Flatline Construction

373 NLR No. 35 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. Flatline Construction, LLC and Jerod M. Willard. Case 27–CA–317078 March 13, 2024 DECISION AND ORDER BY MEMBERS KAPLAN, PROUTY, AND WILCOX The General Counsel seeks a default judgment in this case on the ground that Flatline Construction, LLC (the Respondent) has failed to file an answer to the reissued complaint.1 Upon a charge and first amended charge filed by Jerod M. Willard on April 28 and September 14, 2023, respectively, the General Counsel reissued a com- plaint and notice of hearing on November 9, 2023, against the Respondent, alleging that it had violated Sec- tion 8(a)(1) of the National Labor Relations Act (the Act). 2 The Respondent failed to file an answer. On December 20, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. Thereafter, on December 26, the Board is- sued 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 alle- gations 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 reissued complaint affirmatively states that unless an answer is received on or before No- vember 24, 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 letter dated December 8, with a copy of the reissued complaint, advised the Respondent that it had not received an an- swer and that, unless an answer was received by Decem- ber 15, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer. In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations of the reis- 1 The Region determined that the initial complaint, issued on Octo- ber 20, 2023, had not been delivered to the Respondent by electronic mail. It therefore reissued the complaint. 2 All dates are in 2023 unless otherwise indicated. sued 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 lim- ited liability company with an office and place of busi- ness in Middleton, Idaho (the Middleton facility), where it has been a land grading contractor in the construction industry doing residential and other construction. In conducting its operations during the 12-month period ending September 30, the Respondent purchased and received at its Middleton facility goods valued in excess of $50,000 directly from points outside the State of Ida- ho. Accordingly, we find that the Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) 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: Greg “Bobby” Grenke Owner Colton Wilson Foreman (1) About April 27, the Respondent (a) By text message from Foreman Colton, promul- gated a rule prohibiting employees from discussing their wages with each other. (b) By text message from Foreman Colton, told em- ployees that they could not discuss their wages with the Respondent’s owner. (c) By Foreman Colton, told employees that a deci- sion had been made not to give them raises and that if they did not like it, they could leave. (d) By text message from Owner Bobby Grenke, told employees that they were not allowed to discuss wages with each other. (e) By text message from Owner Bobby Grenke, told employees that they were being terminated for discussing wages with coworkers. (f) Discharged its employee Jerod M. Willard. (2) The Respondent engaged in the conduct described above in paragraph 1(f) because Willard violated the rule described in paragraph 1(a) and to discourage employees from engaging in these or other protected activities. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 CONCLUSION OF LAW By the conduct described above, the Respondent has been interfering with, restraining, and coercing employ- ees 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 promulgating a rule prohibiting employees from discuss- ing wages, informing employees that they were prohibit- ed from discussing wages with each other and with the Respondent’s owner, informing employees that they would not receive raises and could leave if they did not like it, informing employees that they were being dis- charged for discussing wages with each other, and dis- charging Jerod M. Willard because he did so, we shall order the Respondent to cease and desist from engaging in this conduct, and, in any like or related manner, inter- fering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. We shall further order the Respondent to rescind the unlawful rule, offer Willard full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed; to expunge any reference to his discharge from its files and records; and to notify him, in writing, that it has done so and that the discharge will not be used against him in any way. We shall also order the Respondent to make Willard 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. 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 Medical Center, 356 NLRB 6 (2010). In accord- ance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compensate Willard for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful discharge, including reasona- ble search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings.3 Compensation for these harms shall be calcu- lated separately 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 Willard 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 27 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 Region 27 a copy of Willard’s corresponding W-2 form(s) reflecting the backpay award. Cascades Con- tainerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified 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 Hori- zons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.4 3 Unlike his colleagues, Member Kaplan would require the Re- spondent to compensate Willard for other pecuniary harms only insofar as the losses were directly caused by the unlawful discharge, or indi- rectly caused by the unlawful action where the causal link between the loss and the unfair labor practice is sufficiently clear, consistent with his partial dissent in Thryv, Inc., supra. 4 The General Counsel additionally requests several non-traditional remedies. We deny these requests because the General Counsel has not shown that these additional measures are needed to remedy the effects of the Respondent’s unfair labor practices. See, e.g., Integrity Defense Services, 372 NLRB No. 151, slip op. at 7 fn. 2 (2023); Titan Health, LLC d/b/a Tweedleaf, 372 NLRB No. 96, slip op. at 3 fn. 2 (2023); Serenethos Care Center LLC d/b/a St. Christopher Convalescent Hos- pital, 371 NLRB No. 54, slip op. at 3 fn. 3 (2022). Member Prouty would grant the General Counsel’s requests that the Respondent be ordered to: (1) send the notice to the Charging Party by email and U.S. Mail; (2) if sought by the Region, provide a Board agent with immediate access to the facility, without prior notification, to inspect the posted notice; and (3) convene a facility-wide meeting at its Middleton facility where the notice will be read to employees in Eng- lish by the Respondent’s owner, Greg “Bobby” Grenke or, at the Re- spondent’s option, by a Board agent in Grenke’s presence, or, where appropriate, the reading of the notice will be video recorded and the recording distributed to employees electronically or by mail, and the Respondent will provide Region 27 with a copy of the recording and documentation of attendance. Further, Member Prouty would require the Board agent to distribute the notice to employees at the meeting before the reading. See CP Anchorage Hotel 2 d/b/a Hilton Anchor- age, 371 NLRB No. 151, slip op. at 9–15 (2022) (Member Prouty, concurring) (urging the Board to adopt a reading of the notice aloud and distribution to employees at a group meeting as a standard remedy for unfair labor practices because “[h]aving the notice 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 amplify- ing the Board’s message to maximize the extent to which employees hear and comprehend it.”). The General Counsel also requests that the Respondent be ordered to distribute the notice electronically “via any text-based mobile messag- FLATLINE CONSTRUCTION, LLC 3 ORDER The National Labor Relations Board orders that the Respondent, Flatline Construction, LLC, Middleton, Ida- ho, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Promulgating a rule that prohibits employees from discussing their wages with each other. (b) Informing employees that they are prohibited from discussing their wages with each other and with the Re- spondent’s owner. (c) Informing employees that they would not receive raises and could leave if they did not like it. (d) Informing employees that they were being dis- charged for discussing their wages with each other. (e) Discharging employees because they engage in protected concerted activities by discussing their wages with each other. (f) 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, rescind the unlawful rule prohibiting employees from discussing their wages. (b) Within 14 days from the date of this Order, offer Jerod W. Willard full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (c) Make Jerod M. Willard 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 his un- lawful discharge, in the manner set forth in the remedy section of this decision. (d) Compensate Jerod M. Willard for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 27, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar year(s). (e) File with the Regional Director for Region 27, within 21 days of the date the amount of backpay is fixed ing platform (e.g., SMS, iMessage, WhatsApp, etc.) by which Re- spondent customarily communicates with its employees.” In denying this request, Member Prouty notes that the Board’s standard remedy already requires distribution by these methods to the extent that em- ployers use them to communicate with employees. See J. Picini Floor- ing, 356 NLRB 11, 15 (2010) (requiring distribution of the notice elec- tronically, “such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily com- municates with its employees by such means”) (emphasis added). by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Jerod M. Willard’s corresponding W-2 form(s) reflecting the backpay award. (f) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Jerod M. Willard, and within 3 days thereafter, notify him in writing that this has been done and that the dis- charge will not be used against him in any way. (g) 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, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (h) Post at its facility in Middelton, Idaho copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 27 after being signed by the Respondent's author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily 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. Reasonable steps shall be taken by the Respond- ent 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 cur- 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 rent employees and former employees employed by the Respondent at any time since April 27, 2023. (i) Within 21 days after service by the Region, file with the Regional Director for Region 27 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. March 13, 2024 ______________________________________ Marvin E. Kaplan, Member ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TOEMPLOYEES 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 violated 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 promulgate rules that prohibit you from discussing your wages with each other. WE WILL NOT prohibit you from discussing your wages with each other or with the company’s owner. WE WILL NOT inform you that you would be dis- charged for discussing your wages with each other. WE WILL NOT inform you that you would not receive raises and could leave if you did not like it. WE WILL NOT discharge or otherwise discriminate against you because you engage in protected concerted activities by discussing your wages with each other, or to discourage other employees from engaging in these ac- tivities. 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 Jerod M. Willard full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL make Jerod M. Willard whole for any loss of earnings and other benefits resulting from his unlawful discharge, less any net interim earnings, plus interest, and WE WILL also make him 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 interest. WE WILL compensate Jerod M. Willard 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 27, 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 27, 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 Jerod M. Willard’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 unlaw- ful discharge of Jerod M. Willard and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. FLATLINE CONSTRUCTION, LLC The Board’s decision can be found at www.nlrb.gov/case/27-CA-317078 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.