Manhattan Health Clean

National Labor Relations Board - Board Decisions

Feb 27, 2009

353 N.L.R.B. 1037 (N.L.R.B. 2009)

MANHATTAN HEALTH CLEAN/US HEALTH CLEAN
353 NLRB No. 104
1037
Manhattan Health Clean/US Health Clean and Har-
old Gomez and Senorina De La Luz. Cases 2–
CA–37829 and 2–CA–38134
February 27, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks summary judgment in this
case pursuant to the terms of a settlement agreement.
Upon a charge and amended charges filed by Harold
Gomez on August 9, September 28, and October 25,
2006, respectively, and a charge filed by Senorina de la
Luz on March 7, 2007, the General Counsel issued the
original consolidated complaint on June 29, 2007,
against Manhattan Health Clean/US Health Clean, the
Respondent. The consolidated complaint alleged that the
Respondent violated Section 8(a)(4), (3), and (1) of the
Act.
Thereafter, the Respondent and the Charging Parties
entered into an informal settlement agreement that was
approved by the Regional Director for Region 2 on Sep-
tember 18, 2007. Among other things, the settlement
agreement required the Respondent to pay employee
Harold Gomez backpay in the amount of $9792 in
monthly installments according to a schedule outlined in
the agreement.
The settlement agreement contained the following de-
fault provision:
The Charged Party agree [sic] that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, the Regional Director
may issue a complaint based upon the allegations of the
charge(s) in the instant case(s) which were found to
have merit, and/or reissue the complaint previously
filed in the instant case(s). Thereafter, the General
Counsel may file a Motion for Summary Judgment
with the Board on the allegations of the just issued
complaint concerning the violations of the Act alleged
therein. The Charged Party understands and agrees that
the allegations of the aforementioned complaint may be
deemed to be true by the Board, that it will not contest
the validity of any such allegations, and the Board may
enter findings of fact, conclusions of law, and an Order
on the allegations of the aforementioned complaint. On
receipt of said Motion for Summary Judgment, the
Board shall issue an Order requiring the Charged Party
to show cause why said Motion of the General Counsel
should not be granted. The only issue that may be
raised in response to the Board’s Order to Show Cause
is whether the Charged Party defaulted upon the terms
of this Settlement Agreement. The Board may then,
without necessity of trial or any other proceeding, find
all allegations of the complaint to be true and make
findings of fact and conclusions of law consistent with
those allegations adverse to the Charged Party, on all
issues raised by the pleadings. The Board may then is-
sue an Order providing a full remedy for the violations
found as is customary to remedy such violations, in-
cluding, but not limited to the remedial provisions of
this Settlement Agreement. The parties further agree
that the Board’s Order may be entered thereon ex parte
and that, upon application by the Board to the appropri-
ate United States Court of Appeals for enforcement of
the Board’s Order, judgment may be entered thereon ex
parte and without opposition from the Charged Party.
Since April 28, 2008, the Respondent has failed to remit
backpay payments in the amounts and on the terms set forth
in the settlement agreement. By letter dated May 30, 2008,
the Respondent acknowledged noncompliance with the
settlement agreement and requested an extension of time to
make the remaining payments due under the terms of the
agreement. On July 28, 2008, the Board agent for the Re-
gion asked the Respondent to inform him when the Respon-
dent would submit the remaining payments owed under the
settlement agreement. The Board agent also informed the
Respondent that failure to respond promptly could result in
the revocation of the settlement agreement and the reissu-
ance of the consolidated complaint. Thereafter, on July 29,
2008, the Respondent informed the Region that it had
closed its business, was going bankrupt, and did not have
any assets.1
Accordingly, pursuant to the terms of the settlement
agreement, on December 16, 2008, the Regional Director
issued an Order revoking settlement, reissued the con-
solidated complaint, and filed a Motion for Summary
Judgment with the Board. On December 29, 2008, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion

1 The undisputed assertions in the General Counsel’s Motion for
Summary Judgment indicate that the Respondent did not provide the
Region with any evidence that it had sought bankruptcy protection or
any other evidence of its inability to comply with the settlement agree-
ment. The motion further indicates that the Region’s efforts to deter-
mine whether a petition in bankruptcy had been filed did not yield any
results. However, even if the Respondent is in bankruptcy, it is well
established that the institution of bankruptcy proceedings does not
deprive the Board of jurisdiction or authority to entertain and process
an unfair labor practice case to its final disposition. See, e.g., United
International Investigative Services, 340 NLRB 1360 (2003); Cardinal
Services, 295 NLRB 933 fn. 2 (1989), and cases cited there. Board
proceedings fall within the exception to the automatic stay provisions
for proceedings by a governmental unit to enforce its police or regula-
tory powers. See id., and cases cited therein; NLRB v. 15th Avenue Iron
Works, 964 F.2d 1336, 1337 (2d Cir. 1992). Accord: Ahrens Aircraft,
Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1038
should not be granted. The Respondent filed no re-
sponse. The allegations in the motion are therefore un-
disputed.
Ruling on Motion for Summary Judgment2
According to the uncontroverted allegations in the Mo-
tion for Summary Judgment, the Respondent has failed
to comply with the terms of the settlement agreement by
failing to remit the agreed-upon backpay payments to
employee Harold Gomez. Consequently, pursuant to the
noncompliance provisions of the settlement agreement
set forth above, we find that the allegations of the con-
solidated complaint are true. Accordingly, we grant the
General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration with an office and place of business located at
244 Madison Avenue, Suite 271, New York, New York,
has been engaged in providing cleaning services to vari-
ous health clinics in the New York City area.
Annually, in the course and conduct of its business op-
erations described above, the Respondent provided ser-
vices valued in excess of $50,000 directly to customers
or business enterprises who themselves meet one of the
Board’s jurisdictional standards other than the indirect
inflow or indirect outflow standards.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that District 6 International Union of
Industrial, Service, Transport and Health Employees (the
Union) is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Jose Oscar Alvarado held the po-
sition of supervisor, and has been a supervisor of the
Respondent within the meaning of Section 2(11) of the
Act and its agent within the meaning of Section 2(13) of
the Act.
About February 12, 2007, at the Harlem Health Center,
133 Morningside Avenue, New York, New York, the
Respondent, by Jose Oscar Alvarado, interrogated em-

2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
ployees regarding their participation in an investigation
being conducted by the National Labor Relations Board
in Case 2–CA–37829.
On about July 21 and 31, and August 2, 2006, the Re-
spondent, through its officers, agents, and representa-
tives, issued written warnings to Harold Gomez.
On about August 3, 2006, the Respondent, through its
officers, agents, and representatives, discharged Harold
Gomez, and since that date has failed and refused to rein-
state Gomez.
The Respondent engaged in the conduct described in
the two preceding paragraphs because Gomez supported
and assisted the Union and engaged in concerted activi-
ties for the purpose of collective bargaining, and to dis-
courage employees from engaging in such activities.
CONCLUSIONS OF LAW
1. By interrogating employees regarding their partici-
pation in an investigation conducted by the National La-
bor Relations Board, the Respondent has interfered with,
restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act, in violation of
Section 8(a)(1) of the Act.3
2. By disciplining and discharging employee Harold
Gomez for supporting and assisting the Union and for
engaging in concerted activities for the purpose of collec-
tive bargaining, the Respondent has discriminated in re-
gard to the hire or tenure or terms and conditions of em-
ployment of its employees, thereby discouraging the ex-
ercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(3) and (1) of the Act.
3. The Respondent has engaged in unfair labor prac-
tices affecting 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)(3) and
(1) of the Act by discharging Harold Gomez, we shall
order the Respondent to make him whole for any loss of
earnings and other benefits suffered as a result of the
Respondent’s unlawful action against him. In this re-
gard, the Respondent agreed in the settlement agreement
that it would pay Gomez $9792 in backpay to cover the
period from his discharge to the date of the settlement

3 We find it unnecessary to pass on whether the Respondent’s inter-
rogation of its employees also violated Sec. 8(a)(4) of the Act because
the remedy for that violation would be essentially the same as the rem-
edy for the 8(a)(1) violation. See, e.g., Alcoa, Inc., 352 NLRB 1222 fn.
4 (2008); Benjamin Coal Co., 294 NLRB 572 fn. 2 (1989).
MANHATTAN HEALTH CLEAN/ US HEALTH CLEAN 1039
agreement. As indicated above, the Respondent has not
paid Gomez in the amounts and on the terms set forth in
the settlement agreement, and therefore we shall order
the Respondent to pay him the remaining amounts owed
under the terms of the agreement.
We find, however, that the backpay due Gomez should
not be limited to these amounts. As set forth above, the
settlement agreement provided that, in the event of non-
compliance, the Board could issue an Order “providing
full remedy for the violations found as is customary to
remedy such violations, including, but not limited to the
remedial provisions of this Settlement Agreement.”
Thus, under this language, it is appropriate to provide the
“customary” remedies of reinstatement, full backpay,
expungement of the Respondent’s personnel records, and
notice mailing.4
The additional backpay due shall be computed as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). However, because we
shall order the Respondent to pay the liquidated backpay
amount specified in the settlement agreement, the appli-
cable backpay period will commence on September 18,
2007, the day the Regional Director approved the settle-
ment agreement. We find it necessary to impose this
limitation to prevent an unintended double recovery for
the period running from the date that Gomez was dis-
charged to the effective date of the settlement agreement.
We shall also order the Respondent to offer Gomez
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights and
privileges previously enjoyed.
In addition, to the extent that it has not already done
so, the Respondent shall be required to remove from its
files all references to the unlawful discipline and dis-
charge of Gomez and notify him in writing that this has
been done and that the unlawful discipline and discharge
will not be used against him.
Finally, we shall order the Respondent to preserve and,
within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, pro-

4 See L.J. Logistics, Inc., 339 NLRB 729, 731 (2003). Although the
settlement agreement indicates that Gomez waived his right to rein-
statement, the settlement has been set aside. Thus, we shall order the
Respondent to offer Gomez reinstatement as part of the customary
remedy for his unlawful discharge. In addition, although the settlement
agreement required the Respondent to mail a notice to employees, the
Motion for Summary Judgment is silent regarding the Respondent’s
compliance with that requirement. Further, the settlement notice differs
in material respects from the notice that is warranted in view of our
findings and Order herein. Accordingly, we find that a notice-mailing
remedy is appropriate here.
vide at a reasonable place designated by the Board or its
agents a copy of all payroll records, social security pay-
ment 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.
ORDER
The National Labor Relations Board orders that the
Respondent, Manhattan Health Clean/US Health Clean,
New York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees regarding their participa-
tion in investigations conducted by the National Labor
Relations Board.
(b) Disciplining or discharging or otherwise discrimi-
nating against employees for supporting and assisting the
Union, for engaging in concerted activities for the pur-
pose of collective bargaining, or for discouraging em-
ployees from engaging in these and other protected ac-
tivities.
(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) Remit to Region 2 the remaining backpay owed to
Harold Gomez in accordance with the September 18,
2007 settlement agreement, and make Gomez whole for
any loss of earnings and other benefits suffered since
September 18, 2007, as a result of the Respondent’s
unlawful action against him, with interest as set forth in
the remedy section of this decision.
(b) Within 14 days from the date of this Order, offer
Harold Gomez full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline and
discharge of Harold Gomez, and within 3 days thereafter
notify him in writing that this has been done and that the
unlawful discipline and discharge will not be used
against him 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 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1040
sary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”5 to all employees
who were employed by the Respondent at any time since
July 21, 2006.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 on your behalf
with your employer
Act together with other employees for your benefit
and protection

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT interrogate employees regarding their
participation in investigations conducted by the National
Labor Relations Board.
WE WILL NOT discipline, discharge, or otherwise dis-
criminate against employees for supporting or assisting
the Union, District 6 International Union of Industrial,
Service, Transport and Health Employees, for engaging
in concerted activities for the purpose of collective bar-
gaining, or to discourage employees from engaging in
these and other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
WE WILL remit to Region 2 the remaining backpay
owed to Harold Gomez in accordance with the Septem-
ber 18, 2007 settlement agreement, and make Gomez
whole for any loss of earnings and other benefits suffered
since September 18, 2007, as a result of his unlawful
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer Harold Gomez full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline and discharge of Harold Gomez, and WE
WILL, within 3 days thereafter, notify him in writing, that
this has been done and that the discipline and discharge
will not be used against him in any way.
MANHATTAN HEALTH CLEAN/US HEALTH CLEAN