LBE, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2009

354 N.L.R.B. 1009 (N.L.R.B. 2009)

354 NLRB No. 115
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive 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.
LBE, Inc. and Local 486, International Brotherhood
of Teamsters. Case 7–CA–52090
December 16, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent failed to file an
appropriate answer to the complaint. Upon a charge
filed by Local 486, International Brotherhood of
Teamsters (the Union) on May 13, 2009,1 the General
Counsel issued a complaint on July 14, against LBE, Inc.
(the Respondent) alleging that it violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) by
failing to furnish the Union with requested information
concerning agreements regarding the shutdown of its
operation. Copies of the charge and the complaint were
properly served on the Respondent. Following receipt of
a letter from the Region, dated July 29, giving the
Respondent an extension of time until August 5 to file an
answer, on August 4 the Region received a handwritten
note from the Respondent. On August 5, the Region
notified the Respondent that the handwritten note did not
constitute a proper answer and, unless the Respondent
filed an appropriate answer by August 12, a Motion for
Default Judgment would be filed.
On August 13, the General Counsel filed a Motion for
Default Judgment with the Board. Thereafter, on August
17, the Board issued an order transferring the proceeding
from the Region to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed no response to the Motion for Default
Judgment or to the Notice to Show Cause. The
allegations in the motion are therefore undisputed.
Ruling on Motion for Default Judgment2

1 All dates hereafter refer to 2009 unless otherwise indicated.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members
Kirsanow and Walsh on December 31, 2007. Pursuant to this
delegation, Chairman Liebman and Member Schaumber constitute a
quorum of the three-member group. As a quorum, they have the
authority to issue decisions and orders in unfair labor practice and
representation cases. See Sec. 3(b) of the Act. See Narricot Industries,
L.P. v. NLRB,___F.3d___, 2009 WL 4016113 (4th Cir. Nov. 20, 2009);
Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition
for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328);
New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the 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 stated
that unless an answer was received on or before July 28,
the Board may find, pursuant to a motion for default
judgment, that the allegations in the complaint are true.
Further, the undisputed allegations in the General
Counsel’s motion disclose that on July 22, the complaint,
which had been sent by certified mail, was returned as
“refused,” and that by letter dated July 29, the Region
informed the Respondent that unless an appropriate
answer (including a statement indicating the reason for
the late submission) was received by August 5, a motion
for default judgment would be filed. Copies of the letter
were sent both by certified and regular mail, and the
certified copy was returned as “refused.”
On August 4, the Region received an unsigned and
undated note, handwritten on the copy of the Region’s
July 29 letter to the Respondent. The note, presumably
from the Respondent acting pro se, stated that
“correspondence was mailed back to NLRB this week,”
that “[t]he Teamster statement is not true and false [sic],”
that “there was an agreement . . . to maintain service,
drivers, and standard to the end date,” that the
Respondent complied with its obligations under the
agreement, and that “all agreements between the parties
were to be confidential—they are.”
The Region thereafter sent a letter to the Respondent
explaining that its response did not constitute a proper
answer and stating that unless the Respondent filed an
appropriate answer on or before August 12 the Region
would file a motion for default judgment.3 The Region
received no further response from the Respondent.
At the outset, we recognize that the Respondent does
not appear to have legal representation in this
proceeding. In determining whether to grant a motion
for default judgment on the basis of a respondent’s
failure to file a sufficient or timely answer, the Board
typically shows some leniency toward respondents who
proceed without the benefit of counsel. E.g., Clearwater
Sprinkler System, 340 NLRB 435 (2003). Indeed, the
Board generally will not preclude a determination on the

___S.Ct.___, 2009 WL 1468482 (U.S. Nov. 2, 2009); Northeastern
Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert.
filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept.
29, 2009) (No. 09-377).
3 The Region’s letter also directed the Respondent to contact the
Region if it had any questions or requests concerning the letter or the
requirements for filing a proper answer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
merits of a complaint if it finds that a pro se respondent
has filed a timely answer that can reasonably be
construed as denying the substance of the complaint
allegations. Clearwater Sprinkler System, supra, citing
Harborview Electric Construction Co., 315 NLRB 301,
302 (1994). However, the Respondent’s lack of
representation does not excuse it from its obligation to
file an appropriate answer to the complaint. See
generally Newark Symphony Hall, 323 NLRB 1297
(1997). As set forth above, the Respondent refused
service of the complaint,4 failed to file a timely answer to
the complaint, and did not provide an explanation for
failing to file a timely answer.
The Respondent’s handwritten note to the Region does
not constitute an appropriate answer to the complaint,
even considering the leniency afforded to pro se
respondents. The note is undated and unsigned, gives no
explanation for the Respondent’s failure to file an
answer by the due date, and does not reference the
complaint allegations including, most significantly, the
allegations that the Respondent refused to furnish the
Union with requested information. Although the note
mentioned that all agreements between the parties were
confidential, it did not state that the Respondent refused
to furnish the requested information because of concerns
about confidentiality.
Rather than answering the complaint allegations, the
handwritten note stated that “[t]he Teamster statement is
. . . false.” This suggests an intention to present the
Respondent’s position on the charge filed by the Union
rather than an answer to the General Counsel’s
complaint (of which the Respondent refused service). It
is well settled that a statement of position is generally
insufficient to constitute an answer to the complaint.
E.g., Mail Handlers Local 329 (Postal Service), 319
NLRB 847 (1995).5
As set forth above, the Respondent’s note refers to an
earlier correspondence to the Region, and neither the
General Counsel’s motion nor the supporting documents
show the Region’s acknowledgment of such
correspondence. However, as the Respondent’s note

4 The Respondent also refused service of the copy of the Region’s
July 29 letter sent by certified mail. “It is well settled that a
respondent’s failure or refusal to accept certified mail cannot serve to
defeat the purposes of the Act.” I.C.E. Electric, Inc., 339 NLRB 247
fn. 2 (2003), citing Michigan Expediting Service, 282 NLRB 210 fn. 6
(1986), enfd. sub nom. NLRB v. Shabazz, 869 F.2d 1492 (6th Cir.
1989) (Table).
5 Compare Central States Xpress, 324 NLRB 442, 444 (1997)
(finding an exception to the general rule where the pro se respondent
resubmitted a position statement denying the complaint allegations
along with a cover letter specifically stating that the resubmitted
statement was intended as a response to the complaint allegations).
appeared to present a position on the charge rather than
an answer to the complaint, and as the Respondent
refused service of the complaint, there is no basis to
assume that the earlier correspondence (assuming it
actually exists) could have constituted the Respondent’s
answer. Further, having failed to respond to the Motion
for Default Judgment or the Notice to Show Cause, the
Respondent has not explained whether the earlier
correspondence has any significance at all to the
Respondent’s obligation to file a timely answer to the
complaint.6
In sum, the Respondent failed to file any document,
timely or untimely, that could reasonably be construed as
an answer to the complaint. Accordingly, and in the
absence of good cause being shown for the failure to file
a timely answer, 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 corporation
with an office in Saginaw, Michigan, has been engaged
in providing freight pickup and delivery service for DHL
Express (USA), Inc.
During the 2008 calendar year, a representative period,
the Respondent, in conducting its operations described
above, derived gross revenues in excess of $100,000, and
provided service in excess of $50,000 to DHL Express
(USA), Inc., which itself, during the same period of time,
derived gross revenues in excess of $50,000 for the
transportation of freight from the state of Michigan
directly to points outside the state of Michigan.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Tony Lander has held the
position of Respondent’s president and has been a
supervisor of the Respondent within the meaning of

6 We further note the existence of two minor inadvertent errors: (a)
the Motion for Default Judgment referred to the Respondent’s undated
note (handwritten on a copy of the Region’s July 29 letter and received
by the Region on August 4) as the “Respondent’s July 29 response,”
and (b) the Notice to Show Cause stated that the Respondent failed “to
file an insufficient answer to the Complaint and Notice of Hearing,”
(emphasis added) rather than stating that it failed to file a sufficient
answer. In view of the Respondent’s failure to file a response either to
the motion or the notice, we find there is no indication that the
Respondent may have been prejudiced by these inadvertent errors.
LBE, INC. 3
Section 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time drivers and dock
employees employed by Respondent located in the
DHL Express (USA), Inc., distribution facility located
at 8015 Garfield Road, Freeland, Michigan, but
excluding all office clerical employees and guards and
supervisors as defined in the Act.
Since about 2005, and at all material times, the Union
has been the exclusive collective-bargaining
representative of the unit and has been so recognized by
the Respondent. This recognition has been embodied in
a collective-bargaining agreement which is effective
from January 1, 2007, through January 1, 2010. At all
material times, based on Section 9(a) of the Act, the
Union has been the exclusive collective-bargaining
representative of the unit.
On about February 10 and 19, the Union, by email,
and by e-mail and a letter, respectively, requested that
the Respondent provide a copy of the document between
DHL and the Respondent regarding the shutdown of
Respondent’s operation, less any financial amounts.
On about March 23, the Union, by letter, requested
that the Respondent furnish it with information
pertaining to the DHL Contract Employee Retention
Program (CERP), less any financial amounts.
The information requested by the Union, described
above, is necessary for, and relevant to, the Union’s
performance of its duties as the exclusive collective-
bargaining representative of the unit.
Since about February 10, the Respondent has failed
and refused to furnish the Union with the information
requested about February 10 and 19, described above.
Since about March 23, the Respondent has failed and
refused to furnish the Union with the information
requested about March 23, described above.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the Union as the exclusive collective-
bargaining representative of its unit employees within
the meaning of Section 8(d) and in violation of Section
8(a)(5) and (1) of the Act, and has thereby engaged in
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain 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)(5) and
(1) of the Act by failing and refusing to furnish the
Union with necessary and relevant information, we shall
order the Respondent to provide the Union with the
information requested on about February 10, 19, and
March 23, 2009.
ORDER
The National Labor Relations Board orders that the
Respondent, LBE, Inc., Saginaw, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish the Union, Local
486, International Brotherhood of Teamsters, with
information that is necessary for and relevant to the
performance of its duties as the exclusive collective-
bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time drivers and dock
employees employed by Respondent located in the
DHL Express (USA), Inc., distribution facility located
at 8015 Garfield Road, Freeland, Michigan, but
excluding all office clerical employees and guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
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) Furnish the Union with the information it requested
on about February 10, 19, and March 23, 2009.
(b) Within 14 days after service by the Region, post at
its facility in Saginaw, Michigan, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not

7 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 Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, 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
employees employed by the Respondent at any time
since February 10, 2009.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification 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. December 16, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, 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
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to furnish the Union,
Local 486, International Brotherhood of Teamsters, with
information that is necessary for and relevant to the
performance of its duties as the exclusive collective-
bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time drivers and dock
employees employed by us located in the DHL
Express (USA), Inc., distribution facility located at
8015 Garfield Road, Freeland, Michigan, but
excluding all office clerical employees and guards and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish the Union with the information it
requested on about February 10, February 19, and March
23, 2009.
LBE INC.