The Market By Jennifer's LLC

National Labor Relations Board - Board Decisions

May 6, 2020

369 N.L.R.B. 72 (N.L.R.B. 2020)

369 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.
The Market By Jennifer’s LLC and Joanne Raus.
Case 28–CA–236704
May 6, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that The Market by Jennifer’s LLC (the
Respondent) has failed to file an answer to the complaint.
Upon a charge filed by Joanne Raus (the Charging Party)
on February 25, 2019, the General Counsel issued a com-
plaint and notice of hearing on February 7, 2020, against
the Respondent, alleging that it has violated Section
8(a)(1) of the Act. The Respondent failed to file an an-
swer.
On March 9, 2020, the General Counsel filed with the
National Labor Relations Board a Motion for Default
Judgment. Thereafter, on March 12, 2020, the Board is-
sued 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 allega-
tions in the motion are therefore undisputed.
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 February 21, 2020, the Board
may find, pursuant to a motion for default judgment, that
the allegations in the complaint are true. Further, the un-
disputed allegations in the General Counsel’s motion dis-
close that the Region, by letter dated February 25, 2020,
advised the Respondent that unless an answer was re-
ceived by March 4, 2020, the Region may pursue a default
judgment. Nevertheless, the Respondent failed to file an
answer.
In the absence of good cause being shown for the failure
to file an answer, we deem the allegations in the complaint
to be admitted as true, and we grant the General Counsel’s
Motions to Transfer Case to and Continue Proceedings
Before the Board and 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 limited
liability company with an office and place of business in
Phoenix, Arizona (the Respondent’s facility), and has
been operating a public restaurant selling food and bever-
ages. During the 12-month period ending February 25,
2019, the Respondent, in conducting its operations, pur-
chased and received at the Respondent’s facility goods
valued in excess of $50,000 directly from points outside
the State of Arizona. In conducting its operations during
the 12-month period ending February 25, 2019, the Re-
spondent derived gross revenues in excess of $500,000.
We find that the Respondent has been an employer en-
gaged 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 mean-
ing of Section 2(11) of the Act and agents of the Respond-
ent within the meaning of Section 2(13) of the Act:
Jennifer Russo Fitzgerald – Owner
Levi Lopez – Manager
Julia Terrell – Supervisor
On various dates between about late January 2019, a
more precise date being unknown to the General Counsel,
to about February 19, 2019, the Respondent’s employee
Raus engaged in concerted activities with other employees
for the purposes of mutual aid and protection and concert-
edly complained to the Respondent regarding the wages,
hours, and working conditions of the Respondent’s em-
ployees, by raising concerns about sexual harassment with
other employees and with the Respondent.
About February 19, 2019, the Respondent;
(a) eased scheduling its employee Raus for work; and
(b) discharged its employee Raus.
The Respondent engaged in the conduct described
above because its employee Raus engaged in the con-
ducted described above, 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 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 Re-
spondent’s unfair labor practices described above affect
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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
ceasing to schedule work for employees and discharging
employees because they engaged in concerted activities
with other employees for the purposes of mutual aid and
protection, we shall order the Respondent to offer Joanne
Raus full reinstatement to her former job or, if that jobs no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privi-
leges previously enjoyed. Further, the Respondent shall
make Joanne Raus whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against her.
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 Medi-
cal Center, 356 NLRB 6 (2010). In addition, we shall or-
der the Respondent to compensate Raus for any adverse
tax consequences of receiving a lump-sum backpay
award, and to file with the Regional Director for Region
28, within 21 days of the date the amount of backpay that
is fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar years
for each employee. AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016).
In accordance with King Soopers, Inc., 364 NLRB No.
93 (2016), we shall also order the Respondent to compen-
sate the employees for their search-for-work and interim
employment expenses, regardless of whether those ex-
penses exceed interim earnings. Search-for-work and in-
terim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate pre-
scribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River Medical Center, supra.
Further, the Respondent shall also be required to re-
move from its files any reference to the unlawful discharge
of Joanne Raus and to notify her in writing that this has
1 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notices must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus pandemic, the notices must be
posted within 14 days after the facility reopens and a substantial comple-
ment of employees have returned to work, and the notices may not be
posted until a substantial complement of employees have returned to
work. Any delay in the physical posting of the paper notices also applies
been done and that the unlawful discharge will not be used
against her in any way.
ORDER
The National Labor Relations Board orders that the Re-
spondent, The Market by Jennifer’s LLC, Phoenix, Ari-
zona, its officers, agents, successors, and assigns shall:
1. Cease and desist from
(a) Ceasing to schedule employees for work because
they engage in concerted activities with other employees
for the purposes of mutual aid and protection and to dis-
courage employees from engaging in protected activity.
(b) Discharging employees because they engage in con-
certed activities with other employees for the purposes of
mutual aid and protection and to discourage employees
from engaging in protected activity.
(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) Within 14 days from the date of this Order, offer
discharged employee Joanne Raus full reinstatement to
her former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
(b) Make Joanne Raus whole for any loss of earnings
and benefits suffered as a result of the discrimination
against her, and also make Raus whole for reasonable
search-for-work and interim employment expenses, plus
interest, in the manner set forth in the remedy section of
this decision.
(c) Compensate Joanne Raus for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file with the Regional Director for Region 28, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year for Raus.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Joanne Raus, and within 3 days thereafter, notify Raus in
writing that this has been done and that the unlawful action
will not be used against her in any way.
(e) Post at its Phoenix, Arizona facility copies of the
attached notice marked “Appendix.”1 Copies of the notice,
to the electronic distribution of the notice if the Respondent customarily
communicates with its employees by electronic means. If this Order is
enforced by a judgment of a United States court of appeals, the words in
the notice reading “Mailed by Order of the National Labor Relations
Board” shall read “Mailed Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
THE MARKET BY JENNIFER’S LLC 3
on forms provided by the Regional Director for Region 28,
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, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, 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 customarily
communicates with its employees by such means. Rea-
sonable 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 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 employees and former em-
ployees employed by the Respondent at any time since
February 19, 2019.
(f) Within 21 days after service by the Region, file with
the Regional Director for Region 7 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. May 6, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 ac-
tivities.
WE WILL NOT stop scheduling you for work because you
engage in concerted activities with other employees for
the purposes of mutual aid and protection by complaining
to us regarding the wages, hours, and working conditions
of our employees and by raising concerns about sexual
harassment with other employees and with us.
WE WILL NOT discharge you because you engage in pro-
tected concerted activities 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.
WE WILL, within 14 days from the date of this Order,
offer discharged employee Joanne Raus full reinstatement
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Joanne Raus whole for any loss of earn-
ings and benefits suffered as a result of her discharge, plus
interest, and WE WILL also make Raus whole for reasona-
ble search-for-work and interim employment expenses,
plus interest.
WE WILL compensate Joanne Raus for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 28,
and WE WILL, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar year for Raus.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Joanne Raus, and WE WILL, within 3 days there-
after, notify Raus in writing that this has been done and
that the unlawful action will not be used against her in any
way.
THE MARKET BY JENNIFER’S LLC
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-236704 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4