Primestar Construction Corporation

National Labor Relations Board - Board Decisions

Oct 23, 2018

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

367 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.
Primestar Construction Corporation and Interna-
tional Union of Operating Engineers, Local 351.
Case 28–CA–211009
October 23, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
The General Counsel seeks a partial default judgment in
this case on the ground that the Respondent has failed to
adequately answer certain allegations in the complaint.
Upon a charge filed by the International Union of Operat-
ing Engineers, Local 351 (the Union) on December 4,
2017, the General Counsel issued a complaint on June 28,
20181 against Primestar Construction Corporation (the
Respondent), alleging that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act. By letter dated July 13, the
Region advised the Respondent that no answer to the com-
plaint had been received and that unless an answer was
received by July 20, a motion for default judgment would
be filed. The Respondent, acting pro se, filed an answer
on July 19.
On July 24, the General Counsel filed with the National
Labor Relations Board a Motion for Certain Allegations
to Be Deemed Admitted, or, in the Alternative Motion for
Partial Default Judgment and Motion in Limine. On July
26, the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the motion
should not be granted. In response to the Notice to Show
Cause, the General Counsel filed a statement in support of
its motion. However, the Respondent was not properly
served with the Notice to Show Cause and the Board is-
sued a Supplemental Notice to Show Cause on August 31.
The Respondent filed no response to the Supplemental
Notice.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Partial Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that a respondent “must specifically admit, deny,
or explain each of the facts alleged in the complaint, unless
the Respondent is without knowledge, in which case the
Respondent must so state, such statement operating as a
denial.” See generally Moo & Oink, Inc., 356 NLRB
1249, 1249–1250 (2011) (finding two letters submitted by
the respondent “primarily consist[ing] of factual

1 All dates hereafter are 2018 unless otherwise noted.
statements” that did not correspond to the allegations in
the complaint did “not . . . constitute a legally sufficient
answer under Section 102.20”). In his motion for default
judgment, the General Counsel asserts that the Respond-
ent’s July 19 letter “fails to specifically admit, deny, or
explain the allegations in paragraphs 1 through 4 in the
Complaint.” The General Counsel therefore requests that
default judgment be granted as to paragraphs 1 through 4
and that these allegations be deemed admitted as true.
Complaint paragraph 1 alleges that “[t]he charge in this
proceeding was filed by the Union on December 4, 2017,
and a copy was served on Respondent by U.S mail on De-
cember 5, 2017.” Paragraph 2(a) alleges that:
At all material times Respondent has been a corporation
with an office and place of business in El Paso, Texas,
and has been engaged as a maintenance contractor in the
construction industry doing commercial and office con-
struction and repair for various clients, including the
United States Government.
Complaint paragraph 2(b) alleges that “[i]n conducting
its operations during the 1-month period ending December
4, 2017, Respondent purchased and received at its con-
structions sites located in the State of Texas goods valued
in excess of $50,000 directly from points outside the State
of Texas,” and complaint paragraph 2(c) alleges that “[a]t
all material times Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.”
At paragraph 3, the complaint alleges that “[a]t all ma-
terial times the Union has been a labor organization within
the meaning of Section 2(5) of the Act.” Finally, para-
graph 4 of the complaint alleges that “[a]t all material
times, Felicia James has held the position of President and
has been a supervisor of Respondent within the meaning
of Section 2(11) of the Act and an agent of Respondent
within the meaning of Section 2(3) of the Act[.]”
On July 19, the Respondent submitted a letter to the Re-
gion via electronic filing. The letter stated, in relevant
part:
Please let this correspondence serve a notice of
Primestar Construction Corporation response to the al-
leged Complaint.
1. Primestar has not received Complaints from (the Un-
ion) Local 351 as described in the Notice.
2. (a) Primestar remains a Corporation.
(b) Primestar only conducted and operated inside
what would be deemed the United States Border
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Regions, any other dealings would have not been author-
ized by Primestar Construction.
(c) Primestar operated solely based on its GSA con-
tract with the Government.
The Union was acting upon the CBA based on following
the contract with GSA
3. The President position is based on internal operation
and the contractual agreement of the federal contract.
Analysis
We recognize that the Respondent does not appear to
have legal representation in this proceeding. In determin-
ing whether to grant a motion for default judgment on the
basis of a respondent’s failure to file a sufficient answer,
the Board typically shows “some leniency towards re-
spondents who proceed without benefit of counsel.”
Clearwater Sprinkler System, 340 NLRB 435, 435 (2003).
Indeed, “the Board will generally not preclude a determi-
nation on the merits of a complaint if it finds that a pro se
respondent has filed a timely answer, which can reasona-
bly be construed as denying the substance of the complaint
allegations.” Id. (internal citation omitted); see also Car-
pentry Contractors, 314 NLRB 824, 825 (1994).
Having duly considered this matter, we find that, given
the Respondent’s pro se status, default judgment is not
warranted here with regard to paragraph 1 of the complaint
but, as explained below, default judgment is warranted
with regard to complaint paragraphs 2 through 4.
At the outset, we consider the Respondent’s July 19 let-
ter to be a timely filed answer, as it was timely filed in
response to the Region’s July 13 letter requesting an an-
swer to the complaint. Regarding complaint paragraph 1,
alleging that “[t]he charge in this proceeding was filed by
the Union on December 4, 2017, and a copy was served
on Respondent by U.S mail on December 5, 2017,” the
Respondent’s letter sufficiently denies that paragraph’s al-
legation, as it states that the Respondent “has not received
Complaints from (the Union) Local 351 as described in
the Notice.” The Respondent’s reference to the “Com-
plaints from (the Union) Local 351” is reasonably read to
refer to the charge in this proceeding. As such, it denies
the allegation. Accordingly, we shall deny the motion for
default judgment as to complaint paragraph 1.
However, as to complaint paragraphs 2 through 4, we
find that default judgment is warranted. Even considering
the Respondent’s pro se status, the Respondent’s letter
cannot be reasonably read to deny the substance of those
allegations. With respect to paragraph 2(a), alleging that
“at all material times Respondent has been a corporation,”
the Respondent’s letter neither admits nor denies the alle-
gation, and instead simply states only that it “remains a
[c]orporation.” The letter’s response to complaint
paragraph 2(b) does not include anything that could rea-
sonably be read to deny the allegation that it “purchased
and received at its construction sites located in the State of
Texas goods and services valued in excess of $50,000 di-
rectly from points outside the State of Texas.” Rather, it
simply specifies that those construction sites are located in
“Border Regions.” Similarly, the letter’s response to com-
plaint paragraph 2(c), alleging that the Respondent “has
been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act,” also fails to
address the allegation, as the response states only that the
Respondent has “operated solely based on its GSA con-
tract with the Government.”
Additionally, the Respondent’s answer to complaint
paragraph 3 in no way denies the paragraph’s allegation,
that “the Union has been a labor organization within the
meaning of Section 2(5) of the Act.” In fact, by stating
that ‘[t]he Union was acting upon the CBA based on fol-
lowing the contract with the GSA,” it arguably affirms the
allegation. Finally, in response to complaint paragraph 4,
alleging that “[a]t all material times, Felicia James has
held the position of President and has been a supervisor
. . . and an agent of Respondent,” the letter states only that
its “[p]resident position is based on [its] internal operation
and [its] federal contract.” This vague statement in no way
addresses the allegation that James is the Respondent’s
president, supervisor or agent.
In sum, the Respondent’s answer sufficiently denies the
substance of the allegation in complaint paragraph 1 but
neither admits nor denies the substance of the allegations
in complaint paragraphs 2 through 4. Accordingly, we
shall deny default judgment with respect to paragraph 1 of
the complaint and shall grant default judgment with re-
spect to paragraphs 2 through 4.
ORDER
IT IS ORDERED that the General Counsel’s Motion for
Partial Default Judgment is denied with respect to the al-
legations in paragraph 1 of the complaint and is granted
with respect to the allegations set forth in paragraphs 2
through 4 of the complaint.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 28 for further
appropriate action consistent with the Decision and Order.
Dated, Washington, D.C. October 23, 2018
______________________________________
John F. Ring, Chairman
PRIMESTAR CONSTRUCTION CORP. 3
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD