Touch of Class, Inc. d/b/a Club Coyote

372 NLRB No. 39 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. Touch of Class, Inc. d/b/a Club Coyote and Brandi Campbell. Case 25–CA–293963 January 10, 2023 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 Touch of Class, Inc. d/b/a Club Coyote (the Respondent) has failed to file an answer to the amended complaint. Upon a charge filed by Brandi Campbell on April 12, 2022,1 the General Counsel issued a complaint and notice of hearing on September 6 (the initial complaint)2 against the Respondent, alleging that it has violated Section 8(a)(1) of the Act. Subsequently, the General Counsel discovered the Respondent’s correct legal name and the identity of the Respondent’s regis- tered agent. Accordingly, on October 12, the General Counsel issued an amended complaint and notice of hearing (the amended complaint) that contained the Re- spondent’s correct legal name and provided for service to the registered agent. The Respondent failed to file an answer to either the initial complaint or the amended complaint. On September 30, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment, based on the Respondent’s failure to file an answer to the initial complaint. However, on October 5, upon learning of the Respondent’s correct legal name and the identity of its registered agent, the General Coun- sel requested withdrawal of its motion, which the Board granted on that same date. Subsequently, on November 14, the General Counsel filed with the National Labor Relations Board a Second Motion for Default Judgment. On November 16, 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. 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 1 All dates are in 2022 unless otherwise indicated. 2 The initial complaint listed the Respondent’s name as “Club Coy- ote Crawfordsville.” deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the amended complaint affirmatively states that unless an answer is received on or before Oc- tober 26, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undisputed allegations in the Gen- eral Counsel’s motion disclose that the Region, by letter dated November 1 (which enclosed a copy of the amend- ed complaint), advised the Respondent that unless an answer was received by November 8, a motion for de- fault judgment would be filed. Nevertheless, the Re- spondent failed to file an answer.3 In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations of the complaint to be admitted as true, and we grant the Gen- eral Counsel’s Second 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 Craw- fordsville, Indiana and has been engaged in the business of providing live adult entertainment. Annually, the Respondent, in conducting its operations described above, purchases and receives at its Craw- fordsville, Indiana facility goods valued in excess of $5000 directly from entities located outside the State of Indiana. 3 The General Counsel’s Second Motion for Default Judgment and attached exhibits indicate that the amended complaint was served by certified mail to the Respondent’s business address. No authorized recipient was available when delivery was attempted on two occasions, and the Respondent failed to pick up the letter from the post office upon notice of its availability. The November 1 reminder letter was sent to the Respondent’s business address by regular mail and was not returned as undeliverable. The amended complaint was also served by certified mail to Miran- da Lysinger, who was listed with the State of Indiana Office of the Secretary of State as the Respondent’s registered agent. The certified letter was successfully delivered to Lysinger’s address on October 18, but it was subsequently returned to the Region marked “N/A Return to Sender.” The November 1 reminder letter was sent to Lysinger by regular mail but was returned to the Region on November 7 marked “Return to Sender Please.” It is well settled that a respondent’s failure or refusal to accept certi- fied mail or to provide for appropriate service cannot serve to defeat the purposes of the Act. See, e.g., Cray Construction Group, LLC, 341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003). Further, the failure of the postal service to return docu- ments served by regular mail indicates actual receipt of those docu- ments by the Respondent. Id.; Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. sub nom. NLRB v. Sherman, 843 F.2d 1392 (6th Cir. 1988). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 A subpoena duces tecum (No. B-1-1G7JJJZ) (the sub- poena) was properly served upon the Respondent by cer- tified mail on June 10, requiring and directing the Re- spondent to appear before the Regional Director on June 24 and produce certain documents relevant to whether the Respondent’s operations, described above, meet the Board’s standard for assertion of jurisdiction. Since June 10, the Respondent has not filed a Petition to Revoke the subpoena. The Respondent did not appear on June 24 and has not produced the documents requested by the subpoena. Under these circumstances, where the Respondent has refused to provide information relevant to the Board’s jurisdictional determination, the General Counsel need only prove statutory jurisdiction in order to establish a sufficient basis for assertion of jurisdiction.4 Accordingly, we find that the Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 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: Jeremy Loewenstein - General Manager Amber Loewenstein - Manager Lyonna Silva - Supervisor Oraida Nunez - Supervisor The following events occurred, giving rise to this pro- ceeding. 1. About April 7, the Respondent’s employee Brandi Campbell engaged in concerted activities with other em- ployees for the purposes of mutual aid and protection by discussing safety concerns with other employees, includ- ing that the Respondent did not properly address situa- tions where customers sexually assaulted employees and that the Respondent did not remove used materials from the VIP Room at the Respondent’s facility. 2. About April 7, the Respondent discharged its em- ployee Brandi Campbell. 3. The Respondent engaged in the conduct described above in paragraph 2 because Campbell engaged in the 4 Continental Packaging Corp., 327 NLRB 400, 401 (1998), citing Tropicana Products, 122 NLRB 121 (1958); see also Valentine Paint- ing & Wallcovering, 331 NLRB 883, 883–885 (2000), enfd. 8 F. App'x 116 (2d Cir. 2001). conduct described above in paragraph 1 and to discour- age 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. The unfair labor practices of the Respondent described 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)(1) by discharging employee Brandi Campbell for engaging in protected concerted activity, we shall order the Respond- ent to offer her 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. We shall also order that the Respondent make Campbell whole, with interest, for any loss of earnings and other benefits suf- fered as a result of the unlawful discharge. Backpay shall be computed in accordance with 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 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 Campbell for her 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. In addition, in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compensate Campbell for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful discharge, if any, regardless of whether these expenses exceed interim earnings.5 Compensation for 5 Unlike his colleagues, Member Kaplan would require the Re- spondent to compensate Campbell for other pecuniary harms only insofar as the losses were directly caused by the unlawful discharge, or indirectly caused by the unlawful discharge where the causal link be- TOUCH OF CLASS, INC. D/B/A CLUB COYOTE 3 these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Ken- tucky River Medical Center, supra. Further, we shall order the Respondent to compensate Campbell 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 25 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 25 a copy of Campbell’s corresponding W-2 form(s) reflecting the backpay award. Cascade Contain- erboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). The Respondent shall also be required to remove from its files any reference to the unlawful discharge of Campbell and to notify her in writing that this has been done and that the discharge will not be used against her in any way. ORDER The National Labor Relations Board orders that the Respondent, Touch of Class, Inc. d/b/a Club Coyote, Crawfordsville, Indiana, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they engage in protected concerted activities or to discourage other employees from engag- ing in these 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. 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 Brandi Campbell 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 Brandi Campbell whole for any loss of earn- ings and other benefits, and for any other direct or fore- seeable pecuniary harms suffered as a result of her un- lawful discharge, in the manner set forth in the remedy section of this decision. (c) Compensate Brandi Campbell for the adverse tax consequences, if any, of receiving a lump-sum backpay tween the loss and the unfair labor practice is sufficiently clear, con- sistent with his partial dissent in Thryv, Inc., supra. award, and file with the Regional Director for Region 25, 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). (d) File with the Regional Director for Region 25, 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 Brandi Campbell’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 dis- charge of Brandi Campbell, and within 3 days thereafter, notify her in writing that this has been done and that the discharge will not be used against her 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 Crawfordsville, Indiana, cop- ies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 25, 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 6 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 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 April 7, 2022. (h) Within 21 days after service by the Region, file with the Regional Director for Region 25 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. January 10, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ 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 discharge or otherwise discriminate against any of you because you engage in protected con- certed 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, offer Brandi Campbell full reinstatement to her former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to her senior- ity or any other rights or privileges previously enjoyed. WE WILL make Brandi Campbell whole for any loss of earnings and other benefits resulting from her unlawful discharge, less any net interim earnings, plus interest, and WE WILL also make her whole for any other direct or foreseeable pecuniary harms suffered as a result of her unlawful discharge, including reasonable search-for- work and interim employment expenses, plus interest. WE WILL compensate Brandi Campbell for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and WE WILL file with the Regional Director for Region 25, 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(s). WE WILL file with the Regional Director for Region 25, 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 Brandi Campbell’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 discharge of Brandi Campbell and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the discharge will not be used against her in any way. TOUCH OF CLASS, INC. D/B/A/ CLUB COYOTE The Board’s decision can be found at www.nlrb.gov/case/25-CA-293963 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.