Traverse Anesthesia Associates, P.C.

372 NLRB No. 98 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. Traverse Anesthesia Associates, P.C. and Northwest Michigan CRNA and Associates. Cases 07–CA– 296751 and 07–CA–298556 June 30, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY The General Counsel seeks a default judgment in this case on the ground that Traverse Anesthesia Associates, P.C. (the Respondent) has failed to file an answer to the complaint. Upon charges filed by Northwest Michigan CRNA and Associates (the Union) on May 311 and June 30, 2022, the General Counsel issued a consolidated complaint and notice of hearing on January 19, 2023, against the Respondent, alleging that it has violated Sec- tion 8(a)(1) and (3) of the Act. The Respondent failed to file an answer. On April 21, 2023, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On April 25, 2023, 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 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 February 2, 2023, 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 letters dated February 7 and April 11, 2023 (both of which en- closed a copy of the complaint), advised the Respondent that unless an answer was received by February 14 and April 18, 2023, respectively, a motion for default judg- 1 The General Counsel’s Motion for Default Judgment inadvertently stated that the charge in Case 07–CA–296751 was filed on June 1, 2022. ment would be filed. Nevertheless, the Respondent failed to file an answer.2 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 Motion for Default Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a pro- fessional corporation with an office and place of business located in Traverse City, Michigan (Traverse City facili- ty), and has been engaged in providing anesthesia ser- vices. In conducting its operations described above during the calendar year ending December 31, 2022, the Re- spondent derived gross revenues in excess of $250,000, and purchased and received at its Traverse City facility products, goods, and materials valued in excess of $5000 directly from points outside the State of Michigan. 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 is a health care institution within the meaning of Section 2(14) of the Act. We further find 2 The General Counsel’s Motion for Default Judgment and attached exhibits indicate that the January 19 complaint was served by email to the Respondent’s counsel and the Respondent’s practice manager, and by regular mail to the Respondent’s president and its corporate resident agent. Neither the letters sent by regular mail nor the emails were returned as undeliverable. On January 25, 2023, the Respondent’s counsel filed a Notice of Withdrawal of Counsel, asserting that the Respondent “is no longer an operating entity” and that “withdrawal is made with the knowledge of Respondent.” The February 7 reminder letter was sent to the Respondent’s practice manager by email and was not returned as undeliverable. The April 11 letter was sent by regular mail and by email to the Respondent’s practice manager, and by regular mail to the Respondent’s president and its corporate resident agent. None of the April 11 letters, whether sent by regular mail or by email, were returned as undeliverable. It is well settled that a respondent’s failure or refusal 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 documents served by regular mail indicates actual receipt of those documents 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). 3 As indicated above, the Respondent’s counsel informed the Gen- eral Counsel, by letter dated January 25, 2023, that it was withdrawing its representation because the Respondent “is no longer an operating entity.” However, the Respondent has failed to file a response to the Notice to Show Cause asserting this as a defense for its failure to file an answer. In any event, it is well established that a respondent’s asserted cessation of operations does not relieve it of the obligation to file an answer. See, e.g., OK Toilet & Towel Supply, 339 NLRB 1100, 1100– 1101 (2003); Dong-A Daily North America, 332 NLRB 15, 15–16 (2000). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Dr. Mark Aulicino - Anesthesiologist/President Dr. Meri McNulty - Anesthesiologist Dr. Cathy Stoddard - Anesthesiologist Dr. Matthew W. Martin- Anesthesiologist The following events occurred, giving rise to this pro- ceeding. 1. About May 19, 2022, the Respondent, by Dr. Mark Aulicino, threatened employees with unspecified repris- als for engaging in union and protected concerted activi- ties and in order to discourage such activities. 2. About May 25, 2022, the Respondent, by Dr. Meri McNulty, threatened employees with discipline for en- gaging in union and protected concerted activities and in order to discourage such activities. 3. About June 6, 2022, the Respondent issued a writ- ten warning and performance improvement plan to its employee, Maggie Parks. 4. The Respondent engaged in the conduct described above in paragraph 3 because Maggie Parks engaged in union activities and to discourage employees from en- gaging in these activities. CONCLUSIONS OF LAW 1. By the conduct described above in paragraphs 1 and 2, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 2. By the conduct described above in paragraphs 3 and 4, the Respondent has been discriminating in regard to the hire or tenure or terms and 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. 3. 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 issuing a written warning and a performance im- provement plan to employee Maggie Parks for engaging in protected concerted activities, we shall order the Re- spondent to rescind the unlawful written warning and performance improvement plan. The Respondent shall also be required to remove from its files any reference to the unlawful written warning and performance improve- ment plan issued to Parks and to notify her in writing that this has been done and that these unlawful actions will not be used against her in any way. Additionally, the General Counsel requests that, to the extent that the Respondent has provided its records to another entity, we order the Respondent to send a letter to the receiving entity requesting that the entity expunge any reference to the unlawful written warning and per- formance improvement plan issued to Parks from its files; to notify Parks, in writing, that this has been done; and to request that the receiving entity notify Parks, in writing, of the expungement. As discussed above, the Respondent’s former counsel’s January 25, 2023 with- drawal letter states that the Respondent is no longer an operating entity. Similarly, the General Counsel’s mo- tion indicates that on September 12, 2022, the Union’s counsel advised the Region that the Respondent had in- formed him that it planned to cease its operations as of September 16, 2022. Given these circumstances, we find that this additional remedy of requiring the Respondent to contact an entity to whom it has provided its records and request that the entity expunge any reference to the unlawful written warning and performance improvement plan issued to Parks is appropriate and would best effec- tuate the purposes of the Act.4 ORDER The National Labor Relations Board orders that the Respondent, Traverse Anesthesia Associates, P.C., Trav- erse City, Michigan, its officers, agents, successors, and assigns shall 1. Cease and desist from 4 In the complaint, the General Counsel requests that the Respond- ent, in addition to posting the Notice to Employees at its Traverse City facility, be ordered to mail the notice to all current and former employ- ees who were employed at any time since December 1, 2021, and that the Respondent distribute the notice by any text-based mobile message platforms, such as SMS, iMessage, WhatsApp, etc., that the Respond- ent customarily uses to communicate with its employees. We deny these requests because the General Counsel has not shown that these additional measures are needed to remedy the effects of the Respond- ent’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). TRANSVERSE ANESTHESIA ASSOCIATES, P.C. 3 (a) Threatening employees with unspecified reprisals or discipline if they engage in protected concerted activi- ties. (b) Issuing disciplinary warnings or performance im- provement plans to employees because they engage in protected concerted activities or to discourage other em- ployees 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) Rescind the unlawful written warning and perfor- mance improvement plan issued to Maggie Parks. (b) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful written warning and performance improvement plan issued to Maggie Parks, and within 3 days thereafter, notify her in writing that this has been done and that the written warn- ing and performance improvement plan will not be used against her in any way. Further, to the extent that it has provided its records to another entity, send a letter to the receiving entity requesting that the entity expunge any reference to the unlawful written warning and perfor- mance improvement plan issued to Parks from its files, and within 3 days thereafter, notify Parks in writing that this has been done, and also request that the receiving entity notify Parks, in writing, of the expungement. (c) Post at its facility in Traverse City, Michigan, cop- ies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 7, 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- 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 has returned to work. If, while closed or not staffed by a substantial complement of employ- ees 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 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 Enforc- ing an Order of the National Labor Relations Board.” 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 19, 2022. (d) Within 21 days after service by the Region, file with the Regional Director for Region 7 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. June 30 , 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, 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 activities. WE WILL NOT threaten you with unspecified reprisals or discipline if you engage in protected concerted activi- ties. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL NOT issue disciplinary warnings or perfor- mance improvement plans to you because you engage in protected concerted activities or to discourage other em- ployees 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 rescind the unlawful written warning and performance improvement plan we issued to Maggie Parks. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful written warning and performance improvement plan we issued to Maggie Parks and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the written warning and performance improve- ment plan will not be used against her in any way. WE WILL, if we have provided our records to another entity, send a letter to that entity requesting that the enti- ty expunge any reference to the unlawful written warning and performance improvement plan we issued to Maggie Parks from its files, and WE WILL, within 3 days thereaf- ter, notify Parks in writing that this has been done. WE WILL also request that the receiving entity notify Parks, in writing, of the expungement. TRAVERSE ANESTHESIA ASSOCIATES, P.C. The Board’s decision can be found at www.nlrb.gov/case/07-CA-296751 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.