HCI, LLC

372 NLRB No. 72 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. HCI, LLC and Communications Workers of America Local 9400. Case 21–CA–301088 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 HCI, LLC (the Respondent) has failed to file an answer to the complaint and compliance specification. Upon a charge filed by Communications Workers of America Local 9400 (the Union) on August 9, 2022, the General Counsel issued a complaint, compliance specification, and notice of hearing (the complaint and compliance specification) on December 1, 2022, against the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The Respondent failed to file an answer. On January 4, 2023, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On January 11, 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 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. Similarly, Section 102.56 of the Board’s Rules and Regu- lations provides that the allegations in a compliance spec- ification will be taken as true if an answer is not filed within 21 days from the service of the compliance speci- fication. In addition, the complaint and compliance spec- ification affirmatively stated that unless an answer was re- ceived on or before December 22, 2022, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undis- puted allegations in the General Counsel’s motion dis- close that the Region, by letters dated December 23, 2022 (which enclosed a copy of the complaint) to both the 1 The complaint and compliance specification, at par. 2(a), inadvert- ently list the Respondent’s address as “6890 Airport Dr.,” rather than as the correct address of “6830 Airport Dr.” A review of the record Respondent and the Respondent’s Chief Executive Officer George Blanco, advised the Respondent that unless an an- swer was received by December 30, 2022, a motion for default judgment would be filed. Nevertheless, the Re- spondent 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 and compliance specification to be admitted as true, and we grant the General Counsel’s Motion for Default Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California lim- ited liability company, with a facility located at 6830 Air- port Dr., Suite A, Riverside, California 92504,1 has been engaged in the business of providing utility services. During the 12-month period preceding issuance of the complaint and compliance specification, a representative period, the Respondent purchased and received at its Riv- erside, California facility goods valued in excess of $50,000 directly from points outside the State of Califor- nia. 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, 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 agents of the Respond- ent within the meaning of Section 2(13) of the Act: George Blanco - Chief Executive Officer Bill Beech - Chief Financial Officer Mike Vaughan - President Victoria Harris - Vice President of Human Resources Vanessa Zapata - Human Resources Representative The following employees of the Respondent (the unit) constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: Hourly rated employees classified as Labor, Operator, Apprentice, Journeyman Installer/Repairman (C.O.E./ PBX), all CATV and Underground Technicians, which include the following classifications: Central Office establishes that all correspondence associated with this proceeding, in- cluding the complaint, was sent to the correct address. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Installer, Customer Premise Installer, Laborer, Truck, Driver, Operator, Fiber Splicer, Lineman, Journeyman Lineman, Splicer, Journeyman Splicer, Foreman. Since at least 2019 and at all material times, the Re- spondent has recognized the Union as the exclusive col- lective-bargaining representative of the unit. This recog- nition has been embodied in successive collective-bar- gaining agreements, the most recent of which was effec- tive from October 29, 2019, to June 30, 2022, which was subsequently extended to July 8, 2022. The following events occurred, giving rise to this pro- ceeding. 1. (a) About August 1, 2022, the Respondent indefi- nitely furloughed the unit. (b) About August 9, 2022, the Respondent terminated the unit, ceased all business operations, and closed its business. (c) The subjects set forth above in paragraphs 1(a) and (b) relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purposes of collective bargaining. (d) The Respondent engaged in the conduct described above in paragraphs 1(a) and (b) without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to the effects of this conduct. 2. (a) About August 2, 2022, the Union requested that the Respondent bargain collectively over the effects of the Respondent’s decision to furlough the unit. (b) Since about August 2, 2022, the Respondent has failed and refused to bargain collectively about the subject set forth above in paragraph 2(a). (c) About August 9, 2022, the Union requested that the Respondent bargain collectively over the effects of the Re- spondent’s decision to shut down its operations. (d) Since about August 9, 2022, the Respondent has failed and refused to bargain collectively about the subject set forth above in paragraph 2(c). (e) The subjects set forth above in paragraphs 2(a) and (c) relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purposes of collective bargaining. 3. (a) Since about August 2, 2022, the Union has re- quested in writing that the Respondent furnish the Union with the following information (attached to the complaint and compliance specification as “Attachment A”): (1) What do employees do with HCI equipment or tolls during the furlough? (2) What is the status of medical/health insurance cov- erage for unit employees during the furlough? (3) Please provide me copies of the following: (i) Any & all non-privileged corporate resolu- tions, correspondence, memoranda, emails, etc., which relate to HCI’s decision to furlough unit em- ployees; (ii) The Plan Document for the HCI 401K Plan in which unit employees participate; (iii) The Plan Document for the HCI medi- cal/health plans in which unit employees participate; (iv) Any & all communications issued by HCI to unit employees regarding the furlough, and; (v) A roster of all unit employees—including home addresses, emails and phone data—as of the date of the furlough. (b) The information requested by the Union, as de- scribed above in paragraph 3(a), is necessary for, and rel- evant to, the Union’s performance of its duties as the col- lective-bargaining representative of the unit. (c) Since about August 2, 2022, the Respondent has failed and refused to furnish the Union with the infor- mation requested by it as described above in paragraph 3(a). CONCLUSION OF LAW By the conduct described above, the Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining repre- sentative of its employees in violation of Section 8(a)(5) and (1) of the Act. The unfair labor practices of the Re- spondent 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, to remedy the Respondent’s unlawful failure and refusal to bargain with the Union about the effects of its decisions to indefi- nitely furlough its unit employees and subsequently to cease operations, we shall order the Respondent to bargain with the Union, on request, about the effects of its deci- sions. As a result of the Respondent’s unlawful conduct, however, the unit employees have been denied an oppor- tunity to bargain through their collective-bargaining rep- resentative at a time when the Respondent might still have needed their services and a measure of balanced bargain- ing power existed. Meaningful bargaining cannot be as- sured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed. Accordingly, we deem it necessary, in order to ensure that meaningful bargaining occurs and to effectuate the HCI, LLC 3 policies of the Act, to accompany our bargaining order with a limited backpay requirement designed both to make whole the employees for losses suffered as a result of the violations and to recreate in some practicable manner a situation in which the parties’ bargaining position is not entirely devoid of economic consequences for the Re- spondent. We shall do so by ordering the Respondent to pay backpay to the unit employees in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968), as clarified by Melody Toyota, 325 NLRB 846 (1998).2 Thus, the Respondent shall pay its unit employees back- pay at the rate of their normal wages when last in the Re- spondent’s employ from 5 days after the date of this De- cision and Order until occurrence of the earliest of the fol- lowing conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the indefinite furloughs and the closure on the unit employees; (2) a bona fide impasse in bargaining; (3) the Union’s failure to request bargaining within 5 busi- ness days after receipt of this Decision and Order, or to commence negotiations within 5 business days after re- ceipt of the Respondent’s notice of its desire to bargain with the Union; or (4) the Union’s subsequent failure to bargain in good faith. In no event shall the sum paid to these employees ex- ceed the amount they would have earned as wages from the date on which the Respondent indefinitely furloughed its unit employees to the time they secured equivalent em- ployment elsewhere, or the date on which the Respondent shall have offered to bargain in good faith, whichever oc- curs sooner. However, in no event shall this sum be less than the employees would have earned for a 2-week period at the rate of their normal wages when last in the Respond- ent’s employ. Backpay shall be based on earnings that the unit employees normally would have received during the applicable period and shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medi- cal Center, 356 NLRB 6 (2010). Here, the General Counsel in the complaint and compli- ance specification seeks the minimum of 2 weeks of back- pay due the unit employees under Transmarine, plus any additional backpay that may be due depending upon bar- gaining between the parties regarding the effects of the Respondent’s decisions to indefinitely furlough its unit employees and to close its business. Attachment B to the complaint and compliance specification sets forth the 2 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990). amount due each employee for the minimum 2-week pe- riod. As noted above, we shall grant the General Coun- sel’s request and order the Respondent to pay those amounts, plus any additional backpay that may accrue to the earliest of the conditions set forth in Transmarine, plus interest. We shall also order the Respondent to compensate the unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and to file with the Regional Director for Region 21, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year(s) for each employee, in ac- cordance with AdvoServ 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 21 a copy of each backpay recipient’s corresponding 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). Further, having found that the Respondent violated Sec- tion 8(a)(5) and (1) by failing and refusing to furnish the Union with relevant and necessary information requested on about August 2, 2022, we shall order the Respondent to provide the Union with the requested information. Finally, because the Respondent has closed, we shall or- der the Respondent to mail a copy of the attached notice to the Union and to the last known addresses of its former unit employees to inform them of the outcome of this pro- ceeding. ORDER The National Labor Relations Board orders that the Re- spondent, HCI, LLC, Riverside, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Communications Workers of America Lo- cal 9400 (the Union) as the exclusive collective-bargain- ing representative of the following unit, by failing and re- fusing to bargain over the effects of its decisions to indef- initely furlough its unit employees and to cease opera- tions: Hourly rated employees classified as Labor, Operator, Apprentice, Journeyman Installer/Repairman (C.O.E./ PBX), all CATV and Underground Technicians, which include the following classifications: Central Office In- staller, Customer Premise Installer, Laborer, Truck, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Driver, Operator, Fiber Splicer, Lineman, Journeyman Lineman, Splicer, Journeyman Splicer, Foreman. (b) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as the collective-bargaining rep- resentative of the Respondent’s unit employees. (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) On request, bargain in good faith with the Union as the exclusive collective-bargaining representative of the unit employees concerning the effects of the Respondent’s decisions to indefinitely furlough its unit employees and to cease operations, and reduce to writing and sign any agreement reached as a result of such bargaining. (b) Make whole the unit employees listed in Attach- ment B to the complaint and compliance specification the amounts shown opposite their names in the Attachment, totaling $693,789.60, plus interest accrued to the date of payment and minus tax withholdings required by Federal and State laws, as set forth in the remedy section of this decision. (c) Pay to the unit employees their normal wages for the period set forth in the remedy section of this decision, with interest. (d) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 21, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year(s) for each employee. (e) File with the Regional Director for Region 21, 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. (f) Furnish to the Union in a timely manner the infor- mation requested by the Union on August 2, 2022. (g) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for 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 National Labor Relations Board” shall read “Mailed Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 4 Because the facility involved in this proceeding has closed and no physical posting of the notice is ordered, we need not apply Paragon 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 due under the terms of this Or- der. (h) Within 14 days after service by the Region, dupli- cate and mail, at its own expense and after being signed by the Respondent’s authorized representative, copies of the attached notice marked “Appendix”3 to the Union and to all unit employees who were employed by the Respond- ent at any time since August 1, 2022. In addition to the physical mailing of paper notices, notices shall be distrib- uted electronically, such as by email, posting on an intra- net or internet site, and/or other electronic means, if the Respondent customarily communicates with its employ- ees by such means.4 (i) Within 21 days after service by the Region, file with the Regional Director for Region 21 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. March 28, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES MAILED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Systems, 371 NLRB No. 104 (2022) (holding that, if the facility involved in the proceeding is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the physical posting obligation is delayed until 14 days after the facility reopens and a substantial complement of em- ployees have returned to work). HCI, LLC 5 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 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 fail and refuse to bargain collectively and in good faith with Communications Workers of America Local 9400 (the Union) as the exclusive collective-bar- gaining representative of the following unit, by failing and refusing to bargain over the effects of our decisions to in- definitely furlough unit employees and to cease opera- tions: Hourly rated employees classified as Labor, Operator, Apprentice, Journeyman Installer/Repairman (C.O.E./ PBX), all CATV and Underground Technicians, which include the following classifications: Central Office In- staller, Customer Premise Installer, Laborer, Truck, Driver, Operator, Fiber Splicer, Lineman, Journeyman Lineman, Splicer, Journeyman Splicer, Foreman. WE WILL NOT refuse to bargain collectively with the Un- ion by failing and refusing to furnish it with requested in- formation that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of our unit employees. 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, on request, bargain in good faith with the Un- ion as the exclusive collective-bargaining representative of our unit employees over the effects of our decisions to indefinitely furlough unit employees and to cease opera- tions, and WE WILL reduce to writing and sign any agree- ment reached as a result of such bargaining. WE WILL make whole our unit employees for our failure to bargain over the effects of our decisions to indefinitely furlough unit employees and to cease operations by paying them the amount shown opposite their names in Attach- ment B to the complaint and compliance specification, plus interest accrued to the date of payment and minus tax withholdings required by Federal and State laws, as set forth in the remedy section of this decision. WE WILL pay our unit employees further limited back- pay, plus interest, in connection with our failure to bargain over the effects of our decisions to indefinitely furlough unit employees and to cease operations, as required by the Board’s Order. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 21, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year(s) for each employee. WE WILL file with the Regional Director for Region 21, 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 furnish to the Union in a timely manner the information requested by the Union on August 2, 2022. HCI, LLC The Board’s decision can be found at www.nlrb.gov/case/21-CA-301088 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.