29 a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlaw- ful layoffs of and our failure or refusal to reinstate Enrique Maza, Araceli Pulido, Awilda Jiminian, Digna Rivera, Betzaida Arellano, Dulce Maria Nunez, Eddy Lopez, Laura Escalante, Ramon Rosario Begazo, Socorro Her- nandez, Tayde Flores, Jesus Rivera Lopez, Yolanda Arias, Veronica Rodriguez, Maria Santos, Mandy Williams, Jose Luis Garcia, Jonathan Garcia, Isiah Lopez, Diego Lopez, Denny Cruz, Fanny Alvarado, Carlos Martinez, and Paola de la Cruz and WE WILL , within 3 days thereafter, notify them in writing that this has been done and that the layoffs and failure or refusal to reinstate will not be used against them in any way. ART TO FRAMES, INC. The Board’s decision can be found at www.nlrb.gov/case/29-CA-266298 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.