JG Missouri LLC d/b/a Bloc Dispensary

373 NLRB No. 54 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. JG Missouri LLC d/b/a Bloc Dispensary and Team- sters Local Union #618, affiliated with Interna- tional Brotherhood of Teamsters. Cases 14–CA– 323681 and 14–CA–329893 May 1, 2024 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 JG Missouri LLC d/b/a Bloc Dis- pensary (the Respondent) has failed to file an answer to the complaint. Upon charges and amended charges filed by Teamsters Local Union #618, affiliated with Interna- tional Brotherhood of Teamsters (the Union),1 the General Counsel issued a consolidated complaint on February 6, 2024, against the Respondent, alleging that it violated Sec- tion 8(a)(5) and (1) of the Act. The Respondent failed to file an answer. On March 8, 2024, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. Thereafter, on March 11, 2024, 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 allega- tions in the motion are therefore undisputed. The 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 a respondent “must specifically admit, deny, or explain each of the facts alleged in the complaint, unless the Respondent is without knowledge, in which case the Respondent must so state, such statement operating as a denial.” It also 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 here affirmatively stated that unless an answer was received by February 20, 2024, 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 Coun- sel’s motion disclose that by letter dated February 21, 2024, the Respondent was advised that unless an answer was received by February 28, 2024, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer. 1 Charge 14–CA–323681 was filed on August 11, 2023, and amended on August 15, 2023, and January 11, 2024. Charge 14–CA–329893 was filed on November 13, 2023. In the absence of good cause being shown for the failure to file an answer, we deem the allegations in 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 Mis- souri limited liability corporation with an office and place of business in Valley Park, Missouri (the Respondent’s fa- cility), and until August 7, 2023, had been engaged in the retail sale of cannabis products at the Respondent’s facil- ity. During the 12-month period ending July 31, 2023, the Respondent, in conducting its operations described above, derived gross revenues in excess of $500,000. During the 12-month period ending July 31, 2023, the Respondent, in conducting its operations described above, purchased and received at its Valley Park, Missouri facil- ity goods and services valued in excess of $5000 directly from points outside the State of Missouri. 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 that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES 1.(a) At all material times, Jacki Abraham held the posi- tions of Chief Operations Officer and Chief People Officer and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. (b) At all material times, unnamed agent held the posi- tion of General Counsel and Chief Legal Officer and has been an agent of the Respondent within the meaning of Section 2(13) of the Act. 2.(a) The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time patient care advocates and dispensary supervisors employed by the Respondent at its 2093 Smizer Road, Valley Park, Missouri location, excluding office clerical em- ployees, professional employees, managerial employ- ees, guards and supervisors as defined in the Act. (b) On July 7, 2023, the Board certified the Union as the exclusive collective-bargaining representative of the unit. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 (c) At all material times since July 7, 2023, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. 3.(a) About August 7, 2023, the Respondent ceased op- erations at the Respondent’s facility and laid off all em- ployees in the unit.2 (b) The Respondent engaged in the conduct described above in paragraph 3(a) without prior notice to the Union and without affording the Union an opportunity to bargain with respect to the effects of this conduct. 4.(a) About September 1, and repeated on September 11, 2023, the Union requested, in writing, that the Re- spondent furnish the Union with the following infor- mation: 1. The number of customers entering the 2093 Smizer Road location. 2. Purchases made by customers at the 2093 Smizer Road location including the average purchase price. 3. Data on the number of customers entering the Com- pany’s other Missouri locations. 4. Data on the purchases made by customers at the Company’s other Missouri locations including the average purchase price. 5. A monthly list of products offered for sale bythe Em- ployer at the 2093 Smizer Road location from January 1, 2021, through the location’s closing. 6. A monthly list of products sold by the Employer at the 2093 Smizer Road location from January 1, 2021, through the location’s closing. (b) The information requested by the Union, as de- scribed above in paragraph 4(a), is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit. (c) Since about September 1, 2023, the Respondent has failed and refused to furnish the Union with the infor- mation requested by it as described above in paragraph 4(a). CONCLUSIONS OF LAW 1. By failing and refusing to bargain collectively with the Union about the effects on unit employees of the Re- spondent’s decision to cease its operations and by failing to provide the Union with the requested information, the 2 Although the complaint alleges that the Respondent’s cessation of operations is a mandatory subject of bargaining, we need not address that allegation because there is no allegation that the failure to bargain about the decision to close violates the Act. Instead, the complaint specifically alleges only that the Respondent violated the Act by failing to give notice and afford the Union an opportunity to bargain about the effects of that conduct. The Board has long held that the effect of such decisions on Respondent has been failing to bargain collectively with the exclusive collective-bargaining representative of its employees in violation of Section 8(a)(5) and (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, to remedy the Respondent’s unlawful failure and refusal to bargain with the Union about the effects of the Respondent’s de- cision to cease its operations, we shall order the Respond- ent to bargain with the Union, on request, about the effects of its decision. As a result of the Respondent’s unlawful conduct, however, the unit employees have been denied an opportunity to bargain through their collective-bargain- ing representative at a time when the Respondent might still have been in need of their services and a measure of balanced bargaining power existed. Meaningful bargain- ing cannot be assured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed. Accordingly, we deem it necessary, in order to ensure that meaningful bargaining occurs and to effectuate the policies of the Act, to accompany our bargaining order with a limited backpay requirement designed both to make whole the employees for losses suffered as a result of the violation and to recreate in some practicable manner a sit- uation in which the parties’ bargaining position is not en- tirely devoid of economic consequences for the Respond- ent. We shall do so by ordering the Respondent to pay backpay to the unit employees in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968), as clarified by Melody Toyota, 325 NLRB 846 (1998).3 Thus, the Respondent shall pay its unit employ- ees backpay at the rate of their normal wages when last in the Respondent’s employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions: (1) the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the closure on the unit employees; (2) the parties reach a bona fide impasse in bargaining; (3) the Union fails to request bargaining within 5 business days after receipt of this Decision and Order or to commence negotiations within 5 business days after receipt of the unit employees is a mandatory subject of bargaining. See Kohler & Sons, Inc., 355 NLRB 221, 222 fn. 3 (2010); Nick & Bob Partners, 340 NLRB 1196, 1198 (2003). Accordingly, we find that the complaint supports a cause of action as to the failure to bargain over the effects of the Re- spondent’s decision to cease its operations and to lay off its unit employ- ees. 3 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990). JG MISSOURI LLC D/B/A BLOC DISPENSARY 3 Respondent’s notice of its desire to bargain with the Un- ion; or (4) the Union subsequently fails to bargain in good faith. In no event shall the sum paid to these employees ex- ceed the amount they would have earned as wages from the date on which the Respondent ceased operations to the time they secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain in good faith, whichever occurs sooner. However, in no event shall this sum be less than the employees would have earned for a two-week period at the rate of their normal wages when last in the Respondent’s employ. Backpay shall be based on earnings that the unit employ- ees normally would have received during the applicable period and shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), 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). Additionally, we shall order the Respondent to compen- sate the unit employees for any adverse tax consequences of receiving lump-sum backpay awards in accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), and to file a report with the Regional Director for Region 14 allocating the backpay award to the appropriate calendar years for each employee in accord- ance with 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 Direc- tor for Region 14 a copy of each backpay recipient’s cor- responding W-2 form(s) reflecting the backpay award. Cascade Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). In addition, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that is necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employees, we shall order the Respondent to furnish the Union with the information that it requested on Sep- tember 1, 2023. Finally, in view of the fact that the Respondent has ceased operations, we shall order the Respondent to mail a copy of the attached notice to the Union and to the last known addresses of its former unit employees who were employed at any time since August 7, 2023, in order to inform them of the outcome of this proceeding. ORDER The National Labor Relations Board orders that the Re- spondent, JG Missouri LLC d/b/a Bloc Dispensary, Valley Park, Missouri, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Teamsters Local Union #618, affiliated with International Brotherhood of Teamsters (the Union) as the exclusive collective-bargaining representative of the employees in the following appropriate unit with re- spect to the effects of its decision to cease operations and lay off all unit employees. All full-time and regular part-time patient care advocates and dispensary supervisors employed by the Respondent at its 2093 Smizer Road, Valley Park, Missouri location, excluding office clerical em- ployees, professional employees, managerial employ- ees, guards and supervisors as defined in the Act. (b) Failing and refusing to furnish the Union with re- quested information that is necessary for and relevant to the Union’s performance of its duties as the exclusive col- lective-bargaining representative of the unit employees. (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) On request, bargain collectively and in good faith with the Union about the effects of its decision to cease operations on August 7, 2023, and reduce to writing and sign any agreements reached as a result of such bargain- ing. (b) Pay to the unit employees their normal wages for the period set forth in the remedy section of this decision, with interest. (c) Compensate the unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 14, within 21 days from the date of this Order, a report allo- cating the backpay awards to the appropriate calendar years for each employee. (d) File with the Regional Director for Region 14 a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay awards. (e) Furnish to the Union in a timely manner the infor- mation it requested on September 1, 2023. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director for Region 14 may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll rec- ords, social security payment records, timecards, person- nel records and reports, and all other records including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (g) Within 14 days after service by the Region, dupli- cate and mail, at its own expense and after being signed by the Respondent’s authorized representative, copies of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 the attached notice marked “Appendix,”4 to the Union and to all unit employees who were employed by the Respond- ent at any time since August 7, 2023. In addition to the physical mailing of paper notices, notices shall be distrib- uted electronically, such as by email, posting on an intra- net or internet site, and/or other electronic means, if the Respondent customarily communicates with its employ- ees by such means.5 (h) Within 21 days after service by the Region, file with the Regional Director for Region 14 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. May 1, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan Member _____________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES MAILED 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 fail and refuse to bargain collectively and in good faith with Teamsters Local Union #618, affiliated 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Mailed by Order of the National Labor Relations Board” shall read “Mailed Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 5 Because the facility involved in this proceeding has closed and no physical posting of the notice is ordered, we need not apply Paragon with International Brotherhood of Teamsters (the Union) as the exclusive collective-bargaining representative of our unit employees in the following appropriate unit by failing and refusing to bargain over the effects of our de- cision to cease operations. The unit is: All full-time and regular part-time patient care advocates and dispensary supervisors employed by the Respondent at its 2093 Smizer Road, Valley Park, Missouri location, excluding office clerical em- ployees, professional employees, managerial employ- ees, guards and supervisors as defined in the Act. WE WILL NOT fail and refuse to furnish the Union with requested information that is necessary for and relevant to the performance of its duties as the exclusive collective- bargaining representative of our unit employees. 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, on request, bargain collectively and in good faith with the Union concerning the effects of our decision to cease operations and WE WILL reduce to writing and sign any agreements reached as a result of such bargaining. WE WILL pay our unit employees their normal wages for the period set forth in the Decision and Order of the Na- tional Labor Relations Board, with interest. WE WILL compensate our affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 14, within 21 days of the date of the Board’s Order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL file with the Regional Director for Region 14 copies of your W-2 forms reflecting the backpay awards. WE WILL furnish the Union with the information it re- quested on September 1, 2023. JGMISSOURI LLC D/B/ABLOC DISPENSARY The Board’s decision can be found at www.nlrb.gov/case/14-CA-323681 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. Systems, 371 NLRB No. 104 (2022) (holding that, if the facility involved in the proceeding is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the physical posting obligation is delayed until 14 days after the facility reopens and a substantial complement of em- ployees have returned to work). JG MISSOURI LLC D/B/A BLOC DISPENSARY 5