California Truck Driving Academy

373 NLRB No. 95 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. California Truck Driving Academy, LLC and Kenneth Glenn Lopez-Elwell. Case 31–CA–312771 September 4, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN MEMBERS PROUTY AND WILCOX The General Counsel seeks a default judgment in this case on the ground that California Truck Driving Acad- emy, LLC (the Respondent) has failed to file a timely an- swer to the complaint. Upon a charge filed by an individ- ual on February 23, 2023, the General Counsel issued a complaint and notice of hearing on January 3, 2024, against the Respondent, alleging that it has violated Sec- tion 8(a)(1) of the Act. Although properly served, the Re- spondent failed to file an answer.1 1 Under Sec. 102.4(a) of the Board’s Rules and Regulations, “[c]om- plaints . . . must be served upon all parties personally, by registered or certified mail, by leaving a copy at the principal office or place of busi- ness of the person required to be served, by email as appropriate, or by any other method of service authorized by law.” Sec. 102.4(d), in turn, provides in part that: In the case of service by registered or certified mail, the return post of- fice receipt is proof of service. However, these methods of proof of ser- vice are not exclusive; any sufficient proof may be relied upon to estab- lish service. Neither the Act nor due process requires proof that a document was actually received. See, e.g., CCY New Worktech, Inc., 329 NLRB 194, 194 (1999) (noting that affidavits of service by certified mail from Board agents are sufficient proof of service, notwithstanding the absence of proof of receipt). A respondent’s failure or refusal to accept certified mail or to provide for appropriate service cannot serve to defeat the pur- poses of the Act. See, e.g., Cray Construction Group, LLC, 341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, 339 NLRB 247, 247 fn. 2 (2003). According to the General Counsel’s motion and accompanying exhib- its, the Region served the complaint by e-service and certified mail on the agent and address listed for the Respondent on the California Secre- tary of State website. The United States Postal Service tracking infor- mation shows the status of the certified mailing as “Moving Through Network.”. The Region sent reminder letters by certified mail to the Re- spondent’s listed agent at the same address and to an additional addressee at the same address but different suite number. One mailing was returned as undeliverable, while Postal Service tracking information shows that no authorized recipient for the other mailing was available when the Postal Service attempted delivery. The Region served the Motion for Default Judgment on the Respondent’s listed agents by email and certi- fied mail. The Postal Service tracking status of the certified mailings is “Moving Through Network.” The Board served its Notice to Show Cause on the Respondent by certified and regular mail. The certified mail was returned as undeliverable, but the regular mail was not returned. Here, we deem service of the complaint on the Respondent’s regis- tered agent in California to be sufficient for the purposes of our Rules and Regulations, because it was reasonably calculated to give the Re- spondent notice of the Board’s proceedings. See NLRB v. Clark, 468 On February 14, 2024, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On February 20, 2024, the Board issued an or- der transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent 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. 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 is received on or before January 17, 2024, 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 the Region, by letter dated January F.2d 459, 465 (5th Cir. 1972) (“To effectuate the congressional policy in favor of service by mail, it is necessary that the NLRB be able to judge the quality of its attempts at service by something other than the fortuity of whether a defendant can be shown to have had actual notice. The proper test . . . is whether in the circumstances the procedure used would in all probability have informed the defendant of the proceedings against [it].”); see also National Automatic Sprinklers, Inc., 307 NLRB 481, 481 fn. 1 (1992) (service “is accomplished by a deposit in the mail to the last known address of a respondent”). Moreover, the failure of the Postal Service to return the Board’s Notice to Show Cause, which was served by regular mail, “indicates actual receipt of th[at] document[].” I.C.E. Electric, 339 NLRB at 247 fn. 2. Our dissenting colleague would find that the General Counsel has failed to prove service sufficiently to satisfy our Rules and Regulations. We disagree. We have detailed the General Counsel’s multiple efforts to serve the Respondent by a variety of methods, including at the address that the Respondent designated to receive legal mail on its behalf with the State of California. Even assuming that those efforts failed (which, contrary to our dissenting colleague’s suggestion, is not definitively es- tablished), those failures support the conclusion that the Respondent it- self has failed to provide for appropriate service, as our case law demon- strates. See, e.g., Jet-R Construction, Inc., 340 NLRB No. 49, slip op. at 1 fn. 1 (2004) (finding that respondent failed to provide for adequate ser- vice when documents “were returned by the Postal Service marked either ‘return to sender; moved left no address; unable to forward,’ or ‘forward- ing order expired’”); Summit Mechanical Contractors, Inc., 316 NLRB 699, 699 fn. 2 (1995) (respondent failed to provide for appropriate ser- vice when document was returned with Postal Service notation “Moved—Left No Address—Unable to Forward Return to Sender”); Ad- vanced Mechanical Corp. 313 NLRB 629, 629 fn. 1 (1994) (respondent failed to provide for appropriate service when document “was returned by the Postal Service . . . with a notice that the [r]espondent had moved and left no forwarding address”); National Automatic Sprinklers, Inc., 307 NLRB at 481 fn. 1 (respondent failed to provide for appropriate ser- vice when document was returned with Postal Service notation “FOE,” i.e. “forwarding orders expired”). Under the circumstances, we conclude that to require more of the General Counsel in pursuit of the Respondent would defeat the purposes of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 18, 2024, notified the Respondent that unless an answer was received by January 26, 2024, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer. In the absence of good cause being shown for the failure to file an answer, we deem the allegations of 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, the Respondent, a California lim- ited liability company, with a facility located at 14392 Valley Boulevard, Fontana, California 92335 (the facil- ity), has been engaged in the business of providing com- mercial driver training programs. During the 12-month period ending October 24, 2022, the Respondent performed services valued in excess of $50,000 in states other than the State of California. 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 1. At all material times, Renee Garza has held the posi- tion of the Respondent’s Chief Academic Officer, On-Site Manager and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and/or an agent of the Respondent within the meaning of Section 2(13) of the Act. 2.(a) About August 12 and 26, 2022, the Respondent’s employee Kenneth Glenn Lopez-Elwell concertedly com- plained to the Respondent regarding the wages, hours, and working conditions of the Respondent’s employees, by raising concerns about the Respondent’s failure to timely pay its employees. (b) About August 26, 2022, the Respondent’s employee Kenneth Glenn Lopez-Elwell engaged in concerted activ- ities with other employees for the purposes of mutual aid and protection, by engaging in a work stoppage to protest the Respondent’s failure to timely pay its employees. (c) About August 29, 2022, the Respondent issued a final written warning to Kenneth Glenn Lopez-Elwell. (d) About August 29, 2022, the Respondent demoted Kenneth Glenn Lopez-Elwell. (e) The Respondent engaged in the conduct described above in paragraphs 2(c) and 2(d) because Kenneth Glenn Lopez-Elwell engaged in the conduct described above in paragraphs 2(a) and 2(b), and to discourage employees from engaging in these or other concerted activities. CONCLUSION OF LAW By the conduct described above, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. The unfair labor practices of the Respondent described above affect 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) by is- suing a final written warning and demoting employee Kenneth Glenn Lopez-Elwell for engaging in protected concerted activity, we shall order the Respondent to re- scind his written warning and demotion and to reinstate Kenneth Glenn Lopez-Elwell to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. We shall also order the Re- spondent to make Kenneth Glenn Lopez-Elwell whole for any loss of earnings or other benefits suffered as a result of the unlawful demotion. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), 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), the Respondent shall also compen- sate Lopez-Elwell for any other direct or foreseeable pe- cuniary harms incurred as a result of the unlawful demo- tion, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Hori- zons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. Further, we shall order the Respondent to compensate Lopez-Elwell for the adverse tax consequences, if any, of receiving a lump-sum backpay award and to file a report with the Regional Director for Region 31 allocating the backpay award to the appropriate calendar year(s). Ad- voServ of New Jersey, Inc., 363 NLRB 1324 (2016). In addition to the backpay allocation report, we shall order the Respondent to file with the Regional Director for Re- gion 31 a copy of Lopez-Elwell’s corresponding W-2 form(s) reflecting the backpay award. Cascade CALIFORNIA TRUCK DRIVING ACADEMY, LLC 3 Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). The Respondent shall also be required to remove from its files any reference to the unlawful final written warning and demotion of Lopez-Elwell and to notify him in writing that this has been done and that the warning and demotion will not be used against him in any way. ORDER The National Labor Relations Board orders that the Re- spondent, California Truck Driving Academy, LLC, Fon- tana, California, its officers, agents, successors, and as- signs shall 1. Cease and desist from (a) Disciplining employees for engaging in protected concerted activities and to discourage employees from en- gaging in such activities. (b) Demoting employees for engaging in protected con- certed activities and to discourage employees from engag- ing in such activities. (c) 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) Rescind the unlawful final written warning and de- motion issued to Kenneth Glenn Lopez-Elwell on about August 29, 2022. (b) Within 14 days from the date of this Order, offer Kenneth Glenn Lopez-Elwell full reinstatement to his for- mer position or, if that position no longer exists, to a sub- stantially equivalent position, without prejudice to his sen- iority or any other rights or privileges previously enjoyed. (c) Make Kenneth Glenn Lopez-Elwell whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of his unlawful demotion, in the manner set forth in the remedy section of this decision. (d) Compensate Kenneth Glenn Lopez-Elwell for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Re- gion 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report 2 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees has returned to work. If, while closed or not staffed by a substantial complement of employees due to the pan- demic, the Respondent is communicating with its employees by elec- tronic means, the notice must also be posted by such electronic means allocating the backpay award to the appropriate calendar year(s). (e) File with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Kenneth Glenn Lopez-Elwell’s corresponding W- 2 form(s) reflecting the backpay award. (f) Within 14 days from the date of this Order, remove from its files any reference to the unlawful final written warning and demotion of Kenneth Glenn Lopez-Elwell, and within 3 days thereafter, notify him in writing that this has been done and that the warning and demotion will not be used against him in any way. (g) 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, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (h) Post at its facility in Fontana, California copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Re- gion 31, 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 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 an 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 these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since August 29, 2022. within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical post- ing 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 judgment 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 Rela- tions Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 (i) Within 21 days after service by the Region, file with the Regional Director for Region 31 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. September 4, 2024 ______________________________________ Lauren McFerran, Chairman ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER PROUTY, dissenting. Contrary to my colleagues, I would deny the motion for default judgment without prejudice. As explained below, I would find that the General Counsel has failed to show sufficient proof of service under Section 102.4(d) of the Board’s Rules and Regulations. According to the motion for default judgment and at- tached exhibits, the complaint was sent by certified mail to Harveen Singh, the Respondent’s listed agent on the California Secretary of State website, at the address listed on that website. Postal Service tracking information states that the recipient “moved/left no forwarding address” and that the item is “moving through system.” The complaint was also sent by e-mail to Tina Singh, the employer rep- resentative listed on the charge, at the email address on the charge. The Agency’s e-service tracking system shows that the email was “sent,” but not that it was “delivered,” “opened,” or “clicked.” The reminder letter was sent by certified mail to Harveen Singh, again to the address on the Secretary of State website, and to Tina Singh at the same building but a different suite number, which the General Counsel states is the Respondent’s last known address. The copy sent to Harveen Singh was returned to the Region and marked “return to sender,” “not deliverable as addressed,” and “unable to forward.” Although not discussed in the Gen- eral Counsel’s motion, Postal Service tracking infor- mation for the copy sent to Tina Singh indicates that “no- tice [was] left” but “no authorized recipient [was] availa- ble,” and the item was later listed as “unclaimed/being re- turned to sender.” The motion for default judgment was sent by certified mail to Harveen Singh and Tina Singh. Postal Service tracking information for both items states that the “forward [has] expired” and that the item is “moving through network.” The motion was also sent by email to Tina Singh and, once again, the Agency’s e-service track- ing system shows that the email was “sent,” but not that it was “delivered,” “opened,” or “clicked.” Thus, it appears that none of these documents—the complaint, reminder letter, or motion for default judg- ment—were successfully delivered to any address. I agree with my colleagues that proof of actual receipt is not required and that a respondent’s failure or refusal to accept certified mail or to provide for appropriate service cannot serve to defeat the purposes of the Act. Here, how- ever, it is not simply that evidence of receipt is absent. Rather, the affirmative evidence—all of it—points in the other direction and indicates nonreceipt of the complaint, the reminder letter, and the motion. Moreover, the record does not indicate, and the Region does not contend, that the Respondent was willfully attempting to evade service. In these circumstances, I would find that the General Counsel has not met her burden to show proper service. My colleagues rely on the principle that service need only be “reasonably calculated to give the Respondent no- tice of the Board’s proceedings,” citing cases that found service accomplished in various circumstances where there was no proof of actual receipt. None of those cases, however, involved the circumstances here, where all the available evidence affirmatively suggests that the docu- ments were not received. My colleagues also note that the Notice to Show Cause (unlike the complaint, reminder letter, and motion) was sent by regular mail as well as certified mail (the latter re- turned as undeliverable), and that the failure of the Postal Service to return the regular mail copy “indicates actual receipt.” I.C.E. Electric, 339 NLRB 247 (2003). I ques- tion whether that principle should apply here, where mul- tiple other documents sent to the same address by certified mail were undeliverable. See, e.g., Beacon Mfg., 94 NLRB 881 (1951) (service by regular mail raises “only a rebuttable presumption of delivery”). But even if it did apply, service of the Notice to Show Cause alone should be insufficient to warrant default judgment where the Gen- eral Counsel has failed to prove service of the complaint or motion for default judgment. The Board’s granting of a motion by the General Coun- sel for a default judgment against a Respondent is a seri- ous and most likely irreparable action. I do not believe the Board should take such an action where all available evi- dence suggests that the Respondent did not receive the three documents that serve as the prerequisite for the Gen- eral Counsel’s motion. I disagree that we can say here, as my colleagues claim, that “the procedure[s] used would in all probability have informed the defendant of the CALIFORNIA TRUCK DRIVING ACADEMY, LLC 5 proceedings against [it].” NLRB v. Clark, 468 F.2d 459, 465 (5th Cir. 1972).1 Accordingly, I would deny the motion for default judg- ment without prejudice to the General Counsel renewing the motion when proper service can be demonstrated. Dated, Washington, D.C. September 4, 2024 ______________________________________ David M. Prouty, Member NATIONAL LABOR RELATIONS BOARD 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 vi- olated 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 Choose not to engage in any of these protected ac- tivities. WE WILL NOT discipline you for engaging in protected concerted activities, or to discourage you from engaging in these activities. WE WILL NOT demote you for engaging in protected concerted activities, or to discourage you from engaging in these activities. 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 rescind the unlawful final written warning and demotion issued to Kenneth Glenn Lopez-Elwell on about August 29, 2022. 1 Finally, in a heads-we-win-tails-you-lose response, my colleagues declare that even assuming (as seems likely from the evidence) that the Respondent was not served with the General Counsel’s process, that failed effort—which consisted of repeatedly sending certified mailing to a building address to which mail was repeatedly returned as undelivera- ble or tracking information indicated it was not delivered—is sufficient to support the conclusion that “the Respondent itself has failed to provide WE WILL, within 14 days from the date of the Board’s Order, offer Kenneth Glenn Lopez-Elwell full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges he previously enjoyed. WE WILL make Kenneth Glenn Lopez-Elwell whole for any loss of earnings and other benefits resulting from his unlawful demotion, less any net interim earnings, plus in- terest, and WE WILL also make him whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful demotion, including reasonable search- for-work and interim employment expenses, plus interest. WE WILL compensate Kenneth Glenn Lopez-Elwell for the adverse tax consequences, if any, of receiving a lump- sum backpay award, and WE WILL file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appro- priate calendar year(s). WE WILL file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Kenneth Glenn Lopez-Elwell’s corresponding W- 2 form(s) reflecting his backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlaw- ful final written warning and demotion of Kenneth Glenn Lopez-Elwell and WE WILL, within 3 days thereafter, no- tify him in writing that this has been done and that the warning and demotion will not be used against him in any way. CALIFORNIA TRUCK DRIVING ACADEMY, LLC The Board’s decision can be found at www.nlrb.gov/case/31-CA-312771 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. for appropriate service” and thus, in my colleague’s view, effectively ob- viates the need for service. However, in my view, my colleagues allow the General Counsel to give up too easily. Faced with evidence that no documents were delivered, the Region should have tried other methods to effectuate service (e.g., via regular mail, personal service, or at another address). I note that the complaint lists a different address for the Re- spondent’s facility and the internet still another one for the Respondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6