Electronically Filed

1/18/2018 7:03 PM
Steven D. Grierson
CLERK OF THE COURT
1 COM

2 Robert Kern, Esq.

Nevada Bar Number 10104
3 KERN LAW, Ltd.
2421 Tech Center Ct., Ste 104
4 Las Vegas, NV 89128
(702) 518-4529 phone
5
(702) 825-5872 fax
6 eservice@KernLawOffices.com
Attorney for Plaintiff
7
IN THE EIGHTH JUDICIAL DISTRICT COURT
8
CLARK COUNTY, NEVADA
9
)
10 CMM-CM, LLC, d/b/a MULLER ) A-18-768009-C
2421 Tech Center Ct., Suite 104, Las Vegas, NV 89128

CONSTRUCTION, a Nevada LLC, )

11 ) Department 14
Plaintiff, )
Phone: (702) 518-4529 Fax: (702) 825-5872

12 vs. )
) COMPLAINT
13 LOUIS DESALVIO, an individual,
eservice@KernLawOffices.com

)
LABORERS' INTERNATIONAL UNION )
KERN LAW, LTD.

14 NORTH AMERICA, LOCAL 872, a labor )

union, NEVADA FOUNDATION FOR ) Exempt from Arbitration:
15 FAIR CONTRACTING, a Nevada ) Amount in Controversy Exceeds $50,000,
corporation, and DOES I-X, inclusive, ) Declaratory Relief Sought
16 )
Defendants. )
17 )
18 Plaintiff CMM-CM, LLC, d/b/a MULLER CONSTRUCTION ( hereinafter,

19 “Muller”) brings suit against Defendants LOUIS DESALVIO (“Desalvio”),

20 LABORERS' INTERNATIONAL UNION NORTH AMERICA, LOCAL 872, (“Local

21
872”), NEVADA FOUNDATION FOR FAIR CONTRACTING (“NVFFC”), and DOES I-
22
X (collectively, “Defendants”) based on the following allegations:
23

24

25 I. The Parties

26 1. Plaintiff CMM-CM, LLC, d/b/a MULLER CONSTRUCTION is a certified

27 minority-owned, emerging business founded and licensed in Las Vegas, Nevada. Muller

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1
Case Number: A-18-768009-C
 1 was the successful bidder and was awarded the contract to install safety upgrades to certain

2
portions of the Las Vegas Strip (the “Project”) for Clark County.
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2. Defendant LOUIS DESALVIO, is an individual employed by both Local 872 and
4
NVFFC, and upon information and belief, works and is a resident of Clark County, Nevada.
5

6 3. Defendant LABORERS' INTERNATIONAL UNION NORTH AMERICA,

7 LOCAL 872, is a labor union operating in Clark County, Nevada, and the effective owner of

8 NVFFC. Local 872 is, upon information and belief, the organization that sent its members

9
to picket Muller's worksites and offices.
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4. Defendant NEVADA FOUNDATION FOR FAIR CONTRACTING, is a company
11
doing business in Clark County, Nevada, and the company that Desalvio alleged sent him to
12

13 the Muller worksite on the Project.

14 5. Defendants Does I-X, inclusive are named as defendants, their true names and
15 capacities being unknown to Plaintiff at this time, but who have carried signs and banners

16
with defamatory messages about Muller in front of Muller's strip worksites and office, or
17
are liable as co-partners, agents, assignees or in some other relationship with the other
18
named defendants inasmuch as each has contributed and/or participated in the conduct of
19

20 the named defendants in dealing with Plaintiff. At such time as the true names and

21 capacities of defendants Does I-X inclusive have been ascertained, Plaintiff will ask leave of

22 this Court to truly set forth the same.

23

24
JURISDICTION, VENUE AND AUTHORITY
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6. This Court has jurisdiction over this dispute because the parties are located in Clark
26
County, Nevada, and all events relevant to the litigation occurred in Clark County, Nevada.
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 1 FACTS COMMON TO ALL CAUSES OF ACTION
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7. On or about November 13, 2017, Muller began full work on a contract to install
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bollards (steel posts to prevent vehicles from being able to drive onto the sidewalk), along
4
Las Vegas Boulevard as a safety measure (the “Project”). Muller is a non-union company.
5

6 8. On December 14, Desalvio approached the worksite of the Project, and gained

7 access by falsely claiming to be an official from the County. He came wearing a safety vest

8 with what looked like a police badge on the front, and the words “Compliance Officer” on

9
the back. Pretending to represent Clark County, Desalvio interviewed multiple employees of
10
Muller about the jobs they were doing, and they pay they were receiving. Believing him to
11
be who he claimed, the employees answered his questions.
12
9. The employees primarily spoken to were Freddy Medina, a Cement Mason, and
13

14 Justin Valdez, a Laborer. Medina told Desalvio that there were no problems with his pay,

15 and Valdez indicated he was not yet due to receive his pay for this project, so did not yet

16 know if there would be any issues with his pay. Neither made any complaint about their

17
pay.
18
10. At the worksite for the Project, Desalvio observed that some workers that were
19
classified and paid as cement masons did some work on rebar.
20

21 11. Desalvio did not present his business card, which accurately identified him as not a

22 county officer, until after the interviews were concluded. Despite Desalvio's request, no

23 worker made any written statement.

24 12. Nevada law requires that workers on public projects be paid the prevailing wage for
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the work they perform. Under Nevada Administrative Code 338.010(1)(b)(1), a worker who
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performs tasks of more than one type of work is to be paid the prevailing wage for the work
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 1 he spends the greatest amount of time on, if that work accounts for more than 40% of the

2
work he does.
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13. The workers in question performed different types of work, and per the NAC, were
4
paid the appropriate wage for the work performed.
5

6 14. Without making any inquiry to Muller about how wages were calculated, Desalvio

7 contacted multiple media outlets and falsely stated that the employees he spoke to had

8 complained that they were not being paid properly, that Muller was “gaming the system”,

9
that Muller was intimidating its workers from speaking to anyone about their pay, and
10
equated it to domestic violence (“...no different from a woman who's being battered...”),
11
stated that the workers hadn't been paid properly, and falsely reported that Valdez stated that
12
Muller “had been screwing him for weeks.”
13

14 15. These false and defamatory statements were broadcast far and wide, with a quick

15 google search showing the story being reported by: US News & World Report, Miami

16 Herald, Fox5 Las Vegas, Las Vegas Review Journal, CBS Las Vegas, NBC Las Vegas,

17
CBS Reno, KSLA 12-Louisiana, Channel 14-Evansville, IN, Times Union-Albany, NY,
18
Connecticut Post, Midland Reporter-Telegram Midland, TX, Laredo Morning Times,
19
Laredo, TX, San Francisco Chronicle, and National Public Radio. Muller received calls
20

21 from companies overseas who had heard about the story.

22 16. Just prior to Desalvio's visit to the worksite, representatives of Local 872 appeared at

23 every Muller worksite on the Strip, and in front of Muller's offices, and picketed the

24 locations with banners stating “IMMIGRANT LABOR ABUSE – LABOR DISPUTE –

25
MULLER CONSTRUCTION.” The banners were approximately 30 feet long, and four feet
26
high, and were places at every one of the strip worksites and the office. As of the writing of
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 1 this Complaint, the picketers and banners are still there. This began PRIOR to when

2
Defendants claimed they had discovered issues with the pay of Muller workers.
3
17. After reporting to the media, Desalvio filed a complaint with Clark County, and
4
went to the meeting of the Clark County Commission, and by testifying to the false
5

6 statements indicated above, convinced the Commission to halt continuing funding for the

7 Project until further notice.

8 18. Not long after the picketing began, Muller employees reported crowds at their
9
worksites yelling verbal abuse, accusing them of being “scabs” (workers who take the jobs
10
of union workers when the union goes on strike), and on at least one occasion, throwing
11
objects at the workers.
12
19. On or about January 11, 2018, an SUV parked at Muller's office, on Muller property,
13

14 with a governmental-looking seal and the words “Payroll Fraud Investigator” printed on the

15 sides of the SUV (See Exhibit 1). The men inside were wearing matching dark polo shirts

16 with the pseudo-governmental seal, matching hats with the seal, and sunglasses. They

17
parked the vehicle visibly in front of the Muller offices, and initially refused to identify
18
themselves, but eventually told a Muller employee that they were from “LIUNA” (an
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acronym referring to Local 872). They performed no investigations, but instead made sure
20

21 they were visible, and bothered a few people on their way into the Muller office.

22 20. The effect on Muller's reputation is easily seen by reading the public comments

23 where one of the stories reporting Desalvio's allegations was posted. A sampling from the

24 comments includes:

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“ Mueller from Peru, tries turn our town into a third world country
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as they undercut Vegas workers by abusing immigrants.”
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“ the bigger people on top trying to screw the little guys over”
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 1 “maybe someone that approved such a STUPID low bid happen to
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get a huge kick back or let’s call it A GIFT.....”
3
“Keep the non union rats off our strip. The Strip is and should stay
4
100% union. Stop feeding the rats amd they will go away.”
5

6 “are you trying to say they are employing illegals and paying them

7 slave wages?” “Looks that way and the government is allowing it

8 obviously no wonder many citizens with certificates and degrees

9
do not get hired anytime they can save a dime hire an illegal who
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can barely speak English who did not apply for legal citizenship.”
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“Most likely they pay them normal pay but charge prevailing wage
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and pocket the difference, probably 40.00 per hr. Per man in the
13

14 pocket , do the math on that one, just 4000 man hrs equals

15 160,000.00 extra profit”

16 “if they aren't paying their employees accordingly they are
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breaking the law & screwing their workers while lining their
18
pockets. Hopefully they'll get fined & blacklisted from doing those
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projects.”
20

21 21. As one of the comments above indicates, the organization of the publicizing of the

22 false statements, and the picketing of the sites, and the fact that Local 872 organized all of

23 this, all together suggest that this campaign of defamation was intentionally orchestrated to

24 punish a non-union contractor for receiving a contract to do a major project on the strip.

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22. Muller is a certified minority-owned business, and is Hispanic-owned. Local 872 has
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recently been found to have discriminated against a Hispanic member, in a suit brought by
27
the US Dept. of Labor (2:15-cv-01979).
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 1 23. Muller Construction is not a public figure.
2
24. All of Muller's employees have the legal right to work in the United States.
3
25. There has never been a labor dispute on any of the work sites, because no Muller
4
employees have raised any form of complaint or dispute against Muller.
5

7 FIRST CAUSE OF ACTION

8 (DEFAMATION)
9
26. Plaintiffs reallege and incorporate herein by reference each and every allegation
10
contained in all preceding paragraphs as if fully set forth herein.
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27. On or about December 14, 2017, Defendant Desalvio, a representative of NVFFC
12
and Local 872, published a writing to the Clark County Commission, in which he, in bad
13

14 faith, falsified the statements made by Muller employees on the Bollard worksite. This

15 included:

16 1. Falsely reporting that employee Justin Valdez made the statement:

17
“[Muller] had been screwing him for weeks on his check by paying
18
the lowest amount possible while performing all these other
19
positions.”
20

21 28. On or about January 3, 2018, Defendant Desalvio, a representative of NVFFC and

22 Local 872 appeared on local media, and knowingly made multiple false and damaging

23 statements that included:

24 1. That Muller Construction was “Gaming the system”, implying fraud

25
against the County and its workers.
26
2. Comparing Muller's actions to domestic violence, alleging that
27
Muller workers were afraid to come forward for fear of reprisal, then
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 1 stating “That's usually how the contractors get away with doing what
2
they're doing. It's no different than some woman that's being
3
battered.”
4
3. That Muller was violating NRS 338.020 by failing to pay his
5

6 workers the prevailing wage, which is a criminal violation, per NRS

7 338.090.

8 29. On or before December 14, 2017, Defendant Local 872 published an approximately
9
thirty (30) foot banner falsely accusing Muller of:
10
1. “Immigrant Labor Abuse”, and a
11
2. “Labor Dispute”
12
30. No Muller employees were in a dispute with Muller, and no Muller employees were
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14 immigrant laborers, making both statements false. Defendants were fully aware that this was

15 false.

16 31. Local 872's act of sending its members posing as government regulators, in a vehicle
17
designed to look like a law enforcement vehicle was designed to falsely convey to any who
18
saw it that Muller was being investigated for wrongdoing by a fictitious governmental
19
agency. This was just another element of the overall campaign of defamation against Muller
20

21 by Defendants.

22 32. The effect of these statements has been to create the perception and belief among the

23 public that Muller is an unscrupulous company that violates the law, abuses its workers, and

24 hires “scabs” to replace its (allegedly) striking workers. As Muller is a construction

25
contractor whose business is largely dependent upon receiving public works and
26
government contracts, such perceptions among the public are vastly damaging, as they
27
could convince County officials to cease contracting with Muller entirely. In fact, the halt of
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 1 work on the bollard project has already occurred, solely because of the false statements

2
made by Defendants.
3
33. If the County were to decide that Muller had violated the law based on these false
4
allegations and instill an administrative penalty, it would prohibit Muller from bidding on
5

6 any public contract for three (3) years. In the last year alone, that would have cost Muller

7 over five million dollars ($5,000,000.00) in public contracts (including the expansion

8 currently on hold).

9
34. The extent of the damage to Muller's reputation is apparent from the widespread
10
nature of the defamatory statements, as they were reported in TV news and newspapers
11
nationwide. The effects are illustrated by the crowds of people yelling at Muller workers
12
and throwing things on their jobsites, as well as by seeing the public reactions from the
13

14 comments to the news stories arising from Defendants' false reports.

15 35. All statements were made with actual knowledge of their falsity, or with regard to
16 whether the workers were paid correctly, with disregard to the truth or falsity of the

17
statement.
18
36. The only statements that could make a claim of privilege would be those made to the
19
County Commissioners, and those lose their protection when a statement is made in bad
20

21 faith with actual knowledge of falsity.

22 37. Every day that the picketers remain with the false signs in front of Muller jobsites,

23 the damage increases.

24 38. The statements made were all statements affecting Muller's trade or business and are
25
thus defamation per se, with presumed damages.
26
39. As a result of Defendants' actions, Plaintiff has incurred damages in excess of ten
27
thousand dollars ($10,000.00).
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 1 40. It has been necessary for Plaintiff to obtain the legal services of Kern Law and
2
Plaintiff is therefore entitled to reimbursement of attorney’s fees and costs incurred in this
3
action.
4
41. Defendants' actions were done with knowledge, and malice aforethought, and as
5

6 such, punitive damages should be awarded.

7 WHEREFORE, Plaintiff prays for judgment as follows:

8 1. For compensatory damages in an amount in excess of $10,000.00;

9
2. For an order instructing Defendants to retract their false public statements
10
against Muller;
11
3. For punitive and exemplary damages in an amount deemed appropriate to
12
punish the Defendants for their wrongful and egregious conduct;
13

14 4. For an award of Plaintiff’s reasonable attorney’s fees and costs of suit

15 incurred herein; and

16 5. For such other relief as this Court deems just and proper.
17

18 DATED this 18th day of January, 2018

19
KERN LAW
20
By: __/s/ Robert Kern__________________
21 Robert Kern, Esq.
2421 Tech Center Ct., Ste. 104
22 Las Vegas, NV 89128
(702) 518-4529
23 Attorney for Plaintiff

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