INTERNATIONAL LONGSHOREMEN'S UNION 1413 (Ports America Terminals, Inc.)

373 NLRB No. 79 NOTICE: This opinion is subject to formal revision before publication in the bound vol- umes of NLRB decisions. Readers are requested to notify the Executive Secre- tary, National Labor Relations Board, Washington, D.C. 20570, of any typo- graphical or other formal errors so that corrections can be included in the bound volumes. International Longshoremen’s Association, Local 1413 (Ports America Terminals, Inc.) and Wayne Cardoza. Case 01–CB–328360 July 24, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX The General Counsel seeks a default judgment in this case on the ground that International Longshoremen’s As- sociation, Local 1413 (the Respondent) has failed to file an answer to the complaint. Upon a charge filed by Wayne Cardoza, an individual, on October 23, 2023, the General Counsel issued a complaint and notice of hearing on March 4, 20241 against the Respondent, alleging that it has violated Section 8(b)(1)(A) and (2) of the Act. The Respondent failed to file an answer. On April 9, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. Thereafter, on April 11, 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. On April 25, the Respondent filed with the Region an opposition to the Notice to Show Cause and motion to al- low it to file a late answer.2 On May 2, the General Coun- sel filed a reply to the Respondent’s opposition. 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 a respondent “must specifically admit, deny, 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 operating 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 March 18, the Board may find, pursuant to a motion for default judg- ment, that the allegations in the complaint are true. Fur- ther, the undisputed allegations in the General Counsel’s motion disclose that by letter dated March 22, which in- cluded a copy of the complaint, the Respondent was 1 All dates are in 2024 unless otherwise indicated. 2 The pleading is titled, “Opposition to Notice to Show Cause to Transfer Proceeding to the Board and Motion to Remove Any Default and Allow Respondent to File Late Answer.” The Respondent did not advised that unless an answer was received by April 5, a motion for default judgment would be filed. Notwith- standing the reminder letter, the Respondent neither filed an answer to the complaint by the April 5 deadline, nor requested an extension of time to do so. In its response to the Notice to Show Cause, the Re- spondent asserts that after receiving “paperwork” on two separate occasions, its president called the Region and left detailed voicemail messages stating, inter alia, that the Union did not have a contract with Vineyard Winds, that neither he nor the Union had engaged in any unfair labor practices, and provided information which he believed showed that no unfair labor practices had been committed. However, it asserts that the Region did not return his calls. The Respondent further asserts that during this time period the Union was undergoing staffing changes and, as a re- sult, its post office box was not checked as often as usual. Moreover, it submits that its president was undergoing cancer treatment, including surgeries and radiation. Fi- nally, it states that its president had a “good faith” belief that his voicemail messages were sufficient and he would receive further instructions “to try to work out the matter out informally.” Opp. at 4. It was only after it received additional paperwork—sometime after April 14—that it concluded that the matter had not been resolved and re- quired an attorney. In these circumstances, the Respond- ent requests additional time to file an answer to the com- plaint. We find that the Respondent’s arguments fail to estab- lish good cause. At the outset, we recognize that until the Respondent filed an opposition to the Notice to Show Cause, it was acting pro se. Although the Board has shown some leniency toward respondents who proceed without the benefit of counsel, the Board has consistently held that pro se status alone does not establish a good cause explanation for failing to file an answer. See, e.g., Patrician Assisted Living Facility, 339 NLRB 1153, 1153 (2003); Sage Professional Painting Co., 338 NLRB 1068, 1068 (2003). Further, to the extent that the Respondent’s failure to file an answer was due to a mistaken belief about the answer 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 Heating & Cooling, 338 NLRB 790, 790 (2003) (good cause for fail- ing to file an answer not established by the pro se respond- ent’s belief that that union would be seeking withdrawal file its opposition with the Office of the Executive Secretary until a day later, without explanation. However, because it had timely filed with an office of the Agency, we accept this opposition as timely. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 of the complaint, noting that the Region’s follow-up letter clearly demonstrated otherwise). Although the Respond- ent’s opposition to the Notice to Show Cause denies the allegations of the complaint and asserts various defenses, the Board has found that such a late filing cannot over- come the Respondent’s failure to file an answer or a timely request for an extension of time in which to file an answer. Kenco Electric & Signs, 325 NLRB 1118, 1118 (1998). Finally, the Respondent maintains that it has meritorious defenses to the allegations in the complaint. The Board has repeatedly stated that a respondent’s asserted merito- rious defenses are not properly before it when, as here, the respondent has failed to show good cause for its late re- sponse. See, e.g., Perry Brothers Trucking, Inc., 364 NLRB 58, 59 (2016), and cases cited there. Accordingly, in the absence of good cause being shown for the failure to file an answer, we deem the allegations in the complaint 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 FINDINGS OF FACT I. JURISDICTION At all material times, Ports America Terminals, Inc. (the Employer), has been a Delaware corporation with a place of business located in New Bedford, Massachusetts (the Employer’s facility), where it is engaged in the business of providing terminal and stevedoring services relating to the loading and unloading of cargo from oceangoing ves- sels which call at the New Bedford Marine Commerce Terminal. Annually, the Employer, in conducting its business op- erations described above, provides stevedoring services valued in excess of $50,000 to various other enterprises in the New Bedford Marine Commerce Terminal, each of which enterprises are directly engaged in interstate com- merce, and derives gross revenues in excess of $500,000. We find that the Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Respondent is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES 1. 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: Kevin Rose President Ronald Raymond Shop Steward Vernon Rudolph Shop Steward 2. At all material times, by virtue of Section 9(a) of the Act, the Respondent has been the exclusive collective-bar- gaining representative of the following employees of the Employer (the unit): All staff labor, day shirt labor, night shift labor, clerks, checkers, timekeepers, foremen, riggers, and line han- dlers. 3. (a) About May 1, 2023, the Respondent and the Em- ployer entered into and since then have maintained an agreement requiring the Respondent to be the exclusive source of referrals of employees for employment with the Employer for the Vineyard Wind Outer Continental Shelf Windfarm in Lease Area OCS-A-501 (the Agreement). (b) At all material times, the Respondent and the Em- ployer have maintained a practice and understanding re- quiring the referral of the Respondent’s members for em- ployment referrals pursuant to the terms of the Agreement. (c) At all material times, by virtue of Section 9(a) of the Act, the Respondent has been the exclusive collective-bar- gaining representative of the Employer’s unit employees described above in paragraph 2. (4). Since about May 1, 2023, and continuing to date, the Respondent failed and refused to refer Cardoza for em- ployment with the Employer. (5). The Respondent engaged in the conduct described above in paragraph 4 because Cardoza was personally dis- liked by Rose and because Cardoza failed to participate in picketing on behalf of the Respondent, and for reasons other than the failure to tender the periodic dues and the initiation fees uniformly required for membership in the Respondent. (6). The Respondent engaged in the conduct described above in paragraph 4 without regard to any rules govern- ing that process, and without maintaining or making avail- able to employees any records regarding the operation of its referral system. (7). By engaging in the conduct described in paragraphs 4 and 5 in connection with its representative status de- scribed above in paragraphs 3(b) and (c), the Respondent has failed to represent Cardoza for reasons that are arbi- trary, discriminatory, or in bad faith, and has breached the fiduciary duty it owes to Cardoza and the unit. (8). By engaging in the conduct described in paragraphs 4 and 5, the Respondent attempted to cause and has caused the Employer to fail to hire Cardoza. CONCLUSIONS OF LAW 1. By the conduct described above in paragraphs 4, 5, 6 and 7, the Respondent has been restraining and coercing employees in the exercise of the rights guaranteed in INTERNATIONAL LONGSHOREMEN’S LOCAL 143 (PORTS AMERICA TERMINALS, INC.) Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act. 2. By the conduct described above in paragraphs 4, 5, and 8, the Respondent has been attempting to cause and has caused the Employer to discriminate against its em- ployees in violation of Section 8(a)(3) of the Act in viola- tion of Section 8(b)(2) of the Act. 3. The unfair labor practices of the Respondent de- scribed above affect commerce within the meaning of Sec- tion 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(b)(1)(A) and (2) of the Act by failing and refusing to refer Cardoza for employment with the Employer, we shall order the Re- spondent to make Cardoza whole for any loss of earnings and other benefits suffered as a result of the failure to refer him. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), enf. denied on other grounds 102 F.4th 727 (5th Cir. 2024), the Respondent shall also compensate Cardoza for any other direct or foreseeable pecuniary harms incurred as a result of the failure to refer, including reasonable search-for- work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Com- pensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate pre- scribed in New Horizons, supra, compounded daily as pre- scribed in Kentucky River Medical Center, supra. In addition, we shall order the Respondent to compen- sate Cardoza for any adverse tax consequences of receiv- ing a lump-sum backpay award. Finally, the Respondent shall be required to remove from its files any reference to the failure to refer Cardoza and to notify him in writing that this has been done and that the failure to refer will not be used against him in any way.3 3 The General Counsel additionally requests that we order the Re- spondent to make whole other hiring hall users known to the Respondent but unknown at this time to the General Counsel, including consequential damages they suffered as a direct or foreseeable result of the Respond- ent’s unfair labor practices, and to mail the Notice to Employees and Members, at its own expense, to anyone who used the Respondent’s hir- ing hall during the period of May 1, 2023, to the present. We deny this request because the General Counsel has not shown that these additional ORDER The National Labor Relations Board orders that the Re- spondent, International Longshoremen’s Association, Lo- cal 1413, New Bedford, Massachusetts, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to refer unit employees from its exclusive hiring hall for arbitrary or discriminatory rea- sons. (b) Causing the Employer or any employer to discrim- inate against its employees in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining 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, notify Wayne Cardoza in writing that it will make employment referrals available to him in their rightful order of priority. (b) Make Wayne Cardoza whole for any loss of earn- ings and other benefits, and for any other direct or fore- seeable pecuniary harms, suffered as a result of the unlaw- ful failure to refer, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the failure to refer Wayne Cardoza and within 3 days thereafter, notify him in writing that this has been done and that the failure to refer will not be used against him in any way. (d) Compensate Wayne Cardoza for the adverse tax consequences, if any, of receiving a lump-sum backpay award. (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 hiring hall and referral records, and any other records and documents, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (f) Post at its union office and meeting places copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for measures are needed to remedy the effects of the Respondent’s unfair labor practices. See, e.g., Titan Health, LLC d/b/a Tweedleaf, 372 NLRB No. 96, slip op. at 3 fn. 2 (2023); Serenethos Care Center LLC d/b/a St. Christopher Convalescent Hospital, 371 NLRB No. 54, slip op. at 3 fn. 3 (2022). 4 If the Respondent’s office and meeting places are open and acces- sible to a substantial complement of employees and members, the notice DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Region 1, 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 mem- bers are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an inter- net site, and/or other electronic means, if the Respondent customarily communicates with its members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (g) Within 14 days after service by the Region, deliver to the Regional Director for Region 1 signed copies of the notice in sufficient number for posting by the Employer at its New Bedford, Massachusetts facility, if it is willing, at all places where notices to employees are customarily posted. (h) Within 21 days after service by the Region, file with the Regional Director for Region 1 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. July 24, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD must be posted within 14 days after service by the Region. If the office and meeting places involved in these proceedings are closed or not ac- cessible by a substantial complement of employees and members due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted within 14 days after the office and meeting places reopen and are accessible by a substantial complement of employees and members. If, while closed or not accessible by a substantial complement of employ- ees and members due to the pandemic, the Respondent is communicating with employees and members by electronic means, the notice must also 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 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 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 ac- tivities. WE WILL NOT fail and refuse to refer you from our ex- clusive hiring hall for arbitrary or discriminatory reasons. WE WILL NOT cause the Employer, or any employer, to discriminate against you in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner 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, notify Wayne Cardoza in writing that we will make employment referrals available to him in their rightful or- der of priority. WE WILL make Wayne Cardoza whole for any loss of earnings and other benefits suffered as a result of our fail- ure to refer him, less any net interim earnings, plus inter- est, and WE WILL also make him whole for any other direct or foreseeable pecuniary harms suffered as a result of the failure to refer, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our failure to refer Wayne Cardoza, and WE WILL, within 3 days there- after, notify him in writing that this has been done and that the failure to refer will not be used against him in any way. WE WILL compensate Wayne Cardoza for the adverse tax consequences, if any, of receiving a lump-sum back- pay award. be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, 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.” INTERNATIONAL LONGSHOREMEN’S LOCAL 143 (PORTS AMERICA TERMINALS, INC.) INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 1413 The Board’s decision can be found at http://www.nlrb.gov/case/01-CB-328360 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.