Century Parking

National Labor Relations Board - Board Decisions

Oct 30, 1998

327 N.L.R.B. 21 (N.L.R.B. 1998)

CENTURY PARKING 21
Sentry Parking, Inc. d/b/a Century Parking, Inc. and
Service Employees International Union, Local
200-C. Case 3–CA–20973
October 30, 1998
ORDER DENYING MOTIONS
BY MEMBERS FOX, HURTGEN, AND BRAME
Upon a charge filed by the Union on November 6, 1997,
the General Counsel of the National Labor Relations Board
issued a complaint on January 29, 1998, against the Re-
spondent, Sentry Parking, Inc. d/b/a Century Parking, Inc.,
alleging that it has violated Section 8(a)(5) and (1) of the
National Labor Relations Act.1 Although properly served
copies of the charge and complaint, the Respondent failed to
file an answer within 14 days of service of the complaint, as
required pursuant to Sections 102.20 and 102.21 of the
Board’s Rules and Regulations.
By mail and by facsimile letter on February 13, 1998, the
General Counsel advised the Respondent of its failure to file
an answer and granted an extension of time to file an answer
until the close of business on February 20, 1998.2 The Gen-
eral Counsel further advised the Respondent that he would
file a Motion for Summary Judgment if the Respondent
failed to file a timely answer. At 7:42 p.m., EST, on Febru-
ary 20, 1998, a letter addressed to the Regional Director for
Region 3 from the Respondent’s vice president,3 Thomas C.
Hall, was received in the Regional Office via facsimile ma-
chine.4 Hall was not represented by counsel. The Regional
Office received a hard copy of the Respondent’s letter on
February 23, 1998.5 In its letter, the Respondent said the
following:

Sentry Parking, Inc., d/b/a Century Parking, Inc., cate-
gorically denies all of the allegations made by Local
200C in the above referenced case. We welcome the
opportunity to meet in Buffalo, N.Y., on April 14,
1998, at 10:00 a.m., to resolve this matter.

On February 26, 1998, the General Counsel filed a Mo-
tion for Summary Judgment contending, in essence, that the
Respondent did not properly file a timely, sufficient answer.
On February 27, 1998, the Board issued an Order Transfer-
ring Proceeding to the Board and Notice to Show Cause
why the motion should not be granted. The Board advised
the Respondent that cause must be shown, in writing, filed
with the Board in Washington, D.C., on or before March 13,
1998. On March 20, 1998, the Respondent, now repre-
sented by counsel,6 filed an opposition to the General Coun-
sel’s Motion for Summary Judgment and a document titled
“Respondent’s First Amended Answer to Complaint and
Notice of Hearing.” On March 23, the General Counsel
filed a brief in support of its summary judgment motion.7

1 The complaint served notice that a hearing was scheduled for April
14, 1998, in Buffalo, New York.
2 Sec. 102.111(b) of the Board’s Rules provide that “[w]hen the Act
or any of these rules require the filing of a motion, brief, exception, or
other paper in any proceeding, such document must be received by the
Board or the officer or agent designated to receive such matter before
the official closing time of the receiving office on the last day of the
time limit.” In this case, the close of business in the receiving office,
i.e., the Board’s Buffalo, New York Regional Office, is 5 p.m., EST.
3 The letter was transmitted from Hall’s office located at the Re-
spondent’s facility in Los Angeles, California.
4 Sec. 102.114(g) of the Board’s Rules provides that answers to
complaints are among those documents which may not be filed by
facsimile transmission.
5 The Respondent did not provide a statement of service indicating
that it has served a copy of its February 20 letter on the Charging Party,
as required by Sec. 102.21 of the Board’s Rules.
The National Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
We deny the General Counsel’s Motion for Summary
Judgment for the reasons that follow.
In support of its motion, the General Counsel contends
that the Respondent’s “purported answer,” i.e., its February
20, 1998 letter, should be rejected because: it was not filed
by the close of business on February 20, 1998; it was
impermissibly filed by facsimile transmission; it fails to
“specifically admit, deny or explain each of the facts alleged
in the complaint,” as required by Section 102.20 of the
Board’s Rules; and, the Respondent did not comply with the
requirement that a copy of an answer be served on the
Charging Party. The General Counsel further contends that
the Board should not excuse these procedural defects be-
cause the Respondent proceeded without counsel until
March 11, 1998. The General Counsel asserts that the Re-
spondent was notified of its right to be represented by coun-
sel on the filing of the charge. Further, the General Counsel
asserts that the Respondent’s “cavalier, even frivolous ap-
proach to this matter is demonstrated by its general denial of
all the complaint’s allegations,” including the allegation that
the Union is the certified collective-bargaining representa-
6 By letter to the Board’s Executive Secretary dated March 11, 1998,
the Respondent advised the Board that it had retained counsel. The
Respondent sent a copy of this letter to the Board’s Regional Office,
along with a request for an extension of time to file a response to the
Notice to Show Cause. An extension of time to March 20 was granted.
7 On April 28, 1998, the Respondent filed a “Motion to Strike Acting
General Counsel’s Brief in Support of His Motion for Summary Judg-
ment.” The Respondent contends that the General Counsel’s brief
should be rejected because the General Counsel failed to serve a copy
on the Respondent’s counsel. The General Counsel filed an opposition.
We deny the Respondent’s motion. The General Counsel timely served
a copy of his brief on the Respondent on March 19. On that date, the
Respondent’s counsel, who had been retained on March 11, had not yet
filed a standard notice of appearance with the Regional Director. The
General Counsel did not serve a copy of his brief on the Respondent’s
counsel until he learned, on April 21, that the Respondent’s counsel had
not received a copy. Sec. 102.114 of the Board’s Rules provides that
the Board “may” reject a document not properly served on the parties.
It does not require the document’s rejection. As noted, the General
Counsel properly served the Respondent. Moreover, the Board gener-
ally will not reject an improperly served document absent a showing of
prejudice to a party. M. K. Morse Co., 302 NLRB 924 fn. 1 (1991).
The Respondent has not claimed that it has been prejudiced by the
delay.
327 NLRB No. 8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22
tive of the unit employees and other facts to which the Re-
spondent previously has stipulated.8
The Respondent does not dispute the procedural defects
cited by the General Counsel.9 The Respondent contends
that, acting pro se, it made a good-faith attempt to respond
to the allegations of the complaint in its February 20, 1998
letter, which manifested a clear intent to cooperate to “re-
solve this matter.” It further contends that its first amended
answer, filed with assistance of counsel, fully complies with
the Board’s Rules and cures the procedural defects in the
original. It contends that the General Counsel has not
shown any prejudice that would arise if Board were to ac-
cept its first amended answer.The Respondent relies on Sec-
tion 102.23 of the Board’s Rules, which permits a respon-
dent to amend its answer at any time prior to the hearing,
and on Section 102.121, which provides for liberal construc-
tion of the Rules to effectuate the purposes of the Act.
Thus, the Respondent contends that the Board should deny
the General Counsel’s Motion for Summary Judgment
premised on the Respondent’s alleged failure to properly
and timely file a legally sufficient answer.

8 On February 21, 1997, in a Stipulated Election Agreement in Case
3–RC–10504, involving these same parties, the Respondent stipulated
to facts alleged in pars. II, III, IV, and VI(a) of the instant complaint
which it denied in its February 20 letter, i.e., commerce and jurisdic-
tion, the Charging Party’s status as a labor organization, the agency of
the Respondent’s vice president, Thomas Hall, and the appropriateness
of the unit. As discussed, infra, the Respondent’s “First Amended
Answer” admits all these allegations. The complaint accurately alleges
that on March 17, 1997 (in Case 3–RC–10504), the Union was certified
as the collective-bargaining representative of the unit employees. In
the Respondent’s February 20, 1998 letter the Respondent denied “all
of the allegations” of the complaint. In its “First Amended Answer,” it
contends that “[o]n information and belief, Respondent did not receive
the Certification of the Union.”
9 In any case, the cases cited by the General Counsel are distinguish-
able from the instant case. In Jay-Lor Drains & Piping, 300 NLRB
464 (1990), and Able Aluminum Co., 321 NLRB 1071 (1996), the
Board rejected the respondents’ purported answers, in which they selec-
tively admitted, explained, or denied only some of the complaint allega-
tions. In Kelly Food Products, 323 NLRB 671 (1997), the Board found
that a letter from the trustee in bankruptcy stating that the company had
ceased doing business was not an adequate answer. In contrast, here
the Respondent categorically denied “all the allegations made by [the
Union] in [this] case.”
We find merit in the Respondent’s contentions. There is
no question that the Respondent’s February 20 answer was
procedurally defective. We note, however, that the Respon-
dent filed its original answer pro se and the Board typically
views procedural deficiencies in answers filed pro se with
some leniency. See, e.g., Tri-Way Security, 310 NLRB
1222, 1223 (1993). More importantly, however, we note
that, after the General Counsel filed his Motion for
Summary Judgment, the Respondent retained counsel
who promptly filed a first amended answer curing each
of the procedural defects in the Respondent’s February
20 answer. The Board’s Rules permit a party to amend a
pleading at any time prior to the hearing and the General
Counsel has not demonstrated that he would be preju-
diced in any way by our adherence to this rule.10 Ac-
cordingly, we shall deny the General Counsel’s Motion
for Summary Judgment.
ORDER
IT IS ORDERED that the General Counsel’s Motion
for Summary Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 3 for the
purpose of ordering and scheduling a hearing before an
administrative law judge.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a deci-
sion containing findings of fact, conclusions of law, and
recommendations based on the record evidence. Follow-
ing service of the administrative law judge’s decision on
the parties, the provisions of Section 102.46 of the
Board’s Rules shall apply.
ard.
10 Sec. 102.23 of the Board’s Rules and Regulations provides:
The respondent may amend his answer at any time prior to
the hearing. During the hearing or subsequent thereto, he may
amend his answer in any case where the complaint has been
amended, within such period as may be fixed by the administra-
tive law judge or the Board. Whether or not the complaint has
been amended, the answer may, in the discretion of the adminis-
trative law judge or the Board, upon motion, be amended upon
such terms and within such periods as may be fixed by the
administrative law judge or the Bo