WR TRANSPORT, LLC

National Labor Relations Board - Board Decisions

Apr 13, 2018

366 NLRB No. 59 (N.L.R.B. 2018)

366 NLRB No. 59
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.
W.R. Transport, LLC and Kianyo Deshone Foucha.
Case 15–CA–185397
April 13, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS MCFERRAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that the Respondent failed to file a
timely answer to the complaint. Upon a charge filed by
employee Kianyo Deshone Foucha (Foucha) on October
3, 2016, and amended on October 24 and November 18,
2016, and April 26, 2017, the General Counsel issued the
complaint on July 18, 2017, against W.R. Transport,
LLC, the Respondent, alleging that it has violated Sec-
tion 8(a)(1) of the National Labor Relations Act. Alt-
hough properly served copies of the charge, amended
charges, and complaint, the Respondent failed to file a
timely answer.
On August 23, 2017, the General Counsel filed a Mo-
tion for Default Judgment with the Board. Thereafter, on
August 24, 2017, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. A written re-
sponse to the notice was to be filed on or before Septem-
ber 7, 2017. On September 6, 2017, the Respondent filed
with the Region an untimely answer to the complaint.
No response to the General Counsel’s Motion for Default
Judgment, or to the Board’s Notice to Show Cause was
filed with the Board.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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
of service of the complaint, unless good cause is shown.
In addition, the complaint affirmatively states that unless
an answer was received by August 1, 2017, the Board
may find, pursuant to a motion for default judgment, that
the allegations in the complaint are true. Further, the
undisputed allegations in the General Counsel’s motion
disclose that the Region, by letter dated August 10, 2017,
by certified mail to the Respondent and regular mail to
the Respondent’s legal representative, advised the Re-
spondent that unless an answer was received by August
17, 2017, a motion for default judgment would be filed.
Notwithstanding the August 10 reminder letter, the Re-
spondent failed to file an answer until September 6,
2017, after the General Counsel had filed the Motion for
Default Judgment.
We note that the Respondent did not file a request for
an extension of time to file an answer by the August 1 or
August 17 deadlines, and has offered no explanation for
its failure to do so. Such failure to promptly request an
extension of time for filing is a factor demonstrating a
lack of good cause. See, e.g., V. Garofalo Carting, 362
NLRB No. 170, slip. op. at 1 (2015); Day & Zimmerman
Services, 325 NLRB 1046, 1047 (1998).
Moreover, the Respondent does not contend that it has
established good cause to file the answer late. Section
102.2(d)(2) of the Board’s Rules and Regulations pro-
vides express instructions for late-filed documents. A
Respondent must file “along with the document, a mo-
tion that states the grounds relied on for requesting per-
mission to file untimely,” accompanied by a sworn affi-
davit of the facts relied on to support the motion. In Ele-
vator Constructors Local 2 (Unitec Elevator Services
Co.), 337 NLRB 426, 428 (2002), the Board stated that
in all matters arising under the excusable-neglect provi-
sion of Section 102.111(c), a precursor to Section
102.2(d)(2),1 “we will strictly adhere to our rule that the
specific facts relied on to support the motion to accept a
late filing shall be set forth in affidavit form and sworn to
by individuals with personal knowledge of the facts.”
Here, the Respondent did not file such a motion, nor did
it submit a supporting affidavit. Thus, the Respondent
did not comply with the requirements of Section
102.2(d)(2), and has failed to show good cause for filing
an untimely answer.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we reject the answer filed on
September 6, 2017, as untimely and we deem the factual
allegations in the complaint to be admitted as true. Nev-
ertheless, we deny the General Counsel’s motion for de-
fault judgment. For the reasons explained below, we
shall dismiss the complaint, although without prejudice
to the General Counsel’s right to re-issue the complaint
pursuant to his authority under Section 3(d) of the Act.

1 On February 24, 2017, the Board published amended Procedural
Rules and Regulations to be effective March 6, 2017. As part of the
revisions, the service and filing provisions that were previously in Sec.
102.111 were moved to Sec. 102.2 in order to be given a “higher profile
position,” and underwent reorganization and other minor revisions.
Procedural Rules and Regulations, 82 Fed.Reg. 11748, at 11748 (Feb.
24, 2017). Sec. 102.2(d), “Late-filed documents,” reflects the same
procedures as the prior Sec. 102.111(c) version. 82 Fed.Reg. 11748, at
11752.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Analysis
The General Counsel’s complaint alleges the follow-
ing:
6(a) Since about May 4, 2017, Respondent, at Re-
spondent’s facility, has classified its bus drivers as in-
dependent contractors.
6(b) Respondent misclassified its employee-drivers to
discourage them from engaging in Section 7 activity
and to deprive them of the protections of the Act.
7. By the conduct described above in paragraph 6, Re-
spondent has been interfering with, restraining, and co-
ercing employees in the exercise of the rights guaran-
teed by Section 7 of the Act in violation of Section
8(a)(1) of the Act. Complaint at 2, paragraphs 6–7.
The complaint thus alleges that the Respondent mis-
classified its workers as independent contractors, thereby
depriving them of their rights guaranteed under Section 7
of the Act, in violation of Section 8(a)(1) of the Act.
This unfair labor practice theory is currently under con-
sideration in Velox Express, Inc., 15–CA–184006, in
which the Board has invited all interested parties to file
briefs addressing the following question: “Under what
circumstances, if any, should the Board deem an em-
ployer’s act of misclassifying statutory employees as
independent contractors a violation of Section 8(a)(1) of
the Act?” Notice and Invitation to File Briefs, February
15, 2018. In those circumstances, we find it appropriate
to deny the General Counsel’s Motion for Default Judg-
ment and, given the early phase of this case, dismiss the
complaint without prejudice pending the Board’s disposi-
tion of Velox Express, Inc. Following the disposition of
that case, the General Counsel may reissue the present
complaint as he deems appropriate.
ORDER
It IS ORDERED that the General Counsel’s Motion for
Default Judgment is denied and the complaint is dis-
missed without prejudice.
Dated, Washington, D.C. April 13, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD