Goodman Logistics, LLC; Goodman Tank Lines, Inc.; Goodman Holding Company, Ltd., and Stowe Leasing,

363 NLRB No. 177 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. Goodman Logistics, LLC; Goodman Tank Lines, Inc.; Goodman Holding Company, Ltd.; and Stowe Leasing, Inc., a single employer and Jef- frey Szucs. Case 08–CA–159343 April 29, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN The General Counsel seeks a default judgment in this case on the ground that the Respondents have failed to file an answer to the consolidated complaint and compli- ance specification. Upon a charge filed on September 3, 2015, and amended on November 24, 2015, by employee Jeffrey Szucs, the General Counsel issued a consolidated complaint and compliance specification on December 29, 2015, against Goodman Logistics, LLC (Respondent Goodman Logistics), Goodman Tank Lines, Inc. (Re- spondent Goodman Tank Lines), Goodman Holding Company, Ltd. (Respondent Goodman Holding Compa- ny), and Stowe Leasing, Inc. (Respondent Stowe) (col- lectively, the Respondents), alleging that they have vio- lated Section 8(a)(1) of the National Labor Relations Act. The Respondents failed to file an answer. On February 17, 2016, the General Counsel filed a Motion for Default Judgment with the Board. Thereaf- ter, on February 18, 2016, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondents 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 of service of the complaint, unless good cause is shown. Similarly, Section 102.56 of the Board’s Rules and Regulations provides that the allegations in a compliance specification will be taken as true if an answer is not filed within 21 days from service of the compliance spec- ification. In addition, the consolidated complaint and compliance specification affirmatively stated that unless an answer was received by January 19, 2016, the Board may find, pursuant to a motion for default judgment, that the allegations in the consolidated complaint and compli- ance specification are true. Further, the undisputed alle- gations in the General Counsel’s motion disclose that the Region, by facsimile transmission dated January 29, 2016, advised the Respondents that unless an answer was received by February 5, 2016, a motion for default judg- ment could be filed. Nevertheless, the Respondents 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 con- solidated complaint and compliance specification to be admitted as true, and we grant the General Counsel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, Respondent Goodman Logistics, a Pennsylvania limited liability company with a place of business located in Stowe, Pennsylvania, has been en- gaged in the business of providing payroll services. At all material times, Respondent Goodman Tank Lines, a Pennsylvania corporation with a place of busi- ness located in Stowe, Pennsylvania, has been engaged in the business of transporting petroleum products. At all material times, Respondent Goodman Holding Company, a Pennsylvania corporation with a place of business located in Stowe, Pennsylvania, has been the parent corporation of Respondent Goodman Tank Lines and Respondent Goodman Logistics. At all material times, Respondent Stowe, a Pennsylva- nia corporation with a place of business located in Stowe, Pennsylvania, has been in the business of leasing proper- ty. At all material times, the Respondents have been affil- iated business enterprises with common officers, owner- ship, directors, management, and supervision; have for- mulated and administered a common labor policy; have shared common premises and facilities; have provided services for and made sales to each other; have inter- changed personnel with each other; have interrelated operations with a common business purpose of transport- ing petroleum products; and have held themselves out to the public as a single-integrated business enterprise. Based on their operations described above, the Re- spondents constitute a single-integrated business enter- prise and are a single employer within the meaning of the Act. Since about May 29, 2015, Respondent Goodman Tank Lines and Respondent Stowe have been debtors-in- possession with full authority to continue their operations DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and to exercise all powers necessary to administer their businesses.1 In conducting their business operations described above, annually, the Respondents collectively derived gross revenues in excess of $50,000 for the transporta- tion of freight from the States of Pennsylvania, New York, and New Jersey directly to points outside those states. We find that Respondent Goodman Logistics, Re- spondent Goodman Tank Lines, Respondent Goodman Holding Company, and Respondent Stowe are employers 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, D. Craig Goodman held the posi- tion of the Respondents’ President, and has been a super- visor of the Respondents within the meaning of Section 2(11) of the Act, and an agent of the Respondents within the meaning of Section 2(13) of the Act. At all material times, Dawn McCombs held the posi- tion of Employment Manager, Human Relations for Re- spondent Goodman Logistics, and has been a supervisor of Respondent Goodman Logistics within the meaning of Section 2(11) of the Act, and an agent of Respondent Goodman Logistics within the meaning of Section 2(13) of the Act. At all material times since about May 8, 2013, the Re- spondents have maintained a work rule which states in relevant part: While employee opinions are important and need to be addressed, Negative and Derogatory comments must not be shared with each other or with customers of the Company. About February 4, 2015, Jeffrey Szucs engaged in concerted activities with other employees for the purpos- es of mutual aid and protection by posting a demand for good wages on the Driver Board at the Respondents’ Ohio terminal. About mid- to late April and in early May, Szucs en- gaged in concerted activities with other employees for the purposes of mutual aid and protection by discussing 1 It is well established that the institution of bankruptcy proceedings does not deprive the Board of jurisdiction or authority to entertain and process an unfair labor practice case to its final disposition. See, e.g., Cardinal Services, 295 NLRB 933, 933 fn. 2 (1989), and cases cited therein. Board proceedings fall within the exception to the automatic stay provisions for proceedings by a governmental unit to enforce its police or regulatory powers. See NLRB v. 15th Avenue Iron Works, Inc., 964 F.2d 1336 (2d Cir. 1992) (per curiam); Cardinal Services, supra; accord Ahrens Aircraft, Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983). and posting on social media about the Respondents’ can- cellation of health insurance and the Respondents’ failure to forward wage garnishments to the appropriate agen- cies. About May 4, 2015, the Respondents terminated Szucs. The Respondents engaged in the conduct described above because Szucs engaged in concerted activities with other employees for the purposes of mutual aid and pro- tection and violated the work rule described above, and to discourage employees from engaging in these or other concerted activities. CONCLUSION OF LAW By the conduct described above, the Respondents have 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. The Respondents’ unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifical- ly, having found that the Respondents violated Section 8(a)(1) by maintaining and enforcing the overbroad work rule prohibiting their employees from sharing any nega- tive or derogatory comments with each other or custom- ers, we shall order the Respondents to rescind the unlaw- ful rule and to advise their employees in writing of such rescission. Further, having found that the Respondents violated Section 8(a)(1) of the Act by discharging Szucs, we shall order the Respondents to make Szucs whole for any loss of earnings and other benefits suffered as a result of their discrimination against him by paying him the amount set forth in the compliance specification’s Exhibit A, at- tached to this decision, with interest accrued to the date of payment, as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010), and minus tax withholdings required by Federal and State laws.2 In addition, we shall order the Respondents to 2 In the complaint and the motion for default judgment, the General Counsel seeks an order requiring reimbursement of all search-for-work and work-related expenses regardless of whether the discriminatee received interim earnings in excess of these expenses, or at all, during any given quarter, or during the overall backpay period. The General Counsel additionally seeks a make whole remedy that includes reason- able consequential damages incurred as a result of the Respondents’ unfair labor practices. Because the relief sought would involve a change in Board law, we believe that the appropriateness of these pro- GOODMAN LOGISTICS, LLC 3 compensate Szucs for any adverse tax consequences of receiving a lump-sum backpay award and to file a report with the Regional Director for Region 8 allocating backpay to the appropriate calendar years. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). The reme- dy for this violation would ordinarily also include an order requiring the Respondents to offer full reinstate- ment to Jeffrey Szucs within 14 days from the date of our Order. However, in light of the uncontested allegation in the consolidated complaint and compliance specification that the Respondents and debtors-in-possession Re- spondent Goodman Tanks Lines and Respondent Stowe have sold substantially all of their assets to a buyer in the bankruptcy proceedings, we shall not order the immedi- ate reinstatement of Szucs. Instead, to further effectuate the policies of the Act, we shall order the Respondents, in the event that they resume the same or similar business operations, to offer Szucs full reinstatement to his former position or, if that position no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. The Respondents shall also be required to remove from their files any and all references to the unlawful dis- charge and to notify Szucs in writing that this has been done and that the unlawful conduct will not be used against him in any way. Finally, we shall order the Respondents to mail a copy of the attached notice to the last known addresses of all employees who were employed by the Respondents at any time since March 2, 2015, in order to inform them of the outcome of this proceeding. ORDER The National Labor Relations Board orders that the Respondents, Goodman Logistics, LLC, Goodman Tank Lines, Inc., Goodman Holding Company, Ltd., and Stowe Leasing, Inc., a single employer, Stowe, Pennsyl- vania, their officers, agents, successors, and assigns shall 1. Cease and desist from (a) Maintaining and enforcing the unlawful work rule prohibiting employees from sharing any negative or de- rogatory comments with each other or customers. (b) Discharging employees for engaging in concerted activities with other employees for the purposes of mutu- al aid and protection and violating the unlawful work rule prohibiting them from sharing any negative or de- rogatory comments with each other or customers. posed remedies 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 Gas- ket America, Inc., 337 NLRB 175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), and cases cited therein. (c) 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 unlawful work rule prohibiting em- ployees from sharing any negative or derogatory com- ments with each other or customers and furnish employ- ees with written notice that this rule has been rescinded. (b) In the event that the Respondents resume opera- tions, offer Jeffrey Szucs full reinstatement to his former position or, if his position no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. (c) Make Jeffrey Szucs whole for any loss of earnings and benefits suffered as a result of the discrimination against him, by paying him the amount set forth in Ex- hibit A, attached to this decision, plus interest accrued to the date of payment, and minus tax withholdings re- quired by Federal and State laws, as set forth in the rem- edy section of this Decision. The backpay amount due is $20,081. (d) Compensate Szucs for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 8, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year. (e) Within 14 days from the date of this Order, re- move from their files any reference to the unlawful dis- charge of Szucs, and within 3 days thereafter notify him in writing that this has been done and that the discharge will not be used against him in any way. (f) 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. (g) Within 14 days after service by the Region, dupli- cate and mail, at their own expense and after being signed by the Respondents’ authorized representative, copies of the attached notice marked “Appendix”3 to all employees who were employed by the Respondents at 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Mailed by Order of the Na- tional Labor Relations Board” shall read “Mailed Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 any time since March 2, 2015. In addition to physical mailing 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 Re- spondents customarily communicate with their employ- ees by such means. (h) Within 21 days after service by the Region, file with the Regional Director for Region 8 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. Dated, Washington, D.C. April 29, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Kent Y. Hirozawa, Member ______________________________________ Lauren McFerran, 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 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 or enforce a work rule prohibit- ing employees from sharing any negative or derogatory comments with each other or customers. WE WILL NOT discharge employees for engaging in concerted activities with other employees for the purpos- es of mutual aid and protection and violating the unlaw- ful work rule prohibiting them from sharing any negative or derogatory comments with each other or customers. 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 the unlawful rule prohibiting em- ployees from sharing any negative or derogatory com- ments with each other or customers and furnish you with written notice that this rule has been rescinded. WE WILL, in the event that we resume operations, offer Jeffrey Szucs full reinstatement to his former position or, if his position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make whole employee Jeffrey Szucs for any loss of earnings and other benefits suffered as a result of our discrimination against him, plus interest accrued to the date of payment and minus tax withholdings required by Federal and State laws. WE WILL compensate employee Jeffrey Szucs for the adverse tax consequences, if any, of receiving a lump- sum backpay award, and WE WILL file with the Regional Director for Region 8, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year. GOODMAN LOGISTICS, LLC; GOODMAN TANK LINES, INC.; GOODMAN HOLDING COMPANY, LTD.; AND STOWE LEASING, INC., A SINGLE EMPLOYER The Board’s decision can be found at www.nlrb.gov/case/08-CA-159343 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. GOODMAN LOGISTICS, LLC 5 EXHIBIT A DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 GOODMAN LOGISTICS, LLC 7