Coastal Insulation Corp., (2009)

Coastal Insulation Corporation, and Elmsford Insulation Corporation, and Sealrite Insulation of New York, a single employer and Sergio Santos. Case 22–CA–28439

August 31, 2009

DECISION AND ORDER

By Chairman Liebman and Member Schaumber

On April 2, 2009, Administrative Law Judge Earl E. Shamwell issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief.[1]

The National Labor Relations Board[2] has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[3] and conclusions[4] and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Coastal Insulation Corporation, and Elmsford Insulation Corporation, and Sealrite Insulation of New York, a single employer, East Windsor, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Dated, Washington, D.C. August 31, 2009

Wilma B. Liebman,

Chairman

Peter C. Schaumber,

Member

(Seal) National Labor Relations Board

Saulo Santiago, Esq., for the General Counsel.

Richard P. Flaum (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C.), of Warren, New Jersey, for the Respondent.

Sergio Santos, pro se, of Paterson, New Jersey, for the Charging Party.

DECISION

Statement of the Case

Earl E. Shamwell, Administrative Law Judge. This case was heard by me on November 24–25 and December 16–17, 2008, In Newark, New Jersey, pursuant to a charge filed by Charging Party Sergio Santos against Coastal Insulation Corporation, and Elmsford Insulation Corporation, and Sealrite Insulation of New York (collectively the Respondent), on July 3, 2006. Santos filed an amended charge on September 22, 2008.

On September 30, 2008, the Regional Director for Region 22 of the National Labor Relations Board (the Board) issued a complaint against the Respondent alleging that it violated Section 8(a)(1) of the National Labor Relations Act (the Act). On October 14, 2008, the Respondent filed its answer to the complaint essentially denying the commission of any unfair labor practices.

At the hearing, the parties were represented by counsel and were afforded full opportunity to be heard, examine and cross-examine witnesses, and introduce evidence. On the entire record, including my observation of the demeanor of the witnesses and after considering the briefs1 filed by the General Counsel and the Respondent, I make the following.

Findings of Fact

i. jurisdiction—the business of the respondent, a single employer

Respondent Coastal Insulation Corporation is a New Jersey corporation that maintains an office and place of business in East Windsor, New Jersey, and has been engaged in the installation of insulation for residential and commercial entities and properties located in New Jersey, Pennsylvania, and Delaware.

Respondent Sealrite Insulation of New York is a New York corporation that maintains an office and place of business in East Windsor, New Jersey, and has been engaged in the installation of insulation for residential and commercial entities and properties located in New York and Connecticut.

Respondent Elmsford Insulation Corporation is a Delaware corporation that maintains its principal office and place of business in East Windsor, New Jersey, and another facility in Elmsford, New York, and has been engaged in the installation of the insulation for residential and commercial entities and properties in New York.

The three aforementioned corporations are admitted by the Respondent to have been at all material times affiliated enterprises with common ownership, management, and supervision; have formulated and administered a common labor policy, have provided services to each other; have interchanged personnel with each other; have shared common premises and facilities; and have held themselves out to the public as a single-integrated business enterprise; and as such constitute a single-integrated business enterprise and a single employer within the meaning of the Act.2

The Respondent admits that the three aforementioned corporations, during the preceding 12-month period in conducting their respective business operations, individually purchased and received at the West Windsor and/or Elmsford facilities goods and materials located outside the States of New Jersey and New York.

Accordingly, I would find and conclude that Coastal Insulation Corporation, Elmsford Insulation Corporation, and Sealrite Insulation of New York, in the conduct of their respective business operations constitute a single-integrated business enterprise and a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

ii. background and other preliminary matters undisputed on the record

The Business of the Respondent

The Respondent is engaged in the installation of weather-proofing insulation to residential and commercial applications covering New Jersey, New York, and Connecticut (the Tristate area). During the relevant period, the Respondent employed about 120 installers. The instant litigation, however, relates solely to about 22 installers who may be characterized as a cadre of individuals hailing from the Dominican Republic and who spoke English as their second language and seemingly were closely connected to each other by family and friendship ties as well as their common national heritage. For convenience, I will sometimes call these installers the Dominican group.3

The Respondent’s managerial hierarchy consists of Steven Schwartz, president, and Bret Schwarz and John Achille, vice presidents. Achille also serves at the Company’s operations manager whose duties include supervision of the office and sales staff. The Respondent’s field operations are administered by individuals designated production managers and field supervisors. The field supervisors are directly responsible for the supervision of the installers working on any given installation project such as a housing project. The field supervisors report to the production managers who assign installers operating as two or three men crews to various installation projects via e-mail or fax machines provided by management to the crew leader. Brothers Gene Hebding and Richard (Ricky) Hebding, during the times relevant to this litigation, served respectively as production manager and field supervisor for Coastal; Wilson Torres served as production manager for the Sealrite and Elmsford installers until Hugo Tavarez was promoted to production manager of the Elmsford installers in May 2008.

The Respondent’s insulation installers are not paid on an hourly basis. Rather, they are compensated on a piecework basis, generally by a certain amount multiplied by the number of square feet of insulation installed in a given structure. Prior to May 15, 2008, the Respondent paid its installers at the piece-rate of 6 cents per square foot, plus an extra amount for jobs requiring installations over a certain height, crawl space, caulking, site preparation, and extended travel; additionally, the 6-cent rate covered not only the sheet insulation materials but also certain insulation materials that provided ventilation called baffles.

On or about May 15, 2008, the Respondent announced that beginning June 1, 2008, the installers would no longer be paid at the 6-cent rate plus extras, but at a flat piece-rate of 8 cents per square foot, a 2-cent increase, but with no payment for any of the aforementioned “extras.”

On July 2, 2008, at about 8 a.m., about 20 or more of the aforementioned Dominican group of installers met at the home of Coastal employee Eduardo Olivo in Paterson, New Jersey, to discuss the new pay system and certain perceived problems associated with its application and implementation. Olivo created a sign-in sheet which was circulated to the attendees.4

Notably, July 2 was a day on which work had been scheduled by the Respondent for some of the gathered employees.[5] Accordingly, sometime after 8 a.m., Field Supervisor Richard Hebding (Ricky) telephoned Sergio Santos and queried him about his not showing up for work. Santos informed Richard that the employees were meeting at Olivo’s house to discuss issues associated with the installers’ wages and the new pay structure in particular. At about 9:30 a.m., Santos and Olivo telephoned Gene Hebding (Gene) on the company issued Nextel phone but were unsuccessful in reaching him. However, after a number of attempts, Santos contacted Gene on another employee’s (Sandy Genao) company issued cell phone. Santos and Gene conversed initially with the cell phone on speaker so that the gathered employees could hear the conversation. After a time, Olivo and Gene conversed, again with the cell phone on speaker. Notably, Santos and Olivo translated the conversations because the majority of the gathered employees were not conversant in English.

After these conversations between Gene and essentially Santos and Olivo, the Respondent on July 3, 2008, by letters, discharged all of the purported signers of the sign-in sheet, stating essentially that each man was dissatisfied with the terms and conditions of his employment and that he had deliberately failed to report for his assigned work which constituted abandonment of the job, and therefore was no longer employed by Coastal.[6]

The complaint alleges essentially that on July 2, 2008, the employees gathered at Edward Olivo’s house, concertedly complained to the Respondent about the Company’s failure to pay them their correct wages, and were discharged by the Respondent because of their complaints, in violation of Section 8(a)(1) of the Act.

Thus, the central issue in this cause is whether the Respondent discharged the affected employees on July 2, 2008, because they complained about what they considered problems with the Respondents...