MPStar Professionals LLC and its alter ego Cleaning Pros by MPStar Pros, LLC

373 NLRB No. 42 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. MPStar Professionals, LLC and its alter ego, Cleaning Pros by MPStar Pros, LLC and Tatiana Quintero and Erika Contreras. Case 01–CA–291402 April 2, 2024 DECISION AND ORDER BY MEMBERS KAPLAN, PROUTY, AND WILCOX The General Counsel seeks a default judgment in this case on the ground that the Respondents have failed to file an answer to the complaint. Upon a charge filed by Tati- ana Quintero and Erika Contreras on February 28, 2022, the General Counsel issued a complaint on December 19, 2023 against MPStar Professionals, LLC and Cleaning Pros by MPStar Pros, LLC (the Respondent), alleging that the Respondent has violated Section 8(a)(1) of the Act. Although properly served copies of the charge and com- plaint, the Respondents failed to file an answer. On January 18, 2024, the General Counsel filed a Mo- tion for Default Judgment. On January 22, 2024, 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 an an- swer must be received on or before January 3, 2024, and that if no answer is filed, 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 General Counsel’s motion disclose that the Region, by letter dated January 5, 2024, notified the Respondent that unless an answer was received by January 12, 2024, a mo- tion for default judgment would be filed. No answer or request for an extension of time to file an answer was re- ceived by that date. In the absence of good cause being shown for the lack of a timely answer, we grant the General Counsel’s Mo- tion for Default Judgment in substantial part. Paragraphs 8 and 9 of the complaint allege that the Respondent vio- lated Section 8(a)(1) of the Act by misclassifying its em- ployees as independent contractors while they are, in fact, statutory employees and being treated as such by the 1 Members Prouty and Wilcox join in dismissing these allegations under current Board precedent, see Velox Express, 368 NLRB No. 61 (2019), but they would be open to reconsidering that decision in a future Respondent, thereby infringing upon, and restraining them in, the exercise of their rights under Section 7 of the Act. Because this allegation does not state a violation under current Board law, we deny the motion with regard to complaint paragraphs 8 and 9 and dismiss those allega- tions.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, Respondent MPStar Profession- als, LLC, a limited liability company with an office and place of business located at 1710 Andrews Ave, #1H, Bronx, New York 10453, has been engaged in the business of cleaning residential and commercial buildings. Annually, Respondent MPStar Professionals, LLC, in conducting its business operations described above, de- rives gross revenues in excess of $500,000, and purchases and receives at its New York facility goods valued in ex- cess of $50,000 directly from points outside the State of New York. Annually, Respondent MPStar Professionals, LLC, in conducting its operations described above, pro- vides cleaning services valued in excess of $50,000 in States other than the State of New York. At all material times, Respondent Cleaning Pros, a lim- ited liability company with an office and place of business located at 104-40 Queens Boulevard, #19J, Forest Hills, New York 11375, has been engaged in the business of cleaning residential and commercial buildings. Annually, Respondent Cleaning Pros by MPStar Pros, LLC, in conducting its business operations described above, derives gross revenues in excess of $500,000, and purchases and receives at its New York facility goods val- ued in excess of $50,000 directly from points outside the State of New York. Annually, Cleaning Pros by MPStar Pros, LLC, in conducting its operations described above, provides cleaning services valued in excess of $50,000 in States other than the State of New York. About April 8, 2022, MPStar Professionals, LLC estab- lished Cleaning Pros by MPStar Pros, LLC as a continua- tion of MPStar Professionals, LLC. At all material times, MPStar Professionals, LLC, and Cleaning Pros by MPStar Pros, LLC have had substantially identical management, business purposes, operations, equipment, and supervi- sion, as well as ownership. We find that Cleaning Pros by MPStar Pros, LLC is an alter ego of MPStar Professionals, LLC (collectively, the Respondent). We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. appropriate case. Member Kaplan believes that Velox Express was cor- rectly decided and should remain Board precedent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 II. ALLEGED UNFAIR LABOR PRACTICES 1. (a) In about late October and November 2021, the Respondent’s employees, Tatiana Quintero and Erika Contreras, concertedly complained to the Respondent re- garding the wages, hours and working conditions of the Respondent’s employees by demanding that they and their coworkers be paid, and by refusing to work until they and their coworkers were paid. (b) About December 1, 2021, the Respondent dis- charged its employee Tatiana Quintero. (c) About December 1, 2021, the Respondent dis- charged its employee Erika Contreras. (d) The Respondent engaged in the conduct described above in paragraphs (b) and (c) because Quintero and Contreras engaged in the conduct described above in par- agraph (a), and to discourage employees from engaging in these or other concerted activities. CONCLUSIONS OF LAW 1. By the conduct described above, 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. The unfair labor practices of the Respondent de- scribed above affect commerce within the meaning of Sec- tion 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 dis- charging employees Tatiana Quintero and Erika Contreras for engaging in protected concerted activity, we shall or- der the Respondent to offer them full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. We shall also order the Respondent to make Quintero and Contreras whole, with interest, for any loss of earnings and other benefits suffered resulting from their unlawful discharges. Backpay shall be computed in ac- cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Hori- zons, 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 Quintero and Contreras for any other direct or fore- seeable pecuniary harms incurred as a result of their un- lawful discharges, including reasonable search-for-work 2 Unlike his colleagues, Member Kaplan would require the Respond- ents to compensate Quintero and Contreras for other pecuniary harms only insofar as the losses were directly caused by the unlawful discharge, and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings.2 Com- pensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate pre- scribed in New Horizons, supra, compounded daily as pre- scribed in Kentucky River Medical Center, supra. Further, we shall order the Respondent to compensate Quintero and Contreras for the adverse tax consequences, if any, of receiving lump-sum backpay awards and to file a report with the Regional Director for Region 1 allocating the backpay awards to the appropriate calendar 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 Re- gion 1 a copy of Quintero and Contreras’ corresponding W-2 forms reflecting the backpay awards. Cascade Con- tainerboard 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 references to the unlawful discharges of Quintero and Contreras and to notify them in writing that this has been done and that the discharges will not be used against them in any way. ORDER The National Labor Relations Board orders that the Re- spondent, MPStar Professionals, LLC and its alter ego, Cleaning Pros by MPStar Pros, LLC, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Discharging employees for engaging in protected concerted activities by complaining about wages, hours, and working conditions and demanding that they and their coworkers be paid, and refusing to work until they and their coworkers were paid. (b) 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 Tatiana Quintero and Erika Contreras full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Tatiana Quintero and Erika Contreras whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of their unlawful discharges, in the manner set forth in the remedy section of this decision. (c) Compensate Tatiana Quintero and Erika Contreras for the adverse tax consequences, if any, of receiving or indirectly caused by the unlawful discharge where the causal link be- tween the loss and the unfair labor practice is sufficiently clear, con- sistent with his partial dissent in Thryv, Inc., supra. MPSTAR PROFESSIONALS, LLC AND ITS ALTER EGO, CLEANING PROS BY MPSTAR PROS, LLC 3 lump-sum backpay awards, and file with the Regional Di- rector for Region 1, 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 1, 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 Tatiana Quintero and Erika Contreras’s corre- sponding W-2 forms reflecting the backpay awards. (e) Within 14 days from the date of this Order, remove from its files any references to the unlawful discharges of Tatiana Quintero and Erika Contreras, and within 3 days thereafter, notify them in writing that this has been done and that the 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 facilities in New York copies of the at- tached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, 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 December 1, 2021. 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 (h) Within 21 days after service by the Region, file with the Regional Director for Region 1 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. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. April 2, 2024 ______________________________________ Marvin E. Kaplan Member ______________________________________ David M. Prouty, 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 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 ac- tivities. WE WILL NOT discharge or otherwise discriminate against any of you because you engage in protected con- certed activities, such as demanding that you and your coworkers be paid and refusing to work until you and your 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 coworkers are paid, 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 Tatiana Quintero and Erika Contreras full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges pre- viously enjoyed. WE WILL make Tatiana Quintero and Erika Contreras whole for any loss of earnings and other benefits resulting from their unlawful discharges, less any net interim earn- ings, plus interest, and WE WILL also make them whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful discharges, including reasona- ble search-for-work and interim employment expenses, plus interest. WE WILL compensate Tatiana Quintero and Erika Con- treras for the adverse tax consequences, if any, of receiv- ing lump-sum backpay awards, and WE WILL file with the Regional Director for Region 1, 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 1, 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 Tatiana Quintero and Erika Contreras’s corre- sponding W-2 forms reflecting the backpay awards. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any references to our unlaw- ful discharges of Tatiana Quintero and Erika Contreras and WE WILL, within 3 days thereafter, notify them in writ- ing that this has been done and that the discharges will not be used against them in any way. MPSTAR PROFESSIONALS, LLC AND ITS ALTER EGO, CLEANING PROS BY MPSTAR PROS, LLC The Board’s decision can be found at www.nlrb.gov/case/01-CA-291402 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.