Information Processing Services

330 NLRB No. 95 1 NOTICE: This opinion is subject to formal revision before publication in the Board 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. Information Processing SVC, Inc. d/b/a Information Processing Services, Inc. and Thomas J. Walsh. Case 5–CA–27896 February 9, 2000 DECISION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE ANSWER AND FOR SUMMARY JUDGEMENT AND REMANDING BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN AND BRAME Upon a charge filed by Thomas J. Walsh, an attorney, on September 2, 1998, the General Counsel of the Na- tional Labor Relations Board issued a complaint on De- cember 15, 1998, and an amended complaint on January 7, 1999, against the Respondent, Information Processing Services, Inc., alleging that it has violated Section 8(a)(1) of the National Labor Relations Act. Copies of the charge, complaint and amended complaint were properly served on the Respondent. The Respondent filed letters dated December 24, 1998, and January 15, 1999, pur- porting to be answers to the complaint and amended complaint respectively. On June 2, 1999, the General Counsel filed a Motion to Strike Answer and for Summary Judgment with the Board. On June 3, 1999, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three- member panel. Procedural History The December 15, 1998 complaint alleges that on or about April 22, 1998, the Respondent violated Section 8(a)(1) of the Act by terminating the employment of Mi- chael Morissey, Barry Vann, and David Sherman. The complaint alleges the employees were terminated for concertedly complaining that the Respondent failed to comply with the terms of a wage determination in a gov- ernment contract. The Respondent, acting pro se, filed a letter dated December 24, 1998, in response to the com- plaint. The letter, as reproduced verbatim, stated in part: IF FOR SOME REASON THESE INDIVIDUALS FEELS [SIC] THAT THEY WERE NOT PAID FAIRLY OR CORRECTLY. THEN WE NEED TO KNOW THIS. AS FOR A COMPLAINT FROM THESE IN- DIVIDUALS WE HAVE NEVER RECEIVED ANYTHING VERBALLY NOR WRITTEN FROM NEITHER ONE OF THEM. WE CAN NOT CORRECT ANYTHING VERBALLY NOR WRITTEN FROM NEITHER ONE OF THEM. WE CAN NOT CORRECT SOMETHING SOMETHING WE ARE NOT AWARE OF. SEE #4 YOUR COM- PLAINT AND NOTICE OF HEARING. INFORMATION PROCESSING SERVICE DID NOT, HAVE NOT, AND WILL NEVER DISCOURAGE ANY EMPLOYEE FROM ENGAGING IN ANY ACTIVITIES IN WHICH THEY WANT TO EN- GAGE THEMSELVES. SEE #5, YOUR COMPLAINT AND NOTICE OF HEARING.1 The Respondent was informed both orally and by letter that the December 24, 1998 letter was not an adequate answer. The requirements of Section 102.20 were ex- plained to Respondent. By a letter dated January 7, 1999, the Respondent was informed that an amended complaint had issued and that Respondent had 14 days from the same date to file an answer. The amended complaint issued on January 7, 1999. It stated that fail- ure to comply with the requirements of Section 102.20 would result in the allegations in the amended complaint being deemed true by the Board. The Respondent submitted a letter dated January 15, 1999, purporting to be an answer to the amended com- plaint. The letter states that the Respondent has “insuffi- cient information to admit or deny” each and every alle- gation in the amended complaint. In addition the letter incorporated the Respondent’s December 24 letter. The General Counsel contends in his Motion to Strike Answer and for Summary Judgment that the Respon- dent’s January 15, 1999 letter, which incorporates its December 24, 1998 letter, constitutes an inadequate an- swer to the complaint under Section 102.20 of the Board’s Rules and Regulations. The General Counsel argues that the Respondent’s failure to admit or deny allegations that are clearly within Respondent’s knowl- edge warrants striking the entire answer as a sham or fraud. See Section 102.21 of the Board’s Rules and Regulations. Ruling on Motion for Summary Judgment Section 102.20 of the National Labor Relations Board Rules and Regulations requires a respondent to admit, deny or explain all allegations in the complaint unless the respondent is without knowledge, in which case the re- spondent must so state. Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the alle- gations 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. 1 Complaint par. 4 states: “On or about April 22, 1898, Respondent by Bettie Gray, by letter of the same date, terminated the employment of Michael Morrissey, Barry Vann, and David Sherman, because they concertedly complained about Respondent’s failure to comply with the terms contained in the wage determination which covered the service contract C-855S.” Complaint par. 5 states: “Respondent engaged in the conduct de- scribed above in par. 4, because the named employees engaged in the conduct described therein, and in order to discourage employees from engaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The General Counsel argues that, “[b]ecause the Re- spondent was acting pro se, detailed instructions regard- ing the procedure for filing an answer were given to Re- spondent at the time the Region issued an Amended Complaint,” and despite these instructions the Respon- dent failed to comply with Section 102.20. We agree, but only in part, with the General Counsel. Where, as here, a respondent is pro se and the answer addresses the substance of the complaint, we are somewhat more leni- ent regarding compliance with Section 102.20. See APS Production, 326 NLRB No. 130 (Sept. 30, 1998). Sec- tion 102.20 states in pertinent part that “[t]he respondent shall specifically admit, deny or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement acting as a denial.” In the instant case, Respondent answered each allegation by asserting that it had insufficient information to admit or deny. In addi- tion, the Respondent attached its December 24, 1998 letter as further answer to the complaint. Given the Re- spondent’s prose status, we find the Respondent’s answer and attached letter sufficiently responsive to the com- plaint paragraphs containing the operative facts of the alleged violations to warrant a hearing on the merits. The Respondent’s letter effectively denied that the employees complained about the wage determination (complaint par. 4) and that the Respondent discouraged them from engaging in protected concerted activities (complaint par. 5). We therefore find, contrary to the General Counsel that summary judgment is not appropriate as to para- graphs 4, 5, 6, and 7 of the complaint.2 However, to the extent that an answer is a sham, it may be stricken. As to three paragraphs of the complaint, we conclude that it was a sham for Respondent to claim that it had no knowledge. Accordingly, we strike these para- 2 A respondent’s answer that simply states that the respondent is without sufficient knowledge to answer the operative allegations of the complaint may be stricken as sham. DPM of Kansas, 261 NLRB 220 fn. 2 (1982) (“any complaint allegations as to Respondent’s own con- duct must be within its knowledge”). However as to complaint pars. 4, 5, 6, and 7 we find that the Respondent’s supplemental letter of De- cember 24, 1998, attached to its answer, effectively denies the allega- tions of those paragraphs of the complaint. Accordingly, and taking account of the Respondent’s pro se status, we deny the General Coun- sel’s motion to strike answer with regard to those paragraphs. graphs, and grant summary judgment as to them.3 ORDER It is ordered that the General Counsel’s request to strike the Respondent’s answer with respect to para- graphs 1, 2, and 3 is granted. The allegations set forth in those paragraphs are deemed true. IT IS FUTHER ORDERED that this proceeding is re- manded to the Regional Director for Region 5 for the purpose of arranging a hearing before an administrative law judge limited to the allegations set forth in amended complaint paragraphs 4, 5, 6, and 7. The administrative law judge shall prepare and serve on the parties a deci- sion containing findings of fact, conclusions of law, and recommendations based on all the record evidence. Fol- lowing service of the administrative law judge’s decision on the parties, the provisions of the Board’s Rules shall be applicable. Dated, Washington, D.C. February 9, 2000 John C. Truesdale, Chairman Peter J. Hurtgen, Member J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 The three paragraphs are: 1. The charge in this proceeding was filed by the Charging Party on September 2, 1998, and a copy was served upon Re- spondent by regular mail on September 3, 1998. 2. (a) At all material times, Respondent, a Virginia corpora- tion with an office and place of business in Alexandria, Virginia, has been engaged in the business of providing temporary help services, including a contract with the United States Government Printing Office to provide proofreading services for the Internal Revenue Service. (b) During the past 12 months, Respondent, in conducting its business operations described above in par. 2(a), performed ser- vices valued in excess of $38,000 to the United States Govern- ment. Respondent does business in the District of Columbia and is subject to the Board’s plenary jurisdiction (c) At all material times, Respondent has been an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. 3. At all material times Bettie Gray held the positions of Re- spondent’s vice president and director of operations, and has been a supervisor of Respondent within the meaning of Sec. 2(11) of the Act, and an agent of Respondent within the meaning of Sec. 2(13) of the Act