Team Syracuse

373 NLRB No. 104 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. Team Syracuse and Josephine Porter. Case 03–CA– 334257 September 17, 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 Team Syracuse (the Respondent) has failed to file an answer to the complaint. Upon a charge filed by an individual on January 25, 2024,1 the General Counsel issued a complaint and notice of hearing on June 24, against the Respondent, alleging that it has vi- olated Section 8(a)(1) of the Act. The Respondent failed to file an answer.2 On July 22, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On July 24, the Board issued an order transferring the pro- ceeding 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 un- disputed. 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 July 8, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undis- puted allegations in the General Counsel’s motion dis- close that the Region, by letter dated July 10, notified the Respondent that unless an answer was received by July 17, 1 Dates are in 2024, unless otherwise indicated. 2 The General Counsel’s motion for default judgment and attached exhibits indicate that the complaint was served on the Respondent by e- issuance and/or by regular mail, the subsequent reminder letter was served by certified and regular mail, and the motion itself was served by email. (Although the General Counsel’s motion states that the complaint was served by certified mail, we presume this to be a typographical error and follow the complaint’s affidavit of service.) Because service is ac- complished when documents are deposited in the mail to a respondent’s last known address, we find service sufficient here. See Keystone Print- ing, Inc. d/b/a Keystone Millbrook Printing Group, 369 NLRB No. 35, slip op. at 1 & fn. 2 (2020) (citing cases). a motion for default judgment would be filed. Neverthe- less, the Respondent failed to file an answer. The General Counsel’s motion indicates that the Re- spondent is not represented by counsel in this proceeding. Although the Board has shown some leniency toward re- spondents who proceed without the benefit of counsel, the Board has consistently held that pro se status alone does not establish a good cause explanation for failing to file an answer. See, e.g., Patrician Assisted Living Facility, 339 NLRB 1153, 1153 (2003); Sage Professional Painting Co., 338 NLRB 1068, 1068 (2003). Here, the Respondent never filed an answer, and it offered no good cause expla- nation for its failure to do so, despite being reminded that its answer was due. In the absence of good cause being shown for the failure to file an answer, we deem the allegations of 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 corpo- ration with an office and place of business in East Syra- cuse, New York (the Respondent’s facility) and has been operating a public restaurant selling food and beverages. Annually, the Respondent in conducting its operations described above, purchased and received at its East Syra- cuse, New York facility, goods valued in excess of $50,000 directly from points outside the State of New York. 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 At all material times, Amber Miller held the position of the Respondent’s District Manager and has been a super- visor 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. Further, we note that the failure of the postal service to return docu- ments served by regular mail indicates actual receipt of those documents by the Respondent. I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003); Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. sub nom. NLRB v. Sherman, 843 F.2d 1392 (6th Cir. 1988). And, although the tracking information for the certified mailing of the reminder letter indi- cates that the respondent’s “forward expired” and that the mailing is “moving through network,” it is well settled that that a respondent’s fail- ure or refusal to accept certified mail or to provide for appropriate service cannot serve to defeat the purposes of the Act. See, e.g., Cray Construc- tion Group, LLC, 341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB at 247 fn. 2. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 About September 18, 2023, at the Respondent’s facility, district manager Amber Miller told an employee not to discuss wages with other employees. About early December 2023, at the Respondent’s facil- ity, district manager Amber Miller told an employee not to discuss wages with other employees. CONCLUSION OF LAW 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. 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 violated Sec- tion 8(a)(1) by instructing employees not to dis- cuss wages, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the poli- cies of the Act. Specifically, we will order the Respondent to post a notice at its East Syracuse, New York facility and distribute the notice electronically if it communicates with employees by such means. ORDER The National Labor Relations Board orders that the Re- spondent, Team Syracuse, East Syracuse, New York, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Telling employees not to discuss wages with other 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) Post at its facility in East Syracuse, New York cop- ies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 3, 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 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 customarily posted. In addition to physical posting of pa- per 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 custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to en- sure 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 proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 18, 2023. (b) Within 21 days after service by the Region, file with the Regional Director for Region 3 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. September 17, 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 vi- olated Federal labor law and has ordered us to post and obey this notice. 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.” TEAM SYRACUSE 3 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 tell you not to discuss wages with other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. TEAMSYRACUSE The Board’s decision can be found at www.nlrb.gov/case/03-CA-334257 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.