AMERICAN POSTAL WORKERS UNION LOCAL 83 (United States Postal Service)

National Labor Relations Board - Board Decisions

Jun 16, 2020

369 N.L.R.B. 95 (N.L.R.B. 2020)

369 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.
American Postal Workers Union Local 83 (United
States Postal Service) and KATHLEEN
LUCIEN. Case 15–CB–223251 and 15–CB–
232568
June 16, 2020
DECISION AND ORDER
BY CHAIRMAN RING1 AND MEMBERS KAPLAN AND
EMANUEL
The General Counsel seeks a partial default judgment in
this case on the ground that the Respondent has failed to
file an answer to the consolidated complaint. Upon
charges filed by Kathleen Lucien on July 5, 2018, the Re-
gional Director issued a complaint and notice of hearing
(the original complaint) on October 29, 2018, against
American Postal Workers Union Local 83 (the Respond-
ent), alleging that it has violated Section 8(b)(1)(A) of the
Act and within the meaning of the Postal Reorganization
Act (PRA). The Respondent filed answers on December 1
and 6, 2018, admitting some allegations and denying oth-
ers. Subsequently, on March 25, 2019, and upon charges
filed by Lucien on December 11, 2018, the Regional Di-
rector issued an Order consolidating cases, consolidated
complaint, and notice of hearing (the consolidated com-
plaint), incorporating the allegations from the original
complaint and adding others. Although properly served
copies of the charge and the consolidated complaint, the
Respondent failed to file an answer.
On May 22, 2019, the General Counsel filed with the
National Labor Relations Board a Motion for Partial De-
fault Judgment, limiting its request to the new factual al-
legation contained in paragraph 7(b) of the consolidated
complaint: “Since on or about October 14, 2018, Respond-
ent has refused to provide, [sic] Lucien copies of griev-
ances that were filed by or on behalf of Lucien, [sic] be-
tween July 1, 2018 and November 30, 2018.” On May 24,
2019, the Board issued an Order transferring proceeding
to the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed no response.
1 Chairman Ring, who is recused, is a member of the panel but did
not participate in this decision on the merits.
In New Process Steel v. NLRB, 560 U.S. 674 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a two-
member quorum when one of the panel members has recused himself.
Under the Court’s reading of the Act, “the group quorum provision [of
Sec. 3(b)] still operates to allow any panel to issue a decision by only
two members if one member is disqualified.” New Process Steel, 560
U.S. at 688. See also, e.g., D.R. Horton, 357 NLRB 2277, 2277 fn. 1
Accordingly, the allegations set forth in the motion are un-
disputed.
Ruling on Motion for Partial 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 consolidated complaint affirmatively
states that unless an answer is received on or before April
8, 2019, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the consolidated
complaint are true. Further, the undisputed allegations in
the General Counsel’s motion disclose that the Region, by
letter dated April 18, 2019, notified the Respondent that
unless an answer was received by April 25, 2019, a motion
for default judgment would be filed. No answer or request
for an extension of time to file an answer was received by
that date.2
In the absence of good cause being shown for the failure
to file a timely answer, we grant the General Counsel’s
Motion for Partial Default Judgment.
On the entire record, the Board makes the following
FINDING OF FACT
Consistent with the allegation in the consolidated com-
plaint, which has effectively been admitted by the Re-
spondent’s failure to file an answer, we find that since
about October 14, 2018, the Respondent has refused to
provide Lucien copies of grievances that were filed by or
on behalf of Lucien between July 1 and November 30,
2018.
ORDER
IT IS ORDERED that the General Counsel’s Motion for
Partial Default Judgment is granted with respect to the al-
legation set forth in paragraph 7(b) of the consolidated
complaint.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 15 for further
appropriate action consistent with the Decision and Order.
Dated, Washington, D.C. June 16, 2020
______________________________________
Marvin E. Kaplan, Member
(2012), enfd. in relevant part, 737 F.3d 344, 353 (5th Cir. 2013); NLRB
v. New Vista Nursing & Rehabilitation, 870 F.3d 113, 127–128 (3d Cir.
2017); 1621 Route 22 West Operating Co., 357 NLRB 1866, 1866 fn. 1
(2011), enfd. 725 Fed. Appx. 129, 136 fn. 7 (3d Cir. 2018).
2 Although tracking information indicates that the Region’s letter was
not picked up at the Post Office until May 3, 2019, there is no record the
Respondent contacted the Region either before or after that date to re-
spond or request an extension.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD