Park Avenue Investment Advisor, LLC, and Hotel Management Advisors - Troy, LLC d/b/a Metropolitan Gr

National Labor Relations Board - Board Decisions

Jan 23, 2014

360 NLRB No. 25 (N.L.R.B. 2014)

360 NLRB No. 25
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.
Park Avenue Investment Advisor, LLC, and Hotel
Management Advisors – Troy, LLC d/b/a Met-
ropolitan Group and The Metro Hotel – Troy
Single Employer and/or Alter Egos and Local
324, International Union of Operating Engineers
(IUOE), AFL–CIO. Case 07–CA–098296
January 23, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge and amended charges filed by
Local 324, International Union of Operating Engineers
(IUOE), AFL–CIO (the Union) on February 13, March 8,
and April 16, 2013, respectively, the General Counsel
issued the consolidated complaint and compliance speci-
fication on April 30, 2013, against Park Avenue Invest-
ment Advisor, LLC (Respondent Park), and Hotel Man-
agement Advisors – Troy, LLC d/b/a Metropolitan
Group and The Metro Hotel – Troy (Respondent Hotel
Management, collectively the Respondents), alleging that
the Respondents violated Section 8(a)(4), (3), and (1) of
the Act. The Respondents filed an answer to the consol-
idated complaint and compliance specification on May
30, 2013.
Subsequently, on August 19, 2013, the Respondents
and the Union entered into an informal Settlement
Agreement, Supplemental Settlement Agreement, Notice
to Employees, and Confession of Judgment (the settle-
ment agreement), which were approved by the Regional
Director for Region 7 on August 21, 2013. Among other
things, the settlement agreement required the Respond-
ents to: (1) make discriminatee Gary Roberts whole for
his loss of wages and other monetary benefits by paying
Roberts a specified amount of backpay and interest; and
(2) post appropriate notices.
The settlement agreement also contained the following
provision:
The Charged Parties agree that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Parties, and after 7 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Parties, the Regional Director will
issue an order severing the complaint and compliance
specification, and issue the complaint previously issued
on April 30, 2013 in the instant case(s) as consolidated
with the compliance specification. The Charged Par-
ties further agree that any waiver of reinstatement pro-
vided by a discriminatee/ex-employee as part of a set-
tlement in this case is conditioned upon the Charged
Parties fully complying with the terms of this Settle-
ment Agreement and the attached Supplemental Set-
tlement Agreement. Any failure to comply with said
terms will result in the rescission by the
discriminatee/ex-employee of their waiver of rein-
statement and that employee will be entitled to imme-
diate reinstatement by the Charged Parties. Thereafter,
the General Counsel may file a motion for default
judgment with the Board on the allegations of the com-
plaint. The Charged Parties understand and agree that
the allegations of the aforementioned complaint will be
deemed admitted and their Answer to such complaint
will be considered withdrawn. The only issue that may
be raised before the Board is whether the Charged Par-
ties defaulted on the terms of this Settlement Agree-
ment. 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 con-
clusions of law consistent with those allegations ad-
verse to the Charged Parties on all issues raised by the
pleadings. The Board may then issue an order provid-
ing a full remedy for the violations found as is appro-
priate to remedy such violations to the extent such vio-
lations are not remedied in the Supplemental Settle-
ment Agreement referenced above. The parties further
agree that a U.S. Court of Appeals Judgment may be
entered enforcing the Board order ex parte, after service
or attempted service upon the Charged Par-
ties/Respondents at the last address provided to the
General Counsel. During this process the Regional Di-
rector may immediately seek payment on and enforce
rights provided under the Confession of Judgment ref-
erenced above.
By letter dated August 30, 2013, the Regional Director
for Region 7 advised the Respondents to take the steps
necessary to comply with the terms of the settlement
agreement. By letter dated September 27, 2013, the Re-
gional Director for Region 7 reminded the Respondents
of their obligations under the settlement agreement and
advised the Respondents that although the initial pay-
ment of $7500 was received in the Region, the Respond-
ents have failed to submit their first installment payment
of $3500 and have failed to return signed and dated no-
tices to employees and confirmation of posting/mailing.
The letter also stated that, if the Respondents do not
comply within 7 days, (1) the Respondents’ failure to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
comply may result in the Regional Director severing the
complaint and compliance specification and reissuing the
complaint; (2) any waiver of reinstatement provided by
discriminatee Gary Roberts as part of the settlement
agreement will be rescinded; (3) Roberts will be entitled
to immediate reinstatement; (4) backpay owed to Roberts
will continue to accrue from the date of his termination
until a valid unconditional offer of reinstatement is re-
ceived; and (5) the General Counsel may file a motion
for default judgment with the Board.
Accordingly, pursuant to the terms of the noncompli-
ance provisions of the settlement agreement, on Novem-
ber 5, 2013, the Regional Director issued an Order Sev-
ering Compliance Specification from Complaint, Answer
Requirement and Notice of Consolidated Hearing. On
the same date, the Regional Director reissued the com-
plaint. On November 13, 2013, the General Counsel
filed a Motion for Default Judgment with the Board. On
November 20, 2013, the Board issued an order transfer-
ring the proceeding to the Board and Notice to Show
Cause why the motion should not be granted. The Re-
spondents filed no response. The allegations in the mo-
tion 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
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondents have failed to
comply with the terms of the settlement agreement by
failing to remit the full amount of the agreed-upon
backpay and interest to Gary Roberts and failing to send
to the Regional Office a signed and dated notice to em-
ployees along with a certification of posting. Conse-
quently, pursuant to the noncompliance provisions of the
settlement agreement set forth above, we find that the
Respondents’ answer to the original complaint has been
withdrawn and that all of the allegations in the reissued
complaint are true.1 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, Respondent Park, a Delaware
company with an office and place of business in Troy,
Michigan, has been engaged in the operation of a hotel
providing food and lodging.

1 See U-Bee, Ltd., 315 NLRB 667, 668 (1994).
At all material times, Respondent Hotel Management,
a Delaware company with an office and place of business
in Troy, Michigan, has been engaged in the operation of
a hotel providing food and lodging.
During calendar year 2012, a representative period, the
Respondents, in conducting their business operations
described above, collectively derived gross revenues in
excess of $500,000 and purchased and received at their
Troy facility goods valued in excess of $50,000 from
other enterprises in the State of Michigan, including
Consumers Energy, which other enterprises received
these goods directly from points outside the State of
Michigan.
We find that Respondent Park and Respondent Hotel
Management are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
At all material times, the Respondents have been affil-
iated business enterprises with common officers, owner-
ship, directors, management, and supervision; have for-
mulated and administered a common labor policy; have
shared common premises and facilities; have provided
services for and on behalf of each other; have inter-
changed personnel with each other; have engaged in
common purchasing; and have held themselves out to the
public as a single-integrated business enterprise.
Based on their operations described above, the Re-
spondents constitute a single integrated business enter-
prise and a single employer within the meaning of the
Act.
At all material times, the Respondents have had sub-
stantially identical management, business purposes, op-
erations, equipment, purchases, premises, facilities, cus-
tomers, and supervision, as well as ownership.
Based on the operations and conduct described above,
the Respondents are, and have been at all material times,
alter egos within the meaning of the Act.
We find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
1. At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondents within the
meaning of Section 2(11) of the Act and agents of the
Respondents within the meaning of Section 2(13) of the
Act:
Remo Polselli Owner and Managing Partner
Hanna Karcho Partner
Michael Witoszynski General Manager
Robert Soto Front Desk Manager
Tim Champine Maintenance Supervisor
PARK AVENUE INVESTMENT ADVISOR, LLC 3
2. The following employees of the Respondents (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All skilled and general maintenance and utility em-
ployees.
3. Since at least 1990, and at all material times, the Re-
spondents have recognized the Union as the exclusive
collective-bargaining representative of the unit. This
recognition has been embodied in successive collective-
bargaining agreements, the most recent of which was
effective by its terms from October 1, 2006, through Sep-
tember 30, 2010. Since about October 1, 2010, the col-
lective-bargaining agreement has remained in effect from
year to year because neither party gave timely notice to
modify or terminate the agreement.
4. At all material times, based on Section 9(a) of the
Act, the Union has been the exclusive collective-
bargaining representative of the unit.
5. In about late November 2012, the Respondents, by
their agent, Michael Witoszynski, threatened to schedule
Gary Roberts for the midnight shift in retaliation for his
union activity and because he was named in a charge in
Case 07–CA–076369.
6. On about October 19 and 26, and again on Novem-
ber 23, 2012, the Respondents imposed onerous terms
and conditions of employment on Gary Roberts by mak-
ing him clean grease traps.
7. On about December 30, 2012, the Respondents im-
posed onerous terms and conditions of employment on
Gary Roberts by directing him to remove snow from the
parking lot.
8. In about January 2013, the Respondents refused to
permit Gary Roberts to exercise his bumping rights.
9. On February 4, 2013, the Respondents drug tested
Gary Roberts.
10. On about October 30, 2012, and again on February
8, 2013, the Respondents terminated Gary Roberts.
11. The Respondents engaged in the conduct described
in paragraphs 6 through 10 because Gary Roberts en-
gaged in protected concerted and union activities, and to
discourage employees from engaging in these activities
12. The Respondents engaged in the conduct described
in paragraphs 6 through 10 because Gary Roberts was
named in a charge in Case 07–CA–076369.
CONCLUSIONS OF LAW
1. By the conduct described in paragraph 5, the Re-
spondents have been interfering with, restraining, and
coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
2. By the conduct described in paragraphs 6 through
11, the Respondents have been discriminating in regard
to the hire or tenure or terms or conditions of employ-
ment of their employees, thereby discouraging member-
ship in a labor organization, in violation of Section
8(a)(3) and (1) of the Act.
3. By the conduct described in paragraphs 6 through
10 and paragraph 12, the Respondents have been dis-
criminating against employees for filing charges or giv-
ing testimony under the Act, in violation of Section
8(a)(4) and (1) of the Act.
4. The Respondents’ unfair labor practices described
above affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifical-
ly, having found that the Respondents have violated Sec-
tion 8(a)(4), (3), and (1) by discharging Gary Roberts, we
shall order the Respondents to make Roberts whole for
any loss of earnings and other benefits suffered as a re-
sult of the Respondents’ unlawful action against him.
In this regard, we find that the backpay due Roberts
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 appropriate to remedy such
violations.” Thus, under this language, it is appropriate
to provide the “appropriate” remedies, including rein-
statement, full backpay and benefits, expungement of the
Respondents’ personnel records, and notice posting.2
Backpay shall be computed in accordance with 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 daily as prescribed
in Kentucky River Medical Center, 356 NLRB No. 8
(2010). In addition, we shall order the Respondents to
reimburse Roberts in an amount equal to the differences
in taxes owed upon receipt of a lump-sum backpay pay-
ment and taxes that would have been owed had there
been no discrimination against him. We shall also order
the Respondents to submit the appropriate documentation
to the Social Security Administration so that when
backpay is paid, it will be allocated to the appropriate
periods.

2 See L. J. Logistics, Inc., 339 NLRB 729, 730–731 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
We shall also order the Respondents to offer Roberts
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 Respondents shall
be required to remove from their files and records all
references to Roberts’ unlawful discharge and unlawful
drug test, and to notify him in writing that this has been
done and that the discharge and drug test will not be used
against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondents, Park Avenue Investment Advisor, LLC,
and Hotel Management Advisors – Troy, LLC d/b/a Met-
ropolitan Group and The Metro Hotel – Troy, Troy,
Michigan, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening to schedule Gary Roberts for the mid-
night shift in retaliation for his union activity and be-
cause he was named in an unfair labor practice charge
(charge).
(b) Imposing onerous terms and conditions of em-
ployment on Gary Roberts by making him clean grease
traps in retaliation for his union activity and because he
was named in a charge.
(c) Imposing onerous terms and conditions of em-
ployment on Gary Roberts by directing him to remove
snow from the parking lot in retaliation for his union
activity and because he was named in a charge.
(d) Refusing to permit Gary Roberts to exercise his
bumping rights in retaliation for his union activity and
because he was named in a charge.
(e) Drug testing Gary Roberts in retaliation for his un-
ion activity and because he was named in a charge.
(f) Terminating Gary Roberts in retaliation for his un-
ion activity and because he was named in a charge.
(g) 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
Gary Roberts 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 Gary Roberts whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, with interest, in the manner set forth in
the remedy section of this decision.
(c) Compensate Gary Roberts for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, in the manner set forth in the remedy section of
this decision, and file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge and
unlawful drug test of Gary Roberts, and within 3 days
thereafter, notify him in writing that this has been done
and that the discharge and drug test 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 Troy, Michigan facility copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by the Respondents’ authorized representa-
tive, shall be posted by the Respondents and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
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 Respondents customarily
communicate with their employees by such means. Rea-
sonable steps shall be taken by the Respondents 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 Respondents have gone out of
business or closed the facility involved in these proceed-
ings, the Respondents shall duplicate and mail, at their
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondents
at any time since October 19, 2012.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the

3 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.”
PARK AVENUE INVESTMENT ADVISOR, LLC 5
Region attesting to the steps that the Respondents have
taken to comply.
Dated, Washington, D.C. January 23, 2014
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Harry I. Johnson, III, Member
______________________________________
Nancy Schiffer, 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 threaten to schedule you for the mid-
night shift in retaliation for your union activity or be-
cause you were named in a charge.
WE WILL NOT impose onerous terms and conditions of
employment on you by making you clean grease traps in
retaliation for your union activity or because you were
named in an unfair labor practice charge (charge).
WE WILL NOT impose onerous terms and conditions of
employment on you by directing you to remove snow
from the parking lot in retaliation for your union activity
or because you were named in a charge.
WE WILL NOT refuse to permit you to exercise your
bumping rights in retaliation for your union activity or
because you were named in a charge.
WE WILL NOT drug test you in retaliation for your un-
ion activity or because you were named in a charge.
WE WILL NOT terminate you in retaliation for your un-
ion activity or because you were named in a charge.
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 Gary Roberts 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 make Gary Roberts whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest.
WE WILL compensate Gary Roberts 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 award to the ap-
propriate 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 and unlawful drug test of Gary Roberts, and
WE WILL, within 3 days thereafter, notify him in writing
that this has been done and that the discharge and drug
test will not be used against him in any way.
PARK AVENUE INVESTMENT ADVISOR, LLC,
AND HOTEL MANAGEMENT ADVISORS – TROY,
LLC D/B/A METROPOLITAN GROUP AND THE
METRO HOTEL – TROY, SINGLE EMPLOYER
AND/OR ALTER EGOS