TRANS-ED, Inc., (2017)

Date02 June 2017
Docket Number22-CA-170891
CourtNational Labor Relations Board (US)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

TRANS-ED, Inc. and Luis Del Toro. Case 22–CA–

170891

February 6, 2017

DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On September 22, 2016, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions with supporting argument, and the General Counsel filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions, argument, and brief and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order as modified and set forth in full below.3

CONCLUSIONS OF LAW

  1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

  2. Local 226, Transport Workers Union of America is a labor organization within the meaning of Section 2(5) of the Act.

  3. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Luis Del Toro on February 26, 2016.

  4. The above unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act.

    1 In his decision, the judge inadvertently stated that the Respondent’s owner, Edward Thomas, testified that General Manager Bismark Caraballo told him that employee Del Toro was urging employees to engage in a strike. In fact, it was Caraballo who so testified. This error does not affect our disposition of the case.

    2 The judge neglected to include Conclusions of Law in his decision. We shall correct this inadvertent omission.

    3 We shall modify the judge’s recommended Order and substitute a new notice to conform to the Board’s standard remedial language and in accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). Acting Chairman Miscimarra joins his colleagues in affirming the judge’s finding that the Respondent violated Sec. 8(a)(3) of the Act when it discharged employee Luis Del Toro. He disagrees, however, with the remedy for this violation to the extent that it requires the Respondent to compensate Del Toro for his search-forwork and interim employment expenses regardless of whether those expenses exceed his interim earnings. For the reasons stated in his separate opinion in King Soopers, Inc., 364 NLRB No. 93, slip op. at 12–16 (2016), Acting Chairman Miscimarra would adhere to the Board’s former approach, treating search-for-work and interim employment expenses as an offset against interim earnings.

    ORDER

    The National Labor Relations Board orders that the Respondent, Trans-Ed, Inc., Paterson, New Jersey, its officers, agents, successors, and assigns, shall

  5. Cease and desist from

    (a) Discharging or otherwise discriminating against any of its employees because they engage in union or other protected concerted activities.

    (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

  6. Take the following affirmative action necessary to effectuate the policies of the Act.

    (a) Within 14 days from the date of this Order, offer Luis Del Toro 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 Luis Del Toro whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the judge’s decision, plus reasonable searchfor-work and interim employment expenses.

    (c) Compensate Luis Del Toro for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 22, 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.

    (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Luis Del Toro, 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 designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic 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 Paterson, New Jersey facility copies of the attached notice in English and Spanish marked “Appendix.”4

    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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

    365 NLRB No. 25

    2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 Respondent customarily 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 covered by any other material. If 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 employees and former employees employed by the Respondent at any time since February 26, 2016.

    (g) Within 21 days after service by the Region, file with the Regional Director for Region 22 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. February 6, 2017

    ______________________________________

    Philip A. Miscimarra, Acting Chairman

    ______________________________________

    Mark Gaston Pearce, Member

    ______________________________________

    Lauren McFerran, 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 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 benefit and protection

    Choose not to engage in any of these protected activities.

    WE WILL NOT discharge or otherwise discriminate against any of our employees because they have engaged in union or other protected concerted activities.

    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 Luis Del Toro 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.

    WE WILL make Luis Del Toro whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest, plus reasonable search-for-work and interim employment expenses.

    WE WILL compensate Luis Del Toro for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 22, 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 from the date of the Board’s Order, remove from our files any reference to our unlawful discharge of Luis Del Toro, 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.

    TRANS-ED, INC.

    The Board’s decision can be found at www.nlrb.gov/case/22–CA–170891 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.

    TRANS-ED, INC., 3

    Tara Levy, for the General Counsel.

    Edward Thomas, pro se for the Respondent.

    DECISION

    STATEMENT OF THE CASE

    RAYMOND P. GREEN, Administrative Law Judge. I heard this case in Paterson, New Jersey, on August 9, 2016. The charge and the amended charge were filed on February 29 and April 26, 2016. The complaint, which was issued on May 25, 2016, essentially alleges that on or about February 26, 2016, the Respondent discharged Luis Del Toro because he urged employees to vote against the ratification of an agreement made between the Respondent and Local 226, Transport Workers Union of America.

    On the entire record in this case, including my observation of the demeanor of the witnesses and after reviewing the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT