Handyfat Trading, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 14, 2007

29-CA-028181 (N.L.R.B. Aug. 14, 2007)

JD(NY)–39–07
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
HANDYFAT TRADING, INC.
and Case No. 29-CA-28181
INDUSTRIAL WORKERS OF THE WORLD,
INDUSTRIAL UNION #460
Tabitha E. Boerschinger, Esq. and Michael Berger, Esq.,
Brooklyn, NY, for the General Counsel
Stuart Lichten, Esq., (Schwartz, Lichten & Bright, P.C.),
New York, NY, for the Charging Party
Anthony C. Emengo, Esq., Williamsburg, NY,
for the Respondent
DECISION
Statement of the Case
HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on
May 22 through May 25, and June 1, 2007, in Brooklyn, New York. A Complaint and Notice of
Hearing issued on charges filed by Industrial Workers of the World, Industrial Union #460,
herein called the Union, against Handyfat Trading, Inc., herein called Respondent.
Preliminary Findings
Respondent counsel contends that the Union is not a labor organization within the meaning of
Section 2(5) of the Act, and therefore not entitled to file an unfair labor practice charge with the
National Labor Relations Board. Section 2(5) states:
(5) The term “labor organization” means any organization of any kind, or any
agency or employee representation committee or plan, in which employees participate
and which exists for the purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay, hours of employment, or
conditions of work.
Moreover, Respondent stipulated in a representation case, Case No. 29-RC-11279 that
the Union was a labor organization within the meaning of Section 2(5). Further, the Union’s
conduct as set forth below establishes its labor organization status.
For example, on December 12, 2006, Union representative James Crutchfield served
upon Respondent, a District Court Summons and Complaint alleging that Respondent violated
Section 16 of the Fair Labor Standards and Section 198 of New York Labor Law by failing to
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pay the employees employed by Respondent, set forth below, the proper minimum wage and
overtime. This action is the thrust of this Complaint.
Accordingly, I conclude the Union is a labor organization within the meaning of Section
2(5) of the Act.
The Complaint also alleges that Respondent individuals Dennis Ho and Calvin Cheung
are supervisors within Section 2(11) of the Act. Respondent denies this allegation. However,
Ho admitted that he and Cheung made the decision to terminate the nine employees in question
in this case. Section 2(11) of the Act sets forth: The term “supervisor” means any individual
having authority, in the interest of the employer to.... discharge …employees.”
Accordingly, I conclude both Ho and Cheung are supervisors within the meaning of
Section 2(11) of the Act.
Respondent contends that Handyfat Trading ceased doing business January 2007, and
therefore is not liable for any unfair labor practices. Counsel for General Counsel, contends that
HDF Trading is an alter ego of Handyfat Trading.
Respondent supervisor Ho, admitted that Handyfat Trading occupied the same building
as HDF Trading, is engaged in the same business, the same management, have the same
suppliers and customers, use the same equipment and trucks, that Ho and Cheung perform the
same supervisory functions, employ the same employees, except for the discharged Mexican
employees in issue. See Fugazy Continental Corp., 265 NLRB 1301 (l982). Accordingly, I
conclude that HDF Trading is an alter ego of Handyfat Trading.
The facts establish that during the past year, Respondent is a domestic corporation with
its principal place of business located at 9 Thames Street and 40 Bogart Street, in the same
building, herein called its Brooklyn facility, in Brooklyn New York. During the past year, which
period is represented of its annual operations in general, Respondent, in the course and
conduct of its business operations purchased and received at its Brooklyn facility goods and
materials valued in excess of $50,000 directly from entities located outside the State of New
York, and is an employer engaged in commerce within of Section 2(2), (6) and (7) of the Act.
Credibility Resolutions
Respondent’s sole witness was Dennis Ho. Counsel for the General Counsel called Ho
as its first witness and examined him under Section 611(c), Federal Rules of Evidence.
Initially Ho testified that Handyfat had gone out of business in January, 2007, within days
of Respondent’s discharge of the nine Mexican employees in issue, but when pressed by
General Counsel, the evidence clearly established that Handyfat was an alter ego of HDF
Trading, as set forth above.
Under further questioning Ho testified that Handyfat was located at 9 Thames Street in
Brooklyn while HDF Trading was located on 40 Bogart Street in Brooklyn, leading one to believe
the addresses were located in different buildings, however, under persistent questioning
Respondent admitted that both businesses were located in the same building.
I find these contradictions to be serious. It is clear that Ho was trying to establish that
Handyfat and HDF Trading were separate companies in different locations to avoid liability for
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the unfair labor practices of Handyfat. Accordingly, I conclude that Ho was an untruthful
witness, except when he testified as to admissions against Respondents.
On the other hand, General Counsel’s witnesses were entirely credible. Their direct
testimony was detailed, and notwithstanding Respondent’s forceful and intense cross
examination, their testimony was generally consistent with their direct testimony, and with each
other.
Further, I was impressed with their demeanor. They responded to all questions put to
them in a forthright manner. At no time during their questioning by Respondent Counsel did
they display any anger or hostility toward Counsel for Respondent.
Accordingly, I find General Counsel’s witnesses to be entirely credible.
Findings of Fact
The evidence establishes that Respondent hired nine Mexican employees who he knew
were undocumented aliens, paid off the books, in cash, and below minimum wage, with no
overtime pay. This is established by the testimony of employees Pablo Montes, Jose Vaquero,
Fernando Montes, and Leandro. Respondent is required to demand proof of a prospective
employee’s immigration status in order to fulfill its obligation under the Immigration Reform and
Control Act, herein called IRCA. In Nortech Waste, 336 NLRB 554, 557 (2001) The Immigration
and Control Act (IRCA) prohibits an employer from hiring an illegal alien or from continuing to
employ someone it has learned is an illegal alien. See also Mezonos Bakery, Inc., 2006 WL
3196754, which requires an employer to demand proof of the documented status in order fulfill
its obligation under the IRCA. Therefore, I find that Respondent was aware that the nine
Mexicans were undocumented aliens when they were hired from l994 until 2005.
On about 2005, Union representative Randel testified that in an effort to force
Respondent to pay the Mexican employees minimum wage and overtime, the Union picketed
Respondent’s facility. As a result of this picketing, Respondent agreed that from December 31,
2005 the nine Mexican employees were placed on the books and were paid minimum wage and
overtime until their discharge on January 5, 2007. There were no other Mexicans employed by
Respondent. The remaining employees were Chinese, who were documented aliens and were
paid on the books.
After the Mexican employees were placed on the books, The Union took the nine
Mexicans to the Department of Labor, and filed charges with DOL in order to obtain back pay
from the date they were hired until December 33, 2005. Affidavits were taken by a DOL
representative, but for some reason, no action was taken. There is no evidence that
Respondent was aware of the Union’s action. Finally, in attempt to obtain the employees back
pay The Union filed a summons and complaint with the United States District Court, Eastern
District of New York, seeking the employees back pay, described above. This summons was
served upon Respondent on December 12, 2006. On December 19, Respondent sent the
employees a letter stating that since they were undocumented aliens, they would have to
provide documentation within a week, or they would be discharged. A day or so later Union
representative Randel spoke to Dennis Ho, Respondent representative, and asked him why he
had demanded the I-9’s. Randel credibly testified that Ho stated that, “Respondent had put a
gun to his head.” The employees were not able to provide such documentation in such a short
period, and were discharged.
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With regard to the Section 7 rights of employees filing civil actions against their
employer, the Board in Leviton Manufacturing Company, Inc., 203 NLRB 309 (1973), reiterated
the applicable principle that the filing of the civil action by a group of employees is protected
activity unless done with malice or in bad faith.
I find that the nine Mexican employees were engaged in protected concerted activities
within the meaning of Section 7 of the Act. In this connection, Counsel for General Counsel cites
Trinity Trucking & Materials Corp., 221, NLRB 364, 365 (1975), supp. 227 NLRB 792 (l977),
enfd. 567 F.2d 391 (7th Cir. 1977) (citing Leviton Manufacturing Company, Inc., supra,
enforcement denied 486 F.2d 686 (1st Cir. 1973)).
When an employer is alleged to have violated Section 8(a)(1) by discharging an
employee, the General Counsel has the burden of proving by a preponderance of the evidence
that union animus was a motivating factor in the discharge. Wright Line, 251 NLRB 1083, enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). To meet this burden, the General
Counsel must establish four elements. First the existence of activity protected by the Act.
Second, that the Respondent was aware of such activity. Third, that the alleged discriminatees
suffered an adverse employment action. Fourth, a motivational link, or nexus, between the
employee’s protected activity and the adverse employment action. American Gardens
Management Co., 338 NLRB 644 (2002).
If the General Counsel satisfies his initial burden under Wright Line, the burden then
shifts to the employer, in the nature of an affirmative defense, to demonstrate that the same
action would have taken place even the absence of the protected conduct. In meeting this
burden, the employer cannot simply state a legitimate reason for the action taken, but rather
must persuade by a preponderance of the evidence that it would have taken the same action in
the absence of the protected activity. T & J Trucking Co., 316 NLRB 771 (1995).
In this case it is clear that the protected activity was filing of the civil suit on December l2
2006. Respondent became aware of such activity when the summons and complaint was
served upon Respondent on December 12. The employees suffered an adverse action. They
were discharged. The timing of the discharge, a week after the service of the summons and
complaint, and Ho’s statement to Randel that he, Randel “… put a gun to his head”, establish
Respondent’s animus and nexus. Based on the evidence described above, I conclude that
General Counsel has established a strong prima facie case.
The Board has held that “where an administrative law judge has evaluated the
employer’s explanation for its action, and concluded that the reasons advanced by the employer
were pretextual, that determination constitutes a finding that the reasons advanced by the
employer either did not exist or were not in fact relied upon.” Limestone Apparel Corp., 255
NLRB 722 (1981). In other words, that if the administrative law judge, in determining that the
General Counsel has made out a prima facie case under the first step of Wright Line, finds that
the reason for the discharge was pretextual, then no “substantive objective” is served by moving
to the second step of Wright Line. Id.
In the instant case Respondent was aware that beginning in 1994 through January 19,
2006, the nine Mexican employees were illegal aliens and paid off the books, in cash. As set
forth above, “[A]n employer is required to demand proof of documented status in order to fulfill
its obligation under IRCA.” Moreover, the “IRCA… prohibits an employer from hiring an illegal
alien, and from continuing to employ someone it has learned is an illegal alien.” See, Mezonos
Maven Bakery and Nortech Waste, supra.
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Accordingly, I conclude that Respondent was aware, at all times, that the nine Mexican
employees in issue were illegal aliens, and the reason for the discharge on January 19, 2006,
was pretextual and no substantive objective is served by considering the record step of Wright
Line.
Accordingly, I conclude that by discharging the nine Mexican employees, Respondent
violated Section 8(a(1).
Counsel for the General Counsel contends in their brief that Respondent failed to meet
its Wright Line burden. In this connection General Counsel argues:
The Board has found that an employer may violate the Act even where the
employer claims that the discharge was required under another statutory provision.
Concrete Form Walls, Inc., 346 NLRB No. 80 (2006) (citing New Foodland, Inc., 205
NLRB 418 (1973); Sure-Tan, 467 U.S. 883, 896 fn. 6 (1984) (“If the Board finds, as it
did here, that the otherwise legitimate reason asserted by the employer for a discharge
is a pretext, then the nature of the pretext is immaterial, even where the pretext involves
a reliance on state or local laws.”)). That an employer can proffer a legitimate reason for
a discharge is not a defense where that legitimate reason was “not a moving cause of
the discharge.” Id. (citing New Foodland, supra.)
I find General Counsel’s argument and the cases cited therein establish that Respondent
failed to meet its Wright Line burden. Accordingly, I also conclude Respondent violated Section
8(a)(1) of the Act.
Conclusion of Law
1. Handyfat Trading, Inc., is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. Industrial Workers of the World, Industrial Union #460, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging the following employees because they engaged in protected conduct:
Hermenegildo Hidalgo (a/k/a Pedro Hidalgo, Pedro Hidalgo Compos), Fernando Montes, Pablo
Montes, Guillermo Rodriguez, Israel Rodriguez, Leo Rodriguez, David Vaquero, Jose Vaquero,
and Leandro Vaquero, Respondent violated Section 8(a)(1) of the Act.
4. The foregoing violations constitute unfair labor practices, affecting commerce within
Section 2(2), (6) and (7) of the Act.
Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative actions described to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged the above named employees, it
must offer them reinstatement and make them whole for any loss of earnings and other benefits,
computed o quarterly basis from date of discharge to date of proper offer of reinstatement, less
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any net interim earnings, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact, conclusions of law and based upon the entire record, I issue
the following recommended:1
ORDER
The Respondent, Handyfat Trading, Inc., shall
1. Cease and desist from
(a) Discharging its employees because of their protected concerted activities.
(b) In any like or related manner interfering with, restraining, 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 of this Order, offer Hermenegildo Hidalgo (a/k/a Pedro Hidalgo
and Pedro Hidalgo Compos), Fernando Montes, Pablo Montes, Guillermo Rodriguez, Israel
Rodriguez, Leo Rodriguez, David Vaquero, Jose Vaquero, and Leandro Vaquero full
reinstatement to their former jobs, or if such jobs no longer exist, to a substantially equivalent
position without prejudice to their seniority or any rights or privileges previously enjoyed.
(b) Make the above employees whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of this Order, remove from the Respondent’s files
any reference to the unlawful discharge, and with 3 days thereafter notify each employee in
writing that this has been done and that the discharge will not be used against them in any way.
(d) 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 designated
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, necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its facilities in Brooklyn, NY,
copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by

1 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.
2 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
Continued
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the Regional Director for Region 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 customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, 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 the above named employees employed by the Respondent at any time since January 19,
2006.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification 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. August 14, 2007
____________________
Howard Edelman
Administrative Law Judge
_________________________
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–39–07
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 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge our employees because of their protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of this Order, offer Hermenegildo Hidalgo (a/k/a Pedro Hidalgo and Pedro Hidalgo
Compos), Fernando Montes, Pablo Montes, Guillermo Rodriguez, Israel Rodriguez, Leo Rodriguez, David
Vaquero, Jose Vaquero, and Leandro Vaquero full reinstatement to their former jobs, or if such jobs no longer
exist, to a substantially equivalent position without prejudice to their seniority or any rights or privileges
previously enjoyed.
WE WILL make the above employees whole for any loss of earnings and other benefits suffered as a result of
the discrimination against them in the manner set forth in the remedy section of this decision.
WE WILL, within 14 days from the date of this Order, remove from the Respondent’s files any reference to the
unlawful discharge, and with 3 days thereafter notify each employee in writing that this has been done and that
the discharge will not be used against them in any way.
HANDYFAT TRADING, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It
conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition,
you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.