Eschelon Financial Services, LLC d/b/a EMV Payment Systems

363 NLRB No. 3 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. Eschelon Financial Services, LLC d/b/a EMV Pay- ment Systems, LLC and La’Cette Blaylock. Case 28–CA–146504 August 31, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA The General Counsel seeks a default judgment in this case on the ground that Eschelon Financial Services, LLC d/b/a EMV Payment Systems, LLC (the Respond- ent) has failed to file an answer to the complaint. Upon a charge and amended charge filed on February 17 and April 27, 2015, respectively, by La’Cette Blaylock, the General Counsel issued a complaint on April 30, 2015, against the Respondent alleging that it has violated Sec- tion 8(a)(1) of the Act. The Respondent failed to file an answer. On June 3, 2015, the General Counsel filed with the Board a Motion for Default Judgment, with exhibits at- tached. Thereafter, on June 4, 2015, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be grant- ed. The Respondent filed no response. The allegations in the motion 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 May 14, 2015, the Board may find, pursuant to a motion for default judg- ment, that the allegations in the complaint are true. Fur- ther, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter and email dated May 22, 2015, notified the Respondent that unless an answer was received by May 29, 2015, a motion for de- fault judgment would be filed. Nevertheless, the Re- spondent failed to file an answer. In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations in the complaint to be admitted as true, and we grant the Gen- eral Counsel’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 has been a cor- poration, with an office and place of business in Phoenix, Arizona (the Respondent’s facility), and has been en- gaged in business as a merchant services provider. In conducting its operations during the 12-month peri- od ending February 17, 2015, the Respondent provided services valued in excess of $50,000 directly to enter- prises within the State of Arizona, including Visa, Inc., an enterprise directly engaged in interstate commerce. 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 agents of the Respondent within the meaning of Section 2(13) of the Act: DJ Manley - Supervisor Betsy Anzone - Human Resources Manager Amelia Espinoza - Supervisor David Barton - Human Resources Director About February 2015, the Respondent’s employee La’Cette Blaylock engaged in concerted activities with other employees for the purposes of mutual aid and pro- tection by raising with the Respondent and discussing among themselves the Respondent’s employee break policies and practices. Since about July 1, 2014, the Respondent has main- tained the following overly broad and discriminatory rules in its 2012 Employee Handbook (Handbook): (1) At page 22: Confidential information/Non-Disclosure All EMV Payment Systems records and information about EMV Payment Systems, its employees, custom- ers, suppliers and vendors are to be kept confidential and divulged only to individuals within the company with both a need to receive and authorization to receive the information. All records and files maintained by the company are confidential and remain the property of the company. No EMV Payment Systems records, files or EMV Payment Systems-related information may be removed from EMV Payment System’s prem- ises or disclosed to any outside party without the ex- press permission from EMV Payment Systems. Confi- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 dential information regarding EMV Payment Systems includes, but is not limited to, financial records, busi- ness, marketing, and strategic plans, Human Resources and payroll records regarding current and former em- ployees, the identity of, contact information for, and any other account information on customers, vendors and suppliers, inventions, programs, trade secrets, for- mulas, techniques and processes, and any other docu- ments or information regarding the company’s opera- tions, procedures or practices. Additionally, the con- tents of EMV Payment Systems records or information otherwise obtained in regard to business may not be disclosed to anyone, except where required for a busi- ness purpose. Employees must not disclose any confidential infor- mation to any unauthorized person inside or outside the company. Employees who are unsure about the confi- dential nature of specific information must ask their su- pervisor or human resources for clarification. The company reserves the right to avail itself of all legal or equitable remedies to prevent impermissible use of confidential information or to recover damages in- curred as a result of the impermissible use of confiden- tial information. In addition, employees will be subject to appropriate disciplinary action, up to and including termination of employment for revealing information of a confidential nature. Employees may be required to enter into written confidentiality agreements confirm- ing their understanding of the company’s confidentiali- ty policies. The protection of confidential business information and trade secrets is vital to the interests and the success of EMV Payment Systems. Such confidential infor- mation includes, but is not limited to, the following ex- amples: * * * * labor relations strategies * * * * current employee information * * * * previous employee information * * * * Employees who improperly use or disclose trade se- crets or confidential business information will be sub- ject to disciplinary action, up to and including termina- tion of employment and legal action, even if they do not actually benefit from the disclosed information. (2) At Page 23: Conflict of Interest EMV Payment Systems continued success depends upon the undivided loyalty of its employees throughout their employment. To maintain its reputation and the relationships it has developed with outside companies and individuals, EMV Payment Systems requires the following commitments from all of its employees. Every EMV Payment Systems employee has a legal and ethical responsibility to promote EMV Payment Systems best interests. No employee may engage in any conduct or activity that is inconsistent with EMV Payment Systems best interests or that in any fashion disrupts, undermines, or impairs EMV Payment Sys- tems relationships with any customer or prospective customer or any outside organization, person or entity with which EMV Payment Systems has or proposes to enter into an arrangement, agreement, or contractual re- lationship of any kind. EMV Payment Systems requires the complete com- mitment of all full-time employees. Such employees may not engage in any outside activity or accept work in any outside position that either interferes with their ability to devote their full and best efforts to EMV Payment Systems or raises an actual or potential con- flict of interest or the possible appearance of a conflict of interest. Employees who have any questions what- soever regarding this policy or the potential impact of outside activities on their position with EMV Payment Systems should contact the President of the company before accepting any outside position or engaging in any such activity. ************* Conflicts of interest breaches can result in immediate termination and loss of future pay to employee along with legal recourse by EMV Payment Systems to re- claim any loss revenue or potential future revenue. (3) At pages 25–26: Computer, Email and Internet Usage EMV Payment Systems recognizes that use of the In- ternet has many benefits for EMV Payment Systems and its employees. The Internet and e-mail make communication more efficient and effective. There- fore, employees are encouraged to use the Internet ap- propriately. Unacceptable usage of the Internet can 3 EMV PAYMENT SYSTEMS, LLC place EMV Payment Systems and others at risk. This policy discusses acceptable usage of the Internet. The following guidelines have been established for us- ing the Internet and e-mail in an appropriate, ethical and professional manner. * * * * * * * * * * * * * * EMV Payment Systems Internet and e-mail access may not be used for transmitting, retrieving or storing of any communications of a defamatory, discriminatory or harassing nature or materials that are obscene or X- rated. No messages with derogatory or inflammatory remarks about an individual’s race, age, disability, reli- gion, national origin, physical attributes or sexual pref- erence shall be transmitted. Harassment of any kind is strictly prohibited. Disparaging, abusive, profane, or offensive language; materials that would adversely or negatively reflect upon EMV Payment Systems or be contrary to EMV Payment Systems’ best interests; and any illegal activities -- including piracy, cracking, ex- tortion, blackmail, copyright infringement, and unau- thorized access to any computers on the Internet or e- mail -- are forbidden. * * * * * * * * * * * * * * The following behaviors are examples of actions and activities that are prohibited and can result in discipli- nary action: * * * * * * * * * * * * * * • Sending or posting confidential material, trade secrets or proprietary information outside of the organization • Sending or posting messages or material that could damage the organization’s image or reputation • Sending or posting messages that disparage another organization’s products or services. Since about February 10, 2015, the Respondent, by Amelia Espinoza, at the Respondent’s facility: threat- ened its employees with discharge if they engaged in protected concerted activities; issued an unlawful di- rective to its employees prohibiting them from engaging in protected concerted activities; and enforced an unlaw- ful directive to its employees which prohibited them from engaging in protected concerted activities. About February 10, 2015, the Respondent discharged Blaylock. The Respondent discharged her because Blay- lock raised with the Respondent and discussed with other employees the Respondent’s employee break policies and practices, and to discourage employees from engag- ing 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. 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 maintained overly broad and discriminatory rules in its 2012 Employee Handbook and issued unlawful directives to its employees prohibiting them from engaging in protected concerted activities, we shall order the Respondent to rescind the unlawful rules and directives and to advise employees in writing that the unlawful rules and directives are no longer being main- tained. Further, having found that the Respondent violated Section 8(a)(1) of the Act by discharging La’Cette Blay- lock, we shall order the Respondent to offer her full rein- statement to her former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or any other rights or privi- leges previously enjoyed. We shall also order the Re- spondent to make Blaylock whole for any loss of earn- ings and other benefits she may have suffered as a result of the Respondent’s unlawful conduct. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate pre- scribed in New Horizons, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).1 In addition, we shall order the Respondent to compensate Blaylock for the adverse tax consequences, if any, of receiving a lump- sum backpay award and to file a report with the Social 1 In the complaint, the General Counsel requests that Blaylock be reimbursed for any out-of-pocket expenses incurred while searching for work as a result of the discrimination against her. Because the relief sought would involve a change in Board law, we believe that the ap- propriateness 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., The H.O.P.E. Program, 362 NLRB No. 128, slip op. at 2 fn. 1 (2015); Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), and cases cited therein. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Security Administration allocating the backpay award to the appropriate calendar quarters. Finally, the Respondent shall be required to remove from its files any and all references to the unlawful dis- charge of Blaylock and to notify Blaylock in writing that this has been done and that the unlawful conduct will not be used against her in any way. ORDER The National Labor Relations Board orders that the Respondent, Eschelon Financial Services, LLC d/b/a EMV Payment Systems, LLC, Phoenix, Arizona, its of- ficers, agents, successors, and assigns, shall: Cease and desist from (a) Maintaining overly broad and discriminatory Con- fidential Information/Non-Disclosure, Conflict of Inter- est, and Computer, Email and Internet Usage rules in its 2012 Employee Handbook. (b) Threatening its employees with discharge if they engage in protected concerted activities. (c) Issuing unlawful directives to its employees pro- hibiting them from engaging in protected concerted ac- tivities. (d) Enforcing unlawful directives to its employees that prohibit them from engaging in protected concerted ac- tivities. (e) Discharging employees because they engage in concerted activities or to discourage employees from engaging in these activities. (f) 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) Rescind the overly broad and discriminatory Con- fidential Information/Non-Disclosure, Conflict of Inter- est, and Computer, Email and Internet Usage rules in its 2012 Employee Handbook, and advise employees in writing that these unlawful rules are no longer being maintained. (b) Rescind any unlawful directives to its employees that prohibit them from engaging in protected concerted activities, and advise employees in writing that these unlawful rules are no longer being maintained. (c) Within 14 days from the date of this Order, offer La’Cette Blaylock full reinstatement to her former posi- tion or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (d) Make La’Cette Blaylock whole for any loss of earnings and other benefits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of this decision. (e) Compensate La’Cette Blaylock for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Admin- istration allocating the backpay award to the appropriate calendar quarters. (f) Within 14 days from the date of this Order, remove from its files any and all references to the unlawful dis- charge of La’Cette Blaylock and, within 3 days thereaf- ter, notify her in writing that this has been done and that its unlawful conduct will not be used against her 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 rec- ords 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 facility in Phoenix, Arizona copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 28, 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. 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 custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since July 1, 2014. (i) Within 21 days after service by the Region, file with the Regional Director for Region 28 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. 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.” 5 EMV PAYMENT SYSTEMS, LLC Dated, Washington, D.C., August 31, 2015 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Philip A. Miscimarra, Member ______________________________________ Kent Y. Hirozawa, Member 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 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 maintain overly broad and discriminato- ry Confidential Information/Non-Disclosure, Conflict of Interest, and Computer, Email and Internet Usage rules in our 2012 Employee Handbook. WE WILL NOT threaten you with discharge if you en- gage in protected concerted activities. WE WILL NOT issue unlawful directives prohibiting you from engaging in protected concerted activities. WE WILL NOT enforce unlawful directives against you that prohibit you from engaging in protected concerted activities. WE WILL NOT discharge or otherwise discriminate against you for engaging in concerted activities or to discourage employees from engaging in these 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 rescind Confidential Information/Non- Disclosure, Conflict of Interest, and Computer, Email and Internet Usage rules in our 2012 Employee Hand- book, and after the rescission WE WILL advise you in writing that these unlawful rules are no longer being maintained. WE WILL rescind any unlawful directives to our em- ployees that prohibit you from engaging in protected concerted activities, and after the rescission WE WILL advise you in writing that these unlawful rules are no longer being maintained. WE WILL, within 14 days from the date of the Board’s Order, offer La’Cette Blaylock full reinstatement to her former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously en- joyed. WE WILL make La’Cette Blaylock whole for any loss of earnings and other benefits resulting from her dis- charge, less any net interim earnings, plus interest. WE WILL compensate La’Cette Blaylock for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any and all references to the unlawful discharge of La’Cette Blaylock, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that we will not use the discharge against her in any way. ESCHELON FINANCIAL SERVICES, LLC D/B/A EMV PAYMENT SYSTEMS, LLC The Board’s decision can be found at www.nlrb.gov/case/28-CA-146504 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.