East Freight Logistics, LLC d/b/a Ortiz Services and Miguel Alberti, an Individual

373 NLRB No. 7 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. East Freight Logistics, LLC d/b/a Ortiz Services and Miguel Alberti and Jesus Zarate. Case 19–CA– 296059 December 22, 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 the Respondent, East Freight Lo- gistics, LLC d/b/a Ortiz Services and Miguel Alberti has failed to file an answer to the complaint. Upon a charge and first amended charged filed by Jesus Zarate on May 17, 2022, and November 21, 2022, respectively, the Gen- eral Counsel issued a complaint and notice of hearing on January 27, 2023,1 alleging that the Respondent has vio- lated Section 8(a)(1) of the Act. The Respondent failed to file an answer. On April 27, the General Counsel filed a Motion for Summary Judgment with the Board. On May 2, 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 allega- tions 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 1 Subsequent dates are in 2023 unless otherwise noted. 2 The General Counsel’s motion for default judgment and attached exhibits indicate that the complaint, the subsequent reminder letter, and the motion itself were served on the Respondent by certified and/or reg- ular mail sent to five different addresses across three states. While quite a few of the documents were returned as undeliverable, the record does not indicate that all of them were. The failure of the postal service to return documents served by mail indicates actual receipt of those docu- ments by the Respondent. I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003); Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. sub nom. NLRB v. Sherman, 843 F.2d 1392 (6th Cir. 1988). Thus, the record establishes—in the form of sworn affidavits of ser- vice from designated agents of the Board—that the General Counsel timely served the Respondent with the complaint and the motion for de- fault judgment. See, e.g., CCY New Worktech, Inc., 329 NLRB 194, 194 (1999) (noting that affidavits of service by certified mail from Board agents is sufficient proof of service, notwithstanding the absence of proof of receipt); 29 C.F.R. § 102.4(a), (d). Moreover, it is well settled that an answer is received on or before February 10, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the un- disputed allegations in the General Counsel’s motion dis- close that the Region, by letter dated April 4, advised the Respondent that unless an answer was received by April 18, a motion for default judgment would be filed. Never- theless, the Respondent failed to file an answer.2 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, Respondent East Freight Logis- tics, LLC d/b/a Ortiz Services has been a limited liability company registered in the State of Florida with an office and place of business in Salem, Oregon, where it has been engaged in transporting and storing personal property. At all material times, Respondent Miguel Alberti has been a person within the meaning of Section 2(1) of the Act, who has integrated or intermingled his personal assets and af- fairs with those of Respondent East Freight, thereby blur- ring the distinction between him and Respondent East Freight, and assuming Respondent East Freight’s liability individually. In conducting their operations described above during the calendar year ending on December 31, 2021, which period is representative of all material times, the Respond- ent derived gross revenues in excess of $500,000. In con- ducting their operations described above during the calen- dar year ending on December 31, 2021, which period is representative of all material times, the Respondent per- formed services valued in excess of $50,000 in states other than the State of Oregon. that a respondent’s failure or refusal to accept certified mail or 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 at 247 fn. 2. We further note that the Florida Department of State Division of Cor- porations website indicates that Respondent East Freight Logistics was administratively dissolved on September 23, 2022, for failure to submit an annual report. It is well established, however, that a respondent's as- serted or actual cessation of operations does not excuse it from filing an answer to a complaint or a compliance specification. See, e.g., Ringo Services, Inc., 369 NLRB No. 143, slip op. at 1 fn. 1 (2020); UNY LLC d/b/a General Super Plating, 367 NLRB No. 113, slip op. at 1 fn. 2 (2019); Cobalt Coal Corp. Mining, Inc., 367 NLRB No. 45, slip op. at 1- 2 fn. 2 (2018); OK Toilet & Towel Supply, Inc., 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 We find that the Respondent is an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES 1. 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, acting on the Respondent’s behalf: Miguel Alberti -- Member/Person Mauricio Medina -- Facility Supervisor 2.(a) About December 3, 2021, at the Respondent’s fa- cility in Salem, Oregon, the Respondent’s employees Je- sus Zarate, Enrique Cortez, and Kenneth Fitzgerald re- quested that Respondent Alberti pay them unpaid back wages. (b) About December 3, 2021, at the Respondent’s fa- cility in Salem, Oregon, Respondent Alberti refused to pay Zarate, Cortez, and Fitzgerald their unpaid back wages, and physically assaulted Zarate because the named em- ployees requested their unpaid back wages. (c) By the conduct described above in paragraph 2(b), the Respondent caused the termination of Zarate, Cortez, and Fitzgerald. (d) The Respondent engaged in the conduct described above in paragraphs 2(b) and 2(c) because the Respond- ent’s named employees engaged in protected, concerted activities, and to discourage employees from engaging in these or other protected, concerted activities. CONCLUSION OF LAW By the conduct described above in paragraphs 2(b) through 2(d), the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in 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 3 Unlike his colleagues, Member Kaplan would require the Respond- ent to compensate Zarate, Cortez, and Fitzgerald for other pecuniary harms only insofar as the losses were directly caused by the unlawful discharges, or indirectly caused by the unlawful discharges where the causal link between the loss and the unfair labor practice is sufficiently clear, consistent with his partial dissent in Thryv, Inc., supra. found that the Respondent violated Section 8(a)(1) by causing the discharges of Zarate, Cortez, and Fitzgerald because they engaged in protected concerted activity, we shall order the Respondent to offer them full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges pre- viously enjoyed. We shall also order the Respondent to make Zarate, Cortez, and Fitzgerald whole, with interest, for any loss of earnings and other benefits suffered as a result of their unlawful discharges. Backpay shall be com- puted in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Ho- rizons, 283 NLRB 1173 (1987), compounded daily as pre- scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compen- sate Zarate, Cortez, and Fitzgerald for any other direct or foreseeable pecuniary harms incurred as a result of their unlawful discharges, including reasonable search-for- work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings.3 Compensation for these harms shall be calculated sepa- rately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. Further, we shall order the Respondent to compensate Zarate, Cortez, and Fitzgerald for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards and to file a report with the Regional Director for Region 19 allocating the backpay awards to the appropriate calen- dar year(s). 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 19 a copy of Zarate’s, Cortez’, and Fitzgerald’s corresponding W-2 form(s) reflecting the backpay awards. Cascade Containerboard Packaging— Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). The Respondent shall also be required to remove from its files any reference to the unlawful discharges of Zarate, Cortez, and Fitzgerald and to notify them in writing that this has been done and that the discharges will not be used against them in any way.4 4 The General Counsel additionally requests that we order the Re- spondents to draft and provide to Zarate, Cortez, and Fitzgerald letters of apology written in English and Spanish. We deny this request because the General Counsel has not shown that this additional measure is needed to remedy the effects of the Respondents’ 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 EAST FREIGHT LOGISTICS, LLC D/B/A ORTIZ SERVICES AND MIGUEL ALBERTI 3 ORDER The National Labor Relations Board orders that the Re- spondent, East Freight Logistics LLC d/b/a Ortiz Services and Miguel Alberti, Salem, Oregon, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Physically assaulting employees because they exer- cise their rights to engage in protected, concerted activi- ties. (b) Constructively discharging or otherwise discrimi- nating against employees because they engage in pro- tected concerted activities or to discourage other employ- ees 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 Jesus Zarate, Enrique Cortez, and Kenneth Fitzgerald full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Jesus Zarate, Enrique Cortez, and Kenneth Fitzgerald whole for any loss of earnings and other bene- fits, and for any other direct or foreseeable pecuniary harms, suffered as a result of their unlawful constructive discharges, in the manner set forth in the remedy section of this decision. (c) Compensate Jesus Zarate, Enrique Cortez, and Ken- neth Fitzgerald for the adverse tax consequences, if any, of receiving lump-sum backpay awards, 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 awards 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, cop- ies of Jesus Zarate’s, Enrique Cortez’, and Kenneth 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). 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 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 Fitzgerald’s corresponding W-2 form(s) reflecting the backpay awards. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful constructive discharges of Jesus Zarate, Enrique Cortez, and Kenneth Fitzgerald, and within 3 days thereafter, notify them in writing that this has been done and that the constructive discharges will not be used against them 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 Salem, Oregon, copies of the attached notice marked “Appendix.”5 Copies of the no- tice, 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, in Eng- lish and Spanish, and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to phys- ical 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, de- faced, 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 employees employed by the Re- spondent at any time since December 3, 2021. (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. 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Dated, Washington, D.C. December 22, 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 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 physically assault you for requesting that we pay you your unpaid wages. WE WILL NOT constructively discharge or otherwise dis- criminate against any of you because you engage in pro- tected concerted activities by requesting that we pay you your unpaid wages, or to discourage other employees 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, within 14 days from the date of the Board’s Order, offer Jesus Zarate, Enrique Cortez, and Kenneth Fitzgerald full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Jesus Zarate, Enrique Cortez, and Ken- neth Fitzgerald whole for any loss of earnings and other benefits resulting from their unlawful discharges, less any net interim earnings, plus interest, and WE WILL also make them whole for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful discharges, in- cluding reasonable search-for-work and interim employ- ment expenses, plus interest. WE WILL compensate Jesus Zarate, Enrique Cortez, and Kenneth Fitzgerald for the adverse tax consequences, if any, of receiving lump-sum backpay awards, 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 awards to the appropriate calendar 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, cop- ies of Jesus Zarate’s, Enrique Cortez’, and Kenneth Fitz- gerald’s corresponding W-2 form(s) reflecting the back- pay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlaw- ful discharges of Jesus Zarate, Enrique Cortez, and Ken- neth Fitzgerald and WE WILL, within 3 days thereafter, no- tify them in writing that this has been done and that the discharges will not be used against them in any way. EAST FREIGHT LOGISTICS, LLC D/B/A ORTIZ SERVICES AND MIGUEL ALBERTI The Board’s decision can be found at https://www.nlrb.gov/case/ 19-CA-296059 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