367 NLRB No. 140 (N.L.R.B. 2019)

CORE RECOVERIES, LLC

National Labor Relations Board - Board DecisionsMay 28, 2019

367 NLRB No. 140 (N.L.R.B. 2019)

367 NLRB No. 140 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. Core Recoveries, LLC and Dzejlana Kostic. Case 09– CA–208361 May 28, 2019 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS MCFERRAN AND EMANUEL The General Counsel seeks a default judgment in this case pursuant to the terms of an informal settlement agreement (the Agreement). On October 20, 2017, the Charging Party filed an unfair labor practice charge al- leging that Core Recoveries, LLC (the Respondent) vio- lated Section 8(a)(1) of the Act. Subsequently, the par- ties executed the Agreement, which was approved by the Regional Director for Region 9 on June 28, 2018.1 Pursuant to the terms of the Agreement, the Respond- ent agreed to post a notice to employees (the Notice) at its facility in Louisville, Kentucky, and to “comply with all the terms and provisions of said Notice.” Specifical- ly, the Notice requires the Respondent to rescind a provi- sion of its Non-Disclosure Agreement prohibiting em- ployees from disclosing personnel/payroll information, as well as a provision of its Technology and Information Security Policy restricting employee communications “contrary to [the Respondent’s] policy or business inter- ests.” The Notice further requires the Respondent to “furnish [employees] with inserts for [its] current Non- Disclosure Agreement and Technology and Information Security Policy that (1) advise [employees] that the pro- visions [at issue] have been rescinded, or (2) provide language of lawful rules, or publish and distribute re- vised Non-Disclosure Agreement and Information Secu- rity Policy that (a) do not contain the provisions [at issue] or (b) provide language of lawful rules.” The Agreement also contains the following non- compliance provision: The Charged Party agrees that in case of non- compliance with any of the terms of this Settlement Agreement by the Charged Party, and after 14 days’ notice from the Regional Director of the National La- bor Relations Board of such non-compliance without remedy by the Charged Party, the Regional Director will issue a Complaint that includes the allegations covered by the Notice to Employees, as identified above . . . . Thereafter, the General Counsel may file a Motion for Default Judgment with the Board on the al- 1 All subsequent dates are in 2018 unless otherwise indicated. legations of the Complaint. The Charged Party under- stands and agrees that all of the allegations of the Com- plaint will be deemed admitted and that it will have waived its right to file an Answer to such Complaint. The only issue that the Charged Party may raise before the Board will be whether it defaulted on the terms of this Settlement Agreement. The General Counsel may seek, and the Board may impose, a full remedy for each unfair labor practice identified in the Notice to Em- ployees. The Board may then, without necessity of trial or any other proceeding, find all allegations of the Complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party on all issues raised by the pleadings. The Board may then issue an Order provid- ing a full remedy for the violations found as is appro- priate to remedy such violations. The parties further agree that a U.S. Court of Appeals Judgment may be entered enforcing the Board Order ex parte, after ser- vice or attempted service upon Charged Party at the last address provided to the General Counsel. Subsequently, an unannounced compliance check by the Region revealed that the Respondent did not have Notices posted in break rooms as mandated by the Agreement. In addition, the Respondent informed the Region that it had verbally communicated to employees that the unlawful policies had been rescinded and that it would publish new policies at a later date. By email dat- ed August 30, the Region notified the Respondent that its actions did not comply with the Agreement’s require- ment to either furnish employees with written inserts explaining the rescission, or provide them with language of new, lawful policies, and that it had failed to comply with the requirement of posting Notices in break rooms. By letter and email dated September 25, the Region noti- fied the Respondent that it was not in compliance with the Agreement, that the Respondent had 14 days to cure its noncompliance, and that a complaint would issue and a motion for default judgment would be filed if the Re- spondent did not comply. The Respondent failed to cure its noncompliance. Accordingly, on November 14, pur- suant to the noncompliance provision set forth above, the Regional Director issued a Complaint Based on Breach of Affirmative Provisions of Settlement Agreement. On December 21, the General Counsel filed with the Board a Motion for Default Judgment (the Motion), to- gether with a supporting memorandum, requesting “all relief that is just and proper to remedy the unfair labor practices found.” On December 28, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be grant- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 ed. The Respondent did not file a response. The allega- tions 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 According to the Motion’s uncontroverted allegations, the Respondent has failed to comply with the terms of the Agreement. Consequently, pursuant to the Agree- ment’s noncompliance provision, we find that all of the allegations in the Complaint are true.2 Accordingly, we grant the General Counsel’s Motion for Default Judg- ment. 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 Louisville, Kentucky, and has been engaged in the service of a third-party collection agency. In con- ducting its business operations during the 12-month peri- od ending November 1, the Respondent performed ser- vices valued in excess of $50,000 in states other than the Commonwealth of Kentucky. We find that the Respond- ent 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, Matthew Korn held the position of the Respondent’s chief operations officer, and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respond- ent within the meaning of Section 2(13) of the Act. At all material times, the Respondent has maintained a Non-Disclosure Agreement that prohibits employees from disclosing personnel/payroll information. At all material times, the Respondent has maintained a Technology and Information Security Policy that restricts employee communications “contrary to [the Employer’s] policy or business interest.” CONCLUSION OF LAW By the conduct described above, the Respondent has been interfering with, restraining, and coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. The Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 2 See U-Bee, Ltd., 315 NLRB 667, 668 (1994). Accordingly, we do not apply the analysis set forth in Boeing Co., 365 NLRB No. 154 (2017), to the uncontested complaint allegations. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, and in accordance with the General Counsel’s request for “all relief that is just and proper to remedy the unfair labor practices found,” we shall order the Respondent to cease and desist and to take certain affirmative action designed to effectuate the poli- cies of the Act. Specifically, having found that the Re- spondent violated Section 8(a)(1) of the Act by maintain- ing policies that prohibit employees from disclosing per- sonnel/payroll information and restrict employee com- munications “contrary to [the Employer’s] policy or business interests,” we shall order the Respondent to rescind those provisions of its Non-Disclosure Agree- ment and Technology and Information Security Policy to the extent it has not already done so. Pursuant to Guardsmark, LLC, 344 NLRB 809, 812 fn. 8 (2005), enfd. in part 475 F.3d 369 (D.C. Cir. 2007), the Re- spondent may comply with our order of rescission by rescinding the unlawful provisions and republishing its policies without the unlawful rules. We recognize, how- ever, as we did in Guardsmark, that republishing the policies could be costly. Accordingly, until it republish- es the policies without the unlawful provisions, the Re- spondent may supply the employees either with inserts to the policies stating that the unlawful rules have been re- scinded or with new and lawfully worded rules on adhe- sive backing that will correct or cover the unlawful rules. Any copies of the policies that include the unlawful rules must include the inserts before being distributed to em- ployees. See, e.g., Triple Play Sports Bar & Grille, 361 NLRB 308, 315 (2014), enfd. mem. sub nom. Three D, LLC v. NLRB, 629 F. Appx. 33 (2d Cir. 2015). We shall also order the Respondent to notify the employees in writing that it has rescinded the unlawful work rules. Finally, we shall require the Respondent to post an ap- propriate notice to employees.3 ORDER The National Labor Relations Board orders that the Respondent, Core Recoveries, LLC, Louisville, Ken- tucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a Non-Disclosure Agreement that prohibits employees from disclosing personnel/payroll information. 3 The Notice attached to the parties’ Agreement includes a provision requiring the Respondent to stop prohibiting employees who have access to its email system from using that system during nonworking time to engage in protected conduct. However, that language does not correspond to any allegation in the complaint. Accordingly, the notice below does not include that language. CORE RECOVERIES, LLC 3 (b) Maintaining a Technology and Information Securi- ty Policy that restricts employee communications “con- trary to [the Employer’s] policy or business interests.” (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) To the extent it has not already done so, rescind the provision of its Non-Disclosure Agreement that pro- hibits employees from disclosing personnel/payroll in- formation. (b) To the extent it has not already done so, rescind the provision of its Technology and Information Security Policy that restricts employee communications “contrary to [the Respondent’s] policy or business interests.” (c) Revise its policies to delete the above unlawful rules and advise employees in writing that it has done so and that the unlawful rules will no longer be enforced. (d) Furnish employees with inserts for its current Non- Disclosure Agreement and Technology and Information Security Policy that (1) advise employees that the provi- sions described above have been rescinded, or (2) pro- vide language of lawful rules, or publish and distribute revised versions of its Non-Disclosure Agreement and Technology and Information Security Policy that (a) do not contain the provisions described above, or (b) pro- vide language of lawful rules. (e) Within 14 days after service by the Region, post at its facility in Louisville, Kentucky, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 9, 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 including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper 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 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- 4 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 Na- tional 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.” ployees and former employees employed by the Re- spondent at any time since October 20, 2017. (f) Within 21 days after service by the Region, file with the Regional Director for Region 9 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. May 28, 2019 ______________________________________ John F. Ring, Chairman ______________________________________ Lauren McFerran, Member ________________________________________ William J. Emanuel 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 activities. WE WILL NOT maintain in our Non-Disclosure Agree- ment any rule prohibiting you from disclosing person- nel/payroll information. WE WILL NOT maintain in our Technology and Infor- mation Security Policy restrictions on your communica- tions “contrary to [the Employer’s] policy or business interests.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 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, to the extent we have not already done so, rescind the provisions of our Non-Disclosure Agreement and Technology and Information Security Policy de- scribed above. WE WILL revise our policies to delete the above unlaw- ful rules, and WE WILL advise you in writing that we have done so and that the unlawful rules will no longer be enforced. WE WILL furnish you with inserts for our current Non- Disclosure Agreement and Technology and Information Security Policy that (1) advise you that the provisions described above have been rescinded, or (2) provide lan- guage of lawful rules, or publish and distribute a revised Non-Disclosure Agreement and Technology and Infor- mation Security Policy that (a) do not contain the provi- sions described above, or (b) provide language of lawful rules. CORE RECOVERIES, LLC The Board’s decision can be found at www.nlrb.gov/case/09-CA-208361 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.