Tri-Way Security

National Labor Relations Board - Board Decisions

Apr 30, 1993

310 N.L.R.B. 1222 (N.L.R.B. 1993)

1222
310 NLRB No. 209
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1992 unless noted.
2 The Independent Brotherhood of Security Employees, Guards and
Watchmen of America, Local 1.
3 Sec. 102.20 of the Board’s Rules and Regulations provides that
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. Sec. 102.21 requires that the answer be filed with
the Region and served on the other parties.
4 Styled as a motion in opposition to counsel to the General Coun-
sel’s Motion for Summary Judgment. Annexed to the response is a
properly prepared answer which the Respondent requests the Board
to accept as timely. In light of our finding below, we find it unnec-
essary to rule on this request.
Tri-Way Security & Escort Service, Inc. and Don-
ald B. Hall and Mark Stanberry and Willy
France. Cases 22–CA–18210, 22–CA–18277(1),
and 22–CA–18277(2)
April 30, 1993
ORDER DENYING MOTION FOR SUMMARY
JUDGMENT AND REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
Upon charges filed by individuals Donald B. Hall,
Mark Stanberry, and Willy France on January 8 and
February 10 and 11, 1992,1 respectively, the General
Counsel of the National Labor Relations Board issued
an order consolidating cases and consolidated com-
plaint on August 28, 1992, against Tri-Way Security &
Escort Service, Inc., the Respondent, alleging that it
has violated Section 8(a)(1) and (3) of the National
Labor Relations Act. Copies of the charges and con-
solidated complaint were properly served on the Re-
spondent. On September 17, 1992, the Respondent
filed a letter purporting to be an answer to the com-
plaint.
On December 22, the General Counsel filed a Mo-
tion for Summary Judgment, with attached exhibits.
On December 31, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. After se-
curing an extension of time from the Board, the Re-
spondent filed a response to the Notice to Show Cause
on February 5, 1993.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
According to the Motion for Summary Judgment
and its attached exhibits, the August 28, 1992 consoli-
dated complaint was duly served on the Respondent al-
leging that it unlawfully suspended and then dis-
charged Donald Hall, Mark Stanberry, and Willy
France.
On September 16, the Acting Regional Attorney no-
tified the Respondent that an answer to the consoli-
dated complaint had not been received, that the time
to file an answer was being extended until September
23, and that if no answer was filed with the Region
by that deadline, a ‘‘default judgment’’ would be
sought.
On September 17, the Respondent’s chief coordi-
nator, Ivan O’Connor, wrote to the Regional Director
stating, inter alia, that the Respondent did not discrimi-
nate in discharging employees Hall, Stanberry, and
France because they were discharged for cause and
that its actions were not an attempt to discourage em-
ployees from engaging in concerted activities. The Re-
spondent also stated that there had been an arbitration
hearing regarding this same issue which resulted in the
reinstatement of Stanberry and France and that Hall
had refused reinstatement. The Respondent further stat-
ed that at the time of the discharges, it was unaware
of any union activity by Local 1.2
On September 30, the Regional Director wrote the
Respondent, detailing the requirements of Section
102.21 of the Board’s Rules and Regulations,3 and
stating that the Respondent’s September 17 letter failed
to adequately answer the consolidated complaint. The
Regional Director also notified the Respondent that ‘‘if
your answer to the consolidated complaint in accord-
ance with Section 102.20 is not received in the Region
by October 13, a Motion for Summary Judgment will
be filed.’’ On October 22, the Respondent orally re-
quested an extension of time to file an answer to No-
vember 9 because it had recently retained an attorney.
Although the Regional Director granted the request,
the Respondent did not file a further answer.
The General Counsel, while acknowledging the Re-
spondent’s September 17 letter, nonetheless asserts that
the answer fails to admit, deny, or explain specifically
each of the facts alleged in the complaint, and that the
Respondent has also failed to serve the parties with its
September 17 ‘‘answer’’ pursuant to Section 102.21 of
the Board’s Rules and Regulations. In these cir-
cumstances, the General Counsel contends that the Re-
spondent has failed to file an adequate answer after
multiple extensions. Accordingly, the General Counsel
moves that ‘‘the allegations of the Complaint should
be deemed admitted and found by the Board to be true
. . . [and] that there exists no factual issue litigable
before the Board, and therefore, no matter requiring a
hearing . . . [and] [c]onsequently, Respondent is in
default in this matter and [an] entry of Summary
Judgement against [the] Respondent is warranted.’’
In its response to the Notice to Show Cause,4 the
Respondent contends that its attempted answer of Sep-
tember 17 did in fact deny the relevant allegations set
forth in the complaint and that only the form was im-
proper. The Respondent argues that its subsequent fail-
ure to respond adequately to the complaint resulted
from extenuating circumstances. First, it points out that
it was not represented by counsel when its chief coor-
1223TRI-WAY SECURITY
5 See Steeltec Inc., 302 NLRB 980 (1991), and Acme Building
Maintenance, 307 NLRB 358 (1992). The Respondent also appar-
ently failed to serve its letter on the Charging Parties, but we again
note the pro se basis on which the Respondent was then proceeding.
See Acme Building Maintenance, supra at fn. 6.
dinator filed its September 17 letter with the Region,
and did not understand the consequences of its failure
to conform with the requirements of Section 102.21 of
the Board’s Rules. Second, it asserts that it had be-
lieved that the agreements reached as a result of the
arbitration hearing had settled the matter and that the
employees would withdraw their charges. Third, it ex-
plains that it is currently in Chapter 11 bankruptcy and
that it failed to file a corrected answer because it was
attempting to secure several large contracts in the New
England area crucial to its emergence from bankruptcy.
The Respondent further asserts that because its atten-
tion was focused on obtaining those contracts, it was
unable to give this matter the urgent attention that it
warranted.
The Board, having duly considered the matter, finds
that summary judgment is not appropriate here. The
Respondent’s September 17 pro se letter from O’Con-
nor specifically denies the 8(a)(3) consolidated com-
plaint allegations that the Respondent unlawfully ter-
minated employees Hall, Stanberry, and France be-
cause of their union activities. Although the letter does
not respond to each and every allegation in the com-
plaint, nor is it in a form that comports with the
Board’s Rules and Regulations, it nevertheless clearly
denies the complaint paragraph containing the opera-
tive facts of the alleged unfair labor practices and ef-
fectively denies consolidated complaint paragraph 14,
which alleges that the Respondent has engaged in un-
fair labor practices within the meaning of Section
8(a)(3) and (1). Because the letter was filed without
benefit of counsel and because it constitutes a clear de-
nial of the essential unfair labor practice allegations of
the complaint, we will not preclude a determination on
the merits simply because of the Respondent’s initial
failure to comply with all our procedural rules.5
Accordingly, the General Counsel’s Motion for
Summary Judgment is denied.
ORDER
It is ordered that the General Counsel’s Motion for
Summary Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 22 for fur-
ther appropriate action.