Drs. Mesh, P.C.

372 NLRB No. 106 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. Drs. Mesh, P.C. and Olivia Urlacher. Case 07–CA– 308836 July 25, 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 Drs. Mesh, P.C. (the Respondent) has failed to file an answer to the complaint. Upon a charge filed by Olivia Urlacher on December 7, 2022,1 and amended on April 11, 2023, the General Counsel issued a complaint and notice of hearing on April 14, 2023, against the Respondent, alleging that it has violated Section 8(a)(1) of the Act. The Respondent failed to file an an- swer. On May 12, 2023, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On May 15, 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 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 April 28, 2023, 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 May 1, 2023, advised the Respondent that it had not received an answer and that any answer to the complaint now filed would be untimely and should be accompanied by a state- ment indicating the reason for the Respondent’s late sub- mission. The letter further indicated that, unless an appro- priate answer was received by May 8, 2023, a motion for default judgment would be filed. Nevertheless, the Re- spondent failed to file an answer. 1 The complaint inadvertently stated that the charge was filed on De- cember 6, 2022. The General Counsel’s Motion correctly listed the date as December 7. 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 corpo- ration with an office and place of business in Fenton, Michigan (Fenton facility), and has been in the business of providing dental and endodontic services. In conducting its operation during the calendar year ending December 31, 2022, the Respondent derived gross revenue in excess of $250,000. During that period, the Respondent purchased and received at its Fenton facility goods valued in excess of $5,000 directly from points out- side 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 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 have 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/or agents of the Respondent within the meaning of Section 2(13) of the Act: Dr. Joseph Mesh - President/ Chief Executive Officer Dr. Aline Mesh - Secretary Patty (last name unknown) - Officer Manager 1. On multiple dates since June 16, 2022, the Respond- ent, by its agent Dr. Joseph Mesh, at the Fenton facility, informed employees that they are prohibited from talking to each other about wages. 2. About November 28, 2022, the Respondent’s em- ployee, the Charging Party, engaged in protected con- certed activities by talking to other employees about wages. 3. About December 1, 2022, the Respondent discharged the Charging Party. 4. About December 1, 2022, the Respondent, by its agent Patty (last name unknown) informed employees that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 the Charging Party was terminated because she spoke to other employees about wages. 5. The Respondent engaged in the conduct described above in paragraph 3 because the Charging Party engaged in the conduct described above in paragraph 2, and to dis- courage employees from engaging in these or other con- certed activities. CONCLUSION OF LAW By the conduct described above in paragraphs 1 and 3 through 5, the Respondent has been interfering with, re- straining, 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. 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 in- forming employees that they are prohibited from discuss- ing wages, discharging employee Olivia Urlacher for en- gaging in protected concerted activity, and informing em- ployees that Urlacher was discharged for discussing wages, we shall order the Respondent to cease and desist from engaging in this conduct, and, in any like or related manner, interfering with, restraining, or coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. We further order the Respondent to offer Urlacher 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; to expunge any reference to her discharge from its files and records; and to notify her, in writing, that it has done so and that the discharge will not be used against her in any way. We shall also order that the Respondent make Urlacher whole, with interest, for any loss of earnings and other benefits suffered as a result of the unlawful discharge. Backpay shall be computed in accordance with F. W. 2 The General Counsel additionally requests that we order the Re- spondent to offer Urlacher front pay should she waive her right to rein- statement, post an Explanation of Rights, and hold a meeting during worktime to distribute signed copies of the notice to employees and Ex- planation of Rights and to read both documents or have them read by a Board agent in the presence of a responsible management official. We deny these requests because the General Counsel has not shown that these additional measures are needed to remedy the effects of the Re- spondent’s unfair labor practices. See, e.g., Titan Health, LLC d/b/a Tweedleaf, 372 NLRB No. 96, slip op. at 3 fn. 2 (2023); Environmental Contractors, Inc., 366 NLRB No. 41, slip op. at 4 fn. 6 (2018); Guy Woolworth Co., 90 NLRB 289 (1950), 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). 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 Urlacher for her search-for-work and interim employment expenses regardless of whether those expenses exceed interim earn- ings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medi- cal Center, supra. In addition, in accordance with our de- cision in Thryv, Inc., 372 NLRB No. 22 (2022), the Re- spondent shall compensate Urlacher for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful discharge, regardless of whether these expenses exceed interim earnings. Compensation for 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 Kentucky River Medi- cal Center, supra. Further, we shall order the Respondent to compensate Urlacher 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 7 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 7 a copy of Urlacher’s corresponding W-2 form(s) reflecting the backpay award. Cascades Containerboard Packaging — Niagara, 370 NLRB No. 76 (2021), as mod- ified in 371 NLRB No. 25 (2021). The interest on backpay runs to the date of payment and should be computed at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.2 Brewer 43 Inc. d/b/a Checkers, 363 NLRB No. 173, slip op. at 2 fn. 2 (2016). Member Prouty would order the notice reading and notice dis- tribution remedies requested by the General Counsel. See CP Anchorage Hotel 2 d/b/a Hilton Anchorage, 371 NLRB No. 151, slip op. at 9-15 (2022) (Member Prouty, concurring) (urging the Board to adopt a read- ing of the notice aloud and distribution to employees at a group meeting as a standard remedy for unfair labor practices because “[h]aving the no- tice to employees read aloud to them in a group meeting, with a copy in hand to follow along if they choose, is a superior means of disseminating and amplifying the Board’s message to maximize the extent to which employees hear and comprehend it.”). DRS. MESH, P.C. 3 ORDER The National Labor Relations Board orders that the Re- spondent, Drs. Mesh, P.C., Fenton, Michigan, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Informing employees that they are prohibited from talking to each other about wages. (b) Discharging employees because they engage in pro- tected concerted activities by talking to other employees about wages. (c) Informing employees that its employee, Olivia Urlacher, was discharged because she spoke to other em- ployees about 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) Within 14 days from the date of this Order, offer Olivia Urlacher full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent po- sition, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make Olivia Urlacher 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 Olivia Urlacher for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 7, 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 7, 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 Olivia Urlacher’s corresponding W-2 form(s) re- flecting the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of 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 Olivia Urlacher, 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 Fenton, Michigan copies of the attached notice marked "Appendix."3 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 7, 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 June 16, 2022. (h) Within 21 days after service by the Region, file with the Regional Director for Region 7 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. July 25, 2023 ______________________________________ Lauren McFerran, Chairman 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 ________________________________________ 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 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 inform you that you are prohibited from talking to each other about wages. WE WILL NOT discharge or otherwise discriminate against any of you because you engage in protected con- certed activities by talking to other employees about wages, or to discourage other employees from engaging in these activities. WE WILL NOT inform you that we have discharged our employee, Olivia Urlacher, because she spoke to other employees about wages. 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 Olivia Urlacher full reinstatement to her former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to her sen- iority or any other rights or privileges previously en- joyed. WE WILL make Olivia Urlacher 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 the unlawful discharge, including reasonable search- for-work and interim employment expenses, plus inter- est. WE WILL compensate Olivia Urlacher 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 7, 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 7, 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 Olivia Urlacher’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 un- lawful discharge of Olivia Urlacher 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. DRS. MESH, P.C. The Board’s decision can be found at www.nlrb.gov/case/07-CA-308836 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.