Altura Concrete Corporation

National Labor Relations Board - Board Decisions

Nov 19, 2014

361 NLRB No. 108 (N.L.R.B. 2014)

361 NLRB No. 108
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.
Altura Concrete Corporation and George Patunas.
Case 22–CA–075740
November 19, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On January 30, 2013, the Board issued a Decision and
Order in this proceeding, which is reported at 359 NLRB
No. 57. Thereafter, the then Acting General Counsel
filed an application for summary enforcement with the
United States Court of Appeals for the Third Circuit.1
At the time of the Decision and Order, the composition
of the National Labor Relations Board included two per-
sons whose appointments to the Board had been chal-
lenged as constitutionally infirm. 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 appointments to the Board were not valid.
Thereafter, the court of appeals vacated the Board’s De-
cision and Order and remanded this case for further pro-
ceedings 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 shall consider de novo the
General Counsel’s Motion for Default Judgment.
The General Counsel seeks a default judgment in this
case pursuant to the terms of a bilateral informal settle-
ment agreement. Upon a charge filed by employee
George Patunas on March 2, 2012, the General Counsel
issued the complaint on May 10, 2012, against Altura
Concrete Corporation, the Respondent, alleging that the
Respondent violated Section 8(a)(1) and (3) of the Act.
The Respondent filed an answer.
Subsequently, the Respondent and Patunas entered into
an informal settlement agreement, which was approved
by the Regional Director for Region 22 on August 1,
2012. Among other things, the settlement agreement
required the Respondent to: (1) post and mail to current
and former employees signed copies of the Notice to
Employees; (2) provide the Region with a list of the
names and addresses of employees to whom the Notices

1 Although some actions in this proceeding were taken by the then-
Acting General Counsel, this case is being currently being litigated by
the General Counsel. Therefore, all further references are to the Gen-
eral Counsel.
were mailed and provide written confirmation of the
mailing; and (3) pay Patunas a specified amount of
backpay and interest and pay a specified amount of con-
tributions to the District Council of Ironworkers Benefit
Fund on behalf of Patunas.
The settlement agreement also contained the following
provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
reissue the complaint previously issued on May 10,
2012 in the instant case. Thereafter, the General Coun-
sel may file a motion for default judgment with the
Board on the allegations of the complaint. The
Charged Party understands and agrees that the allega-
tions of the aforementioned complaint will be deemed
admitted and its Answer to such complaint will be con-
sidered withdrawn. The only issue that may be raised
before the Board is whether the Charged Party default-
ed on 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 issue an order providing a full
remedy for the violations found as is appropriate to
remedy such violations. The parties further agree that a
U.S. Court of Appeals Judgment may be entered en-
forcing the Board order ex parte, after service or at-
tempted service upon Charged Party/Respondent at the
last address provided to the General Counsel.
On August 30, 2012, by regular mail and fax transmit-
tal, the Regional Director for Region 22 notified the Re-
spondent’s counsel that the Respondent was in non-
compliance as it had failed to send to the Regional Office
(1) a signed and dated Notice to Employees along with a
certification of posting; (2) a check payable to Patunas
for the amount specified in the settlement agreement; and
(3) a check payable to the District Council of Ironwork-
ers Benefit Fund in the amount specified in the settle-
ment agreement on behalf of Patunas. The letter stated
that unless the Regional Office received a signed and
dated Notice to Employees, as well as a certification of
posting and checks for the specified amounts of backpay,
interest, and benefit fund contributions by September 13,
2012, the Regional Director would revoke the agreement
and reissue the complaint without further notice. The
Respondent failed to comply.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Accordingly, pursuant to the terms of the noncompli-
ance provision of the settlement agreement, on December
17, 2012, the Regional Director reissued the complaint
and the General Counsel filed a Motion for Default
Judgment with the Board. On December 26, 2012, the
Board issued an order transferring the proceeding to the
Board and Notice to Show Cause why the motion should
not be granted. The Respondent filed no response. The
allegations in the motion are therefore undisputed.
Ruling on Motion for Default Judgment
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with the terms of the settlement agreement by,
among other things, failing to send to the Regional Of-
fice a signed and dated Notice to Employees along with a
certification of posting; failing to remit the agreed-upon
backpay and interest amount to Patunas; and failing to
remit the agreed-upon benefit fund contribution amount
to the District Council of Ironworkers Benefit Fund.
Consequently, pursuant to the noncompliance provisions
of the settlement agreement set forth above, we find that
all of the allegations in the reissued complaint are true.2
Accordingly, 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 cor-
poration with an office and place of business in Little
Ferry, New Jersey (the Little Ferry facility), and has been
a concrete contractor in the construction industry per-
forming concrete services for commercial buildings, edu-
cational institutions and/or retail concerns throughout the
state of New Jersey.
During the 12-month period preceding reissuance of
the complaint, the Respondent purchased and received at
its Little Ferry facility goods valued in excess of $50,000
from firms located within the State of New Jersey, which
in turn purchased those goods directly from outside 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 and that Local 455, Ironworkers, the Un-
ion, is a labor organization within the meaning of Section
2(5) of the Act.

2 See U-Bee, Ltd., 315 NLRB 667 (1994). Also pursuant to the
noncompliance provisions, we find that the Respondent’s answer to the
original complaint has been withdrawn.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Phillip Miller, the Respondent’s
construction manager, has been a supervisor of the Re-
spondent within the meaning of Section 2(11) of the Act
and an agent of the Respondent within the meaning of
Section 2(13) of the Act.
About February 29, 2012, the Respondent, by its Con-
struction Manager Phillip Miller, discharged its employ-
ee, George Patunas.
The Respondent engaged in the conduct described
above because Patunas assisted the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been discriminating in regard to the hire or tenure or
terms or conditions of employment of its employees,
thereby discouraging membership in a labor organization
in violation of Section 8(a)(1) and (3) of the Act. The
Respondent’s unfair labor practices described above af-
fect 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)
and (3) by discharging George Patunas we shall order the
Respondent to make Patunas whole for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s unlawful action against him.
In this regard, we find that the backpay due Patunas
should not be limited to the amount specified in the set-
tlement agreement. As set forth above, the settlement
agreement provided that, in the event of noncompliance,
the Board could “issue an Order providing a full remedy
for the violations found as is customary to remedy such
violations.” Thus, under this language, it is appropriate
to provide the “customary” remedies, including rein-
statement, full backpay and benefits, expungement of the
Respondent’s personnel records, and notice posting.3
The backpay due Patunas shall be computed as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), compounded dai-
ly as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).

3 See L. J. Logistics, Inc., 339 NLRB 729, 730–731 (2003).
ALTURA CONCRETE CORP. 3
Additionally, in accordance with our recent decision in
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014), we shall order the Respondent to
compensate Patunas for the adverse tax consequences, if
any, of receiving a lump-sum backpay award and to file a
report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters.
We shall also order the Respondent to offer Patunas
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 or privi-
leges previously enjoyed. Further, the Respondent shall
be required to remove from its files and records all refer-
ences to Patunas’ unlawful discharge, and to notify him
in writing that this has been done and that the discharge
will not be used against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Altura Concrete Corporation, Little Ferry,
New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees for supporting Local 455, Ironworkers, or any
other union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in 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
George Patunas 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.
(b) Make George Patunas whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of this decision.
(c) Compensate George Patunas for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of George Patunas, and within 3 days thereafter
notify him in writing that this has been done and that the
discharge will not be used against him 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.
(f) Within 14 days after service by the Region, post at
its Little Ferry, New Jersey facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 current em-
ployees and former employees employed by the Re-
spondent at any time since February 29, 2012.
(g) 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.
Dated, Washington, D.C. November 19, 2014
Mark Gaston Pearce, Chairman
Harry I. Johnson, III, Member
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 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
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 discharge or otherwise discriminate
against employees for supporting Local 455, Ironwork-
ers, or any other union.
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 George Patunas full reinstatement to his
former job, or if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make George Patunas whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate George Patunas for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file a report with the Social
Security Administration allocating the backpay awards to
the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of George Patunas, and WE WILL within 3
days thereafter notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
ALTURA CONCRETE CORPORATION
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-075740 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.