POINTING PLUS INC.

National Labor Relations Board - Board Decisions

Sep 27, 2012

358 N.L.R.B. 1535 (N.L.R.B. 2012)

POINTING PLUS INC. 1535

358 NLRB No. 154
Pointing Plus Inc. and Juan Guzman and Jose Samuel
Iglesias and Wilfredo Ventura Ramos and Eliseo
Ramos Hernandez. Cases 05–CA–072371, 05–
CA–072372, 05–CA–072390, and 05–CA–072394
September 27, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has failed
to file an answer to the consolidated complaint. Upon
charges and amended charges filed by Juan Guzman,
Jose Samuel Iglesias, Wilfredo Ventura Ramos, and
Eliseo Ramos Hernandez (the Charging Parties) on Janu-
ary 12, March 22 and 23, 2012, respectively, the Acting
General Counsel issued an order consolidating cases,
consolidated complaint, and notice of hearing on April
27, 2012, against Pointing Plus Inc. (the Respondent),
alleging that it has violated Section 8(a)(1) of the Na-
tional Labor Relations Act. Although properly served
copies of the charges and the consolidated complaint, the
Respondent failed to file an answer.
On June 7, 2012, the Acting General Counsel filed a
Motion for Default Judgment with the Board. On June
11, 2012, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. On June 25, 2012, the
Respondent filed a document titled, “Respondent’s Orig-
inal Answer and Response to Order to Show Cause” (Re-
spondent’s submission). Contrary to Section 102.114 of
the Board’s Rules and Regulations, however, the Re-
spondent did not serve this submission on the Charging
Parties. As a result, on July 3, 2012, the Acting General
Counsel filed with the Board a motion to strike the Re-
spondent’s submission. By letter dated August 20, 2012,
the Board advised the Respondent that by September 4,
2012, it must provide an affidavit of service showing that
its submission was properly served on all parties. On
September 4, 2012, the Respondent filed a document
with the Region affirming that the Charging Parties had
been served with its submission.
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 May 11, 2012, 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 Acting General
Counsel’s motion disclose that the Region, by letter dat-
ed May 18, 2012, notified the Respondent that unless an
answer was received by June 1, 2012, a motion for de-
fault judgment would be filed. On May 31, 2012, the
Region reminded the Respondent by email that it had not
yet filed an answer. However, no answer or request for
an extension of time to file an answer was received by
June 1, 2012, and, for the reasons discussed below, we
find that the Respondent has not established good cause
to excuse that failure.
Although the Board has shown some leniency toward
respondents who proceed without the benefit of counsel,
the Board has consistently held that pro se status alone
does not establish a good cause explanation for failing to
file a timely answer. See, e.g., Patrician Assisted Living
Facility, 339 NLRB 1153, 1153 (2003); Sage Profes-
sional Painting Co., 338 NLRB 1068, 1068 (2003).
Where a pro se respondent fails to respond to complaint
allegations until after the Notice to Show Cause has is-
sued, despite having been notified in writing that it must
do so, and has provided no good cause explanation for its
failure to file a timely answer, subsequent attempts to file
an answer will be denied as untimely. Patrician Assisted
Living Facility, supra at 1153–1154, citing Kenco Elec-
tric & Signs, 325 NLRB 1118, 1118 (1998).
Here, there is no dispute that the Respondent did not
answer the consolidated complaint until after the Notice
to Show Cause had issued on June 11, 2012, despite
counsel for the Acting General Counsel’s repeated direc-
tions to do so. In its June 25 submission opposing de-
fault judgment, the Respondent asserts that it has a meri-
torious defense to the consolidated complaint allegations.
The Respondent further contends that counsel for the
Acting General Counsel orally informed the Respond-
ent’s owner on two separate occasions that he would give
the Respondent an extension of time to respond to the
consolidated complaint, and maintains that the Respond-
ent’s owner would testify under oath in this regard at a
hearing. However, the Respondent does not specify
when these conversations allegedly took place, indicate
what the purported new deadline was, or present any
documents verifying that any extension was granted.
In contrast, counsel for the Acting General Counsel
submitted copies of correspondence between Regional
Attorney Albert Palewicz and the Respondent’s owner,
Danny Palousek regarding the deadline for filing an an-
swer, attached as exhibits to the Motion for Default
Judgment. As noted above, by letter dated May 18, 2012
sent from Palewicz to Palousek, the deadline for filing an
answer was extended to June 1, 2012 (Exh. 22). By
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1536
email dated May 31, 2012, Palewicz reminded Palousek
of his obligation to file an answer (Exh. 24). In an email
dated June 4, 2012, Palousek acknowledged that he had
missed the June 1 deadline because he had been attempt-
ing to contact his attorney,1 and indicated he still intend-
ed to file a response (Exh. 25). By email dated June 6,
2012, Palousek again acknowledged the missed deadline
and inquired whether he could still respond (Exh. 26).
By email dated June 7, 2012, Palewicz informed Pa-
lousek that it was too late to respond and that the motion
for default judgment would be filed that day.
As stated above, the Respondent’s status as a pro se lit-
igant does not establish good cause to excuse its failure
to file a timely answer. See Starrs Group Home, Inc.,
357 NLRB 1219 (2011); Lockhart Concrete, 336 NLRB
956, 957 (2001). Further, the documents submitted by
the Acting General Counsel show that after the deadline
for filing had passed, the Respondent’s owner corre-
sponded with the Region, acknowledging that he had
missed the deadline and seeking a further extension of
time. The Respondent does not contest the authenticity
of these documents or dispute their contents.
In these circumstances, we find that the Respondent’s
assertion that it was twice orally granted an extension of
time in which to file an answer and thus should be ex-
cused for its failure to file a timely answer is inconsistent
with the documents submitted by the Acting General
Counsel. In addition, even assuming that the Respond-
ent’s assertion is true, the Respondent has failed to artic-
ulate what new date was given for filing an answer, or to
establish that it met that purported new deadline. Ac-
cordingly, we find that the Respondent has provided no
good cause explanation for the failure to file a timely
answer. Further, regarding the Respondent’s claim that it
has a meritorious defense, the Board will not address a
respondent’s assertions that it has a meritorious defense
unless good cause has been shown for the late response.
Dong-A Daily North America, Inc., 332 NLRB 15, 16
(2000).
In the absence of good cause being shown for the fail-
ure to file a timely answer to the consolidated complaint,
we deem the allegations to be admitted as true and we
grant the Acting General Counsel’s Motion for Default
Judgment.
On the entire record, the Board makes the following

1 The Acting General Counsel’s Motion for Default Judgment states
that prior to the issuance of the complaint the Region made repeated
efforts to procure a Notice of Appearance from the Respondent’s ap-
parent counsel, H. Peyton Inge IV, but neither Inge nor the Respondent
filed such a notice.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a District of Co-
lumbia corporation with its principal office and place of
business in Washington, D.C., has been engaged in the
business of providing residential painting and masonry
services in the Washington, D.C. metropolitan area.
During the 12-month period preceding issuance of the
complaint, a representative period, the Respondent, in
conducting its business operations described above, pur-
chased and received goods and materials valued in ex-
cess of $5000, directly from points located outside the
District of Columbia.
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
At all material times, Danny Palousek, the Respond-
ent’s owner, has been 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, Alexis Ventura has been an agent
of the Respondent within the meaning of Section 2(13)
of the Act.
On about January 9, 2012, the Respondent’s employ-
ees Jose Samuel Iglesias, Wilfredo Ventura Ramos, and
Eliseo Ramos Hernandez engaged in a work stoppage in
protest of the Respondent’s failure to pay them in a time-
ly manner.
On about January 9, 2012, the Respondent discharged
Jose Samuel Iglesias, Wilfredo Ventura Ramos, and
Eliseo Ramos Hernandez.
The Respondent engaged in the conduct described
above because Jose Samuel Iglesias, Wilfredo Ventura
Ramos, and Eliseo Ramos Hernandez engaged in a work
stoppage in protest of the Respondent’s failure to pay
them in a timely manner and to discourage employees
from engaging in these or other concerted activities.
On about January 10, 2012, the Respondent, by Pa-
lousek, at a jobsite located in Washington, D.C., threat-
ened employees by telling employees they will not be
employed by the Respondent if they engage in protected
concerted activity or support such activity.
On about January 10, 2012, Juan Guzman told Pa-
lousek that he supported the activity of Jose Samuel Igle-
sias, Wilfredo Ventura Ramos, and Eliseo Ramos Her-
nandez, of engaging in a work stoppage in protest of the
Respondent’s failure to pay them in a timely manner.
On about January 10, 2012, the Respondent discharged
Guzman.
POINTING PLUS INC.

1537
The Respondent discharged Guzman because Guzman
engaged in the conduct described above, and to discour-
age 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 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. The
Respondent’s unfair labor practices 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 has violated Section 8(a)(1) of
the Act by discharging Jose Samuel Iglesias, Wilfredo
Ventura Ramos, Eliseo Ramos Hernandez, and Juan
Guzman because they engaged in protected concerted
activities, we shall order the Respondent to make them
whole for any loss of earnings and other benefits suffered
as a result of the Respondent’s unlawful actions against
them.2 Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010).3
The Respondent shall also be required to remove from
its files any reference to the unlawful discharges of Jose
Samuel Iglesias, Wilfredo Ventura Ramos, Eliseo Ramos
Hernandez, and Juan Guzman and to notify them in writ-
ing that this has been done and that the unlawful dis-
charges will not be used against them in any way.

2 The Acting General Counsel’s Motion for Default Judgment states
that all four employees were reinstated shortly after their discharges.
Therefore, the Order does not include a reinstatement provision.
3 In the complaint, the Acting General Counsel seeks an order re-
quiring reimbursement of amounts equal to the difference in taxes owed
upon receipt of a lump-sum payment and taxes that would have been
owed had there been no unlawful conduct. Further, the Acting General
Counsel requests that the Respondent be required to submit the appro-
priate documentation to the Social Security Administration so that
when backpay is paid, it will be allocated to the appropriate periods.
Because the relief sought would involve a change in Board law, we
believe that the appropriateness of this proposed remedy should be
resolved after a full briefing by the affected parties, and there has been
no such briefing in this case. Accordingly, we decline to order this
relief at this time. See, e.g., Ishikawa Gasket America, Inc., 337 NLRB
175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), and cases cited
therein.
ORDER
The National Labor Relations Board orders that the
Respondent, Pointing Plus Inc., Washington, District of
Columbia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging employees because they engage in
protected concerted activities.
(b) Threatening employees by telling them they will
not be employed if they engage in protected concerted
activities or support such activities.
(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) Make Jose Samuel Iglesias, Wilfredo Ventura Ra-
mos, Eliseo Ramos Hernandez, and Juan Guzman whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Jose Samuel Iglesias, Wilfredo Ventura Ramos, Eliseo
Ramos Hernandez, and Juan Guzman, and within 3 days
thereafter, notify them in writing that this has been done
and that the unlawful discharges will not be used against
them in any way.
(c) 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.
(d) Within 14 days after service by the Region, post at
its Washington, D.C. facility copies of the attached no-
tice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 5, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by

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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1538
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 proceed-
ings, the Respondent shall duplicate 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 9, 2012.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 5 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.
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 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 discharge you for engaging in protected
concerted activities.
WE WILL NOT threaten you by telling you that you will
not be employed if you engage in protected concerted
activities or support such 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 make Jose Samuel Iglesias, Wilfredo Ventura
Ramos, Eliseo Ramos Hernandez, and Juan Guzman
whole for any loss of earnings and other benefits result-
ing from their discharges, less any net interim earnings,
plus interest. These employees have been reinstated.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Jose Samuel Iglesias, Wilfredo Ventura
Ramos, Eliseo Ramos Hernandez, and Juan Guzman, and
WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that the unlawful discharges
will not be used against them in any way.

POINTING PLUS INC.