Santos Cruz LLC, d/b/a Filiberto's

National Labor Relations Board - Board Decisions

Sep 24, 2019

368 NLRB No. 78 (N.L.R.B. 2019)

368 NLRB No. 78
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.
Santos Cruz LLC d/b/a Filiberto’s and Jairo E.
Aguirre, an individual. Case 28–CA–221286
September 24, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge filed by Jairo E. Aguirre on
May 30 and amended on August 30, 2018,1 the General
Counsel issued a complaint on September 25, alleging
that Santos Cruz LLC d/b/a Filiberto’s (the Respondent)
violated Section 8(a)(1) of the Act by various actions.
The Respondent did not file an answer to the complaint.
Subsequently, the parties executed a bilateral informal
settlement agreement, which the Regional Director for
Region 28 approved on November 7. Pursuant to the
terms of the settlement agreement, the Respondent
agreed to post a notice to employees at its facility in An-
them, Arizona. It also agreed to comply with the provi-
sions of the notice to employees, which included making
Aguirre whole for any loss of earnings and other benefits
suffered as a result of his discharge,2 removing from its
files all references to his discharge, and notifying Aguir-
re in writing that it had taken such action and that the
discharge would not be used against him in any way.
The Respondent also agreed that it would make Aguirre
whole by paying him backpay in the amount of $7896,
minus appropriate deductions, and interest in the amount
of $95. Finally, it agreed to notify the Regional Director
of the steps it had taken to comply with the settlement
agreement. The settlement agreement also contains the
following noncompliance 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’
notice from the Regional Director of the National La-
bor Relations Board of such non-compliance without
remedy by the Charged Party, the Regional Director
will reissue the complaint previously issued on Sep-
tember 25, 2018 in the instant case(s). Thereafter, the
General Counsel may file a motion for default judg-
ment with the Board on the allegations of the com-
plaint. The Charged Party understands and agrees that

1 All subsequent dates are in 2018 unless otherwise indicated.
2 Aguirre waived reinstatement in the settlement.
the allegations of the aforementioned complaint will be
deemed admitted and its Answer to such complaint will
be considered withdrawn. The only issue that may be
raised before the Board is whether the Charged Party
defaulted 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 enforcing
the Board order ex parte, after service or attempted ser-
vice upon Charged Party/Respondent at the last address
provided to the General Counsel.
On November 9, a Board agent sent the Respondent a
package of information containing copies of the notice to
employees and a certification of compliance form detail-
ing the Respondent’s obligations under the settlement
agreement, to be signed by an official of the Respondent.
Thereafter, by letter dated December 11, the Board agent
notified the Respondent that it had failed to comply with
the terms of the settlement agreement and that the set-
tlement agreement provided that if it failed to comply
with any of its terms after 14 days’ notice, the Regional
Director would issue a complaint and thereafter file a
motion for default judgment with the Board on the alle-
gations of the complaint. The Board agent stated that
unless the Respondent initiated compliance by December
26, the Region would issue a complaint. On January 23,
2019, the Board agent, by letter, informed the Respond-
ent and its non-attorney representative that it had failed
to comply with the settlement agreement and that if it
had not complied by January 30, 2019, the Regional Di-
rector would issue a complaint and institute default
judgment proceedings as provided in the “Performance”
paragraph of the settlement agreement. The Respondent
failed to cure its lack of compliance.
Accordingly, on March 20, 2019, pursuant to the non-
compliance provision set forth above, the Regional Di-
rector issued a complaint based on breach of affirmative
provisions of settlement agreement (the reissued com-
plaint). On March 27, 2019, the General Counsel filed a
Motion for Default Judgment with the Board. On March
29, 2019, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent did
not file a response. The allegations in the motion are
therefore undisputed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 Respondent has failed to
comply with the terms of the Agreement. Consequently,
pursuant to the noncompliance provisions of the settle-
ment agreement set forth above, we find that all of the
allegations in the complaint are true. Accordingly, we
grant the General Counsel’s Motion for Default Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a lim-
ited liability company with an office and place of busi-
ness in Anthem, Arizona (the Respondent’s facility), and
has been engaged in the business of operating a public
restaurant selling food and beverages. In conducting its
business operations during the 12-month period ending
May 30, 2018, the Respondent purchased and received at
its facility goods valued in excess of $5000 directly from
points outside the State of Arizona. In conducting its
operations during the same 12-month period, the Re-
spondent derived gross revenues in excess of $500,000.
We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Manuel Santos Cruz Owner
Jose Santos Owner
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been agents of the Respondent within the
meaning of Section 2(13) of the Act:
Margarita Santos -Wife of Manuel Santos Cruz
Antonio Padilla -Accountant for the Respondent
On various dates between about May 6 and 24, the Re-
spondent’s employee Aguirre engaged in concerted ac-
tivities with other employees for the purposes of mutual
aid and protection and concertedly complained to the
Respondent about the terms and conditions of employ-
ment of the Respondent’s employees, by raising concerns
with other employees and with the Respondent about the
employees’ wages, hours, and working conditions.
These concerns included conflicts between Manuel San-
tos Cruz and Margarita Santos in the workplace that cre-
ated a hostile work environment for the employees, mis-
treatment of and disrespect shown to employees by su-
pervisors, and practices concerning the sharing of tips.
About May 22, 2018, the Respondent, by Manuel San-
tos Cruz, at its facility, (1) directed its employees to in-
vestigate other employees’ protected concerted activities
and report them to the Respondent; (2) threatened its
employees with unspecified reprisals for engaging in
protected concerted activities; (3) directed its employees
to refrain from engaging in such activities; and (4) invit-
ed its employees to quit in response to their protected
concerted activities.
About May 24, 2018, the Respondent discharged
Aguirre.
About June 25, 2018, the Respondent, by Antonio Pa-
dilla at Padilla’s office, interrogated its employees about
the protected concerted activities of employees in two
separate conversations.
The Respondent engaged in this conduct because
Aguirre engaged in the conduct described above and to
discourage employees from engaging in these or other
concerted activities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7
of the Act, in violation of Section 8(a)(1) of the Act. The
Respondent’s unfair labor practices affect 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 violat-
ed Section 8(a)(1) of the Act by directing its employees
to investigate other employees’ protected concerted ac-
tivities and report them to the Respondent; threatening
employees with unspecified reprisals for engaging in
protected concerted activities; directing its employees to
refrain from engaging in protected concerted activities;
inviting its employees to quit in response to their protect-
ed concerted activities; discharging Jairo E. Aguirre; and
coercively interrogating employees about the protected
concerted activities of employees, we shall order the Re-
SANTOS CRUZ LLC D/B/A FILIBERTO’S 3
spondent to cease and desist from such conduct and to
post a remedial notice.
To remedy the Respondent’s unlawful discharge of
Aguirre, we shall order the Respondent, to the extent that
it has not already done so, to offer Aguirre full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges he
previously enjoyed.3 In addition, we shall order the Re-
spondent to make Aguirre whole for any loss of earnings
and other benefits suffered as a result of the unlawful
action against him, to the extent that the Respondent has
not already done so.4 Backpay shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010). In accordance with our decision in King Soop-
ers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant
part, 859 F.3d 23 (D.C. Cir. 2017), we shall also order
the Respondent to compensate Aguirre for his search-for-
work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-
for-work and interim employment expenses shall be cal-
culated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra.5 We shall further order the Respondent to
compensate Aguirre for any adverse tax consequences of
receiving a lump-sum backpay award, to the extent that
the Respondent has not already done so, and to file with
the Regional Director for Region 28 a report allocating
the backpay award to the appropriate calendar years.
AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016). Finally, we shall order the Respondent to re-
move from its files any reference to the unlawful dis-
charge of Aguirre and to notify him in writing that this
has been done and that the unlawful discharge will not be
used against him in any way.

3 Although Aguirre waived reinstatement for the purposes of the set-
tlement, we shall order it as part of a full remedy for his unlawful dis-
charge.
4 Because it is unclear whether the total amount set forth in the set-
tlement agreement constitutes a full make-whole remedy, we leave to
compliance a determination of the proper amount due to Aguirre.
5 The General Counsel additionally seeks reasonable consequential
damages incurred as a result of the Respondent’s unfair labor practices.
This issue, which was not briefed, would involve a change in Board
law. We are not prepared at this time to deviate from our current reme-
dial practice. Accordingly, we decline to order this relief. See, e.g.,
Laborers International Union of North America, Local Union No. 91
(Council of Utility Contractors), 365 NLRB No. 28, slip op. at 1 fn. 2
(2017).
ORDER
The National Labor Relations Board orders that the
Respondent, Santos Cruz, LLC, d/b/a Filiberto’s, An-
them, Arizona, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Directing employees to investigate other employ-
ees’ protected concerted activities and report them to the
Respondent.
(b) Threatening employees with negative consequenc-
es for engaging in protected concerted activities.
(c) Directing employees not to engage in protected
concerted activities.
(d) Inviting employees to quit in response to their pro-
tected concerted activities.
(e) Discharging employees because they engage in
protected concerted activities.
(f) Coercively questioning employees about their pro-
tected concerted activities or the protected concerted
activities of other employees.
(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
Jairo E. Aguirre 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) To the extent it has not already done so, make
whole Jairo E. Aguirre for any loss of earnings and other
benefits suffered as a result of his discharge, in the man-
ner set forth in the remedy section of this decision, plus
reasonable search-for-work and interim employment
expenses.
(c) Compensate Jairo E. Aguirre for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 28,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(d) Within 14 days from the date of this Order, re-
move from its files all references to the discharge of
Aguirre and, within 3 days thereafter, notify him in writ-
ing 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 for Region 28
may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
records, social security payment records, timecards, per-
sonnel records and reports, and all other records, includ-
ing an electronic copy of such records if stored in elec-
tronic 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 facility in Anthem, Arizona, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent, in English
and in additional languages if the Regional Director de-
cides that it is appropriate to do so, and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily post-
ed. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since May 6, 2018.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation 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. September 24, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
________________________________________
William J. Emanuel Member

6 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.”
(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
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 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 do anything to prevent you from exercis-
ing the above rights.
WE WILL NOT do anything to prevent you from engag-
ing in protected concerted activities, including raising
concerns with other employees about your wages, hours,
and working conditions, or acting together with other
employees to raise such concerns with us.
WE WILL NOT direct you to investigate other employ-
ees’ protected concerted activities and report them to us.
WE WILL NOT threaten you with negative consequences
for engaging in protected concerted activities.
WE WILL NOT direct you not to engage in protected
concerted activities.
WE WILL NOT invite you to quit in response to your
protected concerted activities.
WE WILL NOT fire you for engaging in protected con-
certed activities.
WE WILL NOT coercively question you about your pro-
tected concerted activities or the protected concerted
activities of other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
under Section 7 of the National Labor Relations Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jairo E. Aguirre 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 enjoyed.
WE WILL make Aguirre whole for any loss of earnings
and other benefits resulting from his discharge, less any
net interim earnings, plus interest, to the extent this has
SANTOS CRUZ LLC D/B/A FILIBERTO’S 5
not already been done, and WE WILL also make Aguirre
whole for reasonable search-for-work and interim em-
ployment expenses, plus interest.
WE WILL compensate Aguirre for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 28, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar years.
WE WILL, within 14 days of the date of the Board’s
Order, remove from our files all references to the dis-
charge of Aguirre, and WE WILL, within 3 days therafter,
notify him in writing that this has been done and that the
discharge will not be used against him in any way.
SANTOS CRUZ LLC, D/B/A FILIBERTO’S
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-221286 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.