Marquez Brothers Enterprises, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1375 (N.L.R.B. 2014)

MARQUEZ BROS. ENTERPRISES 1375
Marquez Brothers Enterprises, Inc. and Alfonso
Mares and Javier Avila. Cases 21–CA–039581
and 21–CA–039609
December 16, 2014
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON,
AND SCHIFFER
On June 25, 2012, the Board issued a Decision and
Order in this proceeding, which is reported at 358 NLRB
509. Thereafter, the Respondent filed a petition for re-
view in the United States Court of Appeals for the Dis-
trict of Columbia Circuit, and the General Counsel filed a
cross-application for enforcement.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. On November 18,
2014, the court of appeals vacated the Board’s Decision
and Order and remanded this case for further proceedings
consistent with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale.
Accordingly, we adopt the judge’s recommended Order
to the extent and for the reasons stated in the Decision
and Order reported at 358 NLRB 509, which is incorpo-
rated herein by reference.1
1 In finding a notice reading appropriate, we do not rely on Jason
Lopez’ Planet Earth Landscape, 358 NLRB 383 (2012), cited in the
vacated Decision and Order.
We shall modify the judge’s recommended Order and notice to con-
form to our recent decision in Don Chavas, LLC d/b/a Toritillas Don
Chavas, LLC, 361 NLRB 101 (2014). We shall also substitute a new
notice in accordance with Durham School Services, 360 NLRB 694
(2014).
Member Johnson disagrees with his colleagues’ decision to order a
notice-reading remedy in this case. The Board has recognized that this
extraordinary remedy may be warranted “where the violations are so
numerous and serious that the reading aloud of a notice is considered
necessary to enable employees to exercise their Section 7 rights in an
atmosphere free of coercion, or where the violations in a case are egre-
gious.” Postal Service, 339 NLRB 1162, 1163 (2003). Here, the Re-
spondent’s unfair practices, though serious, do not rise to what has
traditionally been regarded as an egregious level of misconduct. See A-
1 Door & Building Solutions, 356 NLRB 499, 499 fn. 1 (2011) (citing
Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001)). Accord-
ORDER
The Respondent, Marquez Brothers Enterprises, Inc.,
City of Industry, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Teamsters Local 63, Inter-
national Brotherhood of Teamsters, or any other union.
(b) Coercively encouraging employees to ask the Un-
ion to return authorization that the employees had signed.
(c) Coercively interrogating any employee about union
support or union activities.
(d) Threatening any employee with unspecified repris-
als because he engaged in union activity.
(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 the Board’s Order,
offer Alfonso Mares and Javier Avila 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 or privileges previously
enjoyed.
(b) Make Alfonso Mares and Javier Avila whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(c) Compensate Alfonso Mares and Javier Avila for
the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the So-
cial Security Administration allocating the backpay
award to the appropriate calendar quarters.
(d) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful dis-
charges, and within 3 days thereafter notify the employ-
ees in writing that this has been done and that the dis-
charges will not be used against them in any way.
(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, 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.
ingly, Member Johnson would not find a notice-reading remedy appro-
priate in these circumstances.
361 NLRB No. 150

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1376
(f) Within 14 days after service by the Region, post at
its facility in City of Industry, California, copies of the
attached notice in English and Spanish marked “Appen-
dix.”2 Copies of the notice, on forms provided by the
Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. 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 Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since June 2, 2010.
(g) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice, Appendix,
is to be read to the employees in both English and Span-
ish by the Respondent’s chief executive officer or, at the
Respondent’s option, by a Board agent in that officer’s
presence.
(h) 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
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.
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 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.”
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 discharge or otherwise discriminate
against any of you for supporting Teamsters Local 63,
International Brotherhood of Teamsters, or any other
union.
WE WILL NOT coercively encourage employees to ask
the Union to return authorization that the employees had
signed.
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT threaten you with unspecified reprisals
because you engaged in union activity.
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 from the date of this Order,
offer Alfonso Mares and Javier Avila 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 or privileges previously
enjoyed.
WE WILL make Alfonso Mares and Javier Avila whole
for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus inter-
est compounded daily.
WE WILL compensate Alfonso Mares and Javier Avila
for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the So-
cial Security Administration allocating the backpay
award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges of Alfonso Mares and Javier Avila, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and that the discharges will not be
used against them in any way.
MARQUEZ BROTHERS ENTERPRISES, INC.
MARQUEZ BROS. ENTERPRISES 1377
The Board’s decision can be found at –
www.nlrb.gov/case/21–CA–039581 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, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.