RM Bakery, LLC,D/B/A Leaven & Co., A Wholly-Owned Subsidiary of BKD Group, LLC

National Labor Relations Board - Board Decisions

Oct 8, 2019

368 NLRB No. 90 (N.L.R.B. 2019)

368 NLRB No. 90
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.
RM Bakery, LLC d/b/a Leaven & Co., a wholly-
owned subsidiary of BKD Group, LLC and
Make the Road New York. Case 02–CA–235116
October 8, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that the Respondent, RM Bakery,
LLC d/b/a Leaven & Co., a wholly-owned subsidiary of
BKD Group, LLC, has failed to file an answer to the
complaint. Upon a charge and amended charge filed by
Make the Road New York on January 30 and April 1,
2019,1 respectively, the General Counsel issued a com-
plaint on June 10 against the Respondent, alleging that it
has violated Section 8(a)(1) of the National Labor Rela-
tions Act. The Respondent failed to file an answer.
On July 8, the General Counsel filed with the National
Labor Relations Board a Motion for Default Judgment.
On July 10, 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.2
The Board has delegated its authority in this proceed-
ing 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 stated
that, unless an answer was received by June 24, the
Board may find, pursuant to a motion for default judg-
ment, that the allegations in the complaint are true. Fur-
ther, the undisputed allegations in the General Counsel’s
motion disclose that the Region, by letter and electronic
mail dated June 24, notified the Respondent that unless
an answer was filed by July 1, a motion for default
judgment would be filed. Nevertheless, the Respondent

1 All dates are in 2019 unless otherwise indicated.
2 On August 5, the General Counsel filed a Motion to Expedite De-
fault Judgment and Board Order asserting the urgency of a final Board
Order to remedy the Respondent’s unlawful conduct and to mitigate the
resulting chilling effect on the remaining employees’ exercise of their
Sec. 7 rights. The Respondent also filed no response to this motion.
We deny this motion as moot in light of our disposition of the case.
failed to file an answer or request an extension of time to
file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations in the
complaint to be admitted as true, and we grant the Gen-
eral 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 corporation of Delaware with an office and
place of business located at 220 Coster Street, Bronx,
New York 10474 (the facility), and has been engaged in
the production and the non-retail sale of baked goods.
During the 12-month period ending April 25, the Re-
spondent sold and shipped, from the facility, goods val-
ued in excess of $50,000 directly to 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
1. 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/or agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Dan Wilczynski - Executive Vice President
Norman Rich - Chief Financial Officer
Daniel Kain - Route Manager
Victor Colado - Route Manager
2. On or about September 28, 2018, the Respondent
failed to pay its employees Juan Carlos Abarca, Nestor
Marquez, Rene Moran, Gilberto Paniura, and Clayton
Brown for hours worked.
3. On or about October 5, 2018, the Respondent failed
to pay its employees Juan Carlos Abarca, Nestor
Marquez, Rene Moran, Gilberto Paniura, and Clayton
Brown for hours worked.
4. On or about October 9, 2018, the Respondent em-
ployees Juan Carlos Abarca, Nestor Marquez, Rene Mo-
ran, Gilberto Paniura, and Clayton Brown ceased work
concertedly and engaged in a one-day strike in protest of
the Respondent's failure to pay employees.
5. On or about October 10, 2018, the Respondent ter-
minated employees Juan Carlos Abarca, Nestor Marquez,
Rene Moran, Gilberto Paniura, and Clayton Brown.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
6. The Respondent engaged in the conduct described
above in paragraph 5 because Juan Carlos Abarca, Nes-
tor Marquez, Rene Moran, Gilberto Paniura, and Clayton
Brown engaged in the conduct described above in para-
graph 4 and to discourage employees from engaging in
these or other concerted activities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been interfering with, restraining, or 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 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
terminating employees Juan Carlos Abarca, Nestor
Marquez, Rene Moran, Gilberto Paniura, and Clayton
Brown for engaging in protected concerted activity, we
shall order the Respondent to offer these employees full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them. 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 Medical Center,
356 NLRB 6 (2010).
In accordance with our decision in King Soopers, Inc.,
364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d
23 (D.C. Cir. 2017), we shall also order the Respondent
to compensate the employees for their search-for-work
and interim employment expenses regardless of whether
those expenses exceed interim earnings. Search-for-
work and interim employment expenses shall be calcu-
lated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded
daily as prescribed in Kentucky River Medical Center,
supra.
In addition, we shall order the Respondent to compen-
sate the named employees for any adverse tax conse-
quences of receiving a lump-sum backpay award and to
file a report with the Regional Director for Region 2 al-
locating the backpay award to the appropriate calendar
year for each employee. AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016).
The Respondent shall also be required to remove from
its files any reference to the unlawful terminations of
Juan Carlos Abarca, Nestor Marquez, Rene Moran, Gil-
berto Paniura, and Clayton Brown and to notify them in
writing that this has been done and that the unlawful ter-
minations will not be used against them in any way.3
ORDER
The National Labor Relations Board orders that the
Respondent, RM Bakery, LLC d/b/a Leaven & Co., a
wholly-owned subsidiary of BKD Group, LLC, Bronx,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Terminating or otherwise discriminating against its
employees because they engaged in protected concerted
activities.
(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) Within 14 days from the date of this Order, offer
Juan Carlos Abarca, Nestor Marquez, Rene Moran, Gil-
berto Paniura, and Clayton Brown full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Juan Carlos Abarca, Nestor Marquez, Rene
Moran, Gilberto Paniura, and Clayton Brown whole for
any loss of earnings and other benefits they may have
suffered as a result of their unlawful terminations, in the
manner set forth in the remedy section of this decision.
(c) Compensate Juan Carlos Abarca, Nestor Marquez,
Rene Moran, Gilberto Paniura, and Clayton Brown for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and file with the Regional Director
for Region 2, 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 for each employee.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful termi-
nations of Juan Carlos Abarca, Nestor Marquez, Rene
Moran, Gilberto Paniura, and Clayton Brown, and within
3 days thereafter, notify the employees in writing that

3 In the complaint, the General Counsel requests that the notice be
posted in English and Spanish. We grant this request.
RM BAKERY, LLC D/B/A LEAVEN & CO. 3
this has been done and that the unlawful terminations
will not be used against them in any way.
(e) 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, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days of service by the Region, post at its
Bronx, New York facility copies of the attached notice
marked “Appendix” in both English and Spanish.4 Cop-
ies of the notice, in English and Spanish, on forms pro-
vided by the Regional Director for Region 2, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily post-
ed. In addition to physical posting of paper notices, no-
tices 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 com-
municates with its employees by such means. Reasona-
ble 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 busi-
ness or closed the facility involved in these proceedings,
the Respondent shall 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 October 10, 2018.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 2 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. October 8, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member

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.”
________________________________________
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 terminate you because you engaged in
protected concerted 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, offer Juan Carlos Abarca, Nestor Marquez, Rene
Moran, Gilberto Paniura, and Clayton Brown full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Juan Carlos Abarca, Nestor Marquez,
Rene Moran, Gilberto Paniura, and Clayton Brown
whole for any loss of earnings and other benefits they
may have suffered as a result of their unlawful termina-
tions, less any net interim earnings, plus interest, and WE
WILL also make those employees whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Juan Carlos Abarca, Nestor
Marquez, Rene Moran, Gilberto Paniura, and Clayton
Brown for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 2, within 21 days
of the date the amount of backpay is fixed, either by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar year for each em-
ployee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful terminations of Juan Carlos Abarca, Nestor Marquez,
Rene Moran, Gilberto Paniura, and Clayton Brown, and
WE WILL within 3 days thereafter, notify them in writing
that this has been done and that the unlawful termina-
tions will not be used against them in any way.
RM BAKERY, LLC D/B/A LEAVEN & CO., A
WHOLLY-OWNED SUBSIDIARY OF BKD GROUP,
LLC
The Board’s decision can be found at
http://www.nlrb.gov/case/02-CA-235116 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.