KM Building Care, Inc.

372 NLRB No. 38 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. KM Building Care, Inc. and Service Employees In- ternational Union, Local 32BJ a/w Service Em- ployees International Union. Case 05–CA– 279016 December 21, 2022 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX The General Counsel seeks a default judgment in this case on the ground that KM Building Care, Inc. (the Re- spondent) has failed to file an answer to the complaint. Upon a charge, first amended charge, second amended charge, and third amended charge filed by Service Em- ployees International Union, Local 32BJ a/w Service Employees International Union (the Union) on June 23, 2021, November 23, 2021, November 23, 2021, and Jan- uary 14, 2022, respectively, the General Counsel issued a complaint and notice of hearing on July 29, 2022 against the Respondent, alleging that it has violated Section 8(a)(3) and (1) of the Act. The Respondent failed to file an answer. On October 27, 2022, the General Counsel filed with the National Labor Relations Board a Motion to Transfer Proceedings to the Board and for Default Judgment. On October 31, 2022, 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 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.1 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 states that unless an answer is received on or before August 12, 2022, 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 General Counsel’s motion disclose that the Region, by letters emailed October 5 and sent by United Parcel Service on October 7, advised the Respondent in English and Span- 1 Member Prouty is recused and took no part in the consideration of this case. ish that unless an answer was received by October 12, 2022, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer. The record indicates that the Respondent is no longer represented by counsel in this proceeding. Although the Board has shown some leniency toward respondents who proceed without the benefit of counsel, it has consistently held that the choice to forgo representation by counsel does not establish good cause for failing to file a timely answer. See, e.g., Sameh H. Aknouk Dental Services, P.C., 370 NLRB No. 78, slip op. at 1 (2021); Headlands Contracting & Tunnelling, Inc., 368 NLRB No. 4, slip op. at 1 (2019); Patrician Assisted Living Facility, 339 NLRB 1153, 1153–1154 (2003). Here, the Respondent never filed an answer, and it offered no good cause ex- planation for its failure to do so, despite being reminded that its answer was due. In the absence of good cause being shown for the failure to file an answer, we deem the allegations of the complaint 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, the Respondent has been a cor- poration with an office and place of business in Centre- ville, Virginia (the Respondent’s facility) and has been engaged in the business of providing janitorial cleaning services. During the 12-month period ending June 30, 2022, the Respondent provided services valued in excess of $50,000 directly to George Mason University, an enter- prise within the Commonwealth of Virginia. During that same period, George Mason University has been a public educational institution and has derived gross revenues available for operating expenses in excess of $1 million. Also during that period, the Respondent purchased and received at the Respondent’s facility products, goods, and materials valued in excess of $5000 directly from points located outside the Commonwealth of Virginia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Idalia Hernandez (Hernandez) has held the position of the Respondent’s owner and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respond- ent within the meaning of Section 2(13) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The following events occurred, giving rise to this pro- ceeding: 1. About May 20, 2021, the Respondent, by Hernan- dez, via telephone: (a) Interrogated employees regarding their protected concerted activities and union activities and asked em- ployees to identify other employees involved in those activities; (b) Equated support for the Union with disloyalty when she told employees that by calling the Union they were organizing a group of workers to turn against the Respondent; (c) Told employees, in response to their union activi- ties, that they were ungrateful, and that thanks to the Re- spondent, employees had jobs; (d) Told employees that their union activities were not right, and they should not have engaged in those activi- ties; (e) Told employees that by engaging in union activi- ties, the employees had misbehaved; (f) Equated employees’ involvement with the Union with harm to the Respondent; (g) Invited employees to quit their employment in re- sponse to their union activity; and (h) Told employees that they could meet with the Un- ion as long as they did not do the Respondent wrong. 2. (a) About May 20, 2021, the Respondent’s employ- ees Marleny Lopez Elias, Margoth Languiday, Susana Ortega, Sonia Zelaya Martinez, and similarly situated employees engaged in concerted activities with other employees for the purposes of mutual aid and protection, by discussing wages, hours, and other terms and condi- tions of employment. (b) About June 2021, the Respondent laid off or dis- charged Marleny Lopez Elias, Margoth Languiday, Su- sana Ortega, Sonia Zelaya Martinez, and similarly situat- ed employees. (c) About August 2021, the Respondent refused to re- call from layoff Margoth Languiday and similarly situat- ed employees. (d) In the alternative, about August 2021, the Re- spondent was hiring, or had concrete plans to hire, a number of employees. (e) About August 2021, the Respondent refused to hire for employment Margoth Languiday and similarly situated employees. (f) The Respondent engaged in the conduct described above in paragraphs 2(b), 2(c), and 2(e) because the named and similarly situated employees of the Respond- ent engaged in concerted activities, and to discourage employees from engaging in these activities. (g) The Respondent engaged in the conduct described above in paragraphs 2(b), 2(c), and 2(e) because the named and similarly situated employees of the Respond- ent assisted the Union and engaged in concerted activi- ties, and to discourage employees from engaging in these activities. CONCLUSIONS OF LAW By the conduct described above in paragraphs 1, 2(b), 2(c), 2(e), and 2(f), the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in viola- tion of Section 8(a)(1) of the Act. By the conduct de- scribed above in paragraphs 2(b), 2(c), 2(e), and 2(g), the Respondent has been discriminating in regard to the hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. The unfair labor practices of the Respondent de- scribed above affect 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 violated Section 8(a)(3) and (1) by laying off or discharging Marleny Lopez Elias, Margoth Languiday, Susana Ortega, Sonia Zelaya Mar- tinez, and similarly situated employees,2 and by refusing to recall from layoff Languiday and similarly situated employees, for assisting the Union and engaging in pro- tected concerted activities, we shall order the Respondent to recall from layoff or offer them full reinstatement to their former jobs, if it has not already done so, and if those jobs no longer exist, to substantially equivalent positions, without prejudice to seniority or any other rights or privileges previously enjoyed. Having found that the Respondent, in the alternative, discriminatorily refused to hire Languiday and similarly situated employ- ees, we shall order the Respondent to offer them, in the alternative, employment in the positions for which they applied, or if such positions no longer exist, to substan- tially equivalent positions. In addition, we shall order the Respondent to make Elias, Languiday, Ortega, Mar- tinez, and similarly situated employees whole, with in- terest, for any loss of earnings and other benefits suffered as a result of the Respondent’s unfair labor practices. Backpay shall be computed in accordance with F. W. 2 The General Counsel may prove the identification of similarly sit- uated employees, if any, at the compliance stage of this proceeding. KM BUILDING CARE, INC. 3 Woolworth Co., 90 NLRB 289 (1950), 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). In accordance with our decision in King Soopers, Inc., 364 NLRB 1153 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), we shall also order the Respondent to compensate Elias, Languiday, Ortega, Martinez, and similarly situated employees for search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings. Search-for- work and interim employment expenses shall be calcu- lated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.3 In addition, in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compensate these employees for any other di- rect or foreseeable pecuniary harms incurred as a result of its unlawful conduct, if any, regardless of whether these expenses exceed interim earnings.4 Compensation for these harms shall be calculated separately from taxa- ble net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. Further, we shall order the Respondent to compensate Elias, Languiday, Ortega, Martinez, and similarly situat- ed employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award and to file a report with the Regional Director for Region 5 allocating the backpay award to the appropriate calendar year(s). Ad- voServ of New Jersey, Inc., 363 NLRB 1324 (2016). In addition to the backpay allocation report, we shall order the Respondent to file with the Regional Director for Region 5 a copy of each backpay recipient’s correspond- ing W-2 form(s) reflecting the backpay award. Cascade Containerboard Packaging-Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). 3 The General Counsel further requests that we order the Respond- ent to electronically distribute via WhatsApp and mail, at its own ex- pense, a copy of the Notice to Employees to all fulltime and regular part-time employees currently employed and those formerly employed by the Respondent at any time since May 1, 2021. We deny this re- quest because the General Counsel has not shown that this additional measure is needed to remedy the effects of the Respondent’s unfair labor practices. See, e.g., Environmental Contractors, Inc., 366 NLRB No. 41, slip op. at 4 fn. 6 (2018); Guy Brewer 43 Inc. d/b/a Checkers, 363 NLRB No. 173, slip op. at 2 fn. 2 (2016). 4 Unlike his colleagues, Member Kaplan would require the Re- spondent to compensate these employees for other pecuniary harms only insofar as the losses were directly caused by the unlawful action, or indirectly caused by the unlawful action where the causal link be- tween the loss and the unfair labor practice is sufficiently clear, con- sistent with his partial dissent in Thryv, Inc., supra. The Respondent shall also be required to remove from its files any reference to the unlawful layoff or discharge of Elias, Languiday, Ortega, Martinez, and similarly sit- uated employees and the unlawful refusal to recall or hire Languiday and similarly situated employees and to notify them in writing that this has been done and that the layoff, discharge, refusal to recall and/or refusal to hire will not be used against them in any way. ORDER The National Labor Relations Board orders that the Respondent, KM Building Care, Inc., Centreville, Vir- ginia, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Interrogating employees regarding their protected concerted activities and union activities and asking em- ployees to identify other employees involved in those activities. (b) Equating support for the Union with disloyalty by telling employees that by calling the Union they were organizing a group of workers to turn against the Re- spondent. (c) Telling employees, in response to their union ac- tivities, that they were ungrateful, and that thanks to the Respondent, employees had jobs. (d) Telling employees that their union activities were not right, and they should not have engaged in those ac- tivities. (e) Telling employees that by engaging in union activ- ities, the employees had misbehaved. (f) Equating employees’ involvement with the Union with harm to the Respondent. (g) Inviting employees to quit their employment in re- sponse to their union activity. (h) Telling employees that they could meet with the Union as long as they did not do the Respondent wrong. (i) Laying off, discharging, or otherwise discriminat- ing against employees because they engage in union or protected concerted activities or to discourage other em- ployees from engaging in these activities. (j) Refusing to recall from layoff or hire employees because they engage in union or protected concerted ac- tivities or to discourage other employees from engaging in these activities. (k) 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) Within 14 days from the date of this Order, and to the extent it has not already done so, recall Marleny Lopez Elias, Margoth Languiday, Susana Ortega, Sonia Zelaya Martinez, and similarly situated employees from DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 layoff or offer them full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed; and/or within 14 days from the date of this Order, offer Margoth Languiday and similarly situated employees employment in the positions for which they applied, or, if such positions no longer exist, to substantially equiva- lent positions. (b) Make Marleny Lopez Elias, Margoth Languiday, Susana Ortega, Sonia Zelaya Martinez, and similarly situated employees whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of the unlawful layoff, discharge, refusal to recall, and/or refusal to hire in the manner set forth in the remedy section of this deci- sion. (c) Compensate Marleny Lopez Elias, Margoth Lan- guiday, Susana Ortega, Sonia Zelaya Martinez, and simi- larly situated employees for the adverse tax consequenc- es, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 5, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the back- pay award to the appropriate calendar year(s). (d) File with the Regional Director for Region 5, with- in 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. (e) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful layoff or discharge of Marleny Lopez Elias, Margoth Langui- day, Susana Ortega, Sonia Zelaya Martinez, and similar- ly situated employees, and the unlawful refusal to recall or refusal to hire Languiday and similarly situated em- ployees, and within 3 days thereafter, notify them in writing that this has been done and that the layoff, dis- charge, refusal to recall and/or refusal to hire will not be used against them 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) Post at its facility in Centreville, Virginia, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal 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 Re- spondent customarily 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 covered by any other material. If the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 20, 2021. (h) Within 21 days after service by the Region, file with the Regional Director for Region 5 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. December 21, 2022 ______________________________________ Lauren McFerran, Chairman ________________________________________ Marvin E. Kaplan, Member 5 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” KM BUILDING CARE, INC. 5 ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TOEMPLOYEES 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 interrogate you regarding your protected concerted activities and union activities and WE WILL NOT ask you to identify other employees involved in those activities. WE WILL NOT equate support for the Union with dis- loyalty by telling you that by calling the Union you are organizing a group of workers to turn against us. WE WILL NOT tell you, in response to your union ac- tivities, that you are ungrateful, and that thanks to us, you have jobs. WE WILL NOT tell you that your union activities are not right, and that you should not have engaged in those ac- tivities. WE WILL NOT tell you that by engaging in union activi- ties, you have misbehaved. WE WILL NOT equate your involvement with the Union with harm to us. WE WILL NOT invite you to quit your employment in response to your union activity. WE WILL NOT tell you that you can meet with the Un- ion as long as you do not do us wrong. WE WILL NOT layoff, discharge, or otherwise discrimi- nate against you because you engage in union or protect- ed concerted activities or to discourage other employees from engaging in these activities. WE WILL NOT refuse to recall you from layoff or refuse to hire you because you engage in union or protected concerted activities or to discourage other 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, within 14 days from the date of the Board’s Order, and to the extent we have not already done so, recall Marleny Lopez Elias, Margoth Languiday, Susana Ortega, Sonia Zelaya Martinez, and similarly situated employees from layoff or offer them full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed; and/or WE WILL, within 14 days from the date of the Board’s Order, offer Margoth Languiday and similar- ly situated employees employment in the positions for which they applied, or, if such positions no longer exist, to substantially equivalent positions. WE WILL make Marleny Lopez Elias, Margoth Lan- guiday, Susana Ortega, Sonia Zelaya Martinez, and simi- larly situated employees whole for any loss of earnings and other benefits suffered as a result of our unlawful layoff, discharge, refusal to recall, and/or refusal to hire, less any net interim earnings, plus interest, and WE WILL also make them whole for any other direct or foreseeable pecuniary harms suffered as a result of our unlawful conduct, including reasonable search-for-work and inter- im employment expenses, plus interest. WE WILL compensate Marleny Lopez Elias, Margoth Languiday, Susana Ortega, Sonia Zelaya Martinez, and similarly situated employees for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 5, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar year(s). WE WILL file with the Regional Director for Region 5, within 21 days of the date the amount of backpay is fixed by agreement or Board order, or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlaw- ful layoff or discharge of Marleny Lopez Elias, Margoth Languiday, Susana Ortega, Sonia Zelaya Martinez, and similarly situated employees, and our unlawful refusal to recall or refusal to hire Languiday and similarly situated employees, and WE WILL, within 3 days thereafter, notify DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 them in writing that this has been done and that the layoff, discharge, refusal to recall, and/or refusal to hire will not be used against them in any way. KMBUILDINGCARE, INC. The Board’s decision can be found at www.nlrb.gov/case/05-CA-279016 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.