Patrician Assisted Living Facility

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1153 (N.L.R.B. 2003)

PATRICIAN ASSISTED LIVING FACILITY 1153
Patrician Assisted Living Facility and Synthia Mar-
shall. Case 10–CA–33505
August 21, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent has failed to file
a timely answer to the complaint. Upon a charge filed by
Synthia Marshall on January 22, 2002,2 the General
Counsel of the National Labor Relations Board issued a
complaint on April 30 against Patrician Assisted Living
Facility, the Respondent, alleging that it has violated
Section 8(a)(1) of the National Labor Relations Act.
Although properly served copies of the charge and the
complaint, the Respondent failed to file an answer.
By letter dated May 20 that was both faxed and
mailed, the General Counsel offered the Respondent an
extension of time to file an answer by May 28. That let-
ter also warned that, unless an answer was received by
May 28, a Motion for Default Judgment would be filed
and all allegations would be deemed admitted. The Re-
spondent again failed to file an answer.
On May 31, the General Counsel filed a Motion for
Summary Judgment with the Board. On June 6, 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 June 20, the Respondent filed
a response to the Notice to Show Cause, with affidavits
attached.
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 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, served by certified
mail on the Respondent on April 30, affirmatively states
that unless an answer is filed within 14 days of service
(i.e., by May 14), all the allegations in the complaint will
be considered admitted.
The Respondent, despite having received a letter from
the General Counsel warning that unless an answer was
filed, a Motion for Default Judgment would be filed,
neither filed an answer to the complaint nor made a re-

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file a timely answer to the
complaint. Accordingly, we construe the General Counsel’s motion as
a motion for default judgment.
2 All dates are 2002 unless indicated otherwise.
quest for an additional extension of time to do so before
the extended May 28 deadline had expired.
Following the General Counsel’s May 31 Motion for
Default Judgment and the Board’s June 6 Notice to Show
Cause, the Respondent, pro se, sent a response to the
Motion for Default Judgment with an affidavit in support
and an answer to the complaint. The Respondent con-
tends that its failure to file an answer was due to its in-
ability to retain legal counsel within the required time
frame and that, because of a lack of legal training, the
Respondent’s owner was unaware of the gravity of a
failure to file a timely answer in the matter. The Re-
spondent also argues that principles of fairness and eq-
uity mandate that its answer to the complaint be accepted
by the Board, and not be considered as untimely, because
there are genuine issues of disputed fact.
For the following reasons, we reject the Respondent’s
arguments.
The Respondent is apparently proceeding without legal
representation.3 We recognize that, when determining
whether to grant a Motion for Summary Judgment, the
Board has shown some leniency toward respondents who
proceed without benefit of counsel. Kenco Electric &
Signs, 325 NLRB 1118 (1998). Thus, the Board will
generally not preclude a determination on the merits of a
complaint if it finds that a pro se respondent has filed a
timely answer, which can reasonably be construed as
denying the substance of the complaint allegations.
A.P.S. Production/A. Pimental Steel, 326 NLRB 1296,
1297 (1998); Harborview Electric Construction Co., 315
NLRB 301 (1994). Similarly, where a pro se respondent
fails to file a timely answer, but provides a “good cause”
explanation for such failure, default judgment will not be
entered against it on procedural grounds.
However, merely being unrepresented by counsel
does not establish a good cause explanation for failing to
file a timely answer. Newark Symphony Hall, 323
NLRB 1297 (1997). In addition, under Board law, a
failure to promptly request an extension of time to file an
answer, in turn, is a factor demonstrating lack of good
cause. Lockhart Concrete, 336 NLRB 965, 957 fn. 3
(2001); Day & Zimmerman Services, 325 NLRB 1046,
1047 (1998). Therefore, where a pro se respondent fails
to respond at all to the complaint allegations until after
the Notice to Show Cause has issued—despite having
3 The Respondent, an assisted living facility, satisfies the Board’s ju-
risdictional standards, and it employs about 30 individuals. The unfair
labor practice charge in this case was filed on January 22, 2002, the
complaint issued on April 30, and the General Counsel ultimately gave
the Respondent until May 28 to file an answer. In the circumstances,
we conclude that the Respondent had ample time and ability to retain
legal counsel.
339 NLRB No. 149
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154
been notified in writing that it must—and has provided
an insufficient explanation for its failure to do so, subse-
quent attempts to answer the complaint will be denied as
untimely. Kenco Electric & Signs, supra. Such a pattern
of repeatedly ignoring the Board’s procedures and warn-
ings is incompatible with a showing of good cause.
Odaly’s Management Corp., 292 NLRB 1283, 1284
(1989).
Here, there is no dispute that the Respondent did not
respond to the complaint allegations until after the Notice
to Show Cause issued on June 6, despite the explicit di-
rections to do so in both the April 30 complaint and the
May 20 reminder letter. We also find that the Respon-
dent has not provided an explanation sufficient to consti-
tute good cause for its failure to file a timely answer even
after it was granted an extension of time.
Other than its failure to obtain counsel, the Respon-
dent’s only other proffered explanation is that, because
of the owner’s lack of legal training, she was unaware of
the gravity of her failure to file an answer. Because the
Respondent was repeatedly warned in formal govern-
ment documents that the failure to file an answer would
result in the allegations in the complaint being deemed
admitted and that a Motion for Default Judgment would
result, the owner’s lack of legal sophistication does not
provide good cause for the Respondent’s failure to file an
answer between its receipt of the complaint on April 30
and the extended deadline of May 28. Associated Su-
permarket, 338 NLRB 780 (2003). Finally, regarding
the Respondent’s claim that there exists material facts
warranting a hearing, the Board has stated that it will not
address a respondent’s assertion that it has a meritorious
defense unless good cause has been shown for the late
response. Dong-A Daily North America, Inc., 332 NLRB
15, 16 (2000).
The dissent describes the Respondent’s conduct here
as merely a “procedural peccadillo.” Respectfully, we
disagree. The failure to respond to a legal action, espe-
cially one initiated by the government, is a more conse-
quential matter. In plain language, the General Counsel
advised the Respondent of its obligations, yet it deliber-
ately disregarded them. It is undisputed that the Respon-
dent received a series of explicit warnings from the Gen-
eral Counsel, as well as an extension of time.4 In the

4 We endorse the General Counsel’s practice of giving respondents
full warning of the consequences of failing to file an answer. Indeed,
the record here shows the special care taken by the General Counsel to
ensure that the pro se respondent understood its rights and obligations
under the Board’s Rules. We encourage that practice as well. To that
extent, then, we share the dissent’s general concern about any avoidable
use of “legalese” in the General Counsel’s communications with pro se
respondents. Here, however, there is no basis for concluding that the
General Counsel lay in wait for an unsuspecting victim. Although our
end, its answer was extracted only as a consequence of
the General Counsel’s filing of a summary judgment
motion and the Board’s issuance of a show cause notice.
For reasons already explained, that was too late. “Life is
full of deadlines.” Nielsen v. Machinists Local 2569, 94
F.3d 1107, 1116 (7th Cir. 1996).
Our dissenting colleague acknowledges that our deci-
sion here is “[c]onsistent with past Board precedent” and
with the Board’s longstanding interpretation of its own
rules. The dissent cites no judicial criticism of the
Board’s approach. Nevertheless, our colleague argues
that, as applied by the Board, the “good cause” standard
of Section 102.20 of the Board’s Rules and Regulations
is meaningless. But it is the dissent’s proposed solution
that would undermine the standard, by finding “good
cause” even when a respondent deliberately disregards
the timely-answer requirement. Under our rules, it is the
complaint—not a summary judgment motion—that trig-
gers this requirement. The dissent’s approach would
inevitably lead to unwarranted delay and a waste of ad-
ministrative resources. That result does not “effectuate
the purposes and provisions of the Act,” as Section
102.121 (cited by the dissent) contemplates in endorsing
a liberal construction of the rules.
The dissent points to the Federal Rules of Civil Proce-
dure as a model for the Board. But there are important
differences between Federal civil litigation and Board
administrative process, as the Board has explained. See
Morgan’s Holiday Markets, 333 NLRB 837, 839 (2001).
In Federal civil litigation, service of the complaint is
the defendant’s first notice of a legal claim against it. In
contrast, the Board’s process begins with the filing of an
unfair labor practice charge, by a private party. See id.
The General Counsel, a neutral government official, in-
vestigates that charge, which necessarily brings him into
contact with the respondent. Only if and when the Gen-
eral Counsel determines that there is reasonable cause to
believe that the Act has been violated does he issue a
complaint. Thus, by the time a respondent is served with
the complaint, it has long been given the opportunity to
present its position to the General Counsel. Accordingly,
when the respondent fails to file a timely answer to the
complaint, despite repeated warnings of the conse-
quences, the situation is not analogous to that of a defen-
dant in civil litigation. The administrative process has
been under way for a significant period. In this case, for

colleague claims he has no intention of countenancing willful disregard
of the Board’s Rules, he would find that a respondent who ignored
repeated, specific notices that it must file an answer was engaged in
mere excusable neglect when it failed to file any answer at all. We
remain uncertain as to what more would be required for our colleague
to conclude that willful disregard of the Board’s Rules had occurred.
PATRICIAN ASSISTED LIVING FACILITY 1155
example, the unfair labor practice charge was served on
the Respondent on about January 22, over 4 months be-
fore the deadline for filing an answer to the compliant.
In the circumstances, we view the imposition of default
judgment as reasonable and just.5
In sum, we find that the Respondent’s answer to the
complaint attached to its response to the Notice to Show
Cause is untimely. See Kenco Electric, supra. Accord-
ingly, in the absence of good cause 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 and place of business in Birmingham,
Alabama, has been engaged in the business of providing
personal care services to the elderly. During the 12-
month period preceding issuance of the complaint, a rep-
resentative period, the Respondent in conducting its
business operations derived gross revenues in excess of
$250,000. 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 within the meaning of Section
2(11) of the Act or agents of the Respondent within the
meaning of Section 2(13) of the Act.

Patricia Sargent Owner
Priscilla Barksdale RN
Cynthia Willoughby LPN

On or about January 6, Respondent discharged em-
ployees Synthia Marshall and Wykeithia Williams be-

5 Our colleague overstates Board precedent by declaring that the in-
teraction between the General Counsel and a respondent during the
period prior to the complaint has “led the Board to . . . accept precom-
plaint position statements as answers in certain cases.” In both Central
States Xpress, 324 NLRB 442 (1997), and Mid-Wilshire Health Care
Center, 331 NLRB 1032 (2000), relied on by the dissent, the respon-
dent had separately responded to the complaint and in that response had
either attached or incorporated by reference the content of an earlier
position statement. The Board’s acceptance of each of those position
statements was based on its inclusion in an actual, albeit informal an-
swer to a complaint. In the present case, of course, there was no timely
answer, and, in any event, there is no indication that the Respondent
ever filed a precomplaint position statement. A fortiori, and contrary to
the suggestion of our dissenting colleague, there is no indication here
that, by virtue of having filed a precomplaint position statement, the
Respondent might have thought it had already answered the charges
against it.
cause they engaged in protected concerted activities and
in order to discourage other employees from engaging in
these activities.
CONCLUSION OF LAW
By the acts and conduct described above the Respon-
dent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act in violation of Section 8(a)(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 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 violated Section 8(a)(1) of the
Act by discharging employees Synthia Marshall and
Wykeithia Williams, we shall order the Respondent to
offer the discharged employees full reinstatement to their
former jobs or, if those jobs no longer exist, to a substan-
tially equivalent position, without prejudice to their sen-
iority or other rights or privileges previously enjoyed,
and to make them whole for any loss of earnings and
other benefits suffered as a result of the unlawful conduct
against them. Back pay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). The Respondent shall also be
required to expunge from its files any and all references
to the unlawful discharges and to notify the discharged
employees in writing that this has been done and that the
discharges will not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Patrician Assisted Living Facility, Birming-
ham, Alabama, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees or otherwise discriminating
against its employees because they engage in protected
concerted activities, and to discourage employees from
engaging in those activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Synthia Marshall and Wykeithia Williams full reinstate-
ment to their former jobs or, if those jobs no longer exist,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1156
to a substantially equivalent position, without prejudice
to their seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Synthia Marshall and Wykeithia Williams
whole for any loss of earnings and other benefits suffered
as a result of their unlawful discharges, in the manner set
forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges
and, within 3 days thereafter, notify them in writing that
this has been done and that their discharges will not be
used against them in any way.
(d) 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, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of back pay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Birmingham, Alabama, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
10, 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
ensure that the notices are not altered, defaced, or cov-
ered 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 this pro-
ceeding, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current and for-
mer employees employed by the Respondent at any time
since January 6, 2002.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to the Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MEMBER SCHAUMBER, dissenting.
Section 102.20 of the Board’s Rules and Regulations
permits a late answer upon a showing of “good cause,”
but the Board has unfortunately interpreted the “good
cause” proviso in such a way as to render it almost mean-
ingless. Plainly stated, it is all but impossible to show
“good cause” as the Board construes that phrase. This
harsh interpretation of Section 102.20 is inconsistent
with Section 102.121, which provides that the Board’s
Rules and Regulations “shall be liberally construed”;
with the Board’s own stated policy preference for deci-
sions on the merits; and, as I will show, with the literal
meaning of Section 102.20 itself. Moreover, the Board
has never articulated its policy reasons for interpreting
“good cause” so narrowly. In an analogous case, NLRB
v. Washington Star, 732 F.2d 974 (D.C. Cir. 1984),
which involved the late filing of exceptions, the D.C.
Circuit declined to defer to the Board’s application of its
filing deadline in part for that reason.1
Consistent with past Board precedent, the Board today
grants the General Counsel’s motion for default judg-
ment because Respondent’s answer to the complaint was
untimely. The complaint alleged that the Respondent
discharged employees Synthia Marshall and Wykethia
Williams for their protected concerted activities. The
Respondent, acting pro se, filed an answer just over 3
weeks late, in which it denied that Marshall and Williams
were fired and asserted that they “abandoned their em-
ployment.” The Respondent also filed the affidavit of its
owner, Patricia Sargent, in which Sargent explains under
oath her version of the relevant events. If credited, Sar-
gent’s testimony would compel the dismissal of the com-
plaint. However, the Respondent is being denied the
opportunity to present its side of the story at a Board
hearing because its answer was untimely, and its “good
cause” showing—that Sargent is not a lawyer and did not
realize the gravity of untimeliness—is deemed by my
colleagues inadequate.2 In sum, for its procedural pecca-
1 In Washington Star, the Board rejected the respondent’s late-filed
exceptions to the decision of an administrative law judge. Although
invited to do so by the court of appeals, the Board failed to explain the
policies underlying its strict construction of its filing rules. 732 F.2d at
976–977. For that reason, and because it also found the Board’s appli-
cation of its filing deadline to have been inconsistent, the court declined
to defer to the Board. 732 F.2d at 977. Responding solely to the D.C.
Circuit’s charge of inconsistency, the Board revised its filing and ser-
vice date rules. See 51 FR 23744 (1986). The Board continues to point
to that revision instead of explaining its policy reasons for narrowly
construing Sec. 102.20’s “good cause” proviso. See Rick’s Painting &
Drywall, 338 NLRB 1091 (2003).
2 Actually, being a lawyer might not have made the difference Sar-
gent thinks it would have. Courts are far more tolerant of missed an-
swer deadlines than is the Board. Thus, lawyers familiar with the
courts but new to Board practice would have good reason to think the
PATRICIAN ASSISTED LIVING FACILITY 1157
dillo, Respondent will be required to reinstate two former
employees whom it claims abandoned their jobs, pay
them backpay with interest, and post a notice declaring
itself in violation of the Act—all without a hearing.
In my view, the majority’s decision exemplifies and
perpetuates the harshness that has long characterized the
Board’s decision making in cases before us on what until
recently was misleadingly called a motion for “summary
judgment.” Having changed the name, appropriately, to
a Motion for Default Judgment,3 we should change our
approach to match. I would draw upon federal judicial
precedent in this area, which interprets “good cause” for
setting aside a default so as to emphasize the interests of
justice over rigid adherence to technical deadlines. In
short, I would give effect to the Board’s own stated pref-
erence for deciding cases on the merits.4
For these reasons and for the reasons more fully set
forth below, I respectfully dissent.5
The Board’s Default Judgment Practice in
Late-Answer Cases
The applicable rule here is Section 102.20 of the
Board’s Rules and Regulations. Under Section 102.20,
when a respondent has failed to file a timely answer, all
allegations in the complaint shall be deemed admitted to
be true, and shall be so found by the Board, “unless good
cause to the contrary is shown.” To the contrary of
what? Plainly, “to the contrary” of the consequences just
stated. A late-answering respondent, therefore, must
show good cause why the complaint’s allegations should
not be deemed admitted and found to be true.
Section 102.20 does not specify what factors might be
material to a “good cause” showing. As the Board con-
strues Section 102.20, however, the only material consid-
eration is the reason the answer was late.6 That is, the

Respondent’s situation far from grave. See, e.g., Jones Truck Lines,
Inc., 63 F.3d 685, 687 (8th Cir. 1995) (affirming denial of default
judgment where answer was 5 weeks late); American States Ins. Corp.
v. Technical Surfacing, Inc., 178 F.R.D. 518, 522 (D. Minn. 1998)
(denying default judgment where answer was 10 weeks late); Dizzley v.
Friends Rehabilitation Program, Inc., 202 F.R.D. 146, 147–148 (E.D.
Pa. 2001) (denying default judgment where answer was 3 months late);
Citadel Management, Inc. v. Telesis Trust, Inc., 123 F.Supp.2d 133,
142–143 (S.D.N.Y. 2000) (same); U.S. v. Schofield, 197 F.R.D. 6, 7–8
(D.D.C. 2000) (denying default judgment where answer was nearly 14
months late).
3 Malik Roofing Corp., 338 NLRB 930 fn. 1 (2003).
4 Paolicelli, 335 NLRB 881, 882 (2001); M. J. McNally, Inc., 302
NLRB 120 (1991).
5 I acknowledge that the view expressed here is contrary to the ra-
tionale expressed in Associated Supermarket, 338 NLRB 780 (2003),
and Sage Professional Painting Co., 338 NLRB 1068 (2003). Al-
though I participated in the panels deciding those cases, I would apply a
different analysis if I were deciding them today.
6 See, e.g., Unlimited Security, Inc., 338 NLRB 500, 500–501 (2002)
(“[T]he Board will not accept [a response to a Notice to Show Cause]
Board misreads Section 102.20’s “good cause” proviso
to mean good cause for missing the deadline, instead of
its literal meaning of good cause not to deem the com-
plaint’s allegations admitted. Accordingly, the Board
refuses even to consider the merits of a tardily asserted
defense unless the respondent first shows good cause for
its tardiness.7 Lack of prejudice to the other parties is
also deemed irrelevant.8 Moreover, having circum-
scribed “good cause” in this way, the Board virtually
never finds that standard met.9 By contrast, Board deci-
sions rejecting various reasons for untimeliness are too
numerous to catalog. Simply by way of a sampling, the
Board has rejected all of the following as good cause for
missing an answer deadline: pro se status;10 inability to
afford counsel;11 counsel’s unfamiliarity with Board pro-
cedure;12 business turmoil and crisis;13 inadvertence;14
illness;15 death.16 In sum, the narrow construction the

as the answer to the complaint absent a showing of good cause for the
failure to timely answer the complaint initially”) (emphasis added);
Dong-A Daily North America, 332 NLRB 15, 15–6 (2000) (rejecting
closing of respondent’s office, company turmoil, and departure of key
employees as constituting “good cause for the failure to file a timely
answer”) (emphasis added); L. E. Beck & Son, Inc., 159 NLRB 1564,
1565 (1966) (finding respondent “has not shown good cause for its
failure to file a timely answer”).
7 See, e.g., Lockhart Concrete, 336 NLRB 956, 957 (2001); Dong-A
Daily North America, supra, 332 NLRB at 16; Printing Methods, Inc.,
289 NLRB 1231, 1232 fn. 4 (1988).
8 See, e.g., Calyer Architectural Woodworking Corp., 338 NLRB
315, 316 fn. 9 (2002) (“Under the Board’s Rules, whether to excuse the
failure to file a timely answer depends not on prejudice to a party or an
alleged discriminatee, but on whether a respondent has demonstrated
good cause.”).
9 In published default judgment cases decided since 1975, I have
found only two in which the Board has found good cause for the failure
to file a timely answer: Stage Employees (Crossing Guard Produc-
tions), 316 NLRB 808 (1995), and B. N. Beard Co., 231 NLRB 191
(1977). In the former case, the Board was implicated in the respon-
dent’s delay because of a miscommunication between the respondent
and counsel for the General Counsel. The latter case was an anomaly:
for reasons of its own, the Board wanted the case decided on a com-
plete record, and thus, accepted an untimely answer because the re-
spondent was previously without counsel and no party would be preju-
diced—reasons that plainly do not constitute “good cause” under more
recent precedent. See, e.g., Calyer Architectural Woodworking, supra,
338 NLRB 315–316 fn. 9.
10 See, e.g., Rick’s Painting & Drywall, supra, 338 NLRB at 1092;
Lockhart Concrete, supra, 336 NLRB 956, 957.
11 See, e.g., National Transit, 299 NLRB 453 (1990); Lai Gong, 264
NLRB 1083, 1084 (1982).
12 South Atlantic Trucking, 327 NLRB 534, 535 (1999).
13 Dong-A Daily North America, supra, 332 NLRB at 15–16; Central
Apex Reproductions, 330 NLRB 1163, 1163–1164 (2000).
14 See, e.g., Windward Roofing & Construction Co., 333 NLRB 658
(2001); Bricklayers Local 31, 309 NLRB 970 (1992), enfd. mem. 992
F.2d 1217 (6th Cir. 1993).
15 See, e.g., Carmody, Inc., 327 NLRB 1230, 1230–1231 (1999);
U.S. Telefactors Corp., 293 NLRB 567 (1989); D. V. Copying & Print-
ing, 250 NLRB 45, 45–46 (1980); Ancorp National Services, 202
NLRB 513, 513–514 (1973).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1158
Board has given Section 102.20’s “good cause” proviso
has all but erased it from the rule. This is contrary not
only to the literal meaning of Section 102.20, but also to
Section 102.121 of the Board’s Rules and Regulations,
which provides that “[t]he rules and regulations in [Part
102] shall be liberally construed to effectuate the pur-
poses and provisions of the Act.” Surely one such pur-
pose is to decide cases on their merits whenever possible.
If we are to give substance to our stated preference for
merits determinations, we need a more flexible default
judgment standard.
The Federal Courts’ Default Judgment Practice
The policy and practice of the Federal courts with re-
spect to defaults contrast sharply with the Board’s. Most
Federal courts regard default judgments with a degree of
suspicion that borders on outright disapproval. It is not
just that default judgments are disfavored, although the
circuit courts are all but uniformly of that view.17
Searching for stronger language, Federal courts have
characterized default judgments as “drastic” and
“harsh.”18 A default judgment should be reserved for
“extreme” circumstances,19 “rare occasions,”20 a “totally
unresponsive” party,21 or cases demonstrating “a clear
record of delay or contumacious conduct.”22 “Further,
concerns regarding the protection of a litigant’s rights are

16 Frank E. Laviero Co., 305 NLRB 94 (1991).
17 See Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 174 (2d Cir.
2001); TCI Group Life Insurance Plan v. Knoebber, 244 F.3d 691, 693
(9th Cir. 2001); Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000);
Jones Truck Lines, Inc., 63 F.3d 685, 688 (8th Cir. 1995); Rains, 946
F.2d 731, 733 (10th Cir. 1991); Tazco, Inc. v. Director, Office of Work-
ers’ Compensation Program, 895 F.2d 949, 950 (4th Cir. 1990);
Walton v. Rogers, enfd. mem. 860 F.2d 1081 (6th Cir. 1988); Zawadski
de Bueno v. Bueno Castro, 822 F.2d 416, 420 (3d Cir. 1987); Varnes v.
Glass Bottle Blowers Local 91, 674 F.2d 1365, 1369 (11th Cir. 1982);
Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980); Affanato v.
Merrill Bros., 547 F.2d 138, 140 (1st Cir. 1977); but see Dimmitt &
Owens Financial, Inc. v. U.S., 787 F.2d 1186, 1192–1193 (7th Cir.
1986) (stating that Seventh Circuit has moved away from its traditional
position of disfavoring default judgments because overworked condi-
tion of that circuit’s district courts “makes us reluctant to insist on the
resurrection of deceased lawsuits”).
18 See, e.g., Mitchell v. Brown & Williamson Tobacco Corp., 294
F.3d 1309, 1316–1317 (11th Cir 2002); Lewis v. Lynn, 236 F.3d 766,
767 (5th Cir. 2001) (per curiam); Coyante v. Puerto Rico Ports Author-
ity, 105 F.3d 17, 23 (1st Cir. 1997); Cody v. Mello, 59 F.3d 13, 15 (2d
Cir. 1995); Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984) (per cu-
riam); United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705
F.2d 839, 845 (6th Cir. 1983).
19 Mitchell, supra, 294 F.3d at 1316–1317; Lewis, supra, 236 F.3d at
767; Rogers v. Hartford Life & Accident Insurance Co., 167 F.3d 933,
936 (5th Cir. 1999); Coyante, supra, 105 F.3d at 23; Cody, supra, 59
F.3d at 15; Falk, supra, 739 F.2d at 463; United Coin Meter, supra, 705
F.2d at 845.
20 Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993).
21 Jackson, supra, 636 F.2d at 836.
22 American States Insurance, supra, 178 F.R.D. at 521.
heightened when the party held in default appears pro
se,” and an entry of default against a pro se party should
be “freely” set aside.23 Where the responsive pleading is
only marginally untimely, granting a default judgment is
like “deploy[ing] a howitzer to deter a gnat.”24
In the Federal judicial system, defaults are governed
by Federal Rule of Civil Procedure 55. Rule 55 sets
forth a two-step process. When a party has failed to
plead or otherwise defend “as provided by these rules”—
such as by missing the deadline for filing an answer—an
entry of default may be obtained from the clerk of court.
Having obtained an entry of default, the nondefaulting
party may then move for a default judgment. An entry of
default may be set aside “for good cause shown,” and a
default judgment “in accordance with Rule 60(b).”25
Rule 60(b), in turn, sets forth a number of grounds for
vacating any final judgment or order, including inadver-
tence and excusable neglect.
Once a default judgment has been entered, the public
policy favoring finality of judgments comes into play.26
Accordingly, an entry of default is more easily set aside
than is a default judgment.27 In deciding whether good
cause exists to set aside an entry of default, most courts
consider three factors: the merits of the defaulting
party’s defense, that party’s culpability in failing to
timely plead, and whether any party would suffer preju-
dice were the default set aside.28 Ultimately, however,
the “good cause” standard for setting aside an entry of
default authorizes the courts to consider “a panoply of
relevant equitable factors . . . in a practical, common-
sense manner, without rigid adherence to, or undue reli-
ance upon, a mechanical formula.”29
In evaluating whether the defaulting party has asserted
a meritorious defense, “[t]he underlying concern is to
determine whether there is some possibility that the out-
come of the suit after a full trial will be contrary to the
result achieved by the default.”30 Accordingly, the de-
23 Enron Oil Corp., supra, 10 F.3d at 96.
24 American States Insurance, supra, 178 F.R.D. at 522.
25 Fed.R.Civ.P. 55(c).
26 See, e.g., Weiss v. St. Paul Fire & Marine Ins. Co., 283 F.3d 790,
794 (6th Cir. 2002), cert. denied 537 U.S. 883 (2002); Nationwide
Mutual Fire Insurance Co. v. Rankin, 199 F.R.D. 498, 503 (W.D.N.Y.
2001).
27 See 10A Charles Alan Wright et al., Federal Practice & Proce-
dure § 2694 (3d ed. 1998).
28 10 James Wm. Moore et al., Moore’s Federal Practice ¶¶
55.50(1)(b)(ii), (iii) (3d ed. 2003); 10A Federal Practice & Procedure
§ 2696, at 145–149.
29 KPS & Associates, Inc. v. Designs by FMC, Inc., 318 F.3d 1, 12
(1st Cir. 2003); see 10A Federal Practice & Procedure § 2696, at 143
(“[A] motion under Rule 55(c) is addressed to the trial court’s discre-
tion, which is exercised in light of all the circumstances of the individ-
ual situation.”).
30 10A Federal Practice & Procedure § 2697, at 163.
PATRICIAN ASSISTED LIVING FACILITY 1159
faulting party must do more than merely assert that it has
a defense; rather, it must allege facts that, if proved,
would make out a cognizable defense.31
As to culpability, the issue is whether the default was
the result of inadvertence or excusable neglect,32 on the
one hand, or gross negligence or willfulness on the
other.33 As the Supreme Court has explained, “excusable
neglect” does not mean a total absence of culpability,
since the word neglect “encompasses . . . omissions
caused by carelessness.” 34 Thus, “excusable neglect” is
not limited solely to situations where a party fails to take
a required action due to circumstances beyond its con-
trol.35 The determination of whether any particular in-
stance of neglect is “excusable” “is at bottom an equita-
ble one, taking account of all relevant circumstances sur-
rounding the party’s omission.”36 A marginal failure to
comply with time requirements may be properly ex-
cused,37 and a vigorous defense cuts strongly against
finding the previous delay willful.38 Even where a de-
fendant’s conduct has been found culpable, an entry of
default has been set aside based on the remaining factors
of a meritorious defense and absence of prejudice to the
plaintiff.39
With regard to the third factor, prejudice to the moving
party, the issue is not one of mere delay, “but rather its
accompanying dangers: loss of evidence, increased dif-
ficulties of discovery, or an enhanced opportunity for
fraud or collusion.”40 There is no prejudice where the
denial of a default judgment merely requires the moving
party to prove its case.41 Finally, where the government
is the plaintiff, equity compels a particularly close ex-
amination of the relevant factors.42

31 10 Moore’s Federal Practice ¶ 55.50(1)(b)(ii).
32 Fed.R.Civ.P. 60(b)(1).
33 10A Federal Practice & Procedure § 2696, at 149–150.
34 Pioneer Investment Servs. Co. v. Brunswick Assocs. Limited Part-
nership, 507 U.S. 380, 388 (1993).
35 Id.
36 Id. at 395.
37 10A Federal Practice & Procedure § 2695, at 127–128; American
States Ins., supra, 178 F.R.D. at 521–522.
38 Schofield, supra, 197 F.R.D. at 8.
39 See Berthelsen v. Kane, 907 F.2d 617, 622 (6th Cir. 1990) (setting
aside entry of default despite defendant’s culpability in evading service
of process).
40 FDIC v. Francisco Investment Corp., 873 F.2d 474, 479 (1st Cir.
1989); accord: e.g., Johnson v. Dayton Electric Mfg. Co., 140 F.3d 781,
785 (8th Cir. 1998) (citing Berthelsen, supra, 907 F.2d at 621); see also
Powerserve International, Inc. v. Lavi, 239 F.3d 508 (2d Cir. 2001)
(motion to set aside entry of default denied because record showed risk
that defendants might collude to place their assets beyond reach, and
defendants failed to post required bond to secure plaintiff’s interests).
41 Lacy, supra, 227 F.3d at 293.
42 Francisco Investment Corp., supra, 873 F.2d at 478–479.
Discussion and Analysis
“The interests of a litigant in an administrative pro-
ceeding are as worthy of protection as those in a district
court.”43 In my view, the interests of litigants, and of
justice itself, call for a far more flexible approach to ad-
judicating defaults. The Board’s approach has been de-
fended as necessary because of our heavy caseload.44
With respect, due process and fundamental fairness
should trump administrative efficiency. Again, we have
expressed, as a matter of policy, our preference for merits
determinations.45 Our decisions should not be to the con-
trary.
As previously stated, the Federal rules provide for the
setting aside of both an entry of default and a default
judgment. The same factors apply in either context, but
the former is more readily reopened than the latter. In
Board practice, a respondent’s posture on a Motion for
Default Judgment is similar to that of a court defendant
against whom a default has been entered but not yet ad-
judged. Having failed to file an answer in conformity
with the requirements of Section 102.20, the respondent
does not immediately suffer a default judgment, but
rather is put on notice by the Board that it must show
“good cause” why default judgment should not be en-
tered against it. This is the same standard for setting
aside an entry of default under Rule 55(c). Moreover,
because judgment has not yet been entered, the policy in
favor of finality does not apply. In assessing a respon-
dent’s “good cause” showing, therefore, I would apply
the “good cause” standard as interpreted by the courts in
deciding whether to set aside an entry of default.46
In applying that standard, three factors typically will
be material: the reason or reasons the answer was un-
timely, the merits of the respondent’s defense, and
whether any party would suffer prejudice were the de-
fault set aside. Where appropriate, however, my analysis
will take into consideration other relevant factors “in a
practical, commonsense manner, without rigid adherence
to, or undue reliance upon, a mechanical formula.”47
43 Livingston Powdered Metal, supra, 669 F.2d at 136.
44 National Book Consolidators, Inc. v. NLRB, 672 F.2d 323, 330 (3d
Cir. 1982) (Rosenn, J., dissenting).
45 Paolicelli, supra, 335 NLRB 881, 882; M.J. McNally, Inc., supra,
302 NLRB at 120.
46 For a similar analysis, see Odaly’s Management Corp., 292 NLRB
1283, 1286 fn. 3 (1989) (then-Chairman Stephens, concurring). By the
same token, where a respondent makes no appearance until after a
default has been adjudged, finality interests would counsel a somewhat
closer scrutiny of the respondent’s showing on a motion for reconsid-
eration. Again, however, the same factors would apply: the merits of
the respondent’s defense, the reasons for untimeliness, and prejudice to
the other parties.
47 KPS & Associates, supra, 318 F.3d at 12. Ideally, a late-
answering respondent will set forth the merits of its defense in its re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1160
Turning first to the reasons for the answer’s untimeli-
ness, I take note of the following. The Respondent is
unrepresented by counsel and did not fully appreciate the
draconian consequences of missing an answering dead-
line in Board proceedings.48 This is not surprising for a
pro se litigant. The General Counsel’s complaints are
typically couched in legalese and meant for lawyers, not
the persons on whom they are generally served. Further,
the answer was only marginally late; and the vigor with
which the Respondent now contests the allegations
against it, and the evident care with which it prepared its
response to our Notice to Show Cause, make it plain that
the default was not willful.
The next consideration is whether the Respondent has
articulated a meritorious defense. According to the
charge filed by. Marshall, the Respondent discharged
Marshall and Williams for protesting the Respondent’s
failure to provide employees with proper protective
clothing for handling patients’ bodily fluids. Sargent’s
affidavit is to the contrary. According to that affidavit,
the relevant events began when Sargent accepted a pa-
tient infected with Hepatitis C and wearing a colostomy
bag. After employees expressed concerns about dealing
with this patient, they were advised that adequate protec-
tive clothing was available, consisting of double rubber
gloves, goggles, and plastic aprons. Nevertheless, Mar-
shall and Williams refused to provide care to this patient,
which resulted in his colostomy bag overflowing. Sar-
gent left voicemail messages for these employees direct-
ing them to see her before reporting back to work. Ac-
cording to Sargent, she wanted to meet with Marshall
and Williams in order to explain once again the proce-

sponse to the Notice to Show Cause, or in an affidavit attached thereto,
as the Respondent has done here. However, it would be both unrealis-
tic and unfair to insist on such a showing in every case. Nothing in the
Board’s applicable controlling precedent or in the boilerplate language
of its Notice to Show Cause puts a late-answering respondent on notice
of the need to explain its defense, as opposed to simply admitting or
denying the several allegations of the complaint without further com-
ment. By contrast, an abundance of precedent puts a Federal-court
defendant on notice that it must set forth the merits of its defense in
order to obtain relief from a default. Accordingly, unless and until
controlling Board precedent furnishes similar notice to late-answering
respondents in Board cases, and the Notice to Show Cause is revised
accordingly, I will overlook a respondent’s failure to explain the merits
of its defense in its response to the Notice to Show Cause where other
relevant factors favor denying the Motion for Default Judgment.
48 My colleagues conclude that the Respondent had “ample time” to
retain counsel. In fact, however, less than a month elapsed between the
service of the complaint and the answer-filing deadline. My colleagues
also conclude that the Respondent had “ample . . . ability” to retain
counsel. However, the record discloses nothing about the availability at
the relevant time, on short notice, and within the Respondent’s market
and means, of the diminishing supply of traditional labor lawyers—that
is, attorneys who have developed an expertise in both the Act and the
Board’s practices and procedures.
dures available for their protection. However, neither
employee ever reported to work again. If credited, Sar-
gent’s representations would compel dismissal of the
instant 8(a)(1) allegation against the Respondent. Thus,
the Respondent has presented a facially meritorious de-
fense.
Finally, no party would be prejudiced were the General
Counsel’s motion for default judgment denied. There is
no showing that relevant evidence has been lost or that
the General Counsel’s witnesses have become unavail-
able. Neither would Marshall or Williams suffer preju-
dice. Should the General Counsel prevail after a hearing,
the Board would order the Respondent to reinstate them
and make them whole. The mere fact that a hearing
would delay this remedy does not constitute prejudice.
My colleagues note that I cite no judicial criticism of
the Board’s approach to its interpretation of Section
120.20. The majority can take little comfort from this
fact. The Board has been criticized for its harsh applica-
tion of other procedural rules, such as those dealing with
the late filing of exceptions to decisions of an administra-
tive law judge. See NLRB v. Washington Star, supra;
NLRB v. Central Mercedita, Inc. 273 F.2d 370 (1st Cir.
1959). The absence of judicial criticism of the Board’s
interpretation of Section 102.20 is not judicial approval,
but more likely than not the result of few no-answer
cases being taken on appeal to the circuit courts. In cases
involving the late filing of exceptions, such as those cited
above, the respondent is generally represented by counsel
and has the financial wherewithal to file an appeal. In
no-answer cases, as here, the late-filing party is often pro
se or at least does not have counsel at the time the Board
complaint is served.
My colleagues further assert that my approach would
“undermine” Section 102.20’s “good cause” standard
because it would result in “finding ‘good cause’ even
when a respondent deliberately disregards the timely-
answer requirement.” Perhaps I have not made myself
sufficiently clear. I have no intention of countenancing
willful disregard of the Board’s Rules. However, there is
a difference between willful disregard and excusable
neglect. Here, I find the latter. My colleagues also say
that my approach will lead to “unwarranted delay and a
waste of administrative resources.” It probably will re-
sult in some delay, but such delay is warranted—
particularly where, as here, the Respondent has asserted
facts that, if proved, would constitute a complete de-
fense. Contrary to my colleagues, giving the Respondent
the opportunity to prove those facts at a hearing would
hardly be a waste of the Board’s resources, since the
Board has stated that it prefers deciding cases on their
merits.
PATRICIAN ASSISTED LIVING FACILITY 1161
My colleagues also point to certain differences be-
tween Board and court procedure as a reason for declin-
ing to follow the approach I endorse. I acknowledge the
difference, but I think it argues in favor of my approach.
As my colleagues point out, unlike a complaint in a court
action, a Board complaint is preceded by an official gov-
ernment investigation, which “brings [the General Coun-
sel] into contact with the respondent,” and during which
the respondent is “given the opportunity to present its
position to the General Counsel.” Because of its pre-
complaint communications with the General Counsel,
however, the respondent reasonably may think that it has
already answered the charges against it before the com-
plaint ever issues. Indeed, this very misunderstanding is
a recurring feature of the Board’s default judgment case
law.49 It has even led the Board to carve out an excep-
tion to its typically inflexible stance and accept precom-
plaint position statements as answers in certain cases.50
Thus, while my colleagues rely on the Board’s precom-
plaint investigative process as a reason for rejecting my
approach, the Board has evidently found in that same
process reasons for greater flexibility.
But it is not just the Respondent’s perspective that
matters here; it is the General Counsel’s as well. While a
respondent may reasonably think that it has already an-
swered the charges against it well before the complaint
ever issues, so also the General Counsel often knows
what a respondent’s position is before he receives the
formal answer. Indeed, where the respondent has told its
side of the story in a precomplaint position statement,
and then, in its answer, simply denied the operative alle-
gations of the complaint, the General Counsel is actually
better informed of a respondent’s defense by the pre-
complaint statement than by the answer. I am not sug-
gesting that the answer is unimportant. I am, however,
suggesting that there is a certain “rule for rule’s sake”
formalism to the Board’s rigid enforcement of its answer
deadline where the General Counsel may well already
know, before the answer is filed, what a respondent’s
defense will be. As my colleagues point out, this state of

49 See, e.g., Associated Interior Contractors, 339 NLRB 18 (2003);
Mail Handlers Local 329 (Postal Service), 319 NLRB 847 (1995);
Wheeler Mfg. Corp., 296 NLRB 6 (1989); Printing Methods, Inc., 289
NLRB 1231 (1988).
50 See Central States Xpress, 324 NLRB 442, 444 (1997); Mid-
Wilshire Health Care Center, 331 NLRB 1032, 1033–1034 (2000). My
colleagues point out that the Board’s willingness to accept precom-
plaint position statements as sufficient answers in these cases hinged on
the fact that they were either attached to, or incorporated by reference
in, a timely answer. That is true. The Board has been nothing if not
consistent in its inflexible insistence that its answer deadline be met.
That is the very problem I am addressing here.
affairs is unlike court litigation, where the answer comes
first and fact investigation follows by way of discovery.
Unlike my colleagues, however, I think this difference
should prompt the Board to be more tolerant of missed
answer deadlines than are the courts. Instead, it is the
other way around.
Accordingly, I would deny the General Counsel’s Mo-
tion for Default Judgment.
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 vio-
lated 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 discharge our employees and fail to rein-
state them because of their protected concerted activities.
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, within 14 days from the date of the Board’s
Order, offer Synthia Marshall and Wykeithia Williams
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Synthia Marshall and Wykeithia Wil-
liams whole for any loss of earnings and other benefits
resulting from their unlawful discharge, less any net in-
terim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Synthia Marshall and Wykeithia Wil-
liams, and WE WILL, within 3 days thereafter, notify them
in writing that this has been done and that the unlawful
discharge will not be used against them in any way.

PATRICIAN ASSISTED LIVING FACILITY