Open Door Retail Group, Inc.

358 NLRB No. 9 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. Open Door Retail Group, Inc. and Vanda Jordan. Case 16–CA–28083 February 23, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN The Acting 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 filed by Vanda Jordan on June 29, 2011, the Acting General Counsel issued a complaint on December 15, 2011, against Open Door Retail Group, Inc. (the Respondent), alleging that it has violated Section 8(a)(1) of the Na- tional Labor Relations Act. The Respondent failed to file an answer. On January 6, 2012, the Acting General Counsel filed a Motion for Default Judgment with the Board. Thereaf- ter, on January 9, 2012, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On Febru- ary 2, 2012, the Board issued a Revised Notice to Show Cause, noting that the original notice was not served on the Respondent at all of its known addresses. The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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 December 29, 2011, the Board may find, pursuant to a motion for de- fault judgment, that the allegations in the complaint are true. Further, the undisputed allegations in the Acting General Counsel’s motion disclose that the Region, by letter dated December 30, 2011, advised the Respondent that unless an answer was received by January 6, 2012, the Region would seek default judgment in this case based on the Respondent’s failure to respond to the com- plaint allegations. Nevertheless, the Respondent failed to file an answer. In the absence of good cause being shown for the fail- ure to file an answer to the complaint, we deem the alle- gations in the complaint and notice of hearing to be ad- mitted as true, and we grant the Acting General Coun- sel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Texas corpora- tion, with places of business located in Kemah, Texas, has been engaged in the business of operating various retail stores including an art gallery, candy store, and souvenir shop along the Kemah Boardwalk. During the 12-month period preceding issuance of the complaint, a representative period, the Respondent, in the course and conduct of its business operations described above, derived gross revenues in excess of $500,000. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act, and/or agents of the Respondent within the meaning of Section 2(13) of the Act: Ron Larson Owner Mike Baron Operations Manager On about June 20 and 21, 2011, the Respondent’s em- ployee, Vanda Jordan, engaged in concerted activities with other employees for the purposes of mutual aid and protection by discussing with her coworkers an oral rep- rimand she received from owner Ron Larson as a result of a secret shopper report conducted at the Respondent’s Violets Are Blue retail store. On about June 22, 2011, the Respondent discharged Vanda Jordan. The Respondent discharged Jordan because Jordan en- gaged in concerted activities for the purposes of mutual aid and protection, and to discourage employees from engaging in these or other concerted activities. CONCLUSION OF LAW By the conduct described above, the Respondent has been interfering with, restraining, and coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 has violated Section 8(a)(1) of the Act by discharging Vanda Jordan because she en- gaged in protected concerted activities, we shall order the Respondent to offer Jordan full reinstatement to her for- mer job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and to make Jordan whole for any loss of earnings and other benefits suffered as a result of the Respondent’s unlawful actions against her. Backpay shall be computed in ac- cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).1 The Respondent shall also be required to remove from its files any reference to the unlawful discharge of Vanda Jordan and to notify her in writing that this has been done and that the unlawful discharge will not be used against her in any way. ORDER The National Labor Relations Board orders that the Respondent, Open Door Retail Group, Inc., Kemah, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they engaged in concerted activities for the purposes of mutual aid and protection, and to dis- courage employees from engaging in concerted activities. (b) 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. 1 In the complaint, the Acting General Counsel seeks an order re- quiring reimbursement of amounts equal to the difference in taxes owed upon receipt of a lump-sum payment and taxes that would have been owed had there been no discrimination. Further, the Acting General Counsel requests that the Respondent be required to submit the appro- priate documentation to the Social Security Administration so that when backpay is paid it will be allocated to the appropriate periods. Because the relief sought would involve a change in Board law, we believe that the appropriateness of this proposed remedy should be resolved after a full briefing by the affected parties, and there has been no such briefing in this case. Accordingly, we decline to order this relief at this time. See, e.g., Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), and cases cited therein. 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 Vanda Jordan full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make Vanda Jordan whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against her, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Vanda Jordan and, within 3 days thereafter, notify her in writing that this has been done and that the unlawful dis- charge will not be used against her in any way. (d) 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. (e) Within 14 days after service by the Region, post at its Kemah, Texas facility copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent’s authorized representa- tive, 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.3 Rea- sonable 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 proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees 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." 3 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec- tronic distribution of the notice. OPEN DOOR RETAIL GROUP 3 and former employees employed by the Respondent at any time since June 22, 2011. (f) Within 21 days after service by the Region, file with the Regional Director for Region 16 a sworn certifi- cation 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 23, 2012 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Brian E. Hayes, Member ______________________________________ Richard F. Griffin, Jr., 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 the National Labor Relations Act and has ordered us to post and abide by 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 or otherwise discriminate against any of you for engaging in concerted activities for the purpose of mutual aid and protection or to dis- courage employees from engaging in these and other 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 Vanda Jordan full reinstatement to her for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Vanda Jordan whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Vanda Jordan, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the unlawful discharge will not be used against her in any way. OPEN DOOR RETAIL GROUP, INC.