Transportation Solutions, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 2010

355 N.L.R.B. 136 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

355 NLRB No. 22
136
Transportation Solutions, Inc. and General Team-
sters, Chauffeurs and Helpers Local 249 a/w In-
ternational Brotherhood of Teamsters. Case 6–
CA–36628
March 26, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an adequate and timely answer to the complaint. Upon a
charge filed by General Teamsters, Chauffeurs and Help-
ers Local 249 a/w International Brotherhood of Team-
sters (the Union) on August 28, 2009,1 the General Coun-
sel issued a complaint on November 24, against Trans-
portation Solutions, Inc. (the Respondent), alleging that it
violated Section 8(a)(3) and (1) of the National Labor
Relations Act (the Act) by suspending an employee for 3
days because of his union and concerted activities. Cop-
ies of the charge and the complaint were properly served
on the Respondent. By letter dated December 10, the
Region advised the Respondent that it had not received
an answer by the complaint’s December 8 deadline, and
that unless the Respondent filed an answer by the close
of business on the third business day following receipt of
the letter,2 or unless the Region granted an extension of
time to file an answer, a motion for default judgment
would be filed.
On December 28, the General Counsel submitted a
Motion for Default Judgment to the Board. On Decem-
ber 29, the Respondent contacted the Regional Office,
advising that it had sent an answer to the Regional Office
at an incorrect address. The Respondent then faxed a
letter dated December 23 to the Region.
On December 29, the Region advised the Respondent
that its December 23 letter did not constitute an adequate
answer within the meaning of Section 102.20 of the
Board’s Rules and Regulations. The Respondent failed
to respond.
On January 7, 2010, the Board issued an Order trans-
ferring the proceeding to the Board and a Notice to Show
Cause why the motion for default judgment should not
be granted.
On January 13, 2010, the General Counsel filed a Sup-
plement to Motion for Default Judgment with the Board,
stating that the Respondent’s December 23 letter did not
constitute an adequate answer because it was not respon-
sive to the allegations of the complaint, and that the Re-

1 All dates are in 2009, unless otherwise indicated.
2 The General Counsel states, without opposition, that the deadline
for this answer was December 16.
spondent has not shown good cause for its failure to file
a timely answer. The Respondent filed no response to
the Motion for Default Judgment, Supplement to Motion
for Default Judgment, or to the Board’s Notice to Show
Cause. The allegations in the motion and supplement to
motion are therefore undisputed.
Ruling on Motion for Default Judgment3
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the 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 on or before Decem-
ber 8, or postmarked on or before December 7, the Board
may find, pursuant to a motion for default judgment, that
the allegations in the complaint are true. No answer or
request for an extension of time was filed by December
8. Further, the undisputed allegations in the Motion for
Default Judgment and Supplement to Motion for Default
Judgment disclose that the Region, by certified letter
dated December 10, informed the Respondent that unless
an answer was received by the close of business on the
third business day following receipt of the letter, a mo-
tion for default judgment would be filed. No answer or
request for an extension of time was filed by December
16.
As set forth above, on December 29, in apparent re-
sponse to the General Counsel’s December 28 Motion
for Default Judgment, the Respondent advised the Re-
gion that an answer had been sent to the wrong address.
The Respondent then faxed to the Region a December 23
letter, addressed to the Regional Attorney, stating that it
was “in response to the most recent correspondence re-
garding” the unfair labor practice case, and adding that
the Respondent was “declining acceptance of the settle-

3 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. See Teamsters Local 523 v. NLRB, 590 F.3d
849 (10th Cir. 2009); Narricot Industries, L.P. v. NLRB, 587 F.3d 654
(4th Cir. 2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir.
2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009)
(No. 09-328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), cert. granted 130 S.Ct. 488 (2009); Northeastern Land Services
v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78
U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213). But see Laurel
Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir.
2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept. 29, 2009)
(No. 09-377).
TRANSPORTATION SOLUTIONS, INC.

137
ment offer which is to rescind the 3-day suspension
and/or restoration of [employee Gerald Brown’s] wages
for the three (3) day suspension.” The letter was signed
by the Respondent’s administrative assistant.
We find that the Respondent’s December 23 letter
does not constitute a proper answer under Section 102.20
of the Board’s Rules and Regulations. In determining
whether to grant a motion for default judgment on the
basis of a respondent’s failure to file a sufficient or
timely answer, the Board typically shows some leniency
toward respondents who proceed without benefit of
counsel. See, e.g., LBE, Inc., 354 NLRB No. 115, slip
op. at 1 (2009). The Board is reluctant to preclude a de-
termination on the merits of a complaint if it finds that a
pro se respondent has filed a timely answer that can rea-
sonably be construed as denying the substance of the
complaint allegations. LBE, supra, slip op. at 1–2;
Clearwater Sprinkler System, 340 NLRB 435 (2003).
Nevertheless, even in pro se cases, the Board has found
answers legally insufficient if they fail to address any of
the factual or legal allegations of the complaint. Eckert
Fire Protection Co., 329 NLRB 920 (1999); accord:
Kloepfers Floor Covering, Inc., 330 NLRB 811 (2000).
Here, the Respondent’s letter does not respond to any
of the complaint’s factual or legal allegations, which
concern the alleged suspension of employee Brown be-
cause he joined, supported, and assisted the Union and
engaged in concerted activities, and to discourage other
employees from engaging in those activities. Instead, the
letter asserts that the Respondent was “declining accep-
tance of the settlement offer.” This response cannot rea-
sonably be construed as denying the substance of the
complaint’s allegations. Cf. Information Processing
SVC, 330 NLRB No. 95 (2000) (not reported in Board
volumes.) Therefore, even considering the Respondent’s
pro se status, the letter is legally insufficient to constitute
a proper answer.
Further, even assuming the answer was otherwise ade-
quate, the Respondent has proffered no explanation for
its failure to meet any of the deadlines set by the Region
for filing a timely answer. On December 29, it informed
the Region only that its December 23 letter, prepared 1
week after the final deadline set by the Region, was
mailed to an incorrect address.4 The Respondent failed
to offer any reason why it did not file a timely response.
Nor did it do so in response to the Notice to Show Cause.
Even in pro se cases, a respondent must explain why its
answer was not timely filed. TNT Logistics North Amer-

4 We note, however, that the December 23 letter did set forth the cor-
rect address of the Regional Office.
ica, Inc., 344 NLRB 489 (2005). The Respondent has
not done so here.
In sum, the Respondent failed to file any document,
timely or untimely, that reasonably could be construed as
an answer to the complaint. Accordingly, in the absence
of good cause being shown for the failure to file a timely
answer, we grant the General Counsel’s Motion for De-
fault Judgment.5
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Pennsylvania
corporation with an office and place of business located
in Pittsburgh, Pennsylvania, has been engaged in the op-
eration of a shuttle bus and van service. During the 12-
month period ending July 31, 2009, the Respondent, in
conducting the business operations described above, de-
rived gross revenues in excess of $250,000 and pur-
chased and received at its Pittsburgh, Pennsylvania facil-
ity goods valued in excess of $50,000 directly from
points located outside the Commonwealth of Pennsyl-
vania.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) 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:
Dwight Mayo - President
Elnora Briston - Senior Operations Manager
Ahmad Shareef - Shop Manager
Mike Anderson - Safety Manager
Joan E. Howard - Dispatcher
Dwight Mayo, Jr. - Vice President

5 The General Counsel also asserts that the Respondent’s December
23 letter is “procedurally defective” because it was filed by facsimile
transmission and was not signed by the Respondent, its counsel, or its
nonattorney representative. The General Counsel also states that the
letter does not “purport to have been served on the Charging Party.”
Even though the pro se Respondent’s letter does not appear to have
complied with the signature and service requirements of Sec. 102.21 of
the Board’s Rules and Regulations, these defects would not necessarily
be fatal had the letter otherwise constituted an adequate and timely
answer. See A.P.S Production/A. Pimental Steel, 326 NLRB 1296,
1297 (1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

138
On about March 3, 2009, the Respondent issued a 3-
day suspension to its employee Gerald Brown.
The Respondent engaged in the above conduct because
Gerald Brown joined, supported, and assisted the Union
and engaged in concerted activities, and to discourage
employees from engaging in these activities.
CONCLUSION OF LAW
By issuing a 3-day suspension to employee Gerald
Brown, the Respondent has discriminated in regard to the
hire or tenure or terms or conditions of employment of its
employees, thereby discouraging membership in a labor
organization in violation of Section 8(a)(3) and (1) of the
Act. The Respondent’s unfair labor practices affect com-
merce 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.
Having found that the Respondent unlawfully sus-
pended employee Gerald Brown, we shall order the Re-
spondent to make Brown whole for any loss of earnings
or 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
interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).6 In addition, the Respondent
shall also be required to remove from its files any refer-
ences to the unlawful suspension, and to notify Brown in
writing that this has been done and that the suspension
will not be used against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Transportation Solutions, Inc., Pittsburgh,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Suspending any employee for joining, supporting,
and assisting the Union and engaging in concerted activi-
ties, and to discourage employees from engaging in these
activities.
(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.

6 In the complaint, the General Counsel seeks compound interest
computed on a quarterly basis for any backpay awarded. Having duly
considered the matter, we are not prepared at this time to deviate from
our current practice of assessing simple interest. See, e.g., Glen Rock
Ham, 352 NLRB 516, 516 fn. 1 (2008), citing Rogers Corp., 344
NLRB 504 (2005).
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Gerald Brown whole for any loss of earnings
and other benefits suffered as a result of his unlawful
suspension, with interest, 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 Gerald Brown’s unlawful
suspension, and within 3 days thereafter notify him in
writing that this has been done and that the suspension
will not be used against him 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 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.
(d) Within 14 days after service by the Region, post at
its facility in Pittsburgh, Pennsylvania, copies of the at-
tached notice marked “Appendix.”7 Copies of the notice,
on forms provided by the Regional Director for Region
6, 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 March 3,
2009.
(e) 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-
testing to the steps that the Respondent has taken to
comply.

7 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.”
TRANSPORTATION SOLUTIONS, INC.

139
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 suspend any of you for joining, support-
ing, and assisting the Union and engaging in concerted
activities, and to discourage other employees from en-
gaging in these 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 make Gerald Brown whole for any loss of
earnings and other benefits suffered as a result of his
unlawful suspension, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful suspension of Gerald Brown, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the suspension will not be used against him
in any way.
TRANSPORTATION SOLUTIONS, INC.