HWH Trading Corp.

National Labor Relations Board - Board Decisions

Jan 25, 2008

352 N.L.R.B. 4 (N.L.R.B. 2008)

352 NLRB No. 4
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.
HWH Trading Corp., and Dragon Land Trading Inc.,
and U.S. Gardens Inc., alter egos and Industrial
Union 460/640, Industrial Workers of the
World. Case 29–CA–28419
January 25, 2008
BY MEMBERS LIEBMAN AND SCHAUMBER
DECISION AND ORDER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and an
amended charged filed by the Union on July 30 and Sep-
tember 28, 2007, respectively, the General Counsel is-
sued the complaint on October 3, 2007, against HWH
Trading Corp., and Dragon Land Trading Inc., and U.S.
Gardens Inc., alter egos, the Respondent, alleging that it
has violated Section 8(a)(3) and (1) of the Act. The Re-
spondent failed to file an answer.
On November 6, 2007, the General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on November 8, 2007, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted. The
Respondent filed no response. The allegations in the
motion are therefore undisputed.
On the entire record, the National Labor Relations
Board1 makes the following
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively stated
that unless an answer was received by October 17, 2007,
all of the allegations in the complaint could be consid-
ered admitted as true. Further, the undisputed allegations
in the motion disclose that the Region, by letter dated
October 19, 2007, notified the Respondent that unless an
answer was received by October 26, 2007, a motion for

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
default judgment would be filed. The Respondent failed
to file an answer.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Default Judgment.
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent HWH Trading Corp.
(HWH), a domestic corporation, with its principal office
and place of business located at 1250 Metropolitan Ave-
nue, Brooklyn, New York (the Metropolitan facility), has
been engaged in the business of food and restaurant sup-
ply.
At all material times, Respondent Dragon Land Trad-
ing Inc. (Dragon Land), a domestic corporation, with its
principal office and place of business located at the Met-
ropolitan facility, has been engaged in the business of
food and restaurant supply.
At all material times, Respondent U.S. Gardens Inc.
(Gardens), a domestic corporation, with its principal of-
fice and place of business located at 51-01 Grand Ave-
nue, Maspeth, New York (the Maspeth facility), has been
engaged in the business of food and restaurant supply.
At all material times, HWH, Dragon Land, and Gar-
dens have had substantially identical management, busi-
ness purposes, operations, equipment, customers, and
supervision, as well as ownership.
About July 15, 2007, Dragon Land was established by
HWH as a disguised continuation of HWH.
During about August and September 2007, Gardens
was established by Dragon Land as a disguised continua-
tion of Dragon Land.
At all material times, based on the operations and con-
duct described above, HWH, Dragon Land, and Gardens
have been alter egos within the meaning of the Act.
During the past year, a representative period, the Re-
spondent, in the course and conduct of its business opera-
tions described above, sold and shipped goods and mate-
rials valued in excess of $50,000 directly to customers
located outside the State of New York.
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 Industrial Union 460/640, Indus-
trial Workers of the World, the Union, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Quan Liu has been the manager
of the Respondent, and 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
From about July 2, until about July 10, 2007, the Re-
spondent reduced the work hours of employee Baltazar
Ramos Vides.
From about July 2, until about July 15, 2007, the Re-
spondent reduced the work hours of employee Reinaldo
Beristain Miron.
Since about July 2, 2007, the Respondent has withheld
from employees Baltazar Ramos Vides, Reinaldo Ber-
istain Miron, and Gabino Rafael Hernandez Barraban,
wages earned for work performed from mid-June 2007
until the end of the employees’ employment, as set forth
below.
About July 10, 2007, by the conduct described above,
the Respondent caused the termination of employee Bal-
tazar Ramos Vides.
About July 15, 2007, the Respondent discharged em-
ployees Reinaldo Beristain Miron and Gabino Rafael
Hernandez Barraban, or, in the alternative, caused their
termination by the conduct described above.
The Respondent engaged in the conduct described
above because the employees joined, supported, and as-
sisted the Union, engaged in concerted activities, and to
discourage employees from engaging in these activities.
CONCLUSION OF LAW
By reducing its employees’ hours of employment,
withholding earned wages from its employees, and dis-
charging or causing the termination of its employees, the
Respondent has been discriminating in regard to the hire,
or tenure, or terms and conditions of employment of its
employees, thereby discouraging membership in a labor
organization in violation of Section 8(a)(3) and (1) of the
Act. The Respondent has thereby engaged in unfair la-
bor practices affecting 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 violated the Act by discharg-
ing or causing the termination of employees Baltazar
Ramos Vides, Reinaldo Beristain Miron, and Gabino
Rafael Hernandez Barraban, we shall order the Respon-
dent to offer these employees full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed. Further, we shall order the Respondent to make
each of these employees whole for any loss of earnings
and other benefits suffered as a result of the Respon-
dents’ unlawful conduct, with interest. Similarly, having
found that the Respondent has violated the Act by reduc-
ing the work hours of employees Baltazar Ramos Vides
and Reinaldo Beristain Miron, we shall order the Re-
spondent to make them whole for wages lost because of
this unlawful reduction. Having found that the Respon-
dent unlawfully withheld the wages of Baltazar Ramos
Vides, Reinaldo Beristain Miron, and Gabino Rafael
Hernandez Barraban, we shall order the Respondent to
make them whole for lost wages attributable to this
unlawful withholding.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent shall also be required to
expunge from its files and records any and all references
to the unlawful reduction of work hours and unlawful
terminations of Vides, Miron, and Barraban, and to no-
tify the employees in writing that this has been done and
that the reduction of work hours and terminations will
not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, HWH Trading Corp., and Dragon Land
Trading Inc., and U.S. Gardens Inc., alter egos, Brooklyn
and Maspeth, New York, their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging employees or causing employees to be
terminated because of their union or protected concerted
activities, or to discourage support for Industrial Union
460/640, Industrial Workers of the World (the Union).
(b) Reducing the work hours of employees because of
their union or protected concerted activities, or to dis-
courage support for the Union.
(c) Withholding wages from employees because of
their union or protected concerted activities, or to dis-
courage support for the Union.
(d) 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
Baltazar Ramos Vides, Reinaldo Beristain Miron, and
Gabino Rafael Hernandez Barraban full reinstatement to
their former positions, or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any rights and privileges
previously enjoyed.
(b) Make Baltazar Ramos Vides, Reinaldo Beristain
Miron, and Gabino Rafael Hernandez Barraban whole
for any loss of earnings and other benefits suffered as a
HWH TRADING CORP. 3
result of the unlawful terminations, with interest, in the
manner set forth in the remedy section of this Decision.
(c) Restore the work hours of Baltazar Ramos Vides
and Reinaldo Beristain Miron.
(d) Make whole Baltazar Ramos Vides and Reinaldo
Beristain Miron for any loss of earnings and other bene-
fits suffered as a result of the unlawful reduction of their
work hours, with interest, in the manner set forth in the
remedy section of this Decision.
(e) Make Baltazar Ramos Vides, Reinaldo Beristain
Miron, and Gabino Rafael Hernandez Barraban whole
for any loss of earnings and other benefits suffered as a
result of the unlawful withholding of their wages, with
interest, in the manner set forth in the remedy section of
this Decision.
(f) Within 14 days from the date of this Order, remove
from its files all references to the unlawful reduction of
hours of employment and unlawful terminations of
Vides, Miron, and Barraban and within 3 days thereafter
notify the employees in writing that this has been done
and that the reduction of work hours and terminations
will not be used against them in any way.
(g) 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 re-
cords 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.
(h) Within 14 days after service by the Region, post at
its facilities in Brooklyn and Maspeth, New York, copies
of the attached notice marked “Appendix.”2 Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent goes out of business or
closes the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,

2 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.”
a copy of the notice to all current employees and former
employees employed by the Respondent at any time
since July 2, 2007.
(i) 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. January 25, 2008
Wilma B. Liebman, Member
Peter C. Schaumber, 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 discharge employees or cause employ-
ees to be terminated because of their union or protected
concerted activities, or to discourage support for Indus-
trial Union 460/640, Industrial Workers of the World
(the Union).
WE WILL NOT reduce the work hours of employees be-
cause of their union or protected concerted activities, or
to discourage support for the Union.
WE WILL NOT withhold wages from employees be-
cause of their union or protected concerted activities, or
to discourage support for the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL, within 14 days from the date of this Order,
offer Baltazar Ramos Vides, Reinaldo Beristain Miron,
and Gabino Rafael Hernandez Barraban full reinstate-
ment to their former positions, or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any rights and privi-
leges previously enjoyed.
WE WILL make Baltazar Ramos Vides, Reinaldo Ber-
istain Miron, and Gabino Rafael Hernandez Barraban
whole for any loss of earnings and other benefits they
suffered as a result of their unlawful terminations, with
interest.
WE WILL restore the work hours of Baltazar Ramos
Vides and Reinaldo Beristain Miron.
WE WILL make whole Baltazar Ramos Vides and Re-
inaldo Beristain Miron for any loss of earnings and other
benefits they suffered as a result of the unlawful reduc-
tion of their work hours, with interest.
WE WILL make Baltazar Ramos Vides, Reinaldo Ber-
istain Miron, and Gabino Rafael Hernandez Barraban
whole for any loss of earnings and other benefits they
suffered as a result of the unlawful withholding of their
wages, with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files all references to the unlawful re-
duction of work hours and unlawful terminations, and WE
WILL, within 3 days thereafter, notify Baltazar Ramos
Vides, Reinaldo Beristain Miron, and Gabino Rafael
Hernandez Barraban in writing that this has been done
and that the discharges will not be used against them in
any way.
HWH TRADING CORP., AND DRAGON LAND
TRADING INC., AND U.S. GARDENS INC., ALTER
EGOS