RFO808, LLC dba Island Club and Spa

373 NLRB No. 60 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. RFO808, LLC d/b/a Island Club and Spa and Jamie Marie Siangco. Case 20–CA–320798 May 16, 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 RFO808, LLC d/b/a Island Club and Spa (the Respondent) has failed to file an answer to the complaint. Upon a charge and a first-amended charge filed by Jamie Marie Siangco on June 28, 2023, and Janu- ary 29, 2024, respectively, the General Counsel issued a complaint on February 15, 2024, against the Respondent, alleging that it violated Section 8(a)(1) of the Act. The Respondent failed to file an answer. On March 18, 2024, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. Thereafter, on March 21, 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 29, 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 March 6, 2024, the Respondent was advised that unless an answer was re- ceived by March 13, 2024, 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 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 Hawaii limited liability corporation with a place of business in Honolulu, Hawaii, and has been engaged in the business of providing fitness and spa services. In conducting its operations, during the 12-month pe- riod ending December 31, 2023, the Respondent derived gross revenues in excess of $500,000 and purchased and received goods and supplies in excess of $5000 directly from points located outside the State of Hawaii. We find that the Respondent is an employer engaged in commerce within the meaning of Section 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 Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Geri Lara-Berger — General Manager Brent Olds — Assistant General Manager Randy Otto — Owner 2. About May 4, 2023, the Respondent’s employee Ja- mie Marie Siangco spoke with other employees about their wage rates. 3. On an unknown date prior to May 15, 2023, the Re- spondent, by Brent Olds, orally promulgated and has since then maintained a rule prohibiting employees from dis- cussing their wage rates. 4. About May 15, 2023, the Respondent, by Olds, at the Respondent’s facility, told Siangco that she is not allowed to ask employees how much they make in wages. 5. About May 15, 2023, the Respondent, by Olds, at the Respondent’s facility, in the same conversation described above, told Siangco that he could terminate employees for discussing wages. 6. About May 15, 2023, the Respondent, by Olds, at the Respondent’s facility, in the same conversation described above in paragraphs 4 and 5, told Siangco that he had ter- minated employees for discussing wages. 7. About May 22, 2023, the Respondent discharged Siangco. 8. The Respondent engaged in the conduct described in paragraph 7 because Siangco engaged in the conduct de- scribed above in paragraph 2, and to discourage employ- ees from engaging in these and other concerted activities. 9. The Respondent engaged in the conduct described in paragraph 7 because Siangco violated the rule described above in paragraph 5 and to discourage employees from engaging in these or other concerted activities. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 CONCLUSION OF LAW By the conduct described above in paragraphs 3 through 9, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guar- anteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. The unfair labor practices of the Re- spondent 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 orally promulgating a rule prohibiting employees from discussing their wages, telling employees that they may be discharged for discussing wages and that other employees have been discharged for discussing wages, and discharg- ing employee Jamie Marie Siangco for engaging in pro- tected concerted activity, 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 co- ercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act. We further order the Re- spondent to rescind the unlawful rule; offer Jamie Marie Siangco full reinstatement to her former position or, if that position no longer exists, to a substantially equivalent po- sition, 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 the Respondent to make Siangco whole, with interest, for any loss of earnings and other benefits suffered as a result of her 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 Medi- cal Center, 356 NLRB 6 (2010). In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Re- spondent shall also compensate Siangco for any other di- rect or foreseeable pecuniary harms incurred as a result of her unlawful discharge, including reasonable search-for- work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings.1 Compensation for these harms shall be calculated sepa- rately from taxable net backpay, with interest at the rate 1 Unlike his colleagues, Member Kaplan would require the Respond- ent to compensate Siangco for other pecuniary harms only insofar as the losses were directly caused by the unlawful discharge, or indirectly caused by the unlawful discharge where the causal link between the loss and the unfair labor practice is sufficiently clear, consistent with his par- tial dissent in Thryv, Inc., supra. 2 The General Counsel additionally requests that we order the Re- spondent to allow for Subregion 37 personnel to provide separate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. Further, we shall order the Respondent to compensate Siangco 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 20 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 20 a copy of Siangco’s corresponding W-2 form(s) reflecting the backpay award. Cascade Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as mod- ified in 371 NLRB No. 25 (2021).2 ORDER The National Labor Relations Board orders that the Re- spondent, RFO808, LLC d/b/a Island Club and Spa, Hon- olulu, Hawaii, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating and/or maintaining a rule prohibiting employees from discussing their wage rates. (b) Telling employees that they may not ask other em- ployees how much they make in wages. (c) Telling employees that they may be discharged for discussing wages. (d) Telling employees that other employees have been discharged for discussing wages. (e) Discharging employees because they engage in pro- tected concerted activities by discussing wage rates with other employees. (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 wages. (b) Within 14 days from the date of this Order, offer Jamie Marie Siangco full reinstatement to her former po- sition or, if that position is no longer available, to a sub- stantially equivalent position, without prejudice to her seniority or any other rights or privileges previously en- joyed. (c) Make Jamie Marie Siangco whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of her mandatory training sessions for managers and employees regarding em- ployee rights protected under the National Labor Relations Act. We deny this request because the General Counsel has not shown that this additional measure is needed to remedy the effects of the Respondent’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 Brewer 43 Inc. d/b/a Checkers, 363 NLRB No. 173, slip op. at 2 fn. 2 (2016). RFO808, LLC D/B/A ISLAND CLUB & SPA unlawful discharge, in the manner set forth in the remedy section of this decision. (d) Compensate Jamie Marie Siangco for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and file with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocat- ing the backpay awards to the appropriate calendar year(s). (e) File with the Regional Director for Region 20, 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 Jamie Marie Siangco’s corresponding W-2 form reflecting the backpay award. (f) Within 14 days from the date of this Order, remove from its files any references to the unlawful discharge of Jamie Marie Siangco, and within 3 days thereafter, notify her in writing that this has been done and that the dis- charge will not be used against her 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, 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. (h) Post at its facility in Honolulu copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 20, 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 3 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted and read 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) pandemic, the notice must be posted and read within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employ- ees by electronic means, the notice must also be posted by such electronic employees employed by the Respondent at any time since May 15, 2023. (i) Within 21 days after service by the Region, file with the Regional Director for Region 20 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 16, 2024 _______________________________________ 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 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 ac- tivities. WE WILL NOT make or maintain rules prohibiting you from discussing your wage rates. WE WILL NOT tell you that you are not allowed to dis- cuss wages, that we could discharge you for discussing wages, or that we have previously discharged employees for discussing wages. 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 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 your 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, rescind the unlawful rule prohibiting you from dis- cussing your wages. WE WILL, within 14 days from the date of the Board’s Order, offer Jamie Marie Siangco 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. WE WILL make Jamie Marie Siangco 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 fore- seeable pecuniary harms suffered as a result of her unlaw- ful discharge, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Jamie Marie Siangco for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Direc- tor for Region 20, 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 20, 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 Jamie Marie Siangco’s corresponding W-2 form reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any references to our unlaw- ful discharge of Jamie Marie Siangco 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. RFO808, LLC D/B/AISLAND CLUB AND SPA The Board’s decision can be found at www.nlrb.gov/case/20-CA-320798 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.