Sky High Services, LLC

766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sky High Services, LLC and Margaret Frances Dod- son. Case 05–CA–123647 October 24, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND JOHNSON The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge and amended charge filed by Margaret Frances Dodson (the Charging Party) on March 4 and 21, 2014, respectively, the Gen- eral Counsel issued a complaint and notice of hearing on May 29, 2014, alleging that the Respondent has violated Section 8(a)(1) and (4) of the Act. Although properly served copies of the charge and complaint, the Respond- ent failed to file an answer. By letter dated June 17, 2014, the Respondent was ad- vised that, absent receipt of an answer to the complaint by close of business June 26, 2014, a motion for default judgment would be filed. On July 2, 2014, the General Counsel filed a Motion for Default Judgment with the Board, contending that the Respondent failed to file an answer to the complaint. On July 7, 2014, the Board issued an Order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent thereafter sent two letters in response to the Notice to Show Cause, and the General Counsel filed a response to the Respondent’s letters. 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 from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively states that unless an answer was received by June 12, 2014, the Board may find, pursuant to a motion for default judg- ment, that the allegations in the complaint are true. Fur- ther, as set forth above, the Respondent was subsequently advised that unless an answer was received by June 26, 2014, a motion for default judgment would be filed. De- spite this, the Respondent failed to file an answer. At the outset, we recognize that the Respondent is act- ing pro se. Although the Board has shown some lenien- cy toward respondents who proceed without the benefit of counsel, the Board has consistently held that pro se status alone does not establish good cause for failing to file a timely answer. Patrician Assisted Living Facility, 339 NLRB 1153, 1153 (2003); Sage Professional Paint- ing Co., 338 NLRB 1068, 1068 (2003). In its response to the Notice to Show Cause, the Re- spondent submitted two letters1 claiming that it misun- derstood that it was required to file an answer to the complaint. Specifically, the Respondent states that in its telephone conversations with the Region it was led to believe that, because the Respondent disagreed with sub- stance of the complaint allegations, “we would simply go to court.” We find that the Respondent’s argument fails to estab- lish good cause. First, even assuming the Respondent was told—by someone from the Region—that if it disa- greed with the complaint allegations “we would simply go to court,” any such statement does not reasonably suggest that the Respondent would be excused from fil- ing an answer to the complaint. At most, the statement might reasonably convey the circumstances in which the case could proceed to a hearing before an administrative law judge; it does not, however, address the answer re- quirement. Further, to the extent that the Respondent’s failure to file an answer was due to a mistaken belief about that requirement, the mistaken belief does not es- tablish good cause when it runs contrary to the clear writ- ten statements, both in the complaint and in the Region’s subsequent letter, that the Respondent was required to file an answer. See generally Nu-Temp Associates Heat- ing & Cooling, 338 NLRB 790, 790 (2003) (good cause for failing to file an answer not established by the pro se respondent’s belief that the union would be seeking the withdrawal of the complaint, noting that the Region’s followup letter clearly demonstrated otherwise). Moreo- ver, the Respondent has not even requested an extension of time to file an answer. This too “is a factor demon- strating lack of good cause.” Dong-A Daily North Amer- ica, 332 NLRB 15, 16 (2000), quoting Day & Zimmer- man Services, 325 NLRB 1046, 1047 (1998). Finally, although the Respondent’s letters essentially deny the allegations of the complaint, the Board has found that such a late filing cannot overcome the Respondent’s fail- ure to file a timely answer or a timely request for an ex- tension of time in which to file an answer. Kenco Elec- tric & Signs, 325 NLRB 1118, 1118 (1998). Accordingly, in the absence of good cause being shown for the Respondent’s failure to file an answer, we deem the allegations to be admitted as true and we grant the General Counsel’s Motion for Default Judgment. On the entire record, the Board makes the following 1 The Respondent’s two letters in response to the Notice to Show Cause, received on July 21 and August 5, 2014, respectively, contained virtually identical language. 361 NLRB No. 78 SKY HIGH SERVICES, LLC 767 FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a limited liabil- ity company with an office and place of business in Ster- ling, Virginia, has been engaged in the business of providing heating, ventilation, air conditioning, plumb- ing, and general contracting services. During the calen- dar year ending December 31, 2013, a representative period, the Respondent provided services valued in ex- cess of $50,000 to McAllister Retail Services, a Georgia company that is directly engaged in interstate commerce. 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, Charles Wayne Hackney held the position of the Respondent’s owner, and has been a su- pervisor of the Respondent within the meaning of Sec- tion 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. About March 12, 2014, Respondent discharged its em- ployee Margaret Frances Dodson because Dodson filed a charge with the Board in Case 05–CA–123647. CONCLUSION OF LAW By the conduct described above, the Respondent has discriminated against an employee for filing charges un- der the Act, in violation of Section 8(a)(1) and (4) of the Act. The Respondent’s unfair labor practice described above affects 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 (4) of the Act by discharging employee Margaret Frances Dodson, we shall order the Respondent to offer Dodson full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or other rights or privileges previously enjoyed, and to make her whole for any loss of earnings and other benefits suffered as a result of the discrimination against her. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In addition, we shall order the Respondent to compensate Dodson for any adverse tax consequences of receiving a lump-sum backpay award and to file a report with the Social Security Ad- ministration allocating backpay to the appropriate calen- dar quarters. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). Further, the Respondent shall be required to expunge from its files any and all references to the unlawful dis- charge of Margaret Frances Dodson and to notify Dod- son in writing that this has been done and that the dis- charge will not be used against her in any way. ORDER The National Labor Relations Board orders that the Respondent, Sky High Services, LLC, Sterling, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they file charges under the National Labor Relations Act. (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 Margaret Frances Dodson full reinstatement to her for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make Margaret Frances Dodson whole for any loss of earnings and other benefits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of this decision. (c) Compensate Margaret Frances Dodson for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Administration allocating the backpay award to the ap- propriate calendar quarters. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Margaret Frances Dodson and, within 3 days thereafter, notify her in writing that this has been done and that the discharge will not be used against her in any way. (e) 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 rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 768 (f) Within 14 days after service by the Region, post at its facility in Sterling, Virginia, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in this proceed- ing, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 12, 2014. (g) Within 21 days after service by the Region, file with the Regional Director for Region 5 a sworn certifi- cation of a responsible official on a form provided by the Region attesting 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 2 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.” Choose not to engage in any of these protected activities. WE WILL NOT discharge or otherwise discriminate against you because you file charges under the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Margaret Frances Dodson full reinstatement to her former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or any other rights or privileges previously en- joyed. WE WILL make Margaret Frances Dodson whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL compensate Margaret Frances Dodson for the adverse tax consequences, if any, of receiving a lump- sum backpay award, and WE WILL file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Margaret Frances Dodson, and WE WILL within 3 days thereafter, notify her in writing that we have done so and that we will not use the discharge against her in any way. SKY HIGH SERVICES, LLC The Board’s decision can be found at www.nlrb.gov/case/05–CA–123647 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th St., N.W., Washington, D.C. 20570, or by calling (202) 273-1940.