Daviola Productions, LLC d/b/a Imaginarium

National Labor Relations Board - Board Decisions

Mar 5, 2018

366 NLRB No. 25 (N.L.R.B. 2018)

366 NLRB No. 25
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.
Daviola Productions, LLC d/b/a Imaginarium and
Brock Williamson. Case 28–CA–204315
March 5, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by
Brock Williamson on August 14, 2017, the General
Counsel issued a complaint on October 31, 2017, against
Daviola Productions, LLC d/b/a Imaginarium (the Re-
spondent), alleging that it has violated Section 8(a)(1)
and (3) of the National Labor Relations Act. The Re-
spondent failed to file an answer.
On December 22, 2017, the General Counsel filed with
the National Labor Relations Board Motions to Transfer
and Continue Matter before the Board and for Default
Judgment. Thereafter, on January 3, 2018, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. On January 17, 2018, the date responses
were due, the United States Postal Service tracking sys-
tem indicated that the order and Notice to Show Cause
had not yet been delivered at either of the two addresses
for the Respondent. Therefore, on January 18, 2018, the
Board issued a Supplemental Notice to Show Cause,
which was sent to the Respondent at those two addresses
and to two addresses for the Respondent’s registered
agent, and it extended the deadline for the response. The
Respondent filed a response to the Supplemental Notice
to Show Cause.
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 stated
that unless an answer was received by November 14,
2017, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the complaint are
true. Further, the General Counsel’s motion discloses
that the Region, by letter dated December 8, 2017, ad-
vised the Respondent that unless an answer was received
by December 15, 2017, a motion for default judgment
would be filed. Nevertheless, the Respondent neither
filed an answer nor requested an extension of time to do
so before any of the deadlines passed. In fact, it did not
attempt to file an answer until February 1, 2018, when it
responded to the Supplemental Notice to Show Cause by
filing an Opposition to Motion for Default Judgment and
Request for Permission to File Answer. This response
was filed 11 weeks after the deadline for the answer, and
41 days after the General Counsel filed the Motion for
Default Judgment with the Board.
Section 102.2(d) of the Board’s Rules and Regulations
provides that answers to a complaint “may be filed with-
in a reasonable time after the time prescribed by these
Rules only upon good cause shown based on excusable
neglect and when no undue prejudice would result.”
Here, the Respondent did not file an answer to the com-
plaint by the November 14 or December 15 deadlines.
Nor did it request an extension of time to file an answer.1
Such failure to promptly request an extension of time is a
factor demonstrating lack of good cause. See, e.g.,
Teamsters Local Union No. 455 (Cargill Meat Solutions
Corporation), 364 NLRB No. 127, slip op. at 1 (2016);
V. Garofalo Carting, 362 NLRB No. 170, slip op. at 1
(2015); Day & Zimmerman Services, 325 NLRB 1046,
1047 (1998).2
Further, the Respondent’s assertions in its response to
the Supplemental Notice to Show Cause do not demon-
strate good cause for failing to file a timely answer. The
Respondent argues that “Daviola’s principals are from
Luxembourg and they did not fully understand the gravi-
ty of failing to respond to the Board’s processes.” This
argument does not establish good cause for failing to
respond to repeated warnings in formal government doc-
uments. See, e.g., Patrician Assisted Living Facility, 339

1 We reject the Respondent’s argument that the Motion for Default
Judgment should be denied because the General Counsel and the
Charging Party were not prejudiced by the Respondent’s failure to file
a timely answer. It is not necessary to show prejudice before requiring
the Respondent to comply with the Board’s Rules. See St. Regis Enter-
prises, LLC, 364 NLRB No. 137, slip op. at 3 fn. 6 (2016); Associated
Supermarket, 338 NLRB 780, 781 (2003).
2 The Respondent notes that some correspondence relating to the
case was mailed to it at the Las Vegas Boulevard South address of
Tropicana Las Vegas, Inc. (Tropicana), instead of the Respondent’s
Dean Martin Drive address. Tropicana, however, is the Respondent’s
place of business; the complaint and a reminder letter sent there to the
Respondent were not returned; and the Respondent does not claim that
it did not receive the complaint. To the contrary, the Respondent ap-
pears to concede otherwise when acknowledging in its opposition to the
General Counsel’s motion that “the fact that Daviola did not initially
timely respond is unfortunate.” Further, as to the reminder letter, it is
well established that, even if the Region had not issued a reminder
letter prior to filing its motion for default judgment, it would not excuse
the Respondent’s antecedent failure to file a timely answer. See, e.g.,
St. Regis Enterprises, 364 NLRB No. 137, slip op. at 3 fn. 5.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
NLRB 1153, 1154 (2003) (finding no good cause where
respondent claimed a lack of legal knowledge and that it
was unaware of the gravity of failing to file an answer);
Associated Supermarket, 338 NLRB at 780–781 (finding
no good cause where respondent argued that its owner
was an immigrant whose first language was not English
and that he was unsophisticated in legal matters and la-
bor relations); Printing Methods, Inc., 289 NLRB 1231,
1231 (1988) (finding no good cause where respondent
argued its owner was an immigrant, unfamiliar with
Board proceedings and had never been involved in an
unfair labor practice case).
Nor is it an excuse that the Respondent, in its words,
“[o]nly just recently . . . engage[d] counsel with experi-
ence and knowledge about the Board’s policies and pro-
cedures.” That the Respondent previously lacked knowl-
edgeable counsel or, indeed, had no counsel at all, is not
a basis for finding good cause for not filing a timely an-
swer. See St. Regis Enterprises, 364 NLRB No. 137, slip
op. at 2 & fn. 4.
We also reject the Respondent’s arguments that the
Motion for Default Judgment should be denied because
there is an overlay of employee supervision and control
among multiple entities involved in Williamson’s em-
ployment, and because it would prejudice a parallel pro-
ceeding involving Williamson and Tropicana. These
arguments neither address nor establish how the Re-
spondent had good cause, based on excusable neglect, for
failing to file a timely answer.
We also reject the Respondent’s claim that the com-
plaint fails to allege sufficient facts demonstrating a vio-
lation of the National Labor Relations Act. The com-
plaint clearly and concisely describes the actions the Re-
spondent took which constitute an unfair labor practice.
The complaint states that the Respondent requested that
Williamson be removed from its facility, an action which
caused Williamson to be moved from full-time to on-call
status, and to be removed from the Respondent’s sched-
ule of work. The complaint further alleges that the Re-
spondent took this action because Williamson filed a
claim under a collective-bargaining agreement that the
Respondent applied to its employees,3 and because Wil-
liamson formed, joined, and assisted the Union that was
party to that agreement. Further, the complaint specifies
the approximate dates for these actions. Thus, we find
the complaint meets the clear and concise requirement
for complaints articulated in Rule 102.15(b), and sets
forth the legal causes of action.

3 Williamson’s claim protested the treatment of employees by the
Respondent’s manager.
Lastly, to the extent the Respondent argues that it did
not engage in the alleged unlawful conduct, that Tropi-
cana (and not it) is Williamson’s employer,4 or that there
were lawful reasons for Williamson’s removal, we find
those defenses are not properly before us because the
Respondent failed to show good cause for its late re-
sponse. See Perry Brothers Trucking, 364 NLRB No.
10, slip op. at 2 (2016), and cases cited there.
Accordingly, in the absence of good cause shown for
the failure to file a timely answer to the complaint, we
deem the allegations 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 lim-
ited liability company with an office and place of busi-
ness in Las Vegas, Nevada (the Respondent’s facility),
and has been engaged in producing live entertainment
shows, including Imaginarium at the Tropicana Las Ve-
gas Hotel and Casino in Las Vegas, Nevada.
Based on a projection since about May 22, 2017, at
which time the Respondent commenced its operations,
the Respondent will annually derive gross revenues in
excess of $500,000 in conducting its operations, perform
services valued in excess of $50,000 in States other than
the State of Nevada, and purchase and receive at its facil-
ity goods valued in excess of $5000 directly from points
outside the State of Nevada.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.5
At all material times, International Alliance of Theatri-
cal Stage Employees, Moving Picture Technicians, Art-
ists and Allied Crafts of the United States, its Territories
and Canada, Local 720, AFL–CIO, CLC (the Union) has
been a labor organization within the meaning of Section
2(5) of the Act.6

4 Although the complaint terms Tropicana as “the Employer,” it also
alleges that the Respondent is “an employer” within the meaning of the
Act, that Williamson is “the Respondent’s employee,” and that the
Respondent is liable for the unfair labor practices alleged.
5 The complaint also alleges that Tropicana is an employer engaged
in commerce within the meaning of the Act, and it asserts certain finan-
cial information regarding Tropicana to support this allegation. We
find it unnecessary to pass on these allegations because these findings
would not affect the remedy.
6 We take administrative notice that the Union is a labor organization
within the meaning of Section 2(5) of the Act. See Stage Employees
IATSE, Local 720 (Tropicana Las Vegas, Inc.), 363 NLRB No. 148
(2016), enfd. mem. ___ Fed. Appx. ___, 2017 WL 6420455 (9th Cir.
Dec. 18, 2017).
DAVIOLA PRODUCTIONS, LLC D/B/A IMAGINARIUM 3
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:
David Goldrake - Magician
Jake Roeber - Production Lead
At all material times, Tropicana and the Union have
maintained in effect and enforced a collective-bargaining
agreement covering wages, hours, and other terms and
conditions of employment of certain employees of Trop-
icana at its facility (the Agreement).
At all material times, the Respondent has applied the
Agreement to its employees.
About July 27, 2017, the Respondent’s employee
Brock Williamson filed a claim related to the Agreement
in Tropicana’s Human Resources regarding Jake Roe-
ber’s interactions with employees.
Around late July 2017, the Respondent requested
Tropicana to remove Williamson from the Respondent’s
facility, and this caused Tropicana to move Williamson
from full-time to on-call status around August 4, 2017,
thereby removing Williamson from the Respondent’s
schedule of work for its employees. The Respondent
engaged in this conduct because Williamson filed the
claim with Tropicana’s Human Resources and to dis-
courage employees from engaging in these or other con-
certed activities. The Respondent also engaged in this
conduct because Williamson formed, joined and assisted
the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities.
CONCLUSIONS 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, and
the Respondent has been discriminating in regard to the
hire or tenure or terms or conditions of employment of its
employees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) and (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 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) and
(3) of the Act by requesting Tropicana to remove Brock
Williamson from the Respondent’s facility, we shall or-
der the Respondent to offer Williamson full reinstate-
ment to his former full-time status, and if that job no
longer exists to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed. Additionally, we shall order
the Respondent to notify Tropicana that Williamson is
allowed in the Respondent’s facility and, if necessary to
secure his reinstatement, to request that Tropicana rein-
state Williamson to full-time status. Further, we shall
order the Respondent to make Williamson whole for any
loss of earnings and other benefits suffered as a result of
the unlawful actions against him. Backpay shall be com-
puted 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
pertinent part 859 F.3d 23 (D.C. Cir. 2017), we shall also
order the Respondent to compensate Williamson for his
search-for-work and interim employment expenses re-
gardless of whether those expenses exceed interim earn-
ings. Search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay,
with interest at the rate prescribed in New Horizons, su-
pra, compounded daily as prescribed in Kentucky River
Medical Center, supra.7
The Respondent additionally shall be ordered to re-
move from its files any references to Williamson not
being allowed in the Respondent’s facility, to being
moved from full-time to on on-call status, and to being
removed from the Respondent’s schedule of work, and it
shall notify him in writing that this has been done and
that the unlawful actions will not be used against him in
any way. We shall further order the Respondent to com-
pensate Williamson for any adverse tax consequences of
receiving a lump-sum backpay award and to file with the
Regional Director for Region 28 a report allocating the
backpay award to the appropriate calendar years. Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016).

7 The General Counsel seeks a make-whole remedy that would in-
clude consequential damages incurred by the discriminatee as a result
of the Respondents’ unfair labor practices. The relief sought would
require a change in Board law. Having duly considered the matter, we
are not prepared at this time to deviate from our current remedial prac-
tice. See, e.g., Laborers’ International Union of North America, Local
Union No. 91 (Council of Utility Contractors), 365 NLRB No. 28, slip
op. at 1 fn. 2 (2017).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The National Labor Relations Board orders that the
Respondent, Daviola Productions, LLC d/b/a Imaginari-
um, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Requesting that its employees be removed from its
facility—thus causing its employees to be moved from
full-time to on-call status and to be removed from its
schedule of work—because employees engaged in pro-
tected concerted activities and because of their support
for and activities on behalf of the Union.
(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
Brock Williamson full reinstatement to his former full-
time status or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
(b) Within 14 days from the date of this Order, notify
Tropicana that Williamson is allowed in the Respond-
ent’s facility, and, if necessary to secure his reinstate-
ment, request that Tropicana reinstate Williamson to full-
time status.
(c) Make Brock Williamson whole for any loss of
earnings or benefits he may have suffered as a result of
not being allowed in the Respondent’s facility, being
moved from full-time to on-call status, and being re-
moved from the Respondent’s schedule of work, in the
manner set forth in the remedy section of this decision,
plus reasonable search-for-work and interim employment
expenses.
(d) Compensate Brock Williamson for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, 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 allo-
cating the backpay award to the appropriate calendar
years.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to Williamson not be-
ing allowed in the Respondent’s facility, being moved
from full-time to on-call status, and being removed from
the Respondent’s schedule of work, and within 3 days
thereafter, notify him in writing that this has been done
and that the unlawful actions will not be used against him
in any way.
(f) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”8 Copies of the notice, 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,
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-
ployees and former employees employed by the Re-
spondent at any time since August 4, 2017.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 28 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. March 5, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

8 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.”
DAVIOLA PRODUCTIONS, LLC D/B/A IMAGINARIUM 5
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 request that Tropicana Las Vegas, Inc.
(Tropicana) remove our employees from our facility,
thus causing our employees to be moved from full-time
to on-call status and to be removed from our schedule of
work because employees engaged in protected concerted
activities and because of their support for and activities
on behalf of the Union.
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 Brock Williamson full reinstatement to his
former full-time status or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL, within 14 days from the date of the Board’s
Order, notify Tropicana that Brock Williamson is al-
lowed in our facility, and, if necessary to secure his rein-
statement, WE WILL request that Tropicana reinstate Wil-
liamson to full-time status.
WE WILL make Brock Williamson whole for any loss
of earnings and other benefits resulting from his not be-
ing allowed in our facility, being moved from full-time to
on-call status, and being removed from our schedule of
work, less any net interim earnings, plus interest, and WE
WILL also make Williamson whole for reasonable search-
for-work and interim employment expenses, plus inter-
est.
WE WILL compensate Brock Williamson for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector 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 backpay award to the
appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Brock Wil-
liamson not being allowed in our facility, to being moved
from full-time to on-call status, and to being removed
from our schedule of work, and WE WILL within 3 days
thereafter, notify Williamson in writing that this has been
done and that the unlawful actions will not be used
against him in any way.
DAVIOLA PRODUCTIONS, LLC D/B/A
IMAGINARIUM
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-204315 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.