R-Max Services, LLC

National Labor Relations Board - Board Decisions

Dec 29, 2005

346 N.L.R.B. 177 (N.L.R.B. 2005)

R-MAX SERVICES, LLC
346 NLRB No. 17
177
R-Max Services, LLC and Teamsters Local Union No.
355, a/w International Brotherhood of Team-
sters.1 Case 5–CA–32210
December 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
a timely answer to the complaint. Upon a charge filed by
the Union on November 3, 2004, the General Counsel
issued the complaint on January 29, 2005, against R-Max
Services, LLC, the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (3) of the Act by discharging
employee Shawn Williams because of his union and con-
certed activities. The Respondent failed to file a timely
answer.
On April 18, 2005, the General Counsel filed a Motion
for Default Judgment with the Board. On April 21,
2005, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. On May 5, 2005, the Re-
spondent, appearing pro se, filed a timely response to the
motion and Notice to Show Cause. On May 23, 2005,
the General Counsel filed a reply.
On October 27, 2005, the Board issued an Order giv-
ing the Respondent 10 additional days from receipt of the
Order to provide any reasons for its failure to file an ini-
tial timely answer. The Respondent, however, did not
file any response to the Board’s Order.
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 filed by February 11, 2005, all
the allegations in the complaint would be considered
admitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated March 9, 2005, notified the Respondent that unless
an answer was received by March 16, 2005, a motion for
default judgment would be filed.2 No answer or request
for an extension of time was filed by March 16, 2005.

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 The March 9, 2005 letter was sent to the Respondent by certified
mail. The Postal Service attempted to deliver the letter and notification
was left at the Respondent’s address. The Respondent, however, failed
to claim the certified letter. It is well settled that a respondent’s failure
After the General Counsel filed his Motion for Default
Judgment and the Board issued its Notice to Show
Cause, the Respondent’s General Manager, proceeding
pro se, filed the following letter with the Board:
In response to your Order transferring proceeding to the
board and Notice to show cause that I have attached, I
am responding to the situation regarding Mr. Shawn
Williams.
Mr. Williams was let go by our company on approxi-
mately September 29, 2004 due to the fact that we were
notified by our customer (DHL) that Mr. Williams had
falsified his delivery documents. We are sub contrac-
tors for DHL express. Our drivers act as representa-
tives of DHL but are under our employment. If DHL
informs us of any falsification or other derogatory inci-
dents regarding our drivers we review each and every
situation to determine the worthiness of the charge and
then must make a decision.
In this case, DHL had documentation that Mr. Williams
brought back a number of packages to the station and
scanned them all within a minute or two after stating
that he had attempted to deliver the packages through-
out the day.
Thus, the Respondent’s response essentially denied that it
had unlawfully discharged Williams.
In our October 27, 2005 Order, we found that the Re-
spondent’s response adequately answered the critical
complaint allegation. However, we also found that the
response did not set forth any “good cause” justification
for failing to file a timely answer to the the complaint in
the first place.3 Thus, we adhered to the teaching of TNT
Logistics North America, Inc., 344 NLRB 489 (2005),
that a respondent must explain why its answer was not
timely filed.4 Nevertheless, because the Respondent was

or refusal to accept certified mail or to provide for appropriate service
cannot serve to defeat the purposes of the Act. See, e.g., I.C.E. Elec-
tric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited therein.
3 Patrician Assisted Living Facility, 339 NLRB 1153, 1154 (2003).
4 Member Schaumber notes that he dissented in Patrician Assisted
Living Facility and that he concurred in relevant part in TNT Logistics
North America, Inc. In his view, in assessing a respondent’s “good
cause” showing, the proper analysis to apply is that utilized by the
federal courts, i.e., the reasons the answer was untimely, the merits of
the respondent’s defense, and whether any party would suffer prejudice
were the default set aside.
Member Schaumber agrees with his colleagues that a respondent
must answer the complaint and explain its prior failure to respond in a
timely fashion. However, he believes the Board’s Notice to Show
Cause form should be amended to make clear that dual requirement for
future litigants. Nonetheless, Member Schaumber agrees that default
judgment is appropriate here, where the Respondent was given an addi-
tional opportunity to set forth reasons for its failure to file a timely
answer, but did not submit any response to our October 27, 2005 Order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD178
appearing pro se, we recognized that the Respondent
may not have realized its obligation to supply a “good
cause” justification for its failure to file a timely answer.
Accordingly, we stated
[I]n our discretion, we will give the Respondent 10
days from receipt of this Order to give any reasons for
lack of an initial timely answer. Upon receipt of same,
we shall rule on the adequacy of those reasons. Absent
a response, we shall grant the General Counsel’s mo-
tion for default judgment.
As indicated above, the Respondent has not responded
to our Order. Thus, the Respondent has failed to show
good cause for its failure to file a timely answer, and we
reject as untimely the answer set forth in its response to
the Notice to Show Cause. Accordingly, we grant the
General Counsel’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, a Delaware cor-
poration with an office and place of business in Bridge-
ville, Delaware (the Respondent’s facility), has been en-
gaged in the business of providing parcel delivery ser-
vices for DHL Express, Inc.
During the 12-month period preceding issuance of the
complaint, a representative period, the Respondent, in
conducting its business operations described above, pro-
vided services valued in excess of $50,000 from its
Bridgeville, Delaware facility directly to points located
outside the State of Delaware.
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, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Rick Rutland - Owner
Pete Stoneman - Facility Manager
On or about August 20, 2004, the Respondent termi-
nated the employment of its employee Shawn Williams.
The Respondent discharged Williams because he
joined, formed and/or assisted the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
discriminated in regard to the hire or tenure or terms and
conditions of employment of its employees, thereby dis-
couraging membership in a labor organization, in viola-
tion of Section 8(a)(1) and (3) of the Act. The Respon-
dent’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 violated Section 8(a)(1) and
(3) by discharging Shawn Williams, we shall order the
Respondent to offer Williams full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed,
and to make him whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
him. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The Respondent shall also be required to remove from
its files all references to the unlawful discharge of Wil-
liams, and to notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, R-Max Services, LLC, Bridgeville, Dela-
ware, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they join, form
and/or assist Teamsters Local Union No. 355, a/w Inter-
national Brotherhood of Teamsters, or any other labor
organization, or because they engage in concerted activi-
ties.
(b) 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
Shawn Williams full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights and privileges previously enjoyed.
R-MAX SERVICES, LLC 179
(b) Make Shawn Williams whole for any loss of earn-
ings and other benefits suffered as a result of his unlaw-
ful discharge, with interest, 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 all references to the unlawful discharge of
Shawn Williams, and within 3 days thereafter, notify him
in writing that this has been done and that the unlawful
discharge will not be used against him 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 Bridgeville, Delaware, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
5, after being signed by the Respondent’s authorized
representative, 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 20,
2004.
(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-

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.”
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 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 employees because they join,
form and/or assist Teamsters Local Union No. 355, a/w
International Brotherhood of Teamsters, or any other
labor organization, or because they engage concerted
activities.
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 Shawn Williams full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed.
WE WILL make whole Shawn Williams for any loss of
earnings and other benefits suffered as a result of his
unlawful discharge, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlaw-
ful discharge of Shawn Williams, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done, and that the unlawful discharge will not be used
against him in any way.
R-MAX SERVICES, LLC