ABCO STEEL DOOR, LLC

National Labor Relations Board - Board Decisions

Jun 3, 2014

02-CA-110543 (N.L.R.B. Jun. 3, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ABCO STEEL DOOR, LLC
and Case 02-CA-110543
DAVID OZUNA
and Cases 02-CA-110970
02-CA-115413
02-CA-117467
02-CA-118462
UNITED FOOD AND COMMERCIAL 02-CA-121018
WORKERS UNION, LOCAL 342 02-CA-122927
DECISION AND ORDER
Statement of the Cases
On May 13, 2014, ABCO Steel Door, LLC (the Respondent), United Food and
Commercial Workers Union, Local 342 (the Union), and the General Counsel of the
National Labor Relations Board entered into a Formal Settlement Stipulation, subject to
the Board’s approval, providing for the entry of a consent order by the Board and a
consent judgment by any appropriate United States Court of Appeals. The parties
waived all further and other proceedings before the Board to which they may be entitled
under the National Labor Relations Act, as amended, and the Board’s Rules and
Regulations, and the Respondent waived its right to contest the entry of a consent
judgment or to receive further notice of the application therefor. On May 13, 2014,
Administrative Law Judge Steven B. Fish approved the parties’ formal settlement
stipulation.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The Formal Settlement Stipulation is approved and made a part of the record, and
the proceeding is transferred to and continued before the Board in Washington, D.C.,
for the entry of a Decision and Order pursuant to the provisions of the Formal
Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following
Findings of Fact
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1. The Respondent’s business
The Respondent is a limited liability company with an office and principal place of
business located at 4191 Third Avenue, Bronx, New York, 10457, where it is engaged in
the manufacture of doors and frames for wholesale and retail sale.
Annually, the Respondent, in conducting its business operations described
above, derives gross revenue in excess of $500,000 from sales or performance of
services.
Annually, the Respondent, in conducting its business operations described
above, purchases products, goods and materials valued in excess of $5,000 directly
from points located outside the State of New York.
The Respondent is now, and has been at all material times, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor
Relations Act (the Act).
2. The labor organization involved
The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The appropriate unit
The following employees of the Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and warehouse employees
and drivers employed by Respondent at 4191 Third Avenue, Bronx, New
York, 10457.
On October 15, 2012, the Board certified the Union as the exclusive collective-
bargaining representative of the unit.
At all times since October 15, 2012, based on Section 9(a) of the Act, the Union
has been the exclusive collective-bargaining representative of the unit.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board orders that
The Respondent, ABCO Steel Door, LLC, Bronx, New York, its officers, agents,
successors, and assigns, shall
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1. Cease and desist from
(a) Discharging, refusing to reinstate, suspending, or warning employees, or in
any other manner discriminating in regard to hire or tenure of employment or any other
term or condition of employment, because they assist the Union and engage in
concerted activities, or to discourage employees from engaging in these activities.
(b) Discharging or refusing to reinstate employees, or in any other manner
discriminating in regard to hire or tenure of employment or any other term or condition of
employment, because they filed unfair labor practice charges and/or cooperated with
the National Labor Relations Board.
(c) Interfering with employees’ right to cooperate in an investigation concerning
the termination of another employee by threatening employees with criminal prosecution
and other reprisals if their testimony is not favorable to the Respondent’s position.
(d) Interfering with employees’ right to have other employees provide evidence
in an investigation concerning their termination by threatening employees with criminal
prosecution and other reprisals if their testimony is not favorable to the Respondent’s
position.
(e) Imposing more onerous working conditions on employees in the Hardware
Shop of the Respondent’s facility by requiring them to keep the gate in their shop
closed, refusing to provide them new fans, more closely monitoring their work, and
assigning them more onerous and less agreeable tasks, including but not limited to,
sweeping, shoveling, and cleaning bathrooms, because they assist the Union and
engage in concerted activities, or to discourage employees from engaging in these
activities.
(f) Surveilling employees while they are engaged in Union activities.
(g) Interrogating employees about their Union activities and the Union activities
of other employees.
(h) Soliciting employees to withdraw their support for the Union.
(i) Threatening employees with discharge if they do not withdraw their support
for the Union.
(j) Threatening employees with invoking immigration authorities if they do not
withdraw their support of the Union.
(k) Offering employees increased compensation if they withdraw their support for
the Union.
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(l) Telling employees it is futile to support the Union as their collective-bargaining
representative by telling employees that they will not substantially benefit from Union
representation.
(m) Threatening employees with unspecified reprisals because they selected the
Union as their collective-bargaining representative.
(n) Threatening representatives of the Union with physical violence in the
presence of employees.
(o) Refusing to bargain in good faith with the Union by agreeing to grant Union
representatives access to the main office of the Respondent’s facility in order to be
present when employees presented employment authorization forms, and then denying
said access.
(p) Reassigning or transferring employees because they assist the Union and
engage in concerted activities, or to discourage employees from engaging in these
activities.
(q) Instructing employees to stop associating with employees who engage in
Union activities.
(r) Creating the impression that employees’ Union activities are under
surveillance.
(s) Threatening employees with discharge for engaging in Union activity and for
associating with employees who engage in Union activity.
(t) Setting unrealistic production quotas for employees because they assist the
Union and engage in concerted activities, or to discourage employees from engaging in
these activities.
(u) Reducing employees’ pay, including bonus pay, because they assist the
Union and engage in concerted activities, or to discourage employees from engaging in
these activities.
(v) Refusing to bargain in good faith with the Union by changing employees’
terms and conditions of employment, including but not limited to providing discretionary
bonuses, without first notifying the Union and giving it an opportunity to bargain.
(w) In any manner interfering with, restraining or coercing employees in the
exercise of the rights guaranteed to employees by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
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(a) Within 14 days of the Board’s Order, remove from its files any reference to
the discharges of David Ozuna, Ruben Santiago, Mauricio Merino, Reynaldo
Velasquez, Valentin Nuñez, Genaro Pascual, Edgar Castro, Yoni Severino, Francisco
Leotto, and Fausto Manuel Morel, and within 3 days thereafter, notify them in writing
that this was done and that the discharges will not be used against them in any way.
(b) Within 14 days of the Board’s Order, remove from its files any reference to
the warning issued German Contreras on about December 6, 2013, and the
suspensions issued German Contreras on about January 14, March 18, and April 14,
2014, and within 3 days thereafter, notify him, in writing, that this was done and the
warning and suspensions will not be used against him in any way.
(c) Within 14 days of the Board’s Order, remove from its files any reference to
the suspensions issued Victor Carrasquillo on about December 12, 2013, February 10,
March 26, and April 25, 2014, and within 3 days thereafter, notify him, in writing, that
this was done and the suspensions will not be used against him in any way.
(d) Within 14 days of the Board’s Order, remove from its files any reference to
the suspension issued Jose Rodriguez on about April 23, 2014, and within 3 days
thereafter notify him, in writing, that this was done and the suspension will not be used
against him in any way.
(e) Within 14 days of the Board’s Order, make whole the following individuals for
any loss of pay they may have suffered by reason of the discrimination against them, by
payment to them of the amount set forth opposite their names. Separate checks will be
issued for backpay (less statutory deductions) and interest (not subject to statutory
deductions). Reynaldo Velasquez, Valentin Nuñez, Genaro Pascual, Edgar Castro and
Yoni Severino have waived reinstatement to their former positions.
Principal ($) Interest ($) Total ($)
i. David Ozuna 32,054 390 32,444
ii. Ruben Santiago 367 6 373
iii. Mauricio Merino 320 6 326
iv. Reynaldo Velasquez 1464 16 1480
v. Valentin Nuñez 2705 23 2728
vi. Genaro Pascual 1965 21 1986
vii. Edgar Castro 2117 18 2135
viii. Yoni Severino 2920 24 2944
ix. Francisco Leotto 5837 24 5861
x. Fausto Manuel Morel 2240 12 2252
xi. German Contreras 1314 6 1320
xii. Victor Carrasquillo 921 6 927
xiii. Jose Rodriguez 214 2 216
xiv. Jose Moya 156 2 158
xv. Amilcar Contreras 96 1 97
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xvi. Eliberto Fuentes 96 1 97
xvii. Edwin Castillo 96 1 97
(f) By May 27, 2014, offer immediate and full reinstatement to David Ozuna to
his former position as a Table Mechanic in the Respondent’s Hardware Shop, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
(g) By August 13, 2014, offer immediate and full reinstatement to Fausto Manuel
Morel 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.
(h) By August 13, 2014, offer immediate and full reinstatement to Francisco
Leotto 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.
(i) Within 14 days of the reinstatement of Fausto Manuel Morel and Francisco
Leotto, make them whole for any loss of earnings they may have suffered from May 13,
2014 through the date of their reinstatement, by payment to them of 80% of the wages
they would have earned had they been reinstated by the Respondent on May 13, 2014.
(j) By June 3, 2014, offer immediate and full reinstatement to Victor Carrasquillo
to his former job in the Hardware Shop or, if that job no longer exists, to a substantially
equivalent position in the Hardware Shop, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(k) By June 3, 2014, offer immediate and full reinstatement to Jose Rodriguez to
his former job in the Hardware Shop or, if that job no longer exists, to a substantially
equivalent position in the Hardware Shop, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(l) Within 14 days of the Board’s Order, provide employees in the Hardware
Shop fans and ventilation that is comparable to the fans and ventilation provided other
shops in the Respondent’s facility in the summer of 2013.
(m) Within 14 days of service by the Region, post at its facility copies of the
attached Notice to Employees (Notice). Copies of the Notice, in English and in Spanish,
on forms provided by 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. The Respondent will take reasonable steps 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 its facility, the Respondent shall duplicate and mail, at its own expense, a copy of
the Notice to all employees employed by the Respondent at any time during the period
July 1, 2013 to the present.
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(n) Within 14 days after service by the Region of the Notice, hold a meeting or
meetings at the Respondent’s facility, scheduled to ensure the widest possible audience
of employees, at which David or Israel Schwartz, in the presence of a Board agent, shall
read the attached Notice to Employees, and an interpreter, paid for by the Respondent,
shall translate that speech into Spanish.
(o) Within 21 days after service by the Region of the Notice, 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., June 3, 2014.
___________________________________
Mark Gaston Pearce, Chairman
___________________________________
Harry I. Johnson, III Member
___________________________________
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER AND A
CONSENT JUDGMENT OF ANY APPROPRIATE UNITED STATES COURT OF
APPEALS
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 do anything to prevent you from exercising the above rights.
WE WILL NOT warn, suspend, reassign, or transfer you because of your membership
in the United Food and Commercial Workers Union, Local 342 (the Union) or support for
the Union.
WE WILL NOT fire you because of your Union membership or support.
WE WILL NOT fire you because you file unfair labor practice charges or cooperate with
the National Labor Relations Board.
WE WILL NOT decrease your pay or decrease the amount of any monetary bonus
because of your Union membership or support.
WE WILL NOT close the gates in your shop or require you to keep the gates closed in
your shop; refuse to provide you new fans; more closely monitor your work; or assign
you more onerous and less agreeable tasks, including but not limited to sweeping,
shoveling and cleaning bathrooms, because of your Union membership or support.
WE WILL NOT interfere with your right to cooperate in an investigation concerning the
termination of another employee by threatening you with criminal prosecution and other
reprisals if you do not testify favorably to our position.
WE WILL NOT interfere with your right to have other employees provide evidence in an
investigation concerning another employee’s discharge by threatening employees with
criminal prosecution and other reprisals if you do not testify favorably to our position.
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WE WILL NOT ask you about employee support for the Union.
WE WILL NOT watch you in order to find out about your Union activities.
WE WILL NOT ask any employee to sign a document that states you no longer wish to
be represented by the Union.
WE WILL NOT threaten you with discharge, threaten to require you to provide
immigration papers, or threaten you with any other unspecified reprisals if you choose
not to sign something to get rid of the Union.
WE WILL NOT promise you wage increases to encourage you to sign something to get
rid of the Union.
WE WILL NOT tell you that the Union cannot help you as your collective-bargaining
representative.
WE WILL NOT threaten you with unspecified reprisals because you selected the Union
as your collective-bargaining representative.
WE WILL NOT threaten Union representatives with physical violence in the presence of
employees.
WE WILL NOT set an unrealistic production quota because of your Union membership
or support.
WE WILL NOT threaten to fire you for engaging in Union activity and for associating
with employees who support the Union.
WE WILL NOT instruct you to stop associating, gathering, or speaking with employees
who support the Union.
WE WILL NOT refuse to bargain in good faith with the Union by agreeing to grant Union
representatives access to our facility in order to be present when employees present
employment authorization forms, and then deny the Union access.
WE WILL NOT make changes in wages, hours and working conditions without
negotiating with the Union and reaching an agreement or overall good faith impasse.
WE WILL NOT in any manner interfere with your rights under Section 7 of the Act.
WE WILL pay David Ozuna, Ruben Santiago, Mauricio Merino, Edgar Castro, Genaro
Pascual, Valentin Nuñez, Yoni Severino, Reynaldo Velasquez, Francisco Leotto and
Fausto Manuel Morel the wages and other benefits they lost because we fired them.
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WE WILL pay German Contreras, Jose Rodriguez, Victor Carrasquillo, Amilcar
Contreras, Jose Moya, Edwin Castillo, Ruben Santiago, and Eliberto Fuentes the wages
and other benefits they lost because we paid them a lower monetary bonus.
WE WILL pay Victor Carrasquillo, Jose Rodriguez, and German Contreras the wages
and other benefits they lost because we suspended them.
WE WILL pay Victor Carrasquillo for the half hour in wages that he lost because we
withheld those wages.
WE WILL return Jose Rodriguez and Victor Carrasquillo to their prior positions in the
Hardware Shop without prejudice to their seniority or any other rights and/or privileges
previously enjoyed.
WE WILL offer David Ozuna immediate and full reinstatement to his position as a Table
Mechanic in the Hardware Shop without prejudice to his seniority and any other rights
and/or privileges previously enjoyed.
WE WILL offer Francisco Leotto and Fausto Manuel Morel full reinstatement to their
former jobs without prejudice to their seniority or any other rights and/or privileges
previously enjoyed. Edgar Castro, Genaro Pascual, Valentin Nuñez, Yoni Severino,
and Reynaldo Velasquez have waived their right to reinstatement.
WE WILL remove from our files all references to the discharges of David Ozuna, Ruben
Santiago, Mauricio Merino, Edgar Castro, Genaro Pascual, Valentin Nuñez, Yoni
Severino, Reynaldo Velasquez, Francisco Leotto, and Fausto Manuel Morel, and WE
WILL notify them in writing that this has been done and that the discharges will not be
used against them in any way.
WE WILL remove from our files all references to the suspensions, warnings, transfers,
and reassignments of German Contreras, Victor Carrasquillo, Francisco Leotto, and
Jose Rodriguez, and WE WILL notify them in writing that this has been done and that
the discipline will not be used against them in any way.
WE WILL provide employees in the Hardware Shop fans and ventilation that is
comparable to the fans and ventilation provided to other shops in our facility in the
summer of 2013.
ABCO STEEL DOOR, LLC
(Employer)