Prompt Medical Transportation, Inc. d/b/a Prompt Ambulance Service, Prompt Central, Inc., and GSM Gr

National Labor Relations Board - Board Decisions

Mar 29, 2018

366 NLRB No. 50 (N.L.R.B. 2018)

366 NLRB No. 50
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.
Prompt Medical Transportation, Inc. d/b/a Prompt
Ambulance Service, Prompt Central, Inc., and
GSM Group and International Association of
EMTS and Paramedics (IAEP), SEIU Local
5000. Case 13–CA–202127
March 29, 2018
ORDER DENYING MOTION AND REMANDING
BY CHAIRMAN KAPLAN AND MEMBERS MCFERRAN
AND EMANUEL
The General Counsel has moved for default judgment
in this case based on its assertion that the Respondent,
Prompt Medical Transportation, Inc. d/b/a Prompt Am-
bulance Service, Prompt Central, Inc., and GSM Group,
failed to file an appropriate answer to the complaint.
Upon a charge filed by International Association of
EMTS and Paramedics (IAEP), SEIU Local 5000 (the
Union) on July 10, 2017,1 the General Counsel issued a
complaint and notice of hearing on August 18, alleging
that the Respondent violated Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act). Copies of
the charge and the complaint were properly served on the
Respondent by certified mail and by personal service.
The Respondent did not file an answer to the original
complaint within the 14-day time period set forth in Sec-
tion 102.20 of the Board’s Rules and Regulations. On
October 18, the Region notified the Respondent that it
had failed to file an answer to the complaint by the speci-
fied deadline and that, unless the Respondent filed an
appropriate answer by October 25, a Motion for Default
Judgment would be filed. By letter dated October 24, the
Respondent, acting pro se, denied that it had violated the
Act.2
On November 7, the General Counsel filed with the
National Labor Relations Board a Motion for Default
Judgment. On November 14, the Board issued an order
transferring the proceeding from the Region to the Board
and a Notice to Show Cause why the motion should not
be granted. The Respondent did not file a response to the
Motion for Default Judgment or to the Notice to Show
Cause.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.

1 All dates refer to 2017 unless otherwise indicated.
2 No notice of appearance has been filed on behalf of the Respond-
ent.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that a respondent “must specifically admit, de-
ny, 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 oper-
ating as a denial.” It also 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. The complaint here alleges, at par-
agraph VI (a), that
[s]ince about June 28, 2017, the Union has requested
orally and in writing that Respondent furnish the Union
with the following information: “An audited and certi-
fied true copy of any and all financial statements as it
pertains to Collective Bargaining Unit members em-
ployed by Prompt Medical Transportation, Inc. d/b/a
Prompt Ambulance Service.”
The complaint further alleges, at paragraph VI (b), that
the information requested by the Union is necessary for
and relevant to the Union’s performance of its duties as
the exclusive collective-bargaining representative of the
unit, and alleges at paragraph VI (c) that “[s]ince about
June 28, 2017,” the Respondent has “failed and refused
to furnish the Union with the information requested by it
as described above in paragraph VI (a).”
Complaint paragraph VII alleges that, by this conduct,
the “Respondent has been failing and refusing to bargain
collectively and in good faith with the exclusive collec-
tive-bargaining representative of its employees in viola-
tion of Section 8(a)(1) and (5).”
The Respondent submitted its October 24 letter to the
Region via electronic filing and email. The text stated in
full:
Re: Prompt Medical Transportation d/b/a Prompt
Ambulance Service, Prompt Central, Inc. and GSM
Group, Case No. 13-CA-202127
This letter constitutes the response of Prompt Medical
Transportation d/b/a Prompt Ambulance Service, Inc.
(“the Company” or “Prompt”) to the allegations in the
above-referenced Charge filed by the International As-
sociation of EMTs and Paramedics, SEIU Local 5000
(“the Union”) and to the request for evidence contained
in your October 18, 2017 letter.
The Company denies that it has violated the National
Labor Relations Act (“NLRA” or “the Act”)[.]
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I. ARGUMENT
During a recent impact bargaining session on August 9,
2017, there was a discussion between the mediators
and management for Prompt for releasing financial
statements. It was agreed a mutually agreeable state-
ment would be drafted and the union would have ac-
cess to financial statements.
The union was presented with such a statement on Sep-
tember 21[ ], 2017.
The next scheduled bargaining session was October 3,
2017. At that meeting the union said they agreed to not
look at financial statements as long as we had a sever-
ance package to present. We had never indicated to the
mediators or the union that such a severance package
was possible. The union left after only being on site
less than two hours. There was no mention from them
or the mediators on proceeding with going over finan-
cial statements.
II. CONCLUSION
Prompt has not failed to bargain with the Union. There
is no substance or merit to the allegations of the
Charge.
If you require any other information regarding
Prompt’s position in this matter, please let me know.
We will offer our full cooperation to the Board to help
you resolve this matter as expeditiously as possible.
We would like the opportunity to discuss any questions
you might still have regarding this matter. We can be
reached at the number that appears below.
In his motion for default judgment, the General Coun-
sel asserts that the Respondent’s October 24 letter is not
a sufficient answer to the complaint because it “fail[s] to
specifically admit, deny, or explain each of the facts al-
leged in the complaint or whether Respondent was with-
out knowledge, as required by Section 102.20” of the
Board’s Rules and Regulations, and because the “Re-
spondent has simply attempted to argue that the charge
has no merit by stating facts not yet in evidence.” The
General Counsel also asserts that the Respondent’s Oc-
tober 24 letter “fails by form,” arguing that the letter
does not follow the Board’s E-Filing rules because it is
“not a pdf file” and “was only electronically filed and
electronically mailed” to Region 13. Finally, the General
Counsel asserts that the Respondent failed to comply
with Section 102.21 of the Board’s Rules and Regula-
tions because the “Respondent did not serve a copy of its
October 24, 2017, letter on the Union.”
Analysis
We recognize that the Respondent does not appear to
have legal representation in this proceeding. In deter-
mining 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 to-
ward respondents who proceed without benefit of coun-
sel.” Clearwater Sprinkler System, 340 NLRB 435, 435
(2003). Indeed, “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. (citation omitted); see also
Carpentry Contractors, 314 NLRB 824, 825 (1994).3
Having duly considered this matter, we find that, given
the Respondent’s pro se status, default judgment is not
appropriate here. The Respondent’s timely filed October
24 letter effectively denies complaint paragraph VI (c),
which contains the operative facts of the alleged unfair
labor practice relating to the Union’s information re-
quest. The letter expressly denies the 8(a)(5) and (1)
refusal-to-bargain allegation in complaint paragraph VII,
insofar as the letter asserts that “Prompt has not failed to
bargain with the Union.” Finally, the letter provides
what is essentially an affirmative defense: that the Re-
spondent engaged with mediators about the release of
financial information, that the Respondent “agreed a mu-
tually agreeable statement would be drafted and the un-
ion would have access to financial statements,” and that
the “union was presented with such a statement.”

3 In Carpentry Contractors, the complaint alleged that the respond-
ent had failed to pay wages as required by the union contract and failed
to make fringe-benefit contributions. In letters sent pro se to the Re-
gion, the respondent asserted that it had “[paid] employees wages ac-
cording [to] their job sites” and that it had paid “some fringes” but was
late on others. Id. at 824. The Board found that these letters constitut-
ed a sufficient answer as they “appear[ed] to be denials of the com-
plaint allegation” and “attempt[ed] to provide an explanation for the
Respondent’s conduct.” Id. at 825. Accord Sam Kiva Management,
329 NLRB 387, 387 (1999) (finding pro se respondent’s letter stating
that parties were currently bargaining to be a sufficient answer where
the complaint alleged a refusal-to-bargain with the newly certified
union). Cf. LBE, Inc., 356 NLRB 542, 542–543 (2011) (granting de-
fault judgment where pro se respondent’s claim that it had provided
requested information to the NLRB did not answer allegation that it
failed to provide the information to the union, and where the respond-
ent’s assertion—”[t]he allegation is unfounded”—referred to conduct
not alleged in the complaint); Clearwater Sprinkler System, supra at
435–436 (granting default judgment where the respondent’s answer,
asserting that it was bargaining in good faith as of December 2002,
failed to address the complaint’s 8(a)(1), (3), and (5) allegations, in-
cluding the allegation that the respondent had been failing to bargain
since June 2002).
PROMPT MEDICAL TRANSPORTATION, INC. D/B/A PROMPT AMBULANCE SERVICE, PROMPT CENTRAL, INC., 3
AND GSM GROUP
In our view, the Respondent’s letter can reasonably be
construed as a denial of the substance of the complaint’s
allegation and as an affirmative identification of material
facts in dispute, such as whether the parties reached an
agreement with regard to the scope of the Respondent’s
required response to the information request and whether
the Respondent provided a responsive document in ac-
cord with that agreement.
Although the Respondent’s letter does not respond to
each and every allegation in the complaint and is not in a
form that comports with the Board’s Rules and Regula-
tions, we find that it adequately denies the unfair labor
practice allegation. All other complaint allegations, in-
cluding single-employer status, jurisdiction, agency, ser-
vice, and the Union’s role as the exclusive collective-
bargaining representative of a unit of the Respondent’s
employees, are deemed admitted.4 See Section 102.20 of
the Board’s Rules and Regulations. Further, because the
Respondent’s letter was filed without benefit of counsel,
we will not preclude a hearing on the merits simply be-
cause of the Respondent’s failure to comply with all our
procedural rules.5

4 Cf. Dunbinclipped Inc., 339 NLRB 1104, 1105 (2003) (finding an-
swer insufficient where respondent’s blanket denial of all complaint
allegations left it unclear whether “the General Counsel would be need-
lessly put to the proof on such matters as service of the charge, jurisdic-
tion, and agency”).
5 Although it does not appear that the Respondent’s letter was
served on the Charging Party as required by Sec. 102.21 of the Board’s
Rules and Regulations, we note the pro se basis on which the Respond-
ent was proceeding. See Dismantlement Consultants, 312 NLRB 650,
651 fn. 6 (1993) (citing Acme Building Maintenance, 307 NLRB 358,
Accordingly, we deny the General Counsel’s Motion
for Default Judgment.
ORDER
IT IS ORDERED that the General Counsel’s motion for
default judgment is denied and the proceeding is re-
manded to the Regional Director for Region 13 for fur-
ther appropriate action.
Dated, Washington, D.C. March 29, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

359 fn. 6 (1992)); cf. Active Metal Mfg., 316 NLRB 974, 974–975
(1995) (pro se respondent’s timely-filed answer rejected where re-
spondent failed to serve charging party or its counsel despite repeated
efforts by the region to apprise respondent of its obligation under the
Board’s Rules). Additionally, the Respondent’s failure to file its letter
as a “pdf” file is not grounds for granting the General Counsel’s motion
for default judgment.