HR Restaurants LC d/b/a Burger King

372 NLRB No. 69 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. HR Restaurants L.C. d/b/a Burger King and Rebecca Potter. Case 27–CA–302403 March 28, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY The General Counsel seeks a default judgment in this case on the ground that HR Restaurants L.C. d/b/a Burger King (the Respondent) has failed to file an answer to the complaint. Upon a charge filed by Rebecca Potter on Au- gust 29, 2022, the General Counsel issued a complaint and notice of hearing on December 13, 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 January 23, 2023, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On January 24, 2023, 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 December 27, 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 January 5, 2023, advised the Respondent that unless an answer was received by January 13, 2023, a motion for default judg- ment 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 Utah limited liability company with various offices and places of business, including the fast food restaurant located at 4780 King Ave. East, Billings, Montana (Respondent’s fa- cility), and has been engaged in the retail operation of Burger King Franchise restaurants, which sell food and beverages to the public. During the 12-month period preceding the issuance of the complaint, in conducting its business operations de- scribed above, the Respondent derived gross revenues in excess of $500,000 and purchased and received at its fa- cilities in Montana, goods valued in excess of $5000 di- rectly from points outside the State of Montana. 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, Kourtney Zanetti held the position of the Respondent’s general manager, and has been super- visor of the Respondent within the meaning of Section 2(11) of the Act and agent of the Respondent within the meaning of Section 2(13) of the Act. 1. The Respondent, by General Manager Zanetti: (a) About July 31, 2022, at the Respondent’s facility, verbally instructed employees not to discuss wages. (b) About August 1, 2022, by text message, told em- ployees that they could not discuss wages and that doing so was against company policy. (c) About August 1, 2022, by text message, threatened employees with discharge if they discussed wages. CONCLUSION OF LAW By the conduct described above in paragraph 1, the Re- spondent has been interfering with, restraining, and coerc- ing employees 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 de- scribed above affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(1) by instructing employees not to discuss wages and threatening them with discharge if they discussed wages, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, we will order the Respondent to post a notice at its Billings, MT facility and distribute the notice electronically if it communicates with employees by such means. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ORDER The National Labor Relations Board orders that the Re- spondent, HR Restaurants, L.C. d/b/a Burger King, Billings, Montana, its officers, agents, successors, and as- signs shall 1. Cease and desist from (a) Verbally instructing employees not to discuss wages. (b) Telling employees by text message that they cannot discuss wages and that doing so is against company pol- icy. (c) Threatening employees with discharge if they dis- cuss wages. (d) 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) Post at its facility in Billings, Montana, copies of the attached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Re- gion 27, 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. Rea- sonable steps shall be taken by the Respondent to ensure 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 proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since July 31, 2022. (b) Within 21 days after service by the Region, file with the Regional Director for Region 27 a sworn certification of a responsible official on a form provided by the Region 1 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 within 14 days after service by the Region. If the notice to be physically attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. March 28, 2023 _____________________________________ Lauren McFerran, Chairman _____________________________________ Marvin E. Kaplan, Member _____________________________________ David M. Prouty, 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 vio- lated 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 ac- tivities. WE WILL NOT verbally instruct you not to discuss wages. WE WILL NOT tell you by text message that you cannot discuss wages and that doing so is against company pol- icy. 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.” HR RESTAURANTS L.C. D/B/A BURGER KING 3 WE WILL NOT threaten you with discharge if you discuss wages. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. HRRESTAURANTS L.C. D/B/A BURGER KING The Board’s decision can be found at www.nlrb.gov/case/27-CA-302403 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.