Bricklayers Local 31

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 970 (N.L.R.B. 1992)

970
309 NLRB No. 157
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise specified, all dates are in 1991.
2 In response to counsel’s denial of receipt of the November 19
warning letter, the General Counsel has submitted as an exhibit a
copy of a document indicating that the Postal Service returned the
letter, which was properly addressed to the Respondent’s counsel,
marked ‘‘unclaimed.’’
3 Superior Industries, 289 NLRB 834, 835 (1988).
4 Wheeler Mfg. Corp., 296 NLRB 6 (1989).
5 See Frank J. Foronjy & Sons Electric Corp., 304 NLRB 486
(1991) (failure of respondent’s prior attorney to record properly new
date for filing answer did not constitute good cause); Father & Sons
Lumber, 297 NLRB 437 (1989) (allegations that respondents’ attor-
ney had unspecified breakdown of staff communication and respon-
sibility did not constitute good cause); U.S. Telefactors Corp., 293
NLRB 567 (1989) (heavy workloads of respondent’s attorneys and
illness of one attorney did not constitute good cause); Sherwood
Coal Co., 252 NLRB 497 (1980) (claim that counsel was delinquent
in reviewing the case did not constitute good cause).
6 This result is consistent with Sec. 102.111(c) of the Board’s
Rules and Regulations. That section became effective on October 28,
Local 31, International Union of Bricklayers and
Allied Craftsmen, AFL–CIO and Local 580,
International Brotherhood of Teamsters, AFL–
CIO. Case 7–CA–32343
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
Upon a charge filed by the Charging Party Union on
September 18, 1991,1 the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
October 29 against Local 31, International Union of
Bricklayers and Allied Craftsmen, AFL–CIO, the Re-
spondent, alleging that it has violated Section 8(a)(1)
and (3) of the National Labor Relations Act. Although
properly served copies of the charge and complaint,
the Respondent has failed to file a timely answer.
On December 9, the General Counsel filed a Motion
for Default Summary Judgment, with exhibits attached.
On that same day, the Respondent filed an answer to
the complaint and a brief in opposition to the General
Counsel’s motion, with supporting affidavits. On De-
cember 13, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. On December
27, the Respondent filed a brief in response to the
Board’s Notice to Show Cause and in opposition to the
General Counsel’s motion. On January 10, 1992, the
General Counsel filed an answer to the Respondent’s
response to the Notice to Show Cause. On January 20,
1992, the Respondent filed a reply to the General
Counsel’s answer to the former’s response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Default Summary Judgment
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. The complaint itself states that unless an an-
swer is filed within 14 days of service, ‘‘all the allega-
tions in the complaint shall be deemed to be admitted
true and may be so found by the Board.’’ It is undis-
puted that the Respondent failed to file an answer
within the allotted time. Further, exhibits attached to
the Motion for Default Summary Judgment indicate
that the Regional Attorney for Region 7, by certified
letter dated November 19, notified the Respondent’s
counsel that, unless an answer was received by No-
vember 29, a Motion for Default Judgment would be
filed.2 An answer was not filed until December 9, after
the Respondent received the General Counsel’s Motion
for Default Judgment.
The Respondent asserts that the failure to file a
timely answer, was the result of ‘‘simple inadvert-
ence.’’ It also denies refusing to accept service of the
November 19 warning letter. Relying on the concur-
ring opinion of Chairman Stephens in Odaly’s Man-
agement Corp., 292 NLRB 1283, 1286 (1989), the Re-
spondent contends that equitable considerations should
lead the Board to accept the proffered untimely answer
and to deny the Motion for Default Summary Judg-
ment on the basis of factual issues allegedly raised by
that answer.
Contrary to the Respondent, we find that the Re-
spondent’s failure to file a timely answer has not been
supported by a showing of good cause. Even assuming
that the Respondent’s counsel did not receive the No-
vember 19 warning letter, such a letter is not required
by the Act or the Board’s Rules. Although the advi-
sory guidelines of the Board’s Casehandling Manual
do provide for a reminder letter, the failure of a Re-
gional Office to warn a respondent prior to issuance of
a default summary judgment motion does not excuse
the antecedent failure to file a timely answer.3 In addi-
tion, the Board has held that informal statements of
position in response to a charge, such as the one the
Respondent submitted prior to the complaint’s issuance
here, are insufficient to constitute answers to the com-
plaints.4 The Respondent’s ‘‘good cause’’ defense to
the General Counsel’s motion is therefore reduced to
the bare claim of ‘‘simple inadvertence’’ by its coun-
sel, an admittedly experienced labor law practitioner.
In light of the complaint’s clear notice that the Re-
spondent must file a timely answer, the bare claim of
unexplained inadvertence does not constitute good
cause for the Respondent’s late filing.5 We therefore
decline to accept the answer that the Respondent filed
in response to the Motion for Default Summary Judg-
ment.6
971BRICKLAYERS LOCAL 31
1991, prior to the relevant events in this case. For the reasons set
forth above, we do not believe that the Respondent’s neglect was
‘‘excusable.’’ Accordingly, without reaching the issue of whether
‘‘undue prejudice’’ to opposing parties would result from acceptance
of the Respondent’s tardy answer, we believe that there is no show-
ing of ‘‘good cause’’ to support acceptance of that answer.
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.’’
In the absence of good cause for the failure of the
Respondent to file a timely answer, we grant the Gen-
eral Counsel’s Motion for Default Summary Judgment.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a labor organization, is now, and
has been at all times material, an unincorporated asso-
ciation with a place of business in Lansing, Michigan,
where it is engaged in the business of representing em-
ployees in bargaining with employers with respect to
wages, hours, and conditions of employment. During
the 12-month period ending on December 30, 1990,
the Respondent, in the course and conduct of its oper-
ations, collected and received dues, initiation fees, and
benefits in excess of $50,000, and remitted from its
Lansing, Michigan facility to the Washington, D.C. fa-
cility of the International Union of Bricklayers and Al-
lied Craftsmen, AFL–CIO dues, initiation fees, and
benefits in excess of $50,000. We find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that Teamsters Local 164 and Teamsters Local 580 are
labor organizations within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On or about mid-July, August 19, and September
17, Respondent’s business manager, Daryl Hollenbach,
threatened employee Susan Schrader that she would be
faced with strict enforcement of working rules, a de-
crease in working hours, and loss of her job if she
transferred her loyalties from Teamsters Local 164 to
Teamsters Local 580. On or about September 13,
Hollenbach reduced Schrader’s working hours from 40
to 32 hours a week. This conduct by the Respondent
was taken in retaliation for Schrader’s preference for
Local 580 rather than Local 164.
We find that, by the acts and conduct described
above, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3)
of the Act as alleged.
CONCLUSION OF LAW
By interfering with, restraining, and coercing an em-
ployee in the exercise of her Section 7 rights, and by
discriminating in regard to the terms and conditions of
employment of an employee because of her union pref-
erences, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (3) and 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 de-
signed to effectuate the policies of the Act. Specifi-
cally, we shall order the Respondent to restore Susan
Schrader to a 40-hour workweek and to make her
whole for any wages and benefits lost as a result of
the unlawful reduction of hours, in the manner pre-
scribed in Ogle Protection Service, 183 NLRB 682,
683 (1970), with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Local 31, International Union of Brick-
layers and Allied Craftsmen, AFL–CIO, Lansing,
Michigan, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening to enforce working rules strictly
against employees, decrease their working hours, or
eliminate their jobs because of their union preferences.
(b) Reducing the work hours of employees because
of their union preferences.
(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) Restore the 40-hour workweek for Susan
Schrader, and make her whole for any losses resulting
from the unlawful reduction of her working hours, in
the manner set forth in the remedy section of this deci-
sion.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its facility in Lansing, 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 Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 None of the respondents in Frank J. Foronjy & Sons Electric
Corp., 304 NLRB 486 (1991); Father & Sons Lumber, 297 NLRB
437 (1989); U.S. Telefactors Corp., 293 NLRB 567 (1989), specifi-
cally invoked the analysis of my Odaly’s concurrence, so I had no
occasion to consider its application in those cases.
2 It might be worthwhile for the Board to consider devising meas-
ures, short of default judgment, to be taken against late-filing re-
spondents that would encourage litigants to be mindful of the
Board’s rules without depriving parties of their day in court. The
Board might, for example, explore its authority to entertain a motion
from the General Counsel for imposition of the Agency’s costs in
the filing of a summary judgment motion. No such framework cur-
rently exists, however, and this might be a matter on which the
Board would want first to seek public comment.
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
CHAIRMAN STEPHENS, concurring.
The Respondent has argued that, under the test I
proposed in my concurring opinion in Odaly’s Man-
agement Corp., 292 NLRB 1283, 1286 (1989), the
Board should deny the General Counsel’s Motion for
Summary Judgment in this case. The short answer to
this argument is that the Board has not adopted that
test and, under clear Board precedent, including cases
subsequent to Odaly’s in which I joined, the Respond-
ent loses. But even taking into account the concerns
that led me to concur separately in Odaly’s, I would
grant the General Counsel’s motion.1
In Odaly’s, borrowing the approach taken by an ap-
pellate court in Livingston Powdered Metal v. NLRB,
669 F.2d 133, 136 (3d Cir. 1982), I proposed the fol-
lowing analytical framework for determining whether
to grant what is in essence a default judgment: (1) de-
cide whether the Respondent has a meritorious de-
fense; (2) if so, decide whether the Respondent’s fail-
ure to meet an answer deadline was ‘‘the result of
willfulness or inexcusable neglect, or whether, by con-
trast, it was the product of excusable neglect or simple
inadvertence,’’ and (3) deny the Motion for Default
Judgment either if the Respondent’s failure was owing
to mere inadvertence or excusable neglect or if the
prejudice to the Charging Party and the General Coun-
sel was minimal and the Respondent’s conduct, al-
though possibly an instance of inexcusable neglect,
could not be characterized as evincing ‘‘a clear dis-
regard or contempt for the Board’s procedures.’’ The
Respondent contends that its failure to file a timely an-
swer was a matter of ‘‘simple inadvertance and some
confusion’’ and that the General Counsel has shown no
prejudice resulting from the Respondent’s late filing of
the answer. It therefore contends that the General
Counsel’s motion should be denied.
In light of the arguments made by the Respondent
and the General Counsel, I have reconsidered some of
the statements made in my Odaly’s concurrence. In
particular, I would no longer recognize an intermediate
category between ‘‘willfulness’’ and excusable neglect,
i.e., require the General Counsel to show prejudice of
the kind established in Odaly’s if the Respondent’s tar-
diness were inexcusable but less than willful. I recog-
nize that whether or not a Respondent’s late answer
causes delay of a scheduled hearing, the General
Counsel has nonetheless been put to the trouble of fil-
ing a Motion for Summary Judgment, and it is not un-
fair to place on the Respondent some burden of expla-
nation for its failure to meet the deadline.2 Here the
Respondent has provided no explanation other than a
vague reference to ‘‘inadvertance’’ and ‘‘confusion.’’ I
find that insufficent to excuse the Respondent’s late
filing.
973BRICKLAYERS LOCAL 31
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 the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT threaten to enforce working rules
strictly against our employees, decrease their working
hours, or eliminate their jobs because of their union
preferences.
WE WILL NOT reduce the work hours of our employ-
ees because of their union preferences.
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 restore the 40-hour workweek for Susan
Schrader, and WE WILL make her whole for any losses
resulting from the unlawful reduction of her working
hours, with interest.
LOCAL 31, INTERNATIONAL UNION OF
BRICKLAYERS AND ALLIED CRAFTSMEN,
AFL–CIO