Tuv Taam Corp.

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 756 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

756
Tuv Taam Corp. and Oscar Palacios and Local 1102,
Retail & Wholesale Department Store Union,
United Food & Commercial Workers Union,
AFL–CIO, CLC. Cases 29–CA–24329, 29–CA–
24375, and 29–CA–24553
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
Upon charges filed by Charging Party Oscar Palacios
and by the Union,1 the General Counsel of the National
Labor Relations Board issued an Order consolidating
cases, consolidated complaint, and notice of hearing in
Cases 29–CA–24329 and 29–CA–24375 against Tuv
Taam Corp., the Respondent, alleging that it has engaged
in certain unfair labor practices in violation of Section
8(a)(1) and (3) of the Act. On December 27, 2001, the
General Counsel issued a complaint and notice of hear-
ing in Case 29–CA–24553 alleging that the Respondent
has engaged in additional unfair labor practices, as well
as an Order further consolidating these cases.
Subsequently, on March 26, 2002,2 the Regional Di-
rector for Region 29 approved an informal settlement
entered into by the Respondent and the Charging Parties
providing, inter alia, for the payment of specified
amounts of backpay to the employees named in the
agreement. The agreement also contained the following
further provisions:
Performance by the Charged Party with the terms and
provisions of this agreement shall commence immedi-
ately after the agreement is approved by the Regional
Director . . . .
Approval of the Agreement by the Regional Director
shall constitute withdrawal of any Complaint(s) and
Notice of Hearing heretofore issued in this case, as
well as any answer(s) filed in response. In considera-
tion for the settlement of the complaint in this matter,
the Respondent agrees that in the event it fails to
comply with all the terms of the settlement, it will be
given seven (7) days from the default to cure said de-
fault. Respondent further agrees that in the event Re-
spondent fails to cure said default within the seven (7)
day period, then the General Counsel will move for
summary judgment before the National Labor Rela-

1 Oscar Palacios filed the charge in Case 29–CA–24329 on July 9,
2001. The Union filed the charge in Case 29–CA–24375 on July 31,
2001; and it filed a first amended charge in that case on October 2,
2001. The Union filed the charge in Case 29–CA–24553 on October
23, 2001.
2 All dates hereafter are 2002, unless otherwise indicated.
tions Board on all allegations in the complaint and
that Respondent will waive its right to file an answer
to the re-issued complaint and further waive all de-
fenses to the allegations in the said complaint.
The agreement did not provide for liquidated damages in the
event of default.
By telephone the week of May 20, the General Coun-
sel requested the Respondent to comply with the terms of
the settlement agreement and advised the Respondent
that if it did not comply, a written demand would issue
requesting the Respondent to cure the default. The Gen-
eral Counsel further advised the Respondent that absent
cure, the Regional Director would revoke the settlement
agreement, re-issue the complaints, and move for sum-
mary judgment on all allegations of the complaints, as
provided by the default provision of the settlement
agreement. By letter dated May 29, the General Counsel
informed the Respondent that, in view of the Respon-
dent’s continued noncompliance, it was in default of the
settlement agreement. The letter further advised the Re-
spondent that it had 7 days to cure the default and that,
absent cure, the General Counsel would move for sum-
mary judgment on all the allegations in the complaints.
By letter of May 30, the Respondent requested a delay so
that it could seek new counsel. On May 31, the General
Counsel advised the Respondent that its decision to
change counsel did not justify its failure to comply with
the settlement agreement reached with the assistance of
counsel. The General Counsel further advised the Re-
spondent that, absent cure of the default by June 5, the
General Counsel would move for summary judgment.
At no time has the Respondent complied with the provi-
sions of the settlement agreement.
Accordingly, on June 19 the General Counsel filed
with the Board an Order revoking the settlement agree-
ment and re-issuing the consolidated complaints, and a
Petition for Summary Judgment and Issuance of Deci-
sion and Order. On July 3, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted. In
its response to the Notice to Show Cause, the Respondent
did not deny that it has defaulted on the settlement
agreement. The allegations of the motion and the re-
issued complaint are therefore undisputed. The Respon-
dent raised issues regarding the remedy and the applica-
bility of the Supreme Court’s decision in Hoffman Plas-
tic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002),
which we address in the Remedy section of this decision.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
regulations provide that the allegations in the complaint
340 NLRB No. 86
TUV TAAM CORP. 757
shall be deemed admitted if an answer is not filed within
14 days from the service of the complaint, unless good
cause is shown. In addition, the complaint affirmatively
notes that unless an answer is filed within 14 days of
service, all the allegations in the complaint will be con-
sidered admitted.
Here, according to the uncontroverted allegations in
the Motion for Summary Judgment, the Respondent en-
tered into a settlement agreement in which it agreed that
if it failed to comply with the settlement, the Respondent
will waive its right to file an answer to the re-issued
complaints and further waive all defenses to the allega-
tions in the complaints. Such noncompliance has oc-
curred. We therefore find, pursuant to the settlement
agreement, that all the allegations of the complaints are
true.3
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a domestic cor-
poration, with its principal office located at 502 Flushing
Avenue, Brooklyn, New York (Brooklyn facility), has
been engaged in the wholesale sale and distribution of
kosher food products. During the year prior to issuance
of the consolidated complaint, which period is represen-
tative of its annual operations generally, the Respondent,
in the course and conduct of its operations, purchased
and received at its Brooklyn facility, goods and materials
valued in excess of $50,000 directly from suppliers lo-
cated within the State of New York, which entities, in
turn, purchased said goods and materials from suppliers
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.
At all material times, Local 1102, Retail Workers and
Department Store Union, United Food & Commercial
Workers International Union, has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
At all material times, Local 404, United Electrical, Ra-
dio and Machine Workers of America, has been a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Commencing on or about March 2001, the Respon-
dent’s employees engaged in protected concerted activi-
ties on behalf of the Workers of Tuv Taam, an organiza-

3 See Ernest Lee Tile Contractors, 330 NLRB No. 61 (2000) (not re-
ported in Board volumes), and cases cited there.
tion formed by the Respondent’s employees. Commenc-
ing on or about July 21, 2001, the Respondent’s employ-
ees began organizing and seeking representation by Lo-
cal 404, and subsequently Local 1102.
1. The Respondent has engaged in the following con-
duct, as alleged in chronological order in the reissued
complaint:
On or about mid to late April 2001, mid-May 2001,
and late May to early June 2001, the Respondent, by its
representative, Manager Abraham Spitzer, a statutory
supervisor, at the Brooklyn facility, engaged in surveil-
lance of its employees to discover their union or pro-
tected concerted activities. On or about mid-May 2001,
the Respondent, by its representative, Manager Laser, a
statutory supervisor, at the Brooklyn facility, engaged in
surveillance of its employees to discover their union or
protected concerted activities. On or about mid-May
2001, the Respondent, by its representative Manager
Kallman Moscovicz, a statutory supervisor, at the Brook-
lyn facility, engaged in surveillance of its employees to
discover their union or protected concerted activities.
On or about dates presently unknown commencing in
mid-May 2001, the Respondent, by its representatives
Laser, Moscovicz, and Spitzer, at the Brooklyn facility,
more closely supervised Oscar Palacios.
On or about July 1, 2001, the Respondent, by Spitzer,
in the office of Manager and Statutory Supervisor Abra-
ham Stenger at the Brooklyn facility, created the impres-
sion that employees’ union or protected concerted activi-
ties were under surveillance.
On or about July 1, 2001, the Respondent, by Spitzer,
in Stenger’s office at the Brooklyn facility, interrogated
employees about the union or protected concerted activi-
ties of other employees.
On or about July 1, 2001, the Respondent, by Spitzer,
in Stenger’s office at the Brooklyn facility, promised
employees a bonus to report to the Respondent regarding
other employees’ union or protected concerted activities.
On or about July 2, 2001, the Respondent, by Spitzer,
in the loading area of the Brooklyn facility, interrogated
employees about the union or protected concerted activi-
ties of other employees.
On or about July 3, 2001, the Respondent, by its repre-
sentative Sam Nutovics, outside the Brooklyn facility,
videotaped employees engaged in picketing.
On or about August 31, 2001, the Respondent, by
Manager Pincus Tam, Supervisor Eli Miller, and Agent
Bluma Kind, all statutory supervisors and/or agents of
the Respondent, at the Polish American Legion in Brook-
lyn, New York, engaged in surveillance of its employees
to discover their union activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
On or about late August 2001, mid-September 2001,
and November 2001, the exact dates being unknown, the
Respondent, by Spitzer, at the Brooklyn facility, prom-
ised to grant employees wage increases if they ceased
from engaging in activities on behalf of the Union and in
support of the Union.
On or about September 2, 2001, and in November
2001, the exact date being unknown, the Respondent, by
Spitzer, at the Brooklyn facility, interrogated employees
about their union activity.
On or about unknown dates commencing in mid-
September 2001, the Respondent, by Spitzer, at the
Brooklyn facility, told its employees that the Respondent
would not give them wage increases because of their
union activities.
On or about unknown dates in November 2001, the
Respondent, by Spitzer, outside of the Brooklyn facility,
created the impression that employees’ union activity
was under surveillance.
On or about December 5, 2001, the Respondent, by
Manager Hesskie, a statutory supervisor, at the Brooklyn
facility, threatened not to give employees wage increases
unless they abandoned their support for and activities on
behalf of the Union.
On or about December 5, 2001, the Respondent, by
Hesskie, at the Brooklyn facility, promised to grant em-
ployees wage increases if they ceased from engaging in
activities on behalf of the Union.
By the conduct described above, the Respondent has
been interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act in violation of Section 8(a)(1) of the
Act.
2. The Respondent engaged in the following conduct
set forth below because of its employees’ support for,
and activities on behalf of, a labor organization, and be-
cause they engaged in protected concerted activity, and
to discourage employees from engaging in such activities
or other concerted activities for the purpose of collective
bargaining or other mutual aid or protection. By this
conduct, the Respondent has been discriminating in re-
gard to the hire or tenure or terms of conditions of em-
ployment of its employees, thereby discouraging mem-
bership in a labor organization in violation of Section
8(a)(1) and (3) of the Act.
In or about May 2001, the Respondent reduced the
hours of employee Jose Luis Arellano; in or about the
beginning of June 2001, the Respondent imposed more
onerous working conditions on Arellano; on or about
June 7, 2001, the Respondent discharged Arellano; and
since on or about June 7, 2001, the Respondent has failed
and refused to reinstate, or offer to reinstate, Arellano to
his former position of employment.
On or about July 2, 2001, the Respondent discharged
employee Palacios and, since that date, has failed and
refused to reinstate, or offer to reinstate, Palacios to his
former position of employment.
On or about July 3, 2001, the Respondent’s employees
ceased work concertedly and engaged in a strike to pro-
test the Respondent’s disharges of Arellano and Palacios.
The strike, from its inception, was an unfair labor prac-
tice strike. On or about July 19, 2001, the Respondent
threatened its striking employees that they would be
permanently replaced if they did not make unconditional
offers to return to work by July 26, 2001. On or about
July 26, 2001, all of the Respondent’s striking employees
made an unconditional offer to return to their former
positions of employment. From July 26, 2001, until the
dates appearing next to their names, the Respondent re-
fused to reinstate the following striking employees:

Juan Contreras August 20, 2001
Hugo Cruz August 15, 2001
Jose Munos August 7, 2001
Jaime Cortezano August 6, 2001
Alberto Garcia August 2, 2001
Hugo Vaquero August 7, 2001
Rosalio Ruiz August 20, 2001
Alejandro Lopez August 5, 2001
Sandro Salas August 7, 2001
Abraham Henry August 5, 2001
Ismael Cortezano August 19, 2001

Since on or about July 26, 2001, the Respondent has
refused to reinstate or offer to reinstate to their former
positions of employment, unfair labor practice strikers
Rangel Lucero, Esteban Sanchez, Gonzalo Cruz, Hugo
Cruz, and Juan Jorge.
Since on or about August 26, 2001, the Respondent
has reduced the wages of its employees, including the
following:

Juan Contreras Ricardo Martinez
Ismael Cortezano Benjamin Perez
Jaime Cortezano Jose Manuel Romero Gomez
Jesus Diaz Roberto Romero
Miguel Estaban Pablo “Rosalio” Ruiz
Alberto Garcia Sandro Salas
Abraham Jorge Hugo Vaquero
Alejandro Lopez

The unfair labor practices of the Respondent, de-
scribed above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
TUV TAAM CORP. 759
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8(a)(1) of the
Act. In addition, the Respondent has been discriminating
in regard to the hire and tenure, or terms and conditions
of employment of its employees, thereby discouraging
membership in a labor organization in violation of Sec-
tion 8(a)(3) of the Act. The Respondent has thereby en-
gaged in unfair labor 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 actions designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated the Act by dis-
charging employees Jose Luis Arellano and Oscar
Palacios, and by failing or refusing to reinstate Arellano
and Palacios, we shall order the Respondent to offer the
employees full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed. Having
found that the Respondent has failed and refused to rein-
state or offer reinstatement to certain employees named
above who were unfair labor practice strikers, we shall
order the Respondent to reinstate or offer to reinstate
them. 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-
dent’s unlawful conduct, with interest. Similarly, having
found that the Respondent has violated the Act by reduc-
ing Arellano’s work hours, we shall order the Respon-
dent to make him whole for wages lost because of this
reduction. Having found that the Respondent unlawfully
reduced the wages of certain of the above-named em-
ployees, we shall order the Respondent to make them
whole for lost wages attributable to this unlawful wage
reduction.
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 terminations, and to notify the employees
in writing that this has been done.
The Respondent, in its response to the Notice to Show
Cause, seeks a Board Order denying summary judgment
based on “newly discovered evidence,” that is, the U.S.
Supreme Court’s decision in Hoffman Plastic Com-
pounds, Inc. v. NLRB, supra, which issued on March 27,
2002, the day after the Regional Director approved the
settlement agreement at issue here. We deny the Re-
spondent’s request as lacking in merit.
In Hoffman, the Court ruled that immigration law and
policy foreclose the Board from requiring the payment of
backpay for “work not performed” to employees who are
undocumented aliens, notwithstanding that the employ-
ees were discharged in violation of the NLRA.4 The
Court explained, “awarding backpay to illegal aliens runs
counter to policies underlying [the Immigration Reform
and Control Act of 1986].” Hoffman, 535 U.S. at 140.
According to the Respondent, under its interpretation of
Hoffman, the Board should issue an order “maintaining
the settlement agreement in effect,” pending the conduct
of what it calls a “Hoffman hearing” to determine the
immigration status of the discriminatees, before the
Board can decide, at the merits phase of this unfair labor
practice proceeding, that a backpay award is an appropri-
ate remedy.5
We find no merit in the Respondent’s contentions,
which are based on a misunderstanding of both the status
of the settlement agreement at this point in these pro-
ceedings, and the effect of the Hoffman decision at the
merits, or liability, phase of this case. Thus, we issue a
remedial order containing, among other provisions, a
conditional backpay award. As we explain below, our
decision and order are consistent with Hoffman.
As we have found, the Respondent defaulted on the
March 2002 settlement agreement. In accordance with

4 The Court did not preclude awarding compensation for undocu-
mented workers for work previously performed under unlawfully im-
posed terms and conditions. We thus agree with the General Counsel’s
interpretation of Hoffman in this respect. See General Counsel Memo-
randum 02–06, 2002 WESTLAW 1730518, *3 (July 19, 2002). Other
Federal agencies and courts have interpreted Hoffman the same way in
cases arising under other Federal statutes. See, e.g., U.S. Department
of Labor, Employment Standards Division, Wage & Hour Division,
“Application of U.S. Labor Laws to Immigrant Workers: Effect of
Hoffman Plastics decision on laws enforced by the Wage and Hour
Division” (Fact Sheet No. 48) (August 14, 2002); Zeng Liu v. Donna
Karan International, 207 F.Supp. 2d 191 (S.D.N.Y. 2002) (Fair Labor
Standards Act); Flores v. Amigon, 233 F.Supp. 2d 462 (E.D.N.Y. 2002)
(same); Flores v. Albertsons, Inc., 2002 WL 1163623 (C.C. Cal. 2002)
(same).
5 The Respondent has not addressed, in its response, the appropriate-
ness of another traditional remedy for an unlawful discharge or failure
to reinstate, that is, a reinstatement order. For substantially the reasons
discussed below, this matter is one to be resolved at the compliance
phase. A.P.R.A. Fuel Oil Buyers Group, Inc., 320 NLRB 408, 415–417
(1995), affd. 134 F.3d 50 (2d Cir. 1997) (where employee who has
been unlawfully discharged has not previously provided valid immigra-
tion documents establishing eligibility to work in the U.S., Board will
issue order requiring reinstatement and backpay, conditioned on the
discriminatee’s production of proof of employment eligibility).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760
the default provisions of that agreement, the Regional
Director revoked the agreement and reissued the com-
plaints. Thus, the settlement agreement is null and void
and, accordingly, cannot be “maintained in effect.” As
further provided by the default provisions of the settle-
ment agreement, we have found that all allegations in the
reissued complaint are true. All that is left for the Board
to do now is to issue conclusions of law and order an
appropriate remedy for the unfair labor practices we have
found. We will order the Board’s standard remedies for
the violations we have found, including the customary
backpay remedy.6
Contrary to the Respondent’s contention, the Board is
not foreclosed by Hoffman from awarding a backpay
remedy on the basis of the Respondent’s bare assertion
that the discriminatees might be undocumented workers.
As an initial matter, we note that the Respondent has
not adduced any legally cognizable evidence regarding
the immigration status of the discriminatees.7 It would

6 As noted above, the breached settlement agreement did not contain
a liquidated damages provision. It provided that in the event of default,
the General Counsel would move for summary judgment on the origi-
nal complaint and that Respondent waived its right to file an answer or
raise any defenses to the complaint allegations. Thus, the default proc-
ess specified in the breached agreement contemplates issuance of an
uncontested decision and the usual further process, as is necessary and
appropriate, including compliance proceedings. Compare, Henry’s
Refrigeration, Heating & Air, 339 NLRB 698 (2003) (Board’s tradi-
tional remedies not awarded because noncompliance clause of breached
settlement agreement provided that the specified liquidated damages
were “a full remedy as specified in the Complaint”); Bartlett Heating &
Air Conditioning, 339 NLRB 1044 (2003) (liquidated damages speci-
fied in breached agreement); and L. J. Logistics, Inc., 339 NLRB 729
(2003) (backpay not limited to backpay amount specified in breached
settlement agreement because the agreement provided that in the event
of noncompliance, the Board could issue an Order “providing a full
remedy for the violations so found as is customary to remedy such
violations, not limited to provisions of this Settlement Agreement”).
Member Liebman and Member Walsh emphasize that the General
Counsel expressly takes the position that he does not seek to enforce
the monetary terms of the breached settlement agreement and, indeed,
that the settlement agreement has now been revoked. It follows, in
these circumstances, that the General Counsel ordinarily will issue a
compliance specification setting out the amounts of backpay allegedly
owed to the discriminatees. The Respondent will then have the oppor-
tunity to file an answer and to raise defenses to the specification. Be-
cause these remedial issues will be addressed at compliance, it is ap-
propriate to permit the Respondent to raise a “Hoffman defense” at the
compliance stage. Member Liebman and Member Walsh note that this
is not a case in which liquidated damages are sought as a full remedy in
the event of noncompliance. Compare, Henry’s Refrigeration, Heating
& Air, supra (liquidated damages), to cases where the Board’s standard
and customary remedies are to be considered at a compliance proceed-
ing. See L. J. Logistics, supra. Cf. Bartlett Heating & Air Condition-
ing, supra (Member Liebman dissenting in part).
7 For its allegation of immigration “fraud,” the Respondent relies on
a letter from the U.S. Social Security Administration (SSA), received
several months after the date of the settlement agreement, and while
these proceedings were pending, identifying discrepancies between
be unusual if the Respondent had done so at the liability
phase of this unfair labor practice proceeding. Typically,
an individual’s immigration status is irrelevant to a re-
spondent’s unfair labor practice liability under the Act.
Questions concerning the employee’s status and its effect
on the remedy are left for determination at the compli-
ance stage of a case. See, e.g., A.P.R.A. Fuel Oil Buyers
Group, Inc., supra; Intersweet, Inc., 321 NLRB 1 fn. 1
(1996), enfd. 125 F.3d 1064 (7th Cir. 1997). Hoffman
does not require a change in this procedure. Here, the
immigration status of the discriminatees (much less the
Respondent’s mere suspicion about that status) does not
bear on whether the Respondent engaged in the unlawful
conduct alleged in the reissued complaints. Nor does it
bear on the remedy to be ordered at this stage of the pro-
ceedings for the unlawful conduct found.
Accordingly, we shall leave to the compliance phase of
these proceedings the determination whether any of the
discriminatees are legally “unavailable” for work and
whether, thus, the accrual of backpay must be tolled dur-
ing any period when the discriminatees were not “lawfully
entitled to be present and employed in the United States.”
Hoffman, supra at 1281, citing Sure-Tan, Inc. v. NLRB,
467 U.S. 883 (1984).8 We recognize that the effect of
Hoffman, in the compliance case, could be to disqualify
some discriminatees, on the basis of their immigration
status, from receiving backpay that they would otherwise
be entitled to receive on account of the Respondent’s un-
fair labor practices. Sure-Tan, supra at 904.
Under well-settled legal principles, in the compliance
proceeding, the General Counsel will bear the burden of
proving the amount of gross backpay due. Once the Gen-
eral Counsel has met his burden, the burden will shift to
the Respondent to establish facts in support of its conten-
tion that any discriminatee is not lawfully entitled to be

SSA records and the Respondent’s reports and submissions on behalf of
13 named employees, all of whom are discriminatees in the instant
case. The SSA letter explains that “this letter makes no statement about
your employee’s immigration status” and, further, cautions that the
letter “does not imply that you or your employee intentionally provided
incorrect information . . . [and] is not a basis . . . for you to take any
adverse action against the employee, such as laying off, suspending,
firing, or discriminating against any individual who appears on the list.”
The letter further warns that such misuse of the letter may violate State
or Federal law.
8 Our decision here is consistent with the Board’s well-established
policy of deferring to compliance questions regarding the specifics of
the relief granted, including mitigating circumstances. See, e.g., TNS,
Inc., 309 NLRB 1348 (1992) (ineligible for reinstatement and backpay
because of strike misconduct); Douglas Electrical Contracting, 337
NLRB No. 47 (2001) (not reported in Board volumes); and Bauer
Communications, 337 NLRB 395 (2002) (interim earnings deducted
from backpay); Wolfe Electric Co., 336 NLRB 684 (2001), enfd. 314
F.3d 325 (8th Cir. 2002) (order and job placement of reinstated em-
ployees). See generally F. W. Woolworth, supra.
TUV TAAM CORP. 761
employed in the United States and, thus, that backpay
should be tolled during any period of ineligibility. Mi-
nette Mills, Inc., 316 NLRB 1009, 1010 (1995), relying
on Florida Tile Co., 310 NLRB 609 (1993), and Arling-
ton Hotel, 287 NLRB 851 (1987), enfd. on point 876
F.2d 678 (8th Cir. 1989).
We do not hold here that a party may never adduce
evidence of an employee’s immigration status at the mer-
its phase of an unfair labor practice hearing. Certainly,
there could be cases in which an employee’s status could
be relevant to the merits of the specific unfair labor prac-
tice alleged, for example, where an unlawful failure to
hire an applicant is alleged, and is defended on the basis
of the applicant’s immigration status. In such cases, it
would be appropriate, in accordance with the Court’s
decision in Hoffman, for the Board to determine both the
liability of the employer for the unfair labor practice and
the ineligibility of an undocumented worker to receive
backpay that he would otherwise be due.
However, this is not such a case. We simply find that
here, where immigration status has no bearing on
whether the Respondent did, in fact, commit the unfair
labor practices of which it has been accused, questions
regarding employee status must be litigated at compli-
ance, and cannot insulate the Respondent from a decision
on the merits of the complaint allegations or the conse-
quences of its unlawful conduct.
ORDER
The National Labor Relations Board orders that the
Respondent, Tuv Taam Corp., Brooklyn, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Engaging in surveillance of employees because of,
or in order to discover, their union or protected concerted
activities.
(b) More closely supervising employees because of
their union or protected concerted activities.
(c) Creating the impression that employees’ union or
protected concerted activities are under surveillance.
(d) Interrogating employees about their union or pro-
tected concerted activities.
(e) Promising employees a bonus to report to the Re-
spondent regarding other employees’ union or protected
concerted activities.
(f) Videotaping employees engaged in picketing.
(g) Reducing the work hours and rates of pay of its
employees because of their union or protected concerted
activities.
(h) Imposing more onerous working conditions on em-
ployees because of their union or protected concerted
activities.
(i) Discharging employees because of their union or
protected concerted activities, and failing and refusing to
reinstate them.
(j) Failing and refusing to reinstate, or offer reinstate-
ment to, unfair labor practice strikers who have made an
unconditional offer to return to work.
(k) Promising employees wage increases if they cease
from engaging in activities on behalf of, and in support
of, the Union.
(l) Threatening to withhold wage increases from em-
ployees because of their union or protected concerted
activities.
(m) Threatening to withhold wage increases from em-
ployees unless they abandoned their support for the Un-
ion.
(n) 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
Jose Luis Arellano and Oscar Palacios full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(b) Make Jose Luis Arellano and Oscar Palacios whole
for any loss of earnings and other benefits suffered as a
result of the unlawful discharges and failure to reinstate
or offer to reinstate them.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Arellano and Palacios, and within 3 days thereafter no-
tify the employees in writing that this has been done and
that the discharges will not be used against them in any
way.
(d) To the extent it has not already done so, reinstate
the following unfair labor practice strikers: Juan
Contreras, Hugo Cruz, Jose Munos, Jaime Cortezano,
Alberto Garcia, Hugo Vaquero, Rosalio Ruiz, Alejandro
Lopez, Sandro Salas, Abraham Henry, and Ismael Cor-
tezano; and make them whole for any loss of earnings
and other benefits suffered as a result of the failure to
reinstate them, in the manner set forth in the remedy sec-
tion of the decision.
(e) Reinstate, or offer to reinstate, the following unfair
labor practice strikers: Rangel Lucero, Esteban Sanchez,
Gonzalo Cruz, Hugo Cruz, and Juan Jorge; and make
them whole for any loss of earnings and other benefits
suffered as a result of the failure to reinstate or offer to
reinstate them, in the manner set forth in the remedy sec-
tion of the decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
(f) Make whole the following employees for any loss
of earnings and other benefits suffered as a result of its
unlawful reduction of their work hours and/or rates of
pay, in the manner set forth in the remedy section of the
decision: Jose Luis Arellano, Juan Contreras, Ismael
Cortezano, Jaime Cortezano, Jesus Diaz, Miguel Esta-
ban, Alberto Garcia, Abraham Jorge, Alejandro Lopez,
Ricardo Martinez, Benjamin Perez, Jose Manuel Romero
Gomez, Roberto Romero, Pablo Rosalio Ruiz, Sandro
Salas, and Hugo Vaquero.
(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
electronic 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 facility at Brooklyn, New York, copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 on or about mid-
April 2001.
(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.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

9 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.”
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 engage in surveillance of employees
because of, or in order to discover, their union or pro-
tected concerted activities.
WE WILL NOT more closely supervise employees be-
cause of their union or protected concerted activities.
WE WILL NOT create the impression that employees’
union or protected concerted activities are under surveil-
lance.
WE WILL NOT interrogate employees about their un-
ion or protected concerted activities.
WE WILL NOT promise employees a bonus to report
to us regarding other employees’ union or protected con-
certed activities.
WE WILL NOT videotape employees engaged in pick-
eting.
WE WILL NOT promise employees wage increases if
they cease from engaging in activities on behalf of, and
in support of, the Union.
WE WILL NOT threaten to withhold wage increases
from employees because of their union or protected con-
certed activities.
WE WILL NOT threaten to withhold wage increases
from employees unless they abandon their support for the
Union.
WE WILL NOT reduce the work hours and rates of
pay of employees because of their union or protected
concerted activities.
WE WILL NOT impose more onerous working condi-
tions on employees because of their union or protected
concerted activities.
WE WILL NOT discharge employees because of their
union or protected concerted activities.
WE WILL NOT fail and refuse to reinstate, or offer re-
instatement to, unfair labor practice strikers who have
made an unconditional offer to return to work.
WE WILL NOT, in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
TUV TAAM CORP. 763
WE WILL, within 14 days from the date of the Board's
Order, offer Jose Luis Arellano and Oscar Palacio full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL make them
whole for any loss of earnings and other benefits result-
ing from their discharges, less any net interim earnings,
plus interest.
WE WILL reinstate to the extent we have not already
done so the following unfair labor practice strikers: Juan
Contreras, Hugo Cruz, Jose Munos, Jaime Cortezano,
Alberto Garcia, Hugo Vaquero, Rosalio Ruiz, Alejandro
Lopez, Sandro Salas, Abraham Henry, and Ismael Cor-
tezano; and WE WILL make them whole for any loss of
earnings and other benefits suffered as a result of our
failure to reinstate them, in the manner set forth in the
remedy section of the decision.
WE WILL reinstate, or offer to reinstate, the following
unfair labor practice strikers: Rangel Lucero, Esteban
Sanchez, Gonzalo Cruz, Hugo Cruz, and Juan Jorge; and
WE WILL make them whole for any loss of earnings and
other benefits suffered as a result of our failure to rein-
state them, or offer to reinstate them, in the manner set
forth in the remedy section of the decision.
WE WILL make whole the following employees for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful reduction of their work hours and/or
rates of pay, in the manner set forth in the remedy section
of the decision: Jose Luis Arellano, Juan Contreras, Is-
mael Cortezano, Jaime Cortezano, Jesus Diaz, Miguel
Estaban, Alberto Garcia, Abraham Jorge, Alejandro Lo-
pez, Ricardo Martinez, Benjamin Perez, Jose Manuel
Romero Gomez, Roberto Romero, Pablo Rosalio Ruiz,
Sandro Salas, and Hugo Vaquero.
WE WILL, within 14 days from the date of the Board's
Order, remove from our files any reference to the unlaw-
ful discharges of Arellano and Palacios, and WE WILL
,within 3 days thereafter, notify each of them, in writing
that this has been done and that the discharges will not be
used against them in any way.
TUV TAAM CORP.