Laborers International Union of North America, Local 872, AFL-CIO (Various Employers, including the

372 NLRB No. 41 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. Laborers International Union of North America Local 872, AFL–CIO (Various Employers, Including the Employer-Members of Nevada Contractors Association/Associated General Contractors As- sociation) and Parnell Colvin. Laborers International Union of North America Local 872, AFL–CIO (Various Employers, Including the Employer-Members of Nevada Contractors Association/Associated General Contractors As- sociation) and Richard Vela. Cases 28–CB– 239339, 28–CB–291889, and 28–CB–292114 January 10, 2023 ORDER DENYING MOTION AND REMANDING BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX Charging Party Parnell Colvin has moved for default judgment in this case based on his assertion that the Re- spondent Laborers International Union of North America Local 872, AFL–CIO failed to timely serve its answer to the complaint on him. The August 1, 2022 consolidated complaint alleges that the Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act. On August 10, 2022, the Respondent filed a motion for expedited relief from having to serve Charging Party Colvin with filings, or al- ternatively for the Region to accept service on his behalf. On August 12, 2022, the Respondent filed a timely answer to the consolidated complaint with service on Charging Party Richard Vela. The Respondent admittedly did not serve Charging Party Colvin at that time. The Respond- ent, however, eventually served its answer to the com- plaint on Charging Party Colvin on October 5, 2022. On October 13, 2022, Mr. Colvin, appearing pro se, filed a motion for default judgment, arguing that the Re- spondent failed to comply with Section 102.21 of the Board’s Rules and Regulations, which states, in relevant part, that “[i]mmediately upon the filing of the answer, Re- spondent shall serve a copy thereof on the other parties.”1 On October 24, 2022, the Respondent filed an opposition. The General Counsel has submitted no filings. The Board has delegated its authority in this matter to a three-member panel. Ruling On Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that “[a]ll allegations in the complaint, if no 1 Although the motion was mistakenly filed with the Region, rather than with the Board, the Regional Director transferred the motion to the answer is filed . . . will be deemed to be admitted to be true and will be so found by the Board, unless good cause to the contrary is shown.” Here, the Respondent timely filed its answer to the complaint; however, it did not comply with Section 102.21 by “immediately” serving Charging Party Colvin. Upon a party’s failure to timely serve an- other party, Section 102.5(i) of the Board’s Rules and Regulations allows the Board to either: “(1) Reject[] the document; or (2) Withhold[] or reconsider[] any ruling on the subject matter raised by the document until after ser- vice has been made and the served party has had reasona- ble opportunity to respond.” We take the latter approach. The Respondent has now served Charging Party Colvin with its answer, and Mr. Colvin has alleged no prejudice from the delay. See Paoli- celli, 335 NLRB 881, 882 (2001) (“Board generally will not reject an improperly served document absent a show- ing of prejudice to a party” (citation omitted)). Moreover, the Respondent received no response from the Agency to its August 10, 2022 request for relief from the Board’s ser- vice requirements with respect to Mr. Colvin, which may have contributed to its delay in serving him. In addition, we note that “[w]hile the Board strongly encourages strict compliance with its procedural rules, including those con- cerning the manner of filing and serving answers to com- plaints, the Board recognizes that the law favors a deter- mination on the merits.” Id. (citing M.J. McNally, Inc., 302 NLRB 120 (1991)). Thus, under these circumstances, we find that the Re- spondent’s initial failure to serve its answer on Charging Party Colvin was not so egregious as to warrant rejecting the answer and triggering a default judgment. We deny Charging Party Colvin’s motion. We are, however, troubled by the Respondent counsel David Rosenfeld’s cover letter (attached to Charging Party’s motion as Exhibit 9) transmitting the Respond- ent’s answer to Charging Party Colvin, a pro se litigant. In that letter, Mr. Rosenfeld derisively recommended that if Mr. Colvin did not like that Mr. Rosenfeld was serving him, he could, among other things, “[c]ontact the State Bar and make another frivolous complaint,” “[l]ook for work,” or “[s]eek further advice from a mental healthcare profes- sional.” This conduct does not appear to conform to the standards of ethical and professional conduct required of practitioners appearing before the Agency under Section 102.177(a) of the Board’s Rules and Regulations. Given that the parties have not specifically asked the Board to refer Mr. Rosenfeld to the Investigating Officer for inves- tigation pursuant to Section 102.177(d) and (e)(1) of the Board per Sec. 102.50 of the Board’s Rules and Regulations, curing the deficiency. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Board’s Rules and Regulations, we decline to do so sua sponte at this time.2 However, we note that a repetition of such conduct will result in a referral. ORDER IT IS ORDERED that the Charging Party’s motion for de- fault judgment is denied, and the proceeding is remanded to the Regional Director for Region 28 for further appro- priate action. Dated, Washington, D.C. January 10, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 2 Although Member Kaplan agrees with his colleagues’ decision not to refer Mr. Rosenfeld to the Investigating Officer sua sponte, he believes that Mr. Rosenfeld’s conduct appears to violate the standards of ethical and professional conduct required of practitioners appearing before the Agency under Sec. 102.177(a) of the Board’s Rules and Regulations.