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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SUNSET CULTURAL CENTER
and
ANDREW HURCHALLA
An Individual
Case 32–CA–242555
DECISION
(Pending Board Decision)
March 2, 2021
1. Respondent Sunset Cultural Center (Respondent) is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Association of Machinists and Aerospace Workers, Local Lodge 2949, AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act with 9(a) status under the Act.
3. Respondent has violated Section 8(a)(3) and (1) of the Act by prohibiting its subcontractors from employing Hurchalla to perform work at its theater facility and causing them to remove him from working on events at that facility, in each case for engaging in union and other protected conduct.
4. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.
Having found that Respondent has engaged in certain unfair labor practices in violation of Sections 8(a)(5), (3), and (1) of the Act, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Therefore, I shall recommend that Respondent, having discriminatorily caused employee Anthony Hurchalla to be prohibited from performing work at its theater facility and causing him to be removed from that facility, should be required to restore the status quo ante by rescinding these actions and removing all references to them from Respondent’s files. Further, I shall recommend that Respondent should make Hurchalla whole for any loss of earnings and other benefits. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Respondent should be ordered to compensate the above-named employees for the adverse tax consequences, if any, of receiving lump sum backpay awards and to file a report with the Social Security Administration allocating backpay awards to the appropriate calendar quarters for each employee. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). In addition to the backpay-allocation report, Respondent must file with the Regional Director a copy of Hurchalla’s corresponding W-2 form(s) reflecting the backpay award.
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SUNSET CULTURAL CENTER
and
ANDREW HURCHALLA
An Individual
Case 32–CA–242555
DECISION
(Pending Board Decision)
March 2, 2021
CONCLUSIONS OF LAW
1. Respondent Sunset Cultural Center (Respondent) is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Association of Machinists and Aerospace Workers, Local Lodge 2949, AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act with 9(a) status under the Act.
3. Respondent has violated Section 8(a)(3) and (1) of the Act by prohibiting its subcontractors from employing Hurchalla to perform work at its theater facility and causing them to remove him from working on events at that facility, in each case for engaging in union and other protected conduct.
4. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair labor practices in violation of Sections 8(a)(5), (3), and (1) of the Act, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Therefore, I shall recommend that Respondent, having discriminatorily caused employee Anthony Hurchalla to be prohibited from performing work at its theater facility and causing him to be removed from that facility, should be required to restore the status quo ante by rescinding these actions and removing all references to them from Respondent’s files. Further, I shall recommend that Respondent should make Hurchalla whole for any loss of earnings and other benefits. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Respondent should be ordered to compensate the above-named employees for the adverse tax consequences, if any, of receiving lump sum backpay awards and to file a report with the Social Security Administration allocating backpay awards to the appropriate calendar quarters for each employee. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). In addition to the backpay-allocation report, Respondent must file with the Regional Director a copy of Hurchalla’s corresponding W-2 form(s) reflecting the backpay award.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended.
Respondent Sunset Cultural Center, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting its subcontractors from employing Anthony Hurchalla to perform work at Respondent’s theater facility.
(b) Causing its subcontractors to remove Anthony Hurchalla from working on events at Respondent’s theater facility.
(c) 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.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the ban on allowing Anthony Hurchalla to perform work at Respondent’s theater facility and make him whole for any loss of earnings and other benefits suffered as a 5 result of his ban from working at the facility in the manner set forth in the remedy section of this decision.
(b) Compensate Anthony Hurchalla for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 32, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating his backpay award to the appropriate calendar year(s).
(c) Within 14 days’ of the date of the Board’s Order, remove from its files all references to Anthony Hurchalla’s discriminatory ban from working at Respondent’s theater facility, and notify him in writing that this has been done and that the ban will not be used against him in any way.
(d) Preserve and, within 14 days of a request following the Board’s Order, 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.
(e) Within 14 days after service by the Region, post at Respondent’s theater facility copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by Respondent’s authorized representative, shall be posted by 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, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by 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, Respondent has gone out of business or closed its theater operation, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed at Respondent’s theater operation at any time since December 3, 2018.
(f) Within 21 days after service by the Region, file with the Regional Director for Region 32 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply.
It is further ordered that the complaint allegations are dismissed insofar as they allege violations of the Act not specifically found.
Dated: Washington, D.C. March 2, 2021
Mara-Louise Anzalone
Administrative Law Judge
REFERENCE:
SUNSET CULTURAL CENTER
ORDER
Respondent Sunset Cultural Center, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting its subcontractors from employing Anthony Hurchalla to perform work at Respondent’s theater facility.
(b) Causing its subcontractors to remove Anthony Hurchalla from working on events at Respondent’s theater facility.
(c) 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.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the ban on allowing Anthony Hurchalla to perform work at Respondent’s theater facility and make him whole for any loss of earnings and other benefits suffered as a 5 result of his ban from working at the facility in the manner set forth in the remedy section of this decision.
(b) Compensate Anthony Hurchalla for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 32, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating his backpay award to the appropriate calendar year(s).
(c) Within 14 days’ of the date of the Board’s Order, remove from its files all references to Anthony Hurchalla’s discriminatory ban from working at Respondent’s theater facility, and notify him in writing that this has been done and that the ban will not be used against him in any way.
(d) Preserve and, within 14 days of a request following the Board’s Order, 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.
(e) Within 14 days after service by the Region, post at Respondent’s theater facility copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by Respondent’s authorized representative, shall be posted by 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, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by 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, Respondent has gone out of business or closed its theater operation, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed at Respondent’s theater operation at any time since December 3, 2018.
(f) Within 21 days after service by the Region, file with the Regional Director for Region 32 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply.
It is further ordered that the complaint allegations are dismissed insofar as they allege violations of the Act not specifically found.
Dated: Washington, D.C. March 2, 2021
Mara-Louise Anzalone
Administrative Law Judge
REFERENCE:
SUNSET CULTURAL CENTER
Case Number:
32-CA-242555
Date Filed: 06/03/2019
Status: Open
Location: Carmel,
CA
Region Assigned: Region 32,
Oakland, California
Docket Activity
05/05/2021 ES Office EOT Response
04/30/2021 Exceptions to ALJD
04/30/2021 Brief in Support of Exceptions
03/18/2021 ES Office EOT Response
03/02/2021 Order Transferring Proceeding to the Board
03/02/2020 Administrative Law Judges Decision
03/20/2020 Post-Hearing Brief to ALJ
03/19/2020 Post-Hearing Brief to ALJ
01/30/2020 Administrative Law Judges Order
12/23/2019 Administrative Law Judges Order
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