366 NLRB No. 43 (N.L.R.B. 2018)

J & K Floral USA Inc.

National Labor Relations Board - Board DecisionsMar 23, 2018

366 NLRB No. 43 (N.L.R.B. 2018)

366 NLRB No. 43 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. J & K Floral USA, Inc. and Nahu Armando Ceballas Palma. Case 02–CA–185241 March 23, 2018 DECISION AND ORDER BY CHAIRMAN KAPLAN AND MEMBERS PEARCE AND EMANUEL The General Counsel seeks a default judgment in this case on the ground that the Respondent, J & K Floral USA, Inc., has failed to file an answer to the amended complaint. Upon a charge and amended charge filed by employee Nahu Armando Ceballas Palma, on September 29 and November 29, 2016, respectively, the General Counsel issued a complaint and an amended complaint on October 26 and December 14, 2017,1 respectively, against the Respondent, alleging that it has violated Sec- tion 8(a)(1) of the Act. Although it was properly served with copies of the charges and the complaint and amend- ed complaint, the Respondent failed to file an answer. On December 29, the General Counsel filed a Motion for Default Judgment with the Board. On January 5, 2018, 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 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 of service of the complaint, unless good cause is shown. Here, the October 26 complaint affirmatively stated that unless an answer was received by November 9,2 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 motion for default judgment disclose that the Region, by letter dated No- vember 9, notified the Respondent that it had failed to file an answer to the complaint, extended the deadline for 1 All dates are in 2017 unless otherwise stated. 2 On November 9, the Regional Director issued an erratum correct- ing p. 5 of the complaint, which by clerical error, inadvertently stated that the Respondent was required to file an answer by October 9, a date prior to the issuance of the complaint. The erratum informed the Re- spondent of the correct deadline, November 9, and was issued the same day the clerical error was discovered by the Region. the Respondent to file an answer by an additional 15 days, and again notified the Respondent that unless an answer was received by November 24, a motion for de- fault judgment would be filed. On December 14, the General Counsel issued the amended complaint, which was served by certified mail on the Respondent and the Respondent’s counsel the same day. The General Counsel modified the remedy sought, but did not add any new allegations. On Decem- ber 20, the Respondent refused delivery of the amended complaint.3 The Respondent failed to file an answer to the amended complaint. In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations in the amended complaint to be admitted as true, and we grant the 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 New Jersey corporation with a principal place of business at 1 Ackerman Avenue, Clifton, New Jersey (the Facility), and has been engaged in the retail sale of flowers and Christmas trees at various stoop line stands in New York, New York, directly to members of the public. Annually, in conducting its operations, the Respondent derived gross revenues in excess of $500,000, purchased and received at its Clifton, New Jersey facility products, goods, and materials valued in excess of $5000 directly from points outside the State of New Jersey, and sold goods valued in excess of $5000 directly to points out- side the State of New Jersey. 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: 3 It is well settled that a respondent’s failure or refusal to accept cer- tified mail or to provide for receiving appropriate service cannot serve to defeat the purposes of the Act. See Cray Construction Group LLC, 341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003). Further the failure of the Postal Service to return documents served by regular mail indicates actual receipt of those documents by the Respondent. Id.; Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. sub nom. NLRB v. Sherman, 843 F.2d 1392 (6th Cir. 1988). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 Hyun Ok “Joe” Cho - President and Owner Il Sup Park a.k.a. “Pedro”- Supervisor/Manager Kyung Seon Cho - Accountant/Agent 1. (a) On or about August 1, 2016, the Respondent’s employees, including Salvador Campos Benitez, Fran- cisco Garcia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago (the discriminatees), engaged in con- certed activities with each other and with other employ- ees, for the purpose of mutual aid and protection, by de- manding that the Respondent bring terms and conditions of employment, including employees’ wages, hours, and working conditions, into accordance with the require- ments of New York State and Federal law. (b) On or about August 8, 2016, and again on August, 15, 2016, the Respondent reduced the wages of Nicolas Garcia Hernandez. (c) On or about August 20, 2016, the Respondent re- duced the wages of Salvador Campos Benitez. (d) On or about August 22, 2016, and again on August 29, 2016, the Respondent reduced the wages of Nahu Armando Ceballos Palma. (e) On or about August 28, 2016, the Respondent ter- minated the employment of Ricardo Agustin Santiago. (f) On or about August 29, 2016, the Respondent ter- minated the employment of Ruben Lopez. (g) On or about September 5, 2016, the Respondent reduced the wages of Francisco Garcia Castro. (h) On or about September 7, 2016, the Respondent terminated the employment of Salvador Campos Benitez, Francisco Garcia Castro, Nicolas Garcia Hernandez, and Nahu Armando Ceballos Palma. (i) The Respondent engaged in the conduct described above in subparagraphs (b)—(h), because the discrimi- natees engaged in the concerted activities described above in paragraph (a), and to discourage employees from engaging in these or other concerted activities. 2. On or about August 8, 2016, the Respondent, by Hyun Ok Cho, adjacent to the Westside Deli, at 700 Am- sterdam Avenue, New York, New York, interrogated its employees about their protected concerted activities, specifically concerning the employees’ participation in the concerted activities described above in paragraph 1(a). 3. On or about August 8, 2016, the Respondent, by Hyun Ok Cho, outside the Westside Deli, at 700 Amster- dam Avenue, New York, New York, promised its em- ployees the opportunity to operate their own retail flow- ers shops, on the condition that the employees refrain from engaging in protected concerted activities, as de- scribed in paragraph 1(a). CONCLUSIONS OF LAW 1. By the conduct described above in paragraphs 1(b)—(i), 2, and 3, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, in viola- tion of Section 8(a)(1) of the Act. 2. 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 has violated Section 8(a)(1) by reducing the wages of, and terminating, Salvador Campos Benitez, Francisco Garcia Castro, Nicolas Gar- cia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago because they en- gaged in protected concerted activities, we shall order the Respondent to offer these employees full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previ- ously enjoyed, and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Backpay resulting from the Respondent’s reduction of the discriminatees’ wages shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 501 (6th Cir. 1971), 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). Backpay resulting from the discriminatees’ subsequent unlawful discharges shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons, su- pra, compounded daily as prescribed in Kentucky River Medical Center, supra. In accordance with our decision in King Soopers, Inc., 364 NLRB No. 93 (2016), we shall also order the Re- spondent to compensate the discriminatees for their search-for-work and interim employment expenses re- gardless of whether those expenses exceed interim earn- ings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, su- pra, compounded daily as prescribed in Kentucky River Medical Center, supra. We shall further order the Re- spondent to compensate the discriminatees for any ad- verse tax consequences of receiving lump-sum backpay J & K FLORAL USA, INC. 3 awards and to file with the Regional Director for Region 2 a report allocating the backpay awards to the appropri- ate calendar year for each discriminatee. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). 4 ORDER The National Labor Relations Board orders that the Respondent, J & K Floral USA, Inc., Clifton, New Jer- sey, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Reducing employees’ wages because they engaged in protected concerted activities. (b) Terminating employees because they have engaged in protected concerted activities. (c) Interrogating employees about their protected con- certed activities. (d) Promising employees benefits on the condition that they refrain from engaging in protected concerted activi- ties. (e) 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 Salvador Campos Benitez, Francisco Garcia Castro, Ni- colas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or any other rights or privileges previously enjoyed. (b) Make Salvador Campos Benitez, Francisco Garcia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago whole for any loss of earnings and other benefits they may have suffered as a result of the unlawful reduction of their wages, in the manner set forth in the remedy sec- tion of this decision. (c) Make Salvador Campos Benitez, Francisco Garcia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago 4 In the complaint and Motion for Default Judgment the General Counsel requests that the notice be posted in English and Spanish, and we grant this request. The General Counsel additionally seeks a make-whole remedy that includes 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 remedial practice. Accordingly, we decline to order this relief at this time. See, e.g., Laborers International Union of North America Local 91 (Council of Utility Contractors, Inc. and Various Other Employers), 365 NLRB No. 28, slip op. at 1 fn. 2 (2017). whole for any loss of earnings and other benefits they may have suffered as a result of their unlawful discharg- es, in the manner set forth in the remedy section of this decision. (d) Compensate Salvador Campos Benitez, Francisco Garcia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 2, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year for each employee. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discipline and discharges of Salvador Campos Benitez, Francisco Gar- cia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago, and within 3 days thereafter, notify the em- ployees in writing that this has been done and that the unlawful discipline and discharges will not be used against them in any way. (f) Preserve and, within 14 days of request, or such ad- ditional 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, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days of service by the Region, post at its Clifton, New Jersey facility copies of the attached notice marked “Appendix” in both English and Spanish.5 Cop- ies of the notice, in English and Spanish, on forms pro- vided by the Regional Director for Region 2, 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 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 5 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 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 August 1, 2016. (h) Within 21 days after service by the Region, file with the Regional Director for Region 2 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. March 23, 2018 ______________________________________ Marvin E. Kaplan, Chairman ______________________________________ Mark Gaston Pearce, Member ______________________________________ William J. Emanuel, 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 activities. WE WILL NOT reduce your wages because you engaged in protected concerted activities. WE WILL NOT terminate you because you have engaged in protected concerted activities. WE WILL NOT interrogate you about your protected concerted activities. WE WILL NOT promise you benefits on the condition that you refrain from engaging in protected concerted activities. 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, within 14 days from the date of the Board’s order, offer Salvador Campos Benitez, Francisco Garcia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or priv- ileges previously enjoyed. WE WILL make Salvador Campos Benitez, Francisco Garcia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago whole for any loss of earnings and other bene- fits resulting from our unlawful reduction of their wages, plus interest. WE WILL make Salvador Campos Benitez, Francisco Garcia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago whole for any loss of earnings and other bene- fits resulting from their discharge, less any net interim earnings, plus interest, and WE WILL also make such em- ployees whole for reasonable search-for-work and inter- im employment expenses, plus interest. WE WILL compensate Salvador Campos Benitez, Fran- cisco Garcia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 2, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharges of Salvador Campos Benitez, Francisco Garcia Castro, Nicolas Garcia Hernandez, Ruben Lopez, Nahu Armando Ceballos Palma, and Ricardo Agustin Santiago, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the dis- charges will not be used against them in any way. J & K FLORAL USA, INC. J & K FLORAL USA, INC. 5 The Board’s decision can be found at www.nlrb.gov/case/02–CA–185241 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.