American Postal Workers Union, Local 299 (United States Postal Service)

370 NLRB No. 37 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. American Postal Workers Union, Local 299 and Kev- in Hampton. 16–CB–256363 October 21, 2020 DECISION AND ORDER1 BY MEMBERS KAPLAN, EMANUEL, AND MCFERRAN The General Counsel seeks a default judgment in this case on the ground that American Postal Workers Union, Local 299 (the Respondent) has failed to file a timely or appropriate answer to the complaint. Upon a charge and amended charge filed by Kevin Hampton, an individual, on February 12 and April 6, respectively, the General Counsel issued a complaint and notice of hearing on June 16, 2020,2 against the Respondent, alleging that it has violated Section 8(b)(1)(A) of the Act. The Respondent did not file an answer to the original complaint within the 14-day time period set forth in Section 102.20 of the Board’s Rules and Regulations. The Region, by email dated July 13, advised the Re- spondent that no answer had been received and granted the Respondent until July 15 to file its answer. Then, by letter dated July 23, the Region advised the Respondent that unless an answer was received by July 30, it would file a motion for default judgment. On July 29, the Re- spondent, acting pro se, emailed the Region a document the Respondent described as “an official response to [the] complaint.” The Region, in a July 30 voicemail, howev- er, reminded the Respondent that it must file an answer to the complaint and offered the Respondent assistance doing so. By emails on July 31 and August 4, the Region again told the Respondent that it must file an answer to the complaint. Nevertheless, the Respondent failed to file an answer. On August 14, the General Counsel filed with the Na- tional Labor Relations Board a Motion for Default Judgment. Thereafter, on August 19, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be grant- ed. The Respondent filed no response. The allegations in the motion are therefore undisputed. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that a respondent “must specifically admit, de- 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 All dates hereafter are 2020 unless otherwise noted. ny, or explain each of the facts alleged in the complaint, unless the Respondent is without knowledge, in which case the Respondent must so state, such statement oper- ating as a denial.” It also 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 here affirmatively stated that unless an answer was received by June 30, 2020, the Board may find, pursuant to a mo- tion for default judgment, that the allegations in the com- plaint are true. Further, as set forth above, the Region repeatedly reminded the Respondent of its failure to file an answer to the complaint (notwithstanding its July 29 email), and that, unless it filed an answer, the General Counsel would move for default judgment. At the outset, we recognize that the Respondent does not appear to have legal representation in this proceed- ing. 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 the benefit of counsel. See, e.g., Clearwater Sprinkler System, 340 NLRB 435, 435 (2003). Pro se status alone, however, does not establish good cause for failing to file a timely answer. Patrician Assisted Living Facility, 339 NLRB 1153, 1153 (2003); Sage Professional Painting Co., 338 NLRB 1068, 1068 (2003). And, generally, to get a determination on the merits, a pro se respondent must file a timely answer that can reasonably be con- strued as denying the substance of the complaint allega- tions, or provide a “good cause” explanation for failing to do so. See Clearwater Sprinkler, 340 NLRB at 435; see also Carpentry Contractors, 314 NLRB 824, 825 (1994). Having duly considered this matter, we find default judgment is appropriate here. Under Section 102.20 of the Board’s Rules, the Respondent’s July 29 letter does not constitute a proper answer to the complaint, even considering the leniency afforded to pro se respondents.3 The letter, primarily a recitation of facts pertaining to a class action “Line H” grievance, fails to address the fac- tual or legal allegations of the complaint. And, although the letter generally claims that the complaint is “without merit,” the Respondent does not deny the conduct that is the gravamen of the complaint—that it refused to provide represented employees with information about grievanc- es filed on their behalf and/or copies of, or access to cop- 3 If the letter were an appropriate answer, we would consider it to be timely, as the Respondent filed it within the time parameters set by the Region’s July 23 warning letter. See Primestar Construction Corp., 367 NLRB No. 25, slip op. at 2 (2018). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ies of, grievance records.4 Uwanta Linen Supply, Inc., 357 NLRB 538, 539 (2011) (general denial legally insuf- ficient to rebut effectively admitted factual allegations in complaint). Further, we note that the Respondent ig- nored the Region’s repeated reminders, and even its at- tempt to assist the Respondent in filing an appropriate answer. See Active Metal Mfg., 316 NLRB 974, 974– 975 (1995) (noting, in granting summary judgment against pro se respondent, repeated reminders to cure procedural defects in answer). In sum, the Respondent failed to file any document, timely or untimely, that could reasonably be construed as an answer to the complaint. Accordingly, in the absence of good cause being shown for the failure to file an an- swer, we deem the allegations in the complaint to be ad- mitted as true, and we grant the General Counsel’s Mo- tion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The United States Postal Service (Employer) provides postal services for the United States and operates various facilities throughout the United States in performing that function, including facilities in Austin, Texas. The Board has jurisdiction over the Employer and this matter by virtue of Section 1209 of the Postal Reorgani- zation Act (PRA), 39 U.S.C. § 101 et seq. We find that the Respondent and the American Postal Workers Union (National Union) are labor organizations 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 agents of the Respondent within the meaning of Section 2(13) of the Act: Larry Roberts - Branch President Derek Parker - Tour 2 Steward Miles Jackson - Former Tour 2 Steward At all material times, by virtue of Section 9(a) of the Act, the National Union has been the exclusive collec- tive-bargaining representative of the following employ- ees of the Employer (the unit): 4 We find the Respondent’s attempt to excuse its refusal to provide the grievance-related information is not a legally sufficient defense to the complaint allegations. See Hunts Point Multi-Service Center, 356 NLRB 312, 313 (2010) (granting default judgment because pro se respondent’s defense was not “legally sufficient”). INCLUDED: Maintenance Employees, Motor Vehicle Employees, Postal Clerks, Mail Equipment Shop Em- ployees, Material Distribution Centers Employees, Op- erating Services and Facilities Services Employees. EXCLUDED: Managerial and supervisory personnel, professional employees, employees engaged in person- nel work in other than a purely non-confidential clerical capacity, security guards as defined in Public Law 91- 375 1201(2), all Postal Inspection Service employees, rural letter carriers, mail handlers and letter carriers. At all material times, by virtue of Section 9(a) of the Act, the National Union has been the exclusive collec- tive-bargaining representative of the unit and the Nation- al Union and the Employer have maintained and en- forced a collective-bargaining agreement covering the terms and conditions of employment of the unit, includ- ing a grievance and arbitration procedure. At all material times, the Respondent has been an agent for the National Union for various purposes includ- ing administering the collective-bargaining agreement described above, with respect to employees in the unit who are employed by the Employer at its facilities in Austin, Texas. Since about September 2019, the Respondent has re- fused to provide represented employees with information about ‘Line H’ grievances it has filed on their behalf. Since about September 2019, the Respondent has re- fused to provide represented employees with copies, or access to copies, of grievance records without raising a substantial countervailing interest in refusing to provide the documents or access to the documents. CONCLUSIONS OF LAW 1. By engaging in the conduct described above, in connection with its designated servicing representative status as described above, the Respondent has represent- ed unit employees in a manner that is arbitrary, discrimi- natory, or in bad faith and has breached the fiduciary duty it owes to the unit. 2. By the conduct described above, in connection with its representative status described above, the Respondent has been restraining and coercing employees in the exer- cise of the rights guaranteed in Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act and within the meaning of the PRA. 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 AMERICAN POSTAL WORKERS UNION LOCAL 299 3 found that the Respondent has breached its fiduciary duty of fair representation owed to unit employees and violat- ed Section 8(b)(1)(A) by (i) refusing to provide repre- sented employees with information about ‘Line H’ griev- ances filed on their behalf, and (ii) refusing to provide represented employees with copies or access to copies of grievance records, we shall order the Respondent to pro- vide them with such information and with copies or ac- cess to copies of such records. ORDER The Respondent, American Postal Workers Union, Local 299, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to provide employees in the following unit (the unit) with information about ‘Line H’ grievanc- es filed on their behalf: INCLUDED: Maintenance Employees, Motor Vehicle Employees, Postal Clerks, Mail Equipment Shop Em- ployees, Material Distribution Centers Employees, Op- erating Services and Facilities Services Employees. EXCLUDED: Managerial and supervisory personnel, professional employees, employees engaged in person- nel work in other than a purely non-confidential clerical capacity, security guards as defined in Public Law 91- 375 1201(2), all Postal Inspection Service employees, rural letter carriers, mail handlers and letter carriers. (b) Refusing to provide unit employees with copies, or access to copies, of grievance records. (c) In any like or related manner restraining or coerc- ing 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) Upon request, promptly provide unit employees with information about ‘Line H’ grievances filed on their behalf. (b) Upon request, promptly provide unit employees with copies of, or allow them access to copies of, griev- ance records in the Respondent’s possession. (c) Post at its union office, and all other places where notices to members are customarily posted, copies of the attached notice marked “Appendix.”5 Copies of the no- 5 If the facility involved in these proceedings is open and accessible to a substantial complement of employees and members, the notices must be posted within 14 days after service by the Region. If the facili- ty involved in these proceedings is closed due to the Coronavirus Dis- ease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employ- ees and members have regained access, and the notices may not be posted until a substantial complement of employees and members have tice, on forms provided by the Regional Director for Re- gion 16, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its members by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. (d) Within 21 days after service by the Region, file with the Regional Director for Region 16 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. Dated, Washington, D.C. October 21, 2020 ______________________________________ Marvin E. Kaplan, Member ______________________________________ William J. Emanuel, Member ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES AND MEMBERS 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 violated Federal labor law and has ordered us to post and obey this notice. regained access. Any delay in the physical posting of paper notices also applies to the electronic distribution of the notice if the Respondent customarily communicates with its members by electronic means. If this Order is enforced by a judgment of a United States court of ap- peals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to provide employees in the fol- lowing unit (the unit) with information about ‘Line H’ grievances filed on their behalf: INCLUDED: Maintenance Employees, Motor Vehicle Employees, Postal Clerks, Mail Equipment Shop Em- ployees, Material Distribution Centers Employees, Op- erating Services and Facilities Services Employees. EXCLUDED: Managerial and supervisory personnel, professional employees, employees engaged in person- nel work in other than a purely non-confidential clerical capacity, security guards as defined in Public Law 91- 375 1201(2), all Postal Inspection Service employees, rural letter carriers, mail handlers and letter carriers. WE WILL NOT refuse to provide unit employees with copies of, or access to copies of, grievance records. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. WE WILL, upon request, promptly provide unit em- ployees with information about ‘Line H’ grievances filed on their behalf. WE WILL, upon request, promptly provide unit em- ployees with copies of, or access to copies of, grievance records in our possession. AMERICAN POSTAL WORKERS UNION, LOCAL 299 The Board’s decision can be found at www.nlrb.gov/case/16-CB-256363 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.