Bothell Pediatric and Hand Therapy

372 NLRB No. 40 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. Bothell Pediatric and Hand Therapy and Kaitlyn Resendez. Case 19–CA–298270 January 13, 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 Bothell Pediatric and Hand Ther- apy (the Respondent) has failed to file an answer to the complaint. Upon a charge filed by Kaitlyn Resendez on June 27, 2022, the General Counsel issued a complaint and notice of hearing on November 3, 2022, against the Re- spondent, alleging that it has violated Section 8(a)(1) of the Act. The Respondent failed to file an answer. On November 29, 2022, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On December 6, 2022, the Board issued an or- der 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 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 states that unless an answer is received on or before November 17, 2022, 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 dated November 18, 2022, advised the Respondent that unless an answer was received by November 25, 2022, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer. 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 State of Washington corporation with an office and place of business in Bothell, Washington (the “facility”), and has been engaged in the business of operating a medical and rehabilitation clinic. In conducting its operation described above during the 12-month period preceding issuance of the complaint, which period is representative of all material times, the Respondent purchased and received at the facility goods valued in excess of $250,000 directly from points outside the State of Washington. 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 a health care institution within the meaning of Section 2(14) 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 mean- ing of Section 2(11) of the Act and/or agents of the Re- spondent within the meaning of Section 2(13) of the Act: Kimberly Alquist - Owner Carol Dean - Accountant/Human Resources Manager Muraiha Gizinski - Pediatric Operations Manager Retta Longsine - Therapy Lead The following events occurred, giving rise to this pro- ceeding. 1. About February 9, 2022, the Respondent, by Retta Longsine via email, informed its employees, including Resendez, that they could be discharged for discussing their pay and benefits. 2. (a) In or around the week of June 12, 2022, Resendez, at the Respondent’s facility, engaged in a conversation with other employees about their pay. (b) About June 24, 2022, Resendez and another em- ployee concertedly complained to the Respondent regard- ing the working conditions of the Respondent’s employ- ees by raising concerns about the manner in which work- place concerns were addressed by management. 3. (a) About June 24, 2022, the Respondent discharged its employee Resendez. (b) The Respondent engaged in the conduct described above in paragraph 3(a) because Resendez engaged in pro- tected concerted activity described above in paragraph 2 and/or to discourage employees from engaging in this or other protected concerted activity. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 CONCLUSION OF LAW By the conduct described above in paragraphs 1 and 3, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaran- teed 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 dis- charging employee Kaitlyn Resendez for engaging in pro- tected concerted activity, we shall order the Respondent 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 Resendez whole, with interest, for any loss of earnings and other benefits suffered as a result of the unlawful discharge. Backpay shall be computed in ac- cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Hori- zons, 283 NLRB 1173 (1987), compounded daily as pre- scribed 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 Resendez for her search-for-work and interim employment expenses regardless of whether those ex- penses exceed interim earnings. Search-for-work and in- terim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate pre- scribed in New Horizons, supra, compounded daily as pre- scribed in Kentucky River Medical Center, supra. In ad- dition, in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compen- sate Resendez for any other direct or foreseeable pecuni- ary harms incurred as a result of the unlawful discharge, if any, regardless of whether these expenses exceed interim earnings.1 Compensation for these harms shall be 1 Unlike his colleagues, Member Kaplan would require the Respond- ent to compensate Resendez 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 between the loss and the unfair labor practice is sufficiently clear, consistent with his par- tial dissent in Thryv, Inc., supra. 2 The General Counsel additionally requests that we order the Re- spondent to draft and send a letter of apology to Resendez for having calculated separately from taxable net backpay, with in- terest at the rate prescribed in New Horizons, supra, com- pounded daily as prescribed in Kentucky River Medical Center, supra.2 Further, we shall order the Respondent to compensate Resendez for the adverse tax consequences, if any, of re- ceiving a lump-sum backpay award and to file a report with the Regional Director for Region 19 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 Re- gion 19 a copy of Resendez’s corresponding W-2 form(s) reflecting the backpay award. Cascade Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as mod- ified in 371 NLRB No. 25 (2021). The Respondent shall also be required to remove from its files any reference to the unlawful discharge of Resendez 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 Re- spondent, Bothell Pediatric and Hand Therapy, Bothell, Washington, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Telling employees that they could be discharged if they engage in protected concerted activities. (b) Discharging or otherwise discriminating against employees because they engage in protected concerted ac- tivities or to discourage other employees from engaging in these activities. (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) Within 14 days from the date of this Order, offer Kaitlyn Resendez 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. discharged her and for any hardship or distress it caused her. We deny this request because the General Counsel has not shown that this addi- tional 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). BOTHELL PEDIATRIC AND HAND THERAPY 3 (b) Make Kaitlyn Resendez 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 unlaw- ful discharge, in the manner set forth in the remedy section of this decision. (c) Compensate Kaitlyn Resendez for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 19, 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). (d) File with the Regional Director for Region 19, 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 Kaitlyn Resendez’s corresponding W-2 form(s) reflecting the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Kaitlyn Resendez, 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, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (g) Post at its facility in Bothell, Washington, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Re- gion 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained 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 customarily communicates with its employees by such means. 3 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 pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees has returned to work. If, while closed or not staffed by a substantial complement of employees due to the pan- demic, the Respondent is communicating with its employees by elec- tronic means, the notice must also be posted by such electronic means Reasonable steps shall be taken by the Respondent to en- sure 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 and former employees employed by the Respondent at any time since February 9, 2022. (h) Within 21 days after service by the Region, file with the Regional Director for Region 19 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. January 13, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ Gwynne A. Wilcox, 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 vi- olated 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 within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical post- ing 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 judgment of a United States court of appeals, the words in the notice reading “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 Rela- tions Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 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 ac- tivities. WE WILL NOT tell you that you could be discharged if you engage in protected concerted 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 en- gaging 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 Kaitlyn Resendez 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 WILL make Kaitlyn Resendez 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 fore- seeable pecuniary harms suffered as a result of the unlaw- ful discharge, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Kaitlyn Resendez 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 19, 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 cal- endar year(s). WE WILL file with the Regional Director for Region 19, 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 Kaitlyn Resendez’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 Kaitlyn Resendez 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. BOTHELLPEDIATRIC AND HANDTHERAPY The Board’s decision can be found at www.nlrb.gov/case/19-CA-298270 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.