Black's Railroad Transit Service

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1148 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148
Black’s Railroad Transit Service and Candice L.
Bowles. Case 33–CA–13903–1
April 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
This case is before the Board on the General Counsel’s
“Motion for Summary Judgment.”1 The General Coun-
sel alleges that Black’s Railroad Transit Service (the Re-
spondent) failed to timely answer a complaint alleging
that the Respondent violated Section 8(a)(3) and (1) and
Section 8(a)(4) of the Act by terminating Candice L.
Bowles because of her union activities and because she
filed an unfair labor practice charge.2 In its response to
the Board’s Notice to Show Cause, the Respondent as-
serts that it terminated Bowles solely because she en-
gaged in unsafe personal activities while on the job. The
Respondent also attached numerous documents to its
response, including correspondence with the Regional
Office about the charge and complaint. The issues be-
fore the Board are: (1) whether the Respondent submit-
ted evidence establishing that it filed a timely answer to
the complaint; and, if not (2) whether the Respondent
proffered reasons for its failure to file a timely answer
that constituted good cause under Section 102.20 of the
Board’s Rules and Regulations. For the reasons set forth
below, we find that the evidence does not establish that a
timely answer was filed. We also find that good cause
has not been established for the failure to file a timely
answer. Accordingly, we grant the General Counsel’s
Motion for Default Judgment.

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer to the com-
plaint. Accordingly, we construe the General Counsel’s motion as a
Motion for Default Judgment.
2 The chronology of events preceding this Decision and Order are as
follows: A charge and amended charge were filed by Candice L.
Bowles on January 31 and March 27, 2002, respectively. The Regional
Director for Region 33 of the National Labor Relations Board issued a
complaint on March 28, 2002, against the Respondent. By letter dated
March 29, 2002, the General Counsel notified the Respondent that an
answer must be received within 14 days from the date of the complaint
and that if no answer were received, the General Counsel intended to
file a Motion for Default Judgment. On April 22, 2002, the General
Counsel filed a Motion for Default Judgment with the Board alleging
that the Respondent failed to file a timely answer. On April 24, 2002,
the Board issued an order transferring the proceeding to the Board and
a Notice to Show Cause why the Motion for Default Judgment should
not be granted. On May 9, 2002, the Respondent filed a response to the
Notice to Show Cause opposing the General Counsel’s motion.
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 the 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 states
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Default Judgment reveal that the Region notified
the Respondent by letter dated March 29, 2002,3 that an
answer must be received within 14 days from the date of
the complaint and that, if no answer were received, the
General Counsel intended to file a Motion for Default
Judgment.
In its response to the Board’s Notice to Show Cause,
the Respondent’s president, Richard L. Black, denies that
his decision to terminate Bowles was connected to her
union activity. The Respondent does not assert that it
filed a timely answer with the Region, nor does it give
any reason for its failure to file an answer.
The Respondent is not represented by counsel in this
proceeding. In determining whether to grant a Motion
for Default Summary Judgment on the basis of a respon-
dent’s failure to file a timely answer, the Board has, as a
general matter, shown leniency to respondents proceed-
ing pro se. Kenco Electric & Signs, 325 NLRB 1118
(1998). Thus, “the Board will generally not preclude a
determination on the merits of a complaint if it finds that
a pro se respondent has filed a timely answer which can
reasonably be construed as denying the substance of the
complaint allegations.” Id. (citing Harborview Electric
Construction Co., 315 NLRB 301 (1994)).
Under this standard, we conclude that the Respondent
has failed to submit sufficient evidence establishing that
it filed a timely answer. Of the numerous documents the
Respondent attached to its response to the Notice to
Show Cause, only one written by the Respondent is dated
after the issuance of the complaint.4 It is a letter dated
April 10 from President Black to the Regional Office
stating that Black decided to terminate Bowles because
she was attending to personal activities while on duty
and had unsafe items stored in the vehicle assigned to
her. A facsimile cover sheet dated April 10 is stapled to
the letter. Neither the April 10 letter nor the facsimile
cover sheet contain any authenticating marks or other
identification that would establish that the letter was sent
to the Region. Moreover, the General Counsel makes no
3 All dates refer to 2002.
4 The Regional Director set a 14-day deadline for the Respondent to
file a timely answer. Accordingly, an answer was due from the Re-
spondent on or before April 11, 2002.
338 NLRB No. 177
BLACK’S RAILROAD TRANSIT SERVICE 1149
reference to having received any documents in response
to the complaint. Nothing in the record otherwise indi-
cates that an answer was sent to, or received by, the Re-
gional Office. Thus, there is insufficient evidence to
show that the April 10 letter was filed.
Our decision to grant default summary judgment
against the Respondent is further supported by a Board
decision involving the Respondent, indicating that the
Respondent previously has been exposed to the Board’s
default summary judgment procedures. In Black’s Rail-
road Transit Service, 334 NLRB 325 (2001), which in-
volved the same charging party, the Respondent acting
pro se failed to file an answer to the complaint. Citing
the relevant Rules and Regulations to the Respondent,
the Board granted the General Counsel’s motion for de-
fault judgment on the ground that the various documents
submitted by the Respondent did not explain why the
Respondent failed to file an answer. Thus, the Respon-
dent has directly experienced the consequences of failing
to follow the Board’s Rules and Regulations regarding
answering complaints. Yet it again has not followed
those Rules and Regulations.
Nor has the Respondent proffered reasons for its fail-
ure to file a timely answer that would constitute good
cause under the Board’s Rules and Regulations. As
noted earlier, the Respondent is acting pro se, and the
Board has shown some leniency toward respondents who
proceed without benefit of counsel. However, cases
showing leniency “generally involve respondents that
have . . . offered as good cause an explanation other than
simply their pro se status.” Calyer Architectural Wood-
working Corp., 338 NLRB 315, 315–316 (2002). Ac-
cordingly, we find that the Respondent’s pro se status
alone is insufficient to constitute good cause.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’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, an Illinois cor-
poration, with an office and place of business in Gales-
burg, Illinois, has been engaged in business as a transpor-
tation service.
During the 12-month period ending December 31,
2001, the Respondent, in conducting its business opera-
tions, performed services in excess of $50,000 in states
other than the State of Illinois.
During the same period, the Respondent, in conducting
its business operations, purchased and received at its
Galesburg, Illinois facility goods valued in excess of
$50,000 directly from points outside the State of Illinois.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that Teamsters, Chauffeurs & Helpers,
Local Union No. 627, International Brotherhood of
Teamsters (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Richard Black held the position
of Respondent’s owner and president, and is a supervisor
of the Respondent within the meaning of Section 2(11)
of the Act and an agent of the Respondent within the
meaning of Section 2(13) of the Act. At all material
times, Glenda Black was the sister of Richard Black and
is a supervisor within the meaning of Section 2(11) of the
Act and/or an agent of the Respondent within the mean-
ing of Section 2(13) of the Act.
About January 23, 2002, the Respondent terminated
employee Candice L. Bowles because Bowles joined the
Union and engaged in concerted activities, and to dis-
courage employees from engaging in these activities.
The Respondent also terminated Bowles because she
filed unfair labor practice charges with the Board and
participated in Board investigations and proceedings.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has discriminated in regard to the hire or tenure or
terms and conditions of employment of its employees.
By the same conduct, the Respondent has discriminated
against employees for filing charges or giving testimony
under the Act. The Respondent thereby engaged in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(3) and (1), Section 8(a)(4) and (1),
and 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 has violated Section 8(a)(3)
and (1) and Section 8(a)(4) and (1) by terminating Can-
dice L. Bowles, we shall order the Respondent to offer
her immediate reinstatement to her previous position or,
if that job no longer exists, to a substantially equivalent
position, and to make her whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her. Backpay shall be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent shall
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150
also be required to remove from its files any and all ref-
erences to the unlawful termination, and to notify Bowles
in writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Black’s Railroad Transit Service, Inc.,
Galesburg, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Terminating its employees because they join the
Union or engage in protected concerted activities.
(b) Terminating its employees because they filed un-
fair labor practice charges with the Board and partici-
pated in Board investigations and proceedings.
(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
Candice Bowles, full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Candice Bowles whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful termination of
Candice Bowles and within 3 days thereafter notify her
in writing that this has been done and that the termination
will not be used against her in any way.
(d) 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 re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Galesburg, Illinois, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 33,
after being signed by the Respondent’s authorized repre-

5 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.”
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. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 23, 2002.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any 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 employees because they join
the Union or engage in protected concerted activities.
WE WILL NOT terminate employees because they file
unfair labor practice charges with the Board or partici-
pate in Board investigations or proceedings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Candice Bowles 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.
WE WILL make Candice Bowles whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, less any net interim earnings,
plus interest.
BLACK’S RAILROAD TRANSIT SERVICE 1151
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful termination of Candice Bowles, and WE WILL, within
3 days thereafter, notify her in writing that this has been
done and that the termination will not be used against her
in any way.

BLACK’S RAILROAD TRANSIT SERVICE