Perry Brothers Trucking, Inc.

National Labor Relations Board - Board Decisions

May 24, 2016

364 NLRB No. 10 (N.L.R.B. 2016)

364 NLRB No. 10
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.
Perry Brothers Trucking, Inc. and William Dorney.
Cases 14–CA–141149 and 14–CA–145134
May 25, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the consolidated complaint and compliance
specification. Upon a charge filed by employee William
Dorney on November 17, 2014, in Case 14–CA–141149,
and a charge and amended charge filed by Dorney on
January 27 and March 24, 2015, respectively, in Case
14–CA–145134, the General Counsel issued a complaint
against the Respondent on February 25, 2015, and a con-
solidated complaint on March 25, 2015. The Respondent
failed to file any answer. On April 28, 2015, the General
Counsel issued a compliance specification and an order
consolidating the consolidated complaint and the compli-
ance specification.1 The Respondent again failed to file
any answer.
On July 1, 2015, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on
July 6, 2015, 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 Respond-
ent’s owner, Nora Hoffman, filed a timely response to
the Notice to Show Cause, and the General Counsel filed
a reply to the Respondent’s response.
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. Similarly, Section 102.56 of the Board’s Rules
and Regulations provides that the allegations in a com-
pliance specification will be taken as true if an answer is
not filed within 21 days from service of the compliance
specification. In addition, the complaint, consolidated
complaint, and compliance specification affirmatively
stated that unless an answer was received by March 11,

1 On May 8, 2015, the General Counsel issued an amendment to the
consolidated complaint, correcting a typographical error in the consoli-
dated complaint.
April 8, and May 19, 2015, respectively, the Board may
find, pursuant to a motion for default judgment, that the
allegations in the complaints and compliance specifica-
tion are true. Further, the undisputed allegations2 in the
General Counsel’s motion disclose that the Region, by
letter dated May 26, 2015, notified the Respondent that
unless an answer was received by June 2, 2015, a motion
for default judgment would be filed. On May 29, 2015,
the Respondent’s owner Nora Hoffman, during a phone
conversation with the Region, confirmed that she had
received the May 26, 2015 letter. However, the Re-
spondent neither filed an answer nor requested an exten-
sion of time to do so before the June 2, 2015 deadline
expired. Accordingly, and for the reasons discussed be-
low, we find that the Respondent has not established
good cause to excuse that failure.
The record does not indicate that the Respondent is
represented by counsel. Although the Board, unlike the
federal courts,3 permits respondent corporations to ap-
pear without counsel, the Board has consistently held
that the choice to forgo representation by counsel does
not establish good cause for failing to file a timely an-
swer. See, e.g., Patrician Assisted Living Facility, 339
NLRB 1153, 1153 (2003); Sage Professional Painting
Co., 338 NLRB 1068, 1068 (2003). See also Starrs
Group Home, Inc., 357 NLRB 1219, 1219–1220 (2011);
Lockhart Concrete, 336 NLRB 956, 957 (2001). Where
a respondent, represented by counsel or not, fails to re-
spond to complaint allegations until after the Notice to
Show Cause has issued, despite having been notified in
writing that it must do so, and fails to establish good
cause for this failure, subsequent attempts to file an an-
swer will be denied as untimely. Patrician Assisted Liv-
ing Facility, 339 NLRB at 1153–1154, citing Kenco
Electric & Signs, 325 NLRB 1118, 1118 (1998).
Here, the Respondent does not dispute that it failed to
respond to the complaint allegations until after the Notice
to Show Cause issued, despite the General Counsel’s
reminders. In its response to the Notice to Show Cause,
however, the Respondent asserts certain excuses for the
failure to file an answer. First, the Respondent maintains
that it “received a letter from the labor board that the case
had been closed.” In addition, the Respondent contends

2 Although the Respondent submitted a response to the Notice to
Show Cause, it did not dispute the allegations in the motion.
3 See Rowland v. California Men’s Colony, Unit II Men’s Advisory
Council, 506 U.S. 194, 201–202 (1993) (“It has been the law for the
better part of two centuries . . . that a corporation may appear in the
federal courts only through licensed counsel.”); Palazzo v. Gulf Oil
Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) (“The rule is well estab-
lished that a corporation is an artificial entity that can act only through
agents, cannot appear pro se, and must be represented by counsel.”),
cert. denied, 474 U.S. 1058 (1986).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that: “We have since closed and filed bankruptcy due to
lack of work. Case 15-20294, I filed under my name as I
was the only owner and all debt was in my name.” Fur-
ther, the Respondent raises certain defenses to the com-
plaint allegation concerning the discharge of employee
William Dorney.
In his reply to the Respondent’s response, the General
Counsel maintains that none of the matters raised in the
Respondent’s letter establish a sufficient basis to deny
the motion for default judgment. The General Counsel
denies issuing a letter stating that the cases had been
closed. In addition, the General Counsel contends that
the Respondent had no basis to believe that the cases
were closed, noting the May 26, 2015 letter advising the
Respondent of the consequences of not filing an answer
to the complaint and the May 29, 2015 phone conversa-
tion repeating that information.
We find that the Respondent has failed to establish
good cause to excuse its failure to file a timely answer.
Despite the Respondent’s assertion that it received a let-
ter from the labor board stating that the case had been
closed, the Respondent has not indicated when such a
letter was received, or submitted a copy of the letter.
Further, the Respondent does not dispute the General
Counsel’s contention that in the May 29, 2015 phone
conversation with the Region, the Respondent was given
additional notice of the need to file an answer and that
the litigation was ongoing. In addition, neither the Re-
spondent’s cessation of operations nor its owner’s per-
sonal bankruptcy proceedings constitutes good cause for
failing to file an answer or for denying the General
Counsel’s motion.4 Finally, regarding the Respondent’s
assertion of defenses to the complaint allegations, they
are not properly before us because Respondent failed to
show good cause for its late response. Sage Professional
Painting, 338 NLRB at 1069; Lockhart Concrete, 336
NLRB at 957; Dong-A Daily North America, Inc., 332
NLRB 15, 16 (2000).

4 See, e.g., OK Toilet & Towel Supply, Inc., 339 NLRB 1100, 1100–
1101 (2003); Dong-A Daily North America, 332 NLRB 15, 15–16
(2000); Holt Plastering, Inc., 317 NLRB 451, 451, 452 fn. 4 (1995)
(respondent was not excused from filing an answer to compliance spec-
ification, even though the respondent notified the Board it had “ceased
operations and liquidated the plant facilities”). Further, it is well estab-
lished that the institution of bankruptcy proceedings does not deprive
the Board of jurisdiction or authority to entertain and process an unfair
labor practice case to its final disposition. See, e.g., Cardinal Services,
Inc., 295 NLRB 933, 933 fn. 2 (1989), and cases cited therein. Board
proceedings fall within the exception to the automatic stay provisions
for proceedings by a governmental unit to enforce its police or regula-
tory powers. See id., and cases cited therein; NLRB v. 15th Avenue
Iron Works, Inc., 964 F.2d 1336, 1337 (2d Cir. 1992) (per curiam).
Accord: Ahrens Aircraft, Inc. v. NLRB, 703 F.2d 23, 24 (1st Cir. 1983).
Accordingly, in the absence of good cause being
shown for the failure to file a timely answer to the com-
plaint, consolidated complaint, and compliance specifica-
tion, 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
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration with an office and place of business in Oklaho-
ma City, Oklahoma (the Respondent’s facility), and has
been engaged in the interstate transportation of freight.
In conducting its operations during the 12-month peri-
od ending October 1, 2014, the Respondent derived gross
revenues in excess of $50,000 for the transportation of
freight from the State of Oklahoma directly to points
located outside the State of Oklahoma. 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, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Nora Hoffman Owner
Corrie Duncan Dispatcher, Oklahoma City
Wade Duncan Manager, Oklahoma City
The following events occurred, giving rise to this pro-
ceeding:
1. About August 29, 2014, Wade Duncan, at the Ok-
lahoma City facility, instructed employees to not discuss
their terms and conditions of employment, thereby re-
stricting employees from engaging in protected concerted
activity.
2. About September 18, 2014, Nora Hoffman, by
phone, told employees that she was tired of drivers play-
ing the log book game, that there would be changes the
drivers would not like, and that if drivers did not like the
changes, they could work elsewhere, thereby informing
employees that it was futile for them to engage in pro-
tected concerted activity.
3. About mid-September 2014, Nora Hoffman, in an
email, instructed employees to not discuss their terms
and conditions of employment, thereby restricting em-
ployees from engaging in protected concerted activity.
4. About August 29, 2014, the Respondent’s employ-
ees, including William Dorney, concertedly complained
PERRY BROTHERS TRUCKING, INC. 3
to the Respondent regarding their wages, hours, and
working conditions by meeting with managers and rais-
ing issues about hours, work instructions, record keeping,
legal hour limits, and other terms and conditions of em-
ployment.
5. From late August through September 24, 2014,
Dorney concertedly complained to the Respondent re-
garding employee wages, hours, and working conditions
by requesting to meet with management about these is-
sues and by raising with management employees’ con-
cerns about their hours, record keeping, guidelines re-
garding work hours, changes in pay, benefits, and other
working conditions.
6. About September 24, 2014, the Respondent laid off
and discharged Dorney.
7. The Respondent engaged in the conduct described
above in paragraph 6 because Dorney and other employ-
ees engaged in the conduct described above in para-
graphs 4 and 5, and to discourage employees from en-
gaging in these or other concerted activities.
CONCLUSION OF LAW
By the conduct described in paragraphs 1, 2, 3, 6, and
7, 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 Respondent’s unfair labor prac-
tices 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 has violated Section 8(a)(1)
by discharging William Dorney, we shall order the Re-
spondent, in the event that it resumes the same or similar
business operations,5 to offer Dorney full reinstatement
to his former position or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed. We shall also order the Respondent to make
Dorney whole for any loss of earnings and other benefits
suffered as a result of the unlawful discharge by paying
him the amount set forth in the compliance specifica-
tion’s Appendix A, with interest accrued to the date of
payment, as prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010), and

5 As set forth in the compliance specification, the backpay period for
Dorney began on September 24, 2014, and ended when the Respondent
ceased operations on February 18, 2015.
minus tax withholdings required by Federal and State
laws.
Additionally, we shall order the Respondent to com-
pensate Dorney for any adverse tax consequences of re-
ceiving a lump-sum backpay award and to file, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report with the Regional
Director for Region 14 allocating the backpay award to
the appropriate calendar year. AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016). Further, we shall order
the Respondent to remove from its files any reference to
the unlawful discharge of Dorney, and to notify him in
writing that this has been done and that the unlawful dis-
charge will not be used against him in any way.
Finally, in view of the fact that the Respondent ceased
operations on February 18, 2015, we shall order the Re-
spondent to mail a copy of the attached notice to the Un-
ion and to the last known addresses of its former em-
ployees who were employed at any time since August 29,
2014, in order to inform them of the outcome of this pro-
ceeding.6
ORDER
The National Labor Relations Board orders that the
Respondent, Perry Brothers Trucking, Inc., Oklahoma
City, Oklahoma, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Instructing employees to not discuss their terms
and conditions of employment.
(b) Making remarks that inform employees that it is
futile to engage in protected concerted activity.
(c) Discharging employees because they engage in
protected concerted activities and to discourage employ-
ees from engaging in these activities.

6 In the consolidated complaint, the General Counsel has requested
that the Respondent’s representative be required to read the notice to
employees. We deny the request because the General Counsel has not
shown that the Board’s traditional remedies are insufficient to remedy
the violations committed by the Respondent. See Fallbrook Hospital,
360 NLRB No. 73, slip op. at 1, fn. 3 (2014), enfd. 785 F.3d 729 (D.C.
Cir. 2015); First Legal Support Services, LLC, 342 NLRB 350, 350 fn.
6 (2004).
Additionally, the General Counsel has requested that Dorney be re-
imbursed for any out-of-pocket expenses incurred while searching for
work as a result of his unlawful discharge. Because the relief sought
would involve a change in Board law, we believe that the appropriate-
ness of this proposed remedy should be resolved after a full briefing by
the affected parties, and there has been no such briefing in this case.
Accordingly, we decline to order this relief at this time. See, e.g., The
H.O.P.E. Program, 362 NLRB No. 128, slip op. at 2, fn. 1 (2015);
Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001), enfd. 354
F.3d 534 (6th Cir. 2004), and cases cited therein.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) 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) In the event that the Respondent resumes the same
or similar business operations, within 14 days thereafter,
offer William Dorney full reinstatement 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.
(b) Make William Dorney whole for the loss of earn-
ings and benefits suffered as a result of his unlawful dis-
charge, by paying him the amount of $13,897, plus inter-
est accrued to the date of payment, and minus tax with-
holdings required by Federal and State laws, as set forth
in the remedy section of this Decision.
(c) Compensate Dorney for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 14, 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 appropriate calendar year.7
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Dorney, and within 3 days thereafter, notify
him in writing that this has been done and that the dis-
charge will not be used against him 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, 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.
(f) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”8 to all employees
who were employed by the Respondent at any time since
August 29, 2014. In addition to physical mailing of pa-
per notices, notices shall be distributed electronically,

7 The compliance specification indicates that although there is cur-
rently no excess tax liability on the backpay for Dorney, there may be
excess tax liability on the interest, which continues to accrue to the date
of payment.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 14 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. May 25, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) 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
violated 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
activities.
WE WILL NOT instruct you to not discuss your terms
and conditions of employment.
WE WILL NOT make remarks that inform you that it is
futile to engage in protected concerted activity.
WE WILL NOT discharge you because you engaged in
protected concerted activities or to discourage you from
engaging in these activities.
PERRY BROTHERS TRUCKING, INC. 5
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, in the event that we resume the same or sim-
ilar business operations, within 14 days thereafter, offer
William Dorney full reinstatement to his former position,
or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make William Dorney whole for any loss of
earnings and other benefits suffered as a result of his
unlawful discharge, by paying him the amount set forth
in the Board’s Order, plus interest accrued to the date of
payment, and minus tax withholdings required by Feder-
al and State laws.
WE WILL compensate William Dorney for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 14, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar year.
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 William Dorney, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the unlawful discharge will not be used
against him in any way.
PERRY BROTHERS TRUCKING, INC.
The Board’s decision can be found at
www.nlrb.gov/case/14–CA–141149 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.