Dumbo 301 LLC d/b/a Magic Tavern

373 NLRB No. 72 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. Dumbo 301 LLC d/b/a Magic Tavern and Actors’ Equity Association. Case 19–CA–330910 July 9, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX The General Counsel seeks a default judgment in this case on the ground that Dumbo 301 LLC d/b/a Magic Tavern (the Respondent) has failed to file an answer to the complaint. Upon a charge filed by the Actors’ Equity Association (the Union) on November 29, 2023, the General Counsel issued a complaint against the Re- spondent on March 19, 2024, alleging that it violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file an answer. On April 23, 2024, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On April 25, 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 unless an answer is received on or before April 2, 2024, the Board may find, pursuant to a motion for de- fault judgment, that the allegations in the complaint are true. Nevertheless, the Respondent failed to file an an- swer. In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations of the con- solidated 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 Portland, Oregon, and has been engaged in the operation of an adult entertainment club. On June 7, 2023, in Dumbo 301 LLC d/b/a Magic Tav- ern, Case 19–RC–319474, Region 19 of the Board served a Notice of Representation Hearing and letter re- questing certain commerce information on the Respond- ent via email and U.S. mail. Since June 7, 2023, the Respondent has failed to re- spond or provide commerce information to Region 19. On June 28, 2023, a preelection hearing was held in Case 19–RC–319474 to determine the Board’s jurisdiction over the Respondent. The Respondent did not appear at the hearing. On August 2, 2023, the Regional Director of Region 19 issued a Decision and Direction of Election, having taken evidence on statutory jurisdiction and applying Tropicana Products, 122 NLRB 121 (1958), finding that the Board has jurisdiction over the Respondent, the Re- spondent is engaged in interstate commerce within the meaning of the Act, and it would effectuate the purposes of the Act to assert jurisdiction over the Respondent. Under these circumstances, where the Respondent has refused to provide information relevant to the Board’s jurisdictional determination, the General Counsel need only prove statutory jurisdiction in order to establish a sufficient basis for assertion of jurisdiction.1 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, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES 1. At all material times, the following individuals held the position set forth opposite their respective names and have been supervisors of the 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: Benjamin Donahue – Majority Owner Matthew King – Minority Owner 2.(a) The following employees of the Respondent constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. All full-time and regular part-time dancers employed by the Employer at its Portland, Oregon facility; ex- cluding all managerial employees, and guards and su- pervisors as defined by the Act.2 (b) On June 7, 2023, the Union filed a petition to rep- resent the unit and, since that date, the Respondent has failed to respond to any communications with respect to the representation petition. 1 Continental Packaging Corp., 327 NLRB 400, 401 (1998) (citing Tropicana Products, 122 NLRB 121 (1958)); see also Valentine Paint- ing & Wallcovering, 331 NLRB 883, 883–885 (2000), enfd. 8 Fed. Appx. 116 (2d Cir. 2001). 2 The complaint does not track the exact language of the unit de- scription used in the Certification of Representative issued by the Re- gion on September 15, 2023. In our findings and Order, we have used the unit description contained in the Certification of Representative. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 (c) On August 2, 2023, the Regional Director of Re- gion 19 issued a Decision and Direction of Election di- recting that a mail-ballot election be conducted for em- ployees employed in the unit. (d) On September 7, 2023, a representation election was conducted among the Respondent’s unit employees. (e) On September 15, 2023, the Regional Director is- sued a Certification of Representative certifying the Un- ion as the exclusive collective-bargaining representative of the unit. (f) At all times since about September 15, 2023, based on Section 9(a) of the Act, the Union has been the exclu- sive collective-bargaining representative of the unit. 3.(a) On September 22, 2023, the Union requested by email and mail that the Respondent recognize and bar- gain collectively with the Union as the exclusive collec- tive-bargaining representative of the unit. (b) On November 9, 2023, the Union requested by email and mail that the Respondent recognize and bar- gain collectively with the Union as the exclusive collec- tive-bargaining representative of the unit. (c) On December 20, 2023, the Respondent, by Mi- nority Owner Matthew King, stated that King did not have authority to bargain on the Respondent’s behalf. (d) Since September 22, 2023, the Respondent, by Majority Owner Benjamin Donahue, has failed to re- spond to any of the Union’s communications. (e) Since September 22, 2023, the Respondent has failed and refused to recognize and bargain with the Un- ion as the exclusive collective-bargaining representative of the unit. CONCLUSION OF LAW By the conduct described above in paragraph 3, the Respondent has been failing and refusing to bargain col- lectively with the exclusive collective-bargaining repre- sentative of its employees in violation of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair labor prac- tices described above affect commerce within the mean- ing 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)(5) and (1) of the Act by failing and refusing to bargain collec- tively and in good faith with the Union, we shall order the Respondent to bargain on request with the Union and, if an understanding is reached, to embody the under- standing in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we grant the General Counsel’s request to extend the certification year pursuant to Mar-Jac Poultry Co., 136 NLRB 785 (1962). Accordingly, we shall construe the initial period of the certification as beginning on the date the Respondent begins to bargain in good faith with the Union. See also Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964).3 ORDER The National Labor Relations Board orders that the Respondent, Dumbo 301 LLC d/b/a Magic Tavern, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Refusing to bargain collectively with the Actors’ Equity Association (the Union) as the exclusive collec- tive-bargaining representative of the unit employees. (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) On request, bargain with the Union as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: All full-time and regular part-time dancers employed by the Employer at its Portland, Oregon facility; ex- cluding all managerial employees, and guards and su- pervisors as defined by the Act. (b) Post at its facility in Portland, Oregon, copies of the attached notice marked “Appendix.”4 Copies of the 3 The General Counsel additionally requests that we order the Re- spondent to conduct a meeting during work time to read or have read aloud the Notice to Employees. 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). We also deny the General Counsel’s request that we adopt a com- pensatory remedy requiring the Respondent to make its employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act because to do so would require overruling Ex- Cell-O Corp., 185 NLRB 107 (1970), which we have previously sev- ered and retained for future consideration. See, e.g., Longmont United Hospital, 371 NLRB No. 162, slip. op. at 2 (2022). Member Prouty would grant the General Counsel’s request for a no- tice reading for the reasons stated in his concurrence in CP Anchorage Hotel 2 d/b/a Hilton Anchorage, 371 NLRB No. 151, slip op. at 9–15 (2022), enfd. 98 F.4th 314 (D.C. Cir. 2024). 4 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. DUMBO 301, LLC D/B/A MAGIC TAVERN 3 notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or cov- ered 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 em- ployees and former employees employed by the Re- spondent at any time since September 22, 2023. (c) Within 21 days after service by the Region, file with the Regional Director for Region 19 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. July 9, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ 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 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.” 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 refuse to bargain collectively with Ac- tors’ Equity Association (the Union) as the exclusive collective-bargaining representative of our unit employ- ees. 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 with the Union as the exclusive collective-bargaining representative of our employees in the following appropriate unit concerning terms and conditions of employment, and if an under- standing is reached, embody the understanding in a signed agreement: All full-time and regular part-time dancers employed by the Employer at its Portland, Oregon facility; ex- cluding all managerial employees, and guards and su- pervisors as defined by the Act. DUMBO 301 LLC D/B/A MAGIC TAVERN The Board’s decision can be found at www.nlrb.gov/19-CA-330910 or by using the QR code below. Alternatively, you can obtain a copy of the deci- sion from the Executive Secretary, National Labor Rela- tions Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.