Superior Protection, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2009

354 N.L.R.B. 138 (N.L.R.B. 2009)

354 NLRB No. 12
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.
Superior Protection, Inc., and
John F. Heard, Jr., indi-
vidually and United Govern-
ment Security Officers of
America, for and on Behalf
of Local 229. Case 16–CA–21399
April 30, 2009
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER
SCHAUMBER
The General Counsel seeks a default judg-
ment in this case on the ground that the Re-
spondents have failed to file a timely answer to
the compliance specification.
On July 31, 2003, the Board issued a Deci-
sion and Order,1 directing Respondent Superior
Protection, Inc., its officers, agents, successors,
and assigns, to make whole Kelvin Trotter for
any loss of earnings and other benefits resulting
from his suspension, probation, and termination
in violation of Section 8(a)(4), (3), and (1) of
the Act. On July 26, 2004, the United States
Court of Appeals for the Fifth Circuit enforced
the Board’s Order.2 Thereafter, Respondent
Superior Protection, Inc. reinstated Trotter but
failed to make him whole as required by the
Board’s Order.
On August 31, 2006, the Board issued a Sup-
plemental Decision and Order,3 ordering the
Respondent, Superior Protection, Inc., inter
alia, to pay Trotter $123,907.87, plus interest,
minus tax withholdings required by Federal and
State laws. On December 11, 2006, the United
States Court of Appeals for the Fifth Circuit
enforced the Board’s Order.4

1 339 NLRB 954 (2003).
2 105 Fed. Appx. 561.
3 347 NLRB 1197 (2006).
4 No. 06–60940.
A controversy having arisen over whether
John F. Heard Jr. should be held jointly and
severally liable for the backpay owed Trotter,
the Regional Director issued a compliance
specification and notice of hearing on October
31, 2008, notifying Superior Protection and
Heard (the Respondents) that they should file
timely answers complying with the Board’s
Rules and Regulations. Although properly
served with copies of the compliance specifica-
tion, the Respondents failed to file timely an-
swers to the compliance specification.5
On January 6, 2009, the General Counsel
filed a Motion for Default Judgment with the
Board. On January 14, 2009, the Board issued
an order transferring the proceeding to the
Board and a Notice to Show Cause why the
motion should not be granted. On January 28,
2009, Respondent Heard filed a document enti-
tled “Response to the Notice to Show Cause
and Default,” and, on March 11, 2009, the
General Counsel filed a responsive pleading.6

5 As set forth in the General Counsel’s motion, counsel for the Gen-
eral Counsel made repeated efforts to ensure that Respondent Heard
was aware of the importance of filing an answer. On December 3,
2008, after Heard had missed the first filing deadline of November 21,
2008, counsel for the General Counsel spoke with Heard via telephone
to inquire about his failure to provide an answer. After Heard informed
him that he had not yet received a copy of the compliance specification,
counsel for the General Counsel mailed an additional copy of the com-
pliance specification to Heard’s home address and extended the dead-
line for filing an answer to December 24, 2008. After that new dead-
line passed without Heard having filed an answer, counsel for the Gen-
eral Counsel again called Heard, inquiring whether he still intended to
file an answer. When Heard indicated that he wished to respond, the
General Counsel extended the filing date a second time to January 5,
2009. This deadline also passed without Heard having filed an answer.
6 Respondent Superior Protection, Inc. has not filed any answer to
the compliance specification or to the Notice to Show Cause.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Ruling on the Motion for Default
Judgment7
Section 102.56(a) of the Board’s Rules and
Regulations provides that the respondent shall
file an answer within 21 days from service of a
compliance specification. Section 102.56(c)
provides that if the respondent fails to file an
answer to the specification within the time pre-
scribed by this section, the Board may, either
with or without taking evidence in support of
the allegations of the specification and without
further notice to the respondent, find the speci-
fication to be true and enter such order as may
be appropriate.
According to the uncontroverted allegations
of the Motion for Default Judgment, the Re-
spondents, despite having been advised of the
filing requirements, have failed to file a timely
answer to the amended compliance specifica-
tion.
In opposition to the Board’s Notice to Show
Cause, Respondent Heard asserts that prior to
January 28, 2009, he had been without counsel
and did not believe that it was necessary for
him to respond to the amended compliance
specification, despite the notices sent by the
General Counsel. Heard further asserts that
once he realized that the underlying matter had
not been settled by the previous owners of Su-
perior Protection he hired counsel.
We find that the Respondent’s failure to file a
timely answer has not been supported by a
showing of good cause. The essence of Re-
spondent Heard’s position is that, because he
was not represented by counsel prior to January

7 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
28, 2009, he failed to fully understand the rami-
fications of his failure to file an answer.
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.8
See, e.g., Patrician Assisted Living Facility, above at fn.
8; Sage Professional Painting Co., 338 NLRB
1068 (2003). Where a pro se respondent fails to
timely file an answer, despite being reminded to do so,
and provides no good cause explanation for its failure to
file a timely answer, subsequent attempts to file an an-
swer will be denied as untimely. Id. at 1153–1154
(citing Kenco Electric & Signs, 325 NLRB
1118 (1998)).
Here, there is no dispute that Respondent
Heard did not answer the amended compliance
specification until after the Notice to Show
Cause issued on January 14, despite counsel for
the General Counsel’s repeated, explicit direc-
tions to do so. We also find that Heard has not
provided an explanation sufficient to constitute
good cause for his failure to file a timely an-
swer even after he was granted more than one
extension of time. As explained above,
Heard’s assertion that his status as a pro se liti-
gant should be deemed “good cause” for his
failure to file a timely answer is without merit.
Accordingly, we reject Respondent Heard’s
answer to the compliance specification as un-
timely, and we grant the General Counsel’s

8 As Member Schaumber explained in his dissent in Patrician As-
sisted Living Facility, 339 NLRB 1153 (2003), he disagrees with extant
Board precedent that circumscribes the “good cause” proviso to mean
good cause for missing a filing deadline, rather than good cause not to
deem allegations admitted. See also NLRB v. Washington Star, 732
F.2d 974 (D.C. Cir. 1984). In considering motions for default judg-
ment, Member Schaumber would utilize the same standard for setting
aside an entry of default as used by the Federal courts under Rule 55(c),
and would examine three factors: (1) the reason or reasons the answer
was untimely, (2) the merits of the respondent’s defense, and (3)
whether any party would suffer prejudice were the default set aside.
While he remains of that view, he acknowledges that granting default
here is consistent with Board precedent and with the Board’s longstand-
ing interpretation of its own rules. Thus, in the absence of a Board
majority to change Board law, and for institutional reasons, Member
Schaumber applies that precedent here.
SUPERIOR PROTECTION, INC. 3
Motion for Default Judgment. We conclude
that the Respondents are liable for the net
backpay due Kelvin Trotter as stated in the
amended compliance specification. We will
order the Respondents to pay that amount to
Kelvin Trotter, plus interest accrued to the date
of payment.
ORDER
The National Labor Relations Board orders
that the Respondent, Superior Protection, Inc.,
Houston, Texas, its officers, agents, successors,
and assigns, and Respondent John F. Heard Jr.,
an individual, shall jointly and severally make
whole Kelvin Trotter by paying him the amount
following his name, plus interest accrued to the
date of payment, as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), mi-
nus tax withholdings required by Federal and
State laws:
Kelvin Trotter $123,907.87
TOTAL AMOUNT DUE $123,907.87
Dated, Washington, D.C. April 30, 2009
Wilma B. Liebman, Chair-
man
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS
BOARD