Chinatown Carting Corp.

National Labor Relations Board - Administrative Judge Opinions

Mar 12, 2007

02-CA-034613 (N.L.R.B. Mar. 12, 2007)

JD(NY)-15-07
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CHINATOWN CARTING CORP. and
WAYNE TRAGNI, NICOLAS TRAGNI
and DAMON TRAGNI, as INDIVIDUALS
and Case Nos. 2-CA-34613
2-CA-35306
LOCAL 813, INTERNATIONAL BROTHERHOOD 2-CA-35495
OF TEAMSTERS 2-CA-35621
and
DOMINGO HYNES, An Individual
Rita C. Lisko, Esq. for the General Counsel
Steven B. Horowitz, Esq., (Roth Horowitz, LLC),
of Springfield, New Jersey, for the
Respondents Chinatown Carting
and Wayne Tragni and Nicolas Tragni
as individuals
Mr. Damon Tragni, of New York, New York
SUPPLEMENTAL DECISION
ELEANOR MACDONALD, Administrative Law Judge: On November 18, 2003 the
National Labor Relations Board issued its Order in the above-captioned case directing
Respondent Chinatown Carting Corporation to reinstate and make whole its employees Don
Blyden, Jon Sarach, George Siao, Lavern Ford and Domingo Hynes for any loss of earnings
and other benefits suffered as a result of the Respondent’s unfair labor practices.1 On January
30, 2004, the United States Court of Appeals for the Second Circuit issued its Judgment
enforcing the Board’s Order in full.2
On October 27, 2005 a Compliance Specification and Notice of Hearing was issued by
the Regional Director for Region 2. An Order Amending the Compliance Specification and
Notice of Hearing was issued on February 10, 2006. The Compliance Specification was further
amended during the instant hearing on March 8, 2006. The Specification names Wayne Tragni,
Nicolas Tragni and Damon Tragni as individuals.

1 Lavern Ford is also known as Vernon Ford.
2 The Court Order was not entered into evidence during the hearing. Counsel for the
General Counsel has requested that the document be accepted as an exhibit to the Motion for
Summary Judgment. That request is hereby granted. The Motion for Summary Judgment with
the Order of the Second Circuit attached is hereby admitted into evidence as ALJ Exhibit #3.
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Respondents Chinatown Carting and Wayne Tragni and Nicolas Tragni filed an Answer
and an Amended Answer to the Compliance Specification. Respondent Damon Tragni has not
filed an Answer herein.
The hearing to determine the amounts due to the discriminatees and the individual
liability of Wayne Tragni, Nicolas Tragni and Damon Tragni was held in New York, New York,
on March 8 and 9, 2006, and after an adjournment in contemplation of settlement efforts, the
hearing continued on July 10, 2006. On that date Chinatown Carting Corp., and Wayne Tragni
and Nicolas Tragni entered into a settlement and the hearing was adjourned without date. On
July 24, 2006 Damon Tragni entered into a settlement. The settlements will be described in
detail below. Counsel for the General Counsel served and filed a Motion for Summary
Judgment on February 8, 2007.
At the hearing on July 10, 2006 Counsel for the General Counsel and Counsel for
Respondents Chinatown Carting and Wayne Tragni and Nicolas Tragni explained the terms of
their settlement with General Counsel on the record. Respondents Chinatown Carting and
Wayne Tragni and Nicolas Tragni agreed to pay a certain sum in satisfaction of the backpay
liability, that is, $305,000. Respondents agreed to pay $15,000 immediately and $20,000 on
August 10, 2006. Respondents agreed to pay the balance of $270,000 on November 15, 2006.
If the balance were not paid by that date the Region would issue a notice of default and right to
cure and if by December 15, 2006 the remaining sum had not been paid an application for
summary judgment would be made for the full amount of the Specification. These Respondents
withdrew their Answers and agreed that the General Counsel would file a Motion for Summary
Judgment based on the withdrawal in the event that the Respondents defaulted on the
settlement as described above. These Respondents agreed that if Counsel for the General
Counsel filed for summary judgment they would be found liable for the entire amount of backpay
as set forth in the Compliance Specification as amended. These Respondents paid the first
installment of the settlement, a sum of $15,000, on July 10, 2006. The second installment was
not timely made and, after a notice of default was issued by the Region, a sum of $20,000 was
paid on September 8, 2006. Respondents did not pay the balance due on November 15, 2006
and a written Notice of Default was issued on November 16, 2006. Respondents Chinatown
Carting and Wayne Tragni and Nicolas Tragni did not cure the default and to date have not
submitted their final payment of $270,000. These Respondents have not responded to the
instant Motion for Summary Judgment.
On July 24, 2006 Respondent Damon Tragni entered into a Backpay Stipulation setting
forth his personal liability for the backpay amounts due to each of the discriminatees for the
period during which he was president of Chinatown Carting Corp. The Stipulation further
provided that Damon Tragni would make two payments totaling $15,000 as a settlement of the
“net backpay” due to the discriminatees. Upon payment of this sum Damon Tragni’s liability for
his portion of the monies due to the discriminatees would be satisfied. Damon Tragni made a
payment of $10,000 on July 24, 2006. The Backpay Stipulation provided that a final payment of
$5,000 was due on August 28, 2006 and if the amount were not paid after ten days written
notice to Damon Tragni then the Stipulation would be rendered null and void. In the event of
such default, the Stipulation provided that Counsel for the General Counsel would make a
Motion for Summary Judgment and a decision and order “shall issue holding Damon Tragni
personally liable for the entire of amount of backpay owed to each of the discriminatees … plus
interest….”
On August 29, 2006 the Supervisory Compliance Officer of Region 2 issued a
Notification of Default to Damon Tragni and advised him that if the final payment of $5,000 were
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not received by September 8, Counsel for the General Counsel would move for summary
judgment. A check for $5,000 was received by Region 2 on September 8 but this check was
returned unpaid due to insufficient funds. On October 5, 2006 Counsel for the General Counsel
gave Damon Tragni written notice of default and informed him that unless he provided a
certified check for $5,000 by October 11 a motion for summary judgment would be made.
Damon Tragni has not made restitution for the returned check. Damon Tragni has not
responded to the instant Motion for Summary Judgment.
Conclusions
The Respondents Chinatown Carting, Wayne Tragni, Nicolas Tragni and Damon Tragni
have, respectively, withdrawn their Answer by defaulting on their settlement and have failed to
file an Answer to the Amended Compliance Specification as required by Section 102.56 of the
Board’s Rules and Regulations. The Amended Specification shall therefore be found to be true
and an appropriate order will be entered.
The backpay period is from August 1, 2002 until December 20, 2005.
The net backpay for the discriminatees is set forth in the Amended Compliance
Specification.
At all material times Wayne Tragni has been an owner and officer of Respondent, and
he has failed to adhere to corporate formalities by failing to follow rules of corporate
governance, by failing to segregate accounts or employees, by diverting corporate funds or
assets for non-corporate purposes and by commingling corporate and personal funds and
money. Based on this conduct the corporate veil shielding Wayne Tragni from personal liability
arising from the Board’s Order, enforced by the Order of the United States Court of Appeals,
should be pierced.
At all material times Nicolas Tragni has been an owner and officer of Respondent, and
he has failed to adhere to corporate formalities by failing to follow rules of corporate
governance, by failing to segregate accounts or employees, by diverting corporate funds or
assets for non-corporate purposes and by commingling corporate and personal funds and
money. Based on this conduct the corporate veil shielding Nicolas Tragni from personal liability
arising from the Board’s Order, enforced by the Order of the United Sates Court of Appeals,
should be pierced.
During the period August 1, 2003 up to and including January 13, 2004, Damon Tragni
has been an owner and officer of Respondent, and he has failed to adhere to corporate
formalities by failing to follow rules of corporate governance by failing to segregate accounts or
employees, by diverting corporate funds or assets for non-corporate purposes and by
commingling corporate and personal funds and money. Based on this conduct the corporate
veil shielding Damon Tragni from personal liability arising from the Board’s Order, enforced by
the Order of the United States Court of Appeals, should be pierced. Damon Tragni’s liability is
set forth in the Backpay Stipulation executed by him on July 24, 2006.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
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ORDER3
The hearing in the above-captioned case is hereby closed.
The Motion for Summary Judgment is hereby granted.
Chinatown Carting, Corp., its officers, agents, successors and assigns, and Wayne
Tragni and Nicolas Tragni individually, shall pay to the discriminatees listed below the following
amounts, less statutory deductions, plus interest, and shall make pension contributions on their
behalf in the following amounts:4
Domingo Hynes $107,632 Pension $1,570
Don Blyden $146,113 Pension $1,570
Lavern Ford $ 32,376 --
Jan Sarach $161,202.32 Pension $1,570
George Siao $163,982 Pension $1,570
Damon Tragni shall pay to the discriminatees listed below the following amounts, less
statutory deductions, plus interest:
Domingo Hynes $9,234.42
Don Blyden $17,753.64
Lavern Ford $19,225.92
Jan Sarach $16,865.15
George Siao $17,455.92
Dated: March 12, 2007
____________________
Eleanor MacDonald
Administrative Law Judge

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 Interest shall be calculated as prescribed in New Horizons or the Retarded, 283 NLRB
1173 (1987), accrued to the date of payment.