Dreamclinic, LLC

National Labor Relations Board - Board Decisions

Nov 25, 2014

361 NLRB No. 112 (N.L.R.B. 2014)

361 NLRB No. 112
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.
Dreamclinic, LLC and Debora Nelli. Case
19-CA-088440
November 25, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge and an amended charge filed
by employee Debora Nelli on August 31, and October
25, 2012, respectively, the General Counsel issued the
complaint on November 29, 2012, against Dreamclinic,
LLC (the Respondent), alleging that the Respondent vio-
lated Section 8(3) and (1) of the Act by issuing a written
warning to, and discharging, Nelli for her union and pro-
tected concerted activities, and that it violated Section
8(a)(1) of the Act by maintaining overly broad rules in its
employee handbook. The Respondent filed an answer
and an amended answer to the complaint on December
27, 2012, and April 1, 2013, respectively.
Subsequently, on April 2, 2013, at the outset of the
hearing, Administrative Law Judge William Nelson
Cates granted the General Counsel’s motion to amend
the complaint to delete the allegation that the Respondent
violated Section 8(a)(3) and (1) of the Act by issuing the
written warning to Nelli. In addition, at the hearing on
April 2, the judge approved an informal settlement
agreement, entered into by the parties that day, settling
all of the complaint’s allegations, as amended at the hear-
ing. Among other things, the settlement agreement re-
quired the Respondent to: (1) post at its facilities and on
its intranet the appropriate Board notice for 60 days and
mail and email the notice to all employees; (2) make
Nelli whole by paying her $3500 in backpay; (3) remove
from its files all references to Nelli’s discharge and noti-
fy her in writing that this had been done and that the ref-
erences would not be used against her in any way;1 (4)
rescind certain handbook confidentiality rules which
prohibit employee communication about matters that
could reasonably be construed to include terms and con-
ditions of employment; and (5) rescind a handbook rule
that restricts employees from solicitation while “on the
job” or “during working hours” and on the Respondent’s
premises.

1 The Notice to Employees included in the settlement agreement
states that Nelli was offered, but declined reinstatement.
The settlement agreement also contained the following
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 no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
issue a complaint that will include the allegations
spelled out above in the Scope of Agreement section.
Thereafter, the General Counsel may file a motion for
default judgment with the Board on the allegations of
the complaint as amended on the record on April 2,
2013. The Charged Party understands and agrees that
all of the allegations of the complaint will be deemed
admitted and it will have waived its right to file an An-
swer to such complaint. The only issue that may be
raised before the Board is whether the Charged Party
defaulted on the terms of this Settlement Agreement.
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 providing a full
remedy for the violations found as is appropriate to
remedy such violations. The parties further agree that a
U.S. Court of Appeals Judgment may be entered en-
forcing the Board order ex parte, after service or at-
tempted service upon Charged Party/Respondent at the
last address provided to the General Counsel.
By letter dated April 18, 2013, the Region’s compli-
ance officer advised the Respondent to take the steps
necessary to comply with the terms of the settlement
agreement and outlined the Respondent’s obligations.
By letter dated November 4, 2013, the Region’s compli-
ance officer informed the Respondent that although the
Region had received Nelli’s required backpay check, the
Respondent had not yet complied with any of the settle-
ment’s additional terms. The letter instructed the Re-
spondent immediately to comply and again outlined the
Respondent’s obligations. The letter also stated that, if
the Respondent did not comply within 14 days, the Re-
gional Director would be advised to initiate default pro-
cedures as set forth in the settlement agreement. By
email dated March 27, 2014, the Region responded to
several questions from the Respondent about its out-
standing obligations and urged compliance. By email
dated April 16, 2014, the Region’s compliance officer
notified the Respondent that unless it complied by April
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
30, 2014, the Regional Director would likely initiate de-
fault proceedings. The Respondent failed to comply.
Accordingly, pursuant to the terms of the noncompli-
ance provision in the settlement agreement, on Septem-
ber 17, 2014, the Regional Director reissued the amended
complaint, and the General Counsel filed a Motion for
Default Judgment with the Board.2 On September 18,
2014, the Board issued an order transferring the proceed-
ing to the Board and Notice to Show Cause why the mo-
tion 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
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with the terms of the settlement agreement by
failing to: (1) post and provide its employees with the
requisite physical and electronic Notice including by
email and mail; (2) repeal the policies and handbook
rules discussed in the settlement agreement and inform
employees that the rules are no longer in effect; (3) ex-
punge from its files all references to Nelli’s discharge;
and (4) notify Nelli in writing that the references have
been removed and the discharge will not be used against
her in any way. Consequently, pursuant to the noncom-
pliance provisions of the settlement agreement set forth
above, we find that the Respondent’s answer and amend-
ed answer to the original complaint have been with-
drawn, and that all of the allegations in the complaint as
amended at the April 2, 2013 hearing are true.3 Accord-
ingly, 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, a State of Wash-
ington limited liability company with two offices and
places of business in Seattle, Washington, has been en-
gaged in providing massage therapy and acupuncture
services.
In conducting its business operations described above
during the 2012 calendar year, a representative period,
the Respondent derived gross revenues in excess of
$500,000 and purchased and received at its Seattle,
Washington, facilities, goods valued in excess of $5000

2 As explained below, the reissued complaint inadvertently failed to
include the provisions as amended at the April 2, 2013 hearing.
3 See U-Bee, Ltd., 315 NLRB 667, 668 (1994).
from companies within the State of Washington that, in
turn purchased those goods directly from entities outside
the State of Washington.
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, the following individuals held
the positions 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:
Larisa Goldin - Owner
Jamie Rindlisbacher - Clinic manager (former)
Melissa Holm - Clinic manager (current)
At all material times, the Respondent has maintained
an employee handbook containing the following Articles
providing as follows:
Article 2.2.2, Code of Conduct: “Disclosing confiden-
tial or proprietary Company information to unauthor-
ized persons” is improper conduct that will result in
disciplinary action, including termination.
Article 2.2.6, Classification and Handling of Confiden-
tial Information policy: “Employee information, Com-
pensations, … Schedules and estimates, … Information
presented at status meetings” are defined as “confiden-
tial company information” that “must not be divulged
to any external parties other than authorized persons
and should be used only for the Company’s benefit.
Communicating confidential information to a co-
worker should only be done when it’s essential for that
person to perform his or her job. … Improperly divulg-
ing or using confidential information may result in cor-
rective action, up to and including termination.”
Article 2.2.9, External Communication: “Written or
electronic approvals must be obtained from the Presi-
dent before proceeding with the following: All external
communication distributed via the general media (in-
cluding newspapers, magazines, radio, TV, etc.) or
printed media (including brochures, handbills, leaflets
and direct mail . . .” as well as “company information
communicated, shared or processed by vendors, cus-
tomers, or third-party providers” and “initiation of any
campaign in which the clinic will play a significant
role.”
Article 2.2.10, Legal Inquiry: “If anybody insides or
outside the company (employee, former employee, job
DREAMCLINIC, LLC 3
applicant, customer, clinic visitor, etc.) has a legal in-
quiry or requests a legal action, direct the inquiry to the
President.”
Article 2.2.13, Internet Use: “It is the responsibility of
every individual to ensure the company’s communica-
tion systems are used … in a fashion that does not im-
properly disclose confidential, sensitive, or proprietary
information to unauthorized individuals. ... Don’t send
information that is Dreamclinic confidential, or proprie-
tary. … Users are advised not to use the Internet for
any purpose that would reflect negatively on the clin-
ic.”
Article 2.2.17, Non-Solicitation of Clients: “Solicita-
tion of any kind during working time and while on the
job is not allowed. … Solicitation during working
hours and on the clinic’s premises can be disruptive to
our operations.”
About January 8, 2012, the Respondent’s employee
Nelli engaged in concerted activities with other employ-
ees for mutual aid and protection by expressing concern
about a newly announced company policy of deducting
costs of services from employees’ pay whenever custom-
ers complained about those services.
About January 9, 2012, Nelli engaged in concerted ac-
tivities with other employees for mutual aid and protec-
tion by telling the Respondent, through Rindlisbacher,
that the deductions policy would be unfair and possibly
illegal.
About January 10, 2012, Nelli engaged in concerted
activities with other employees for mutual aid and pro-
tection by sending an email to all employees stating that
the deduction policy might violate Washington law.
In early 2012, Nelli told the Respondent through
Rindlisbacher that the Respondent’s therapists should
have a union.
About January 11, 2012, the Respondent, by
Rindlisbacher, issued a written reprimand to Nelli.4
About March 2, 2012, the Respondent, by Goldin, dis-
charged Nelli.
The Respondent discharged Nelli because of Nelli’s
conduct described above and to discourage employees

4 The original complaint alleged that the written reprimand violated
Sec. 8(a)(1) and (3) of the Act. At the April 2, 2013 hearing the judge
approved the General Counsel’s motion to amend the complaint to
delete the legal conclusion that this conduct violated the Act. The
General Counsel explained that the charge involving the reprimand was
untimely, having been filed more than 6 months after the reprimand
was issued. We note that the reissued amended complaint inadvertently
failed to include the April 2 amendment. However, this Order and the
attached Notice reflect only the allegations in the complaint as amended
at the April 2, 2013 hearing.
from engaging in these and other union and/or protected
concerted activities.
CONCLUSIONS OF LAW
By maintaining an employee handbook containing the
provisions described in paragraphs (a) through (f) above,
and by discharging Nelli for her union and protected
concerted activities and to discourage employees from
engaging in these or other union and/or protected con-
certed activities, the Respondent has been interfering
with, restraining, and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act in viola-
tion of Section 8(a)(1) of the Act.
In addition, by discharging Nelli for her union and pro-
tected concerted activities and to discourage employees
from engaging in these or other union and/or protected
concerted activities, the Respondent has discriminated
against Nelli in regard to hire or tenure or terms or condi-
tions of employment, thereby discouraging membership
in a labor organization in violation of Section 8(a)(3) and
(1) of the Act. The Respondent’s unfair labor practices
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, we shall
order the Respondent to comply with the unmet terms of
the settlement agreement approved by the administrative
law judge on April 2, 2013, by posting hard copies of the
Notice to Employees at its facilities; distributing the no-
tice electronically, including by emailing the notice to its
employees and posting the notice on the Respondent’s
intranet; and duplicating and mailing the notice to all
employees employed since January 1, 2012. In addition,
we shall order the Respondent to repeal the policies and
handbook rules addressed in the settlement agreement.
Finally, the Respondent shall remove from its files all
references to Nelli’s discharge and notify her in writing
that this has been done and that the discharge will not be
used against her in any way.
In limiting our affirmative remedies to those enumer-
ated above, we are mindful that the General Counsel is
empowered under the default provision of the settlement
agreement to seek “a full remedy for the violations found
as is appropriate to remedy such violations.”5 However,
in his Motion for Default Judgment, the General Counsel

5 As set forth above, the settlement agreement provided that, in case
of noncompliance, the Board could “issue an order providing a full
remedy for the violations found as is appropriate to remedy such viola-
tions.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
has not sought such additional remedies and we will not,
sua sponte, include them within this remedy.6
ORDER
The National Labor Relations Board orders that the
Respondent, Dreamclinic LLC, Seattle, Washington, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees for their union and pro-
tected concerted activities and to discourage employees
from engaging in these or other union and/or protected
concerted activities.
(b) Maintaining rules or policies which define “confi-
dential information” as information which could reason-
ably be construed to include terms and conditions of em-
ployment, including but not limited to, employee infor-
mation, compensations, schedules and estimates and in-
formation presented at status meetings; specifically:
i. Rules which prohibit employees from disclos-
ing employee information, compensations, schedules
and estimates, and information presented at status
meetings to people the Respondent has not author-
ized;
ii. Rules which prohibit employees from divulg-
ing “confidential information” as described above to
external parties or limiting disclosure to situations
that are only for the Respondent’s benefit;
iii. Rules which prohibit employees from com-
municating “confidential information” as described
above to co-workers or limiting such disclosure to
those situations in which the communication is es-
sential for job performance;
iv. Rules which allow employees to discuss their
terms and conditions of employment only when it is
essential for job performance;
v. Rules which indicate to employees that divulg-
ing or using “confidential information” as described
above may result in corrective action, up to and in-
cluding termination;
vi. Rules which require that employees receive
written or electronic approval from the Respondent’s
President before communicating with the general
media or in printed media, including brochures,
handbills, leaflets, and direct mail, literature and
other such material about the Respondent, its prod-
ucts, services or facilities;
vii. Rules which restrict external communication
in which the Respondent would play a significant
role;

6 See, e.g., Benchmark Mechanical, Inc., 348 NLRB 576 (2006).
viii. Rules which restrict external communication
with vendors, customers or third party providers;
ix. Rules which require employees to direct any
legal inquiry from outside sources to the Respond-
ent’s President;
x. Rules which restrict employees from disclos-
ing on the internet the Respondent’s “confidential,
sensitive or proprietary” information;
xi. Rules which restrict employees from disclos-
ing information on the internet that the Respondent
has classified as “Dreamclinic confidential”; and
xii. Rules that restrict employees from using the
internet for any purpose that would reflect negative-
ly on the Respondent.
(c) Maintaining any rules or policies which restrict
employees’ solicitation “while on the job” or “during
working hours and on the Clinic’s premises.”
(d) 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) Rescind the policies and rules in the employee
handbook that are outlined above, specifically Article
2.2.2, Code of Conduct; Article 2.2.6, Classification and
Handling of Confidential Information policy; Article
2.2.9, External Communication; Article 2.2.10, Legal
Inquiry; Article 2.2.13, Internet Use; and Article 2.2.17,
Non-Solicitation of Clients.
(b) Remove from its files any reference to the unlaw-
ful discharge of Debora Nelli and notify Nelli in writing
that this has been done and that the discharge will not be
used against her in any way.
(c) Within 14 days after service by the Region, post at
its facilities located at 902 NE 65th Street, Seattle, Wash-
ington, and MarQueen Hotel, Suite 107, 600 Queen
Anne Ave. N., Seattle, Washington, copies of the at-
tached notice marked “Appendix.”7 Copies of the notice,
on forms provided by the Regional Director for Region
19, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. The Re-

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted and Mailed by Order
of the National Labor Relations Board” shall read “Posted and Mailed
Pursuant to a Judgment of the United States Court of Appeals Enforc-
ing an Order of the National Labor Relations Board.”
DREAMCLINIC, LLC 5
spondent shall also duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since January 1, 2012. Those notices will be signed
by a responsible official of the Respondent and show the
date of mailing. The Respondent will also post a copy of
the notice on its intranet and keep it continually posted
for 60 consecutive days. The Respondent shall also
email a copy of the signed notice to all of its employees
who work at the at 902 NE 65th Street, Seattle, Washing-
ton facility and the MarQueen Hotel, Suite 107, 600
Queen Anne Ave. N., Seattle, Washington facility.
(d) 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. November 25, 2014
Mark Gaston Pearce, Chairman
Harry I. Johnson, III, Member
Nancy Schiffer, 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 vio-
lated Federal labor law and has ordered us to post, mail 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 do anything to prevent you from exercis-
ing the above rights.
YOU HAVE THE RIGHT to freely communicate with oth-
er employees and external parties about your terms and
conditions of employment, including but not limited to,
your wages and hours, and to complain to us on behalf of
yourself and other employees, and WE WILL NOT do any-
thing to interfere with your exercise of that right.
WE WILL NOT maintain rules or policies which:
 Define “confidential” information as information
which could reasonably construed to include terms
and conditions of employment, including but not
limited to, employee information, compensations,
schedules and estimates, and information present-
ed at status meetings.
WE WILL NOT maintain rules or policies which inter-
fere, restrain, or coerce employees from exercising their
Section 7 rights. Specifically, we will not maintain rules
which prohibit you from:
 Disclosing employee information, compensations,
schedules and estimates, and information present-
ed at status meetings to people we haven’t author-
ized;
 Divulging our “confidential” information to exter-
nal parties, or limiting disclosure to situations that
only are for the Company’s benefit;
 Communicating our “confidential” material to
your co-workers, or limiting disclosure only those
situations when it is essential for you to perform
your job;
 Discussing your terms and conditions of employ-
ment only when it is essential for you to perform
your job;
Or rules which,
 Indicate that your divulging or using “confiden-
tial” information may result in corrective action,
up to and including termination;
 Require written or electronic approval from the
President before you communicate with the gen-
eral media or in printed media (including bro-
chures, handbills, leaflets, and direct mail), litera-
ture, and other such material about us, our prod-
ucts, services, or facilities;
 Restrict your external communication in which we
would play a significant role;
 Restrict your external communications with ven-
dors, customers, or third party providers;
 Require you to direct any legal inquiry from out-
side sources to the President;
 Restrict your disclosing on the Internet our “confi-
dential, sensitive, or proprietary” information;
 Restrict you from disclosing information on the In-
ternet that we have classified as “Dreamclinic con-
fidential;” and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
 Restrict you from using the Internet for any pur-
pose that would reflect negatively on us.
With respect to solicitation, WE WILL NOT maintain any
rules or policies which:
 Restrict your solicitation “while on the job” or
“during working hours and on the Clinic’s premis-
es.”
WE WILL repeal, then revise where necessary, the rules
in our handbook on the subjects discussed above.
WE WILL NOT fire you because you exercise your right
to bring issues and complaints to us on behalf of your-
selves and other employees, or because you express an
interest in organizing.
WE HAVE offered Debora Nelli her job back, along
with her seniority and all other rights or privileges, and
she has declined reinstatement.
WE WILL pay Debora Nelli for the wages and other
benefits she lost because we fired her in accordance with
the terms of this agreement.
WE WILL remove from our files all references to the
discharge on March 2, 2012, of Debora Nelli and WE
WILL notify her in writing that this has been done and
that the discharge will not be used against her in any
way.
WE WILL NOT in any like or related manner interfere
with your rights under Section 7 of the Act.
DREAMCLINIC, LLC
The Board’s decision can be found at
www.nlrb.gov/case/19-CA-088440 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.