Artesia Ready Mix Concrete, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1224 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224
Artesia Ready Mix Concrete, Inc.; The Artesia Com-
panies, Inc.; and Artesia Ready Mix Concrete,
Inc./The Artesia Companies, Inc. and Operating
Engineers Local 3, International Union of Oper-
ating Engineers, AFL–CIO. Cases 32–CA–
18823–1 and 32–CA–19385–1
August 21, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
The General Counsel in this case seeks a default judg-
ment1 on the ground that the Respondent has failed to file
an answer to the complaint. On a charge and an
amended charge filed by the Union on April 4, 2001, and
January 24, 2002, respectively, in Case 32–CA–18823–1,
and a charge and amended charge filed by the Union on
January 29, and March 18, 2002, respectively, in Case
32–CA–19835–1, the General Counsel issued an order
consolidating cases, amended complaint and notice of
hearing on April 30, 2002, against Artesia Ready Mix
Concrete, Inc. (Artesia Ready Mix); The Artesia Compa-
nies, Inc. (Artesia Companies); and Artesia Ready Mix
Concrete, Inc./The Artesia Companies, Inc. (Artesia
Ready Mix/Artesia Companies), collectively the Re-
spondent, alleging that it has violated Section 8(a)(1) and
(5) of the Act. The Respondent failed to file an answer.
On June 14, 2002, the General Counsel filed a Motion
for Summary Judgment with the Board. On June 19,
2002, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed no
response. The allegations in the motion are therefore
undisputed.
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 affirmatively states
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Default Judgment disclose that the Region, by
letter dated June 4, 2002, notified the Respondent that
unless an answer were received by June 11, 2002, a mo-
tion for default judgment would be filed.

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer. Accordingly,
we construe the General Counsel’s motion as a Motion for Default
Judgment.
In the absence of good cause being shown for the fail-
ure to file an answer, and for the reasons further set forth
below, we grant the General Counsel’s Motion for De-
fault Judgment in its entirety.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Artesia Ready Mix, a California
corporation, with an office and place of business in Tu-
lare, California, has been engaged in the manufacture and
nonretail and retail distribution of ready mix concrete
and related products.
During the 12-month period preceding issuance of the
complaint, Artesia Ready Mix, in the course and conduct
of its business operations, sold and shipped goods valued
in excess of $50,000 directly to customers or business
enterprises inside the State of California who themselves
meet one of the Board’s jurisdictional standards, other
than the direct inflow or indirect outflow standards.
At all times material, Artesia Companies, a California
corporation, with an office and place of business in Tu-
lare, California, has been engaged in the manufacture and
nonretail and retail distribution of ready mix concrete
and related products.
During the 12-month period preceding issuance of the
complaint, Artesia Companies, in the course and conduct
of its business operations, sold and shipped goods valued
in excess of $50,000 directly to customers or business
enterprises inside the State of California who themselves
meet one of the Board’s jurisdictional standards, other
than the indirect inflow or indirect outflow standards.
At all material times, Artesia Ready Mix and Artesia
Companies have been affiliated business enterprises with
common officers, ownership, directors, management, and
supervision and have formulated and administered a
common labor policy.
Based on their operations described above, Artesia
Ready Mix and Artesia Companies (herein above and
hereinafter referred to as “Artesia Ready Mix/Artesia
Companies”), have constituted a single-integrated busi-
ness enterprise and a single employer within the meaning
of the Act.
We find that Respondent Artesia Ready Mix/Artesia
Companies, is now, and has been at all material times, 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.
At all material times, the following-named individuals
have occupied the positions set forth opposite their re-
spective names, and are now, and/or have been at all ma-
339 NLRB No. 159
ARTESIA READY MIX CONCRETE, INC. 1225
terial times, supervisors of Artesia Ready Mix and of
Artesia Ready Mix/Artesia Companies within the mean-
ing of Section 2(11) of the Act and agents of Artesia
Ready Mix and of Artesia Ready Mix/Artesia Companies
within the meaning of Section 2(13) of the Act:

Rune Kraft Owner, Chief Executive Officer
Al Oliver President
James Pennington General Manager
Diane Yunt Director of Human Resources

II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of Artesia Ready Mix consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:

All full-time and regular part-time production and
maintenance employees and drivers employed at Ar-
tesia Ready Mix’s Tulare, Farmersville, Lemoore,
Woodlake (Dry Creek) and Pixley, California facilities;
excluding all other employees, guards, and supervisors
as defined in the Act.

Since at least June 19, 1998, and at all times material,
the Union has been the designated exclusive collective-
bargaining representative of the employees in the unit,
and since that date the Union has been recognized as
such representative by Artesia Ready Mix. Such recog-
nition has been embodied in a collective-bargaining
agreement, called the Agreement, which was effective
for the period June 19, 1998, through December 31,
2000.
At all times since at least June 19, 1998, the Union, by
virtue of Section 9(a) of the Act, has been, and is, the
exclusive representative of the employees in the unit for
the purpose of collective bargaining with respect to pay,
wages, hours of employment, and other terms and condi-
tions of employment.
On numerous occasions since late 2000, the Union and
Artesia Ready Mix met to negotiate a successor collec-
tive-bargaining agreement to the Agreement.
During the entire course of the negotiations, Artesia
Ready Mix and/or Artesia Ready Mix/Artesia Companies
failed to invest Artesia Ready Mix’s bargaining represen-
tatives with sufficient authority to conduct meaningful
bargaining in the negotiations.
During the entire course of the negotiations, Artesia
Ready Mix and/or Artesia Ready Mix/Artesia Companies
has diverted income and assets of Artesia Ready Mix to
Artesia Companies, and/or to Artesia Ready Mix/Artesia
Companies while simultaneously misrepresenting Artesia
Ready Mix’s financial condition to the Union, all in or-
der to avoid Artesia Ready Mix’s obligation to bargain
with the Union in good faith.
The Union did not know of the acts and conduct de-
scribed above until a date in November 2001.
On numerous occasions since June 29, 2001, and con-
tinuing to date, Artesia Ready Mix and/or Artesia Ready
Mix/Artesia Companies assigned unit work to nonunit
employees, called the “work assignment transfers.”
The work assignment transfers relate to the wages,
rates of pay, hours of employment. and other terms and
conditions of employment of the Unit and are a manda-
tory subject for the purposes of collective bargaining.
Artesia Ready Mix and/or Artesia Ready Mix/Artesia
Companies engaged in the work assignment transfers
without prior notice to the Union and without affording
the Union an opportunity to negotiate and bargain as the
exclusive representative of the employees in the Union
with respect to the work assignment transfers and their
effects.
Since on or about March 19, 2001, the Union, by let-
ter, has requested that Artesia Ready Mix provide it with
certain information relating to the relationship between
Artesia Ready Mix and Artesia Companies. The infor-
mation is necessary for, and relevant to, the Union’s per-
formance of its function as the exclusive collective-
bargaining representative of employees in the unit.
Since on or about March 19, 2001, Artesia Ready Mix
has failed and refused, and continues to fail and refuse, to
provide the Union with the information it requested.
CONCLUSIONS OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused, and is failing and refusing, to
bargain collectively and in good faith with the exclusive
collective-bargaining representative of its employees and
has thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (5),
and (d), and Section 2(6) and (7) of the Act.
Our dissenting colleague would deny the General
Counsel’s Motion for Default Judgment with respect to
the allegation that the Respondent failed to provide in-
formation regarding the relationship between Artesia
Ready Mix Concrete, Inc., and the Artesia Companies.
In his view, the complaint is not well pleaded and there-
fore it cannot support a default judgment. Our colleague
observes that an employer is under no duty to furnish
information relating to nonunit matters unless the union
demonstrates the relevance of the information at the time
of the request. In our colleague’s view, because the
complaint fails to recite that the Union made such a
demonstration to the Respondent, it is not well pleaded.
We disagree. The central fact of this case is that the
Respondent has failed to file an answer to the complaint,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226
and has thereby effectively admitted all the complaint
allegations. See Section 102.20 of the Board’s Rules and
Regulations. Thus, the Respondent admits that the Un-
ion is the exclusive bargaining representative of its em-
ployees in an appropriate unit; that about March 19,
2001, the Union requested the Respondent to “provide it
with certain information relating to the relationship be-
tween Artesia Ready Mix and Artesia Companies;” that
all the requested information is “necessary for, and rele-
vant to, the Union’s performance of its function as the
exclusive collective-bargaining representative of em-
ployees in the Unit;” that since about March 19, 2001,
the Respondent has failed and refused to furnish the Un-
ion with the requested information; and that, by this con-
duct, it violated Section 8(a)(5) and (1) of the Act. Un-
der the Board’s decisions, the Respondent’s admission of
these complaint allegations amply supports an unfair
labor practice finding. See, e.g., SS & E Electric, Inc.,
338 NLRB No. 149 (2003) (not reported in Board vol-
umes); U.S. Electric, Inc., 339 NLRB No. 52 (2003) (not
reported in Board volumes); Hastings Industries, 338
NLRB 861 fn. 2 (2003); and Tower Automotive, 322
NLRB 499, 500 (1996) (default summary judgment
granted with respect to the union’s request for nonunit
information based on the complaint’s allegation of rele-
vance).2
Our colleague’s contrary view is based on a mistaken
view of what constitutes a well-pleaded complaint under
the Board’s law and procedures. It is those standards of
course, which govern this case. Section 102.15 of the
Board’s Rules and Regulations requires only that a com-
plaint contain “a clear and concise description of the acts
which are claimed to constitute unfair labor practices,
including, where known, the approximate dates and
places of such acts and the names of respondent’s agents
or other representatives by whom committed.” Applying
this rule, the Board and the courts have consistently
found that an unfair labor practice complaint is not
judged by the strict standards applicable to certain plead-

2 Excel Rehabilitation & Health Center, 336 NLRB No. 10 (2001)
(not reported in Board volumes), cited by our colleague, is clearly
distinguishable. In Excel, a test-of-certification summary judgment
case, the respondent filed an answer denying the relevance of the sub-
contracting information sought by the Union. Thus, the respondent in
Excel put the relevance of the requested information in issue, and in
that circumstance the Board deemed summary judgment inappropriate.
Here, in contrast, the Respondent has not contested the relevancy of the
nonunit information. Indeed, by its failure to file an answer, the Re-
spondent has admitted not only that the nonunit information is relevant
to the Union’s performance of its collective-bargaining duties, but also
that Respondent violated the Act by refusing to provide that relevant
information.

ings in other, different legal contexts. As the Sixth Cir-
cuit stated over 60 years ago:
The sole function of the complaint is to advise the re-
spondent of the charges constituting unfair labor prac-
tices as defined in the Act, that he may have due notice
and a full opportunity for hearing thereon. The Act
does not require the particularity of pleading of an in-
dictment or information, nor the elements of a cause
like a declaration at law or a bill in equity. All that is
requisite in a valid complaint before the Board is that
there be a plain statement of the things claimed to con-
stitute an unfair labor practice that respondent may be
put upon his defense.
NLRB v. Piqua Munising Wood Products Co., 109 F.2d
552, 557 (6th Cir. 1940).3
Our colleague’s position with respect to pleading re-
quirements is apparently derived from his dissatisfaction
with the Board’s default judgment procedures which are
governed by Sections 102.20 and 102.56 of the Board’s
Rules and Regulations, and from his preference for the
approach taken under the Federal Rules of Civil Proce-
dure.4 But there are critical distinctions between the
Board’s administrative process and civil litigation in fed-
eral court. See Morgan’s Holiday Markets, 333 NLRB
837, 839 (2001). As the Board recently explained in
response to our colleague’s similar arguments in Patri-
cian Assisted Living Facility, 339 NLRB 1153 (2003):

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.
3 See also Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169
(D.C. Cir. 1993), cert. denied 511 U.S. 1003 (1994) (complaint need
not include legal theory); Curtiss-Wright Corp., Wright Aeronautical
Division v. NLRB, 347 F.2d 61, 72 (3d Cir. 1965) (complaint “need
state only the manner by which the unfair labor practice has been or is
being committed”); American Newspaper Publishers Assn. v. NLRB,
193 F.2d 782, 799–800 (7th Cir. 1951), affd. 345 U.S. 100 (1953)
(quoting Piqua Munising Wood Products, supra); NLRB v. Red Arrow
Freight Lines, Inc., 180 F.2d 585, 587 (5th Cir. 1950) cert. denied 340
U.S. 823 (1950); (“strictness of common law pleading” inapplicable);
Consumers Power Co. v. NLRB, 113 F.2d 38, 43 (6th Cir. 1940)
(“[m]atters of evidence need not be recited in the complaint”); Coul-
ter’s Carpet Service, 338 NLRB 732, 735 (2002); and Boilermakers
Local 363 (Fluor Corp.), 123 NLRB 1877, 1913 (1959).
4 See, e.g., KBI Security Service v. NLRB, 91 F.3d 291, 295 (2d Cir.
1996) (upholding Board decision deeming allegations admitted under
Sec. 102.20); and Father & Sons Lumber v. NLRB, 931 F.2d 1093,
1096 (6th Cir. 1991) (affirming default judgment for failure to file a
timely answer to backpay specification under Sec. 102.56). See also
NLRB v. Continental Hagen Corp., 932 F.2d 828, 831 (9th Cir. 1991);
NLRB v. Dane County Dairy, 795 F.2d 1313, 1320–1321 (7th Cir.
1986); NLRB v. Aaron Convalescent Home, 479 F.2d 736, 738 (6th Cir.
1973).
ARTESIA READY MIX CONCRETE, INC. 1227
See id. The General Counsel, a neutral government
official, investigates that charge, which necessarily
brings him into contact with the respondent. Only if
and when the General 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 respon-
dent fails to file a timely answer to the complaint, de-
spite repeated warnings of the consequences, the
situation is not analogous to that of a defendant in
civil litigation. The administrative process has been
under way for a significant period.

339 NLRB at 1154. See also Piqua Munising Wood Prod-
ucts, supra, 109 F.2d at 557 (observing that Board’s pro-
ceedings are taken in the public interest).
Applying these principles, we find that the complaint
here provided the Respondent with sufficient notice of
the basis of the General Counsel’s claim. Thus, as indi-
cated above, the complaint alleges that the Union is the
exclusive bargaining representative; that the Union re-
quested the Respondent to provide it with information
relating to the relationship between Artesia Ready Mix
and Artesia Companies; that the requested information is
necessary and relevant; that the Respondent has failed to
furnish the requested information; and that the Respon-
dent has thereby violated Section 8(a)(5) and (1) of the
Act. There is no unfairness then, in holding the Respon-
dent liable based on its failure to respond.
It is true that, had the Respondent answered the com-
plaint and placed the matters in issue, the General Coun-
sel would have had to present evidence either: (1) that
the Union demonstrated the relevance of the nonunit in-
formation at the time of the request; or (2) that the rele-
vance of the information should have been apparent to
the Respondent under the circumstances.5 However, it
was not necessary to allege such facts in order to place
the Respondent on notice of the claim against it. Our
dissenting colleague mistakes an evidentiary requirement
for a pleading requirement. See generally Swierkiewicz
v. Sorema N.A., 534 U.S. 506 (2002) (Title VII com-
plaint need not plead facts establishing prima facie case).
Further, even assuming, arguendo, that it was necessary
to allege such facts, we find, consistent with the Board

5 See Allison Corp., 330 NLRB 1363, 1367 fn. 23 (2000); Brazos
Electric Power Cooperative, Inc., 241 NLRB 1016, 1018–1019 (1979),
enfd. in relevant part 615 F.2d 1100 (5th Cir. 1980); see also Ohio
Power Co., 216 NLRB 987, 990 fn. 9 (1975) (finding that sufficiency
of information request should not be determined solely from the request
itself, but should be judged in light of the entire pattern of facts avail-
able to the employer), enfd. 531 F.2d 1381 (6th Cir. 1981).
precedent cited earlier,6 that they may be reasonably in-
ferred from the allegations that the requested information
is relevant and necessary and that the Respondent unlaw-
fully refused to provide it.
In sum, contrary to our colleague, we find that the
complaint allegation that the Respondent failed to pro-
vide information regarding the relationship between Ar-
tesia Ready Mix Concrete, Inc., and the Artesia Compa-
nies is “well pleaded.” As a result, a default judgment
based on the Respondent’s failure to answer the com-
plaint is proper.
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 has violated Section 8(a)(1)
and (5) by: (1) failing to invest its bargaining representa-
tives with sufficient authority to conduct meaningful
bargaining in the negotiations; (2) diverting income and
assets while misrepresenting its financial condition to the
Union in order to avoid its obligation to bargain with the
Union; (3) assigning unit work to nonunit employees;
and (4) refusing to provide the Union with requested
information, we shall order the Respondent to bargain in
good faith with the Union, invest its collective-
bargaining representatives with sufficient authority to
conduct meaningful negotiations with the Union, restore
the terms and conditions of employment in effect before
the Respondent’s unlawful unilateral changes, and make
the unit employees whole for any loss of earnings and
other benefits attributable to its unlawful conduct, in ac-
cordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). We shall also order the Respondent
to furnish to the Union in a timely manner the informa-
tion it requested on March 19, 2001.
ORDER
The National Labor Relations Board orders that the
Respondent, Artesia Ready Mix Concrete, Inc.; The Ar-
tesia Companies, Inc.; and Artesia Ready Mix Concrete,
Inc./The Artesia Companies, Inc., Tulare, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Operating Engineers Local 3, International Union of Op-
erating Engineers, AFL–CIO, and failing to invest the
6 See SS & E Electric, Inc., supra; U.S. Electric, supra; Hastings In-
dustries, supra; and Tower Automotive, 322 NLRB 499, 500 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228
Respondent’s collective-bargaining representatives with
sufficient authority to conduct meaningful negotiations
with the Union for the employees in the following ap-
propriate unit:
All full-time and regular part-time production and
maintenance employees and drivers employed at Ar-
tesia Ready Mix’s Tulare, Farmersville, Lemoore,
Woodlake (Dry Creek) and Pixley, California facilities;
excluding all other employees, guards, and supervisors
as defined in the Act.

(b) Diverting income and assets while simultaneously
misrepresenting Artesia Ready Mix’s financial condition
to the Union in order to avoid its obligation to bargain
with the Union in good faith.
(c) Unilaterally assigning unit work to nonunit em-
ployees.
(d) Failing to provide the Union the relevant and nec-
essary information it requested on March 19, 2001.
(e) 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) On request, bargain in good faith with Operating
Engineers Local 3, International Union of Operating En-
gineers, AFL–CIO as the exclusive representative of the
employees in the above unit concerning terms and condi-
tions of employment, and if an understanding is reached,
embody the understanding in a signed agreement.
(b) Invest the Respondent’s collective-bargaining rep-
resentatives with sufficient authority to conduct mean-
ingful negotiations with the Union.
(c) Restore the terms and conditions of employment in
effect before the Respondent’s unlawful unilateral
changes, and make the unit employees whole for any loss
of earnings and other benefits attributable to its unlawful
conduct, as set forth in the remedy section of this deci-
sion.
(d) Furnish to the Union in a timely manner the infor-
mation it requested on March 19, 2001.
(e) 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 elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facilities in Tulare, Farmersville, Lemoore, Woodlake
(Dry Creek), and Pixley, California, copies of the notice
marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 32, after
being signed by the Respondent’s authorized representa-
tive, 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 Respon-
dent to ensure that the notices are not 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 cur-
rent employees and former employees employed by the
Respondent at any time since November 2000.
(g) 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 com-
ply.

MEMBER SCHAUMBER, dissenting in part.
The General Counsel’s motion is in the nature of a mo-
tion for default judgment. While“[a] default judgment is
unassailable on the merits, [it is so] only so far as it is
supported by well pleaded allegations assumed to be
true.” Nishimatsu Construction Co. v. Houston National
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975), citing Thom-
son v. Wooster, 114 U.S. 104 (1885)1 (emphasis added).

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 Cited with approval in Winters v. U. S., 207 U.S. 564, 574–575
(1908) (5 of 10 defendants against whom default judgment was entered
could not have the judgment set aside unless it was improperly granted
because the relief sought was not sufficiently pled); Ohio Cent. R. Co.
v. Central Trust Co., 133 U.S. 83, 91 (1890) (“If the allegations are
distinct and positive, they may be taken as true without proof; but if
they are indefinite, or the demand of the complainant is in its nature
uncertain, the requisite certainty must be afforded by proof.”); Ryan v.
Homecomings Financial Network, 253 F.3d 778, 780 (4th Cir. 2001)
(referring to Thomson v. Wooster as the “venerable but still definitive”
Supreme Court case addressing well-pled complaints, and holding that
despite lienholder’s failure to answer, the debtors were not entitled to
default judgment because the complaint was not well pled); (Chu-
dasama v. Mazda Motor Corp., 123 F.3d 1353, 1371 (11th Cir. 1997)
(holding that district court abused its discretion by granting a default
judgment on a complaint that was not well pled because it did not state
a valid cause of action)); Comdyne I, Inc. v. Corbin, 908 F.2d 1142,
1149 (3d Cir. 1990) (recognizing that under Thomson v. Wooster, only
the facts alleged in the complaint and not the amount of damages are
taken to be true at default judgment); Alan Neuman Productions, Inc. v.
Albright, 862 F.2d 1388, 1392 (9th Cir. 1989) (allowing the defendant
to challenge the sufficiency of the unanswered complaint on appeal,
ARTESIA READY MIX CONCRETE, INC. 1229
Conversely, claims that are not well pleaded cannot sup-
port a default judgment. Thomson v. Wooster, supra.
These principles are not archaic holdovers from the
common law or legal niceties that can be dispensed with
when it is convenient to do so. On the contrary, the Su-
preme Court and the lower federal courts have consis-
tently held that “[t]he binding character of the decree . . .
renders it proper that this degree of precaution be taken.”
Id. at 109.2 It is for this reason that I must respectfully
dissent.
It cannot be gainsaid that the General Counsel’s com-
plaint did not allege the elements of the unfair labor prac-
tice my colleagues find the Respondent committed. This
is so because, as here, when information requested by a
union is not presumptively relevant to the union’s per-
formance as bargaining representative, the burden is on
the union to demonstrate its relevance when the informa-
tion is requested from the employer. The Board has
clearly held that without such a demonstration, the em-
ployer is under no duty to respond. Excel Rehabilitation
& Health Center, 336 NLRB No. 10, slip op. at 1 fn. 1
(2001) (Excel) (not reported in Board volumes). In Ex-
cel, the Board refused to find a Section 8(a)(5) refusal-to-
bargain violation to the extent that information not pre-
sumptively relevant was involved, stating as follows:

The Board has held that subcontracting information
like that requested by the Union in item 6 is not pre-
sumptively relevant and therefore a union seeking such
information must demonstrate its relevance. Sunrise
Health & Rehabilitation Center, 332 NLRB [1304]
(2000); Associated Ready Mixed Concrete, 318 NLRB
318 (1995), enfd, 108 F.3d 1182 (9th Cir. 1997). Here,

and finding that the complaint failed to allege fraud with sufficient
particularity under Fed.R.Civ.P. 9(b)); Cannon v. Exum, 799 F.2d 751
(4th Cir. 1986) (holding that “default judgment may be lawfully entered
only ‘according to what is proper to be decreed upon the statements of
the bill, assumed to be true,’ and not ‘as of course according to the
prayer of the bill”) (quoting Thomson v. Wooster); Compton v. Alton
S.S. Co., 608 F.2d 96, 105 (4th Cir. 1979) (recognizing Thomson v.
Wooster as the longstanding rule regarding well pled complaints and
default judgment); Tallman v. Ladd, 5 F.2d 582, 584 (4th Cir. 1925)
(finding the allegations of the bill insufficient to support the district
court’s decree); National Sur. Co. v. Leflore County, Miss., 262 F. 325,
329 (5th Cir. 1919) (discussing the holdings in Thomson v. Wooster and
Winters v. U.S., and applying them as the rules regarding well pled
complaints and default judgments).
2 In Thomson v. Wooster, supra, the defendant objected to the judg-
ment entered against him. After discussing the English chancery pro-
cedure of granting default judgment only after an ex parte examination
of the case, the Court observed that under U.S. civil law, default judg-
ment is granted when a properly served defendant fails to appear before
the court or answer a complaint. Such judgments are as binding and
conclusive as any other judgment rendered by the court. Consequently,
care must be taken that complaints are properly pled.
the Union did not specify in its request why it wanted
the subcontracting information, or otherwise demon-
strate its relevance. This, however, does not excuse the
Respondent’s failure to provide all of the other infor-
mation requested by the Union, which we have found is
presumptively relevant.

Excel, slip op. at 1 fn. 1 (emphasis added).
My colleagues describe the Board’s decision in Excel
as “clearly distinguishable” because “the Respondent
filed an answer denying the relevance of the subcontract-
ing information sought by the union.” In fact, the Re-
spondent filed an answer in Excel denying the relevance
of all the information requested, not just the subcontract-
ing information. Leaving that aside, the distinction my
colleagues raise is a distinction without a difference. It is
the principle of Board law clearly enunciated in Excel
upon which I rely and which my colleagues do not con-
test, namely, that an employer has no duty to furnish
nonpresumptively relevant information unless the union
“specif[ies] in its request why it wanted the . . . informa-
tion, or otherwise demonstrate[s] its relevance.” Conse-
quently, an employer cannot properly be held to have
violated the Act for a failure to respond to a union re-
quest if such a demonstration was not made by the union
at the time of the request, whether the issue is raised on a
motion for a default judgment, a motion for summary
judgment, or in a hearing on the merits.
While I believe that it would be good practice for em-
ployers to respond to union requests for information that
are not presumptively relevant if only to ask for the nec-
essary showing of relevance, Board law places the bur-
den on the union to demonstrate the information’s rele-
vance. Since the General Counsel’s complaint did not
allege that such a demonstration was made, the com-
plaint is not well pleaded and it cannot properly support
the entry of a default judgment against the Respondent.
Thomson v. Wooster, supra.
My colleagues disagree, observing that the complaint
alleges that the information sought was relevant, and
adding that by not answering the complaint, Respondent
is deemed to have admitted the truth of that allegation. I
do not disagree with the majority’s observation, but the
Respondent cannot be deemed to have admitted that the
Union demonstrated to the Respondent the information’s
relevance, which is a necessary element of the violation.
If the Union did not make such a demonstration to the
Respondent at the time of the request, the Respondent
had no duty to respond, and its failure to respond will not
support a violation of Section 8(a)(5).
Here, we have no way of knowing whether such a
demonstration was made—the motion papers are silent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230
on the issue and, as mentioned, the complaint does not
allege that such a demonstration was made—or whether
counsel for the General Counsel is simply guilty of
sloppy pleading. The law requires—and I respectfully
suggest that we, the Board, must require—something
more.3 Apart from the clear instructions on this point in
Thomson v. Wooster and its progeny, supervisory im-
peratives require it.
The General Counsel acts as the prosecutorial arm of
the agency. When we fail to impose on the General
Counsel before entering a default judgment at his request
the substantive standards the law requires, we send the
wrong message. Further, if the binding and conclusive
character of a default judgment entered without an ex
parte inquiry into the sufficiency of the movant’s evi-
dence prompted the Supreme Court in Thomson v. Woos-
ter to remind lower federal courts that default judgments
cannot properly be entered on a complaint which is not
well pled, a fortiori default judgments should not be en-
tered by the Board on complaints, such as the one here,
which do not properly allege a violation of the Act. This
is so because default judgments entered by the Board are
far more difficult to have set aside than are those entered
by a court. Federal courts view default judgments with
disfavor, as a drastic remedy to be reserved for extreme
circumstances and rare occasions. See, e.g., American
States Ins. Corp. v. Technical Surfacing, Inc., 178 F.R.D.
518 (D. Minn. 1998). Accordingly, they set aside de-
faults for good cause under a flexible, multifactor stan-
dard that is sensitive to the equities of particular cases.
See, e.g., KPS & Associates, Inc. v. Designs by FMC,
Inc., 318 F.3d 1, 12 (1st Cir. 2003). In Board cases, by
contrast, a failure to file a timely answer all but inevita-
bly results in a default judgment, which is difficult, if not
impossible, to have set aside. While theoretically, an
untimely respondent can avoid a default judgment on a
showing of “good cause,” see Board Rules & Regula-
tions Section 102.20, the Board interprets that standard in
such a way that “good cause” is virtually never found to
exist. The Board’s strictness in this regard makes it all
the more imperative that a motion for default judgment
be denied where, as here, the complaint’s allegations fail
to make out a cognizable violation of the Act.4

3 In my view, in cases of this nature, it would be appropriate for the
General Counsel to attach to his Motion for Summary Judgment, as an
exhibit supplementing the complaint, a copy of the union’s showing of
relevance to the employer at the time of the request for information.
Since granting a motion such as the one before us is within the Board’s
discretion, such an attachment would permit the Board to exercise its
discretion on a complete record.
4 For a full explanation of my views concerning the Board’s default
judgment practice, including my response to the distinction the majority

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 ac-
tivities.

WE WILL NOT fail and refuse to bargain in good faith
with Operating Engineers Local 3, International Union of
Operating Engineers, AFL–CIO, and WE WILL NOT fail to
invest our representatives with sufficient authority to
conduct meaningful negotiations with the Union for our
employees in the following unit:

All full-time and regular part-time production and
maintenance employees and drivers employed at Ar-
tesia Ready Mix’s Tulare, Farmersville, Lemoore,
Woodlake (Dry Creek) and Pixley, California facilities;
excluding all other employees, guards, and supervisors
as defined in the Act.

WE WILL NOT divert income and assets and misrepre-
sent our financial condition to the Union in order to
avoid our obligation to bargain with the Union.
WE WILL NOT unilaterally assign unit work to nonunit
employees.
WE WILL NOT fail to provide the Union with relevant
and necessary information it requested on March 19,
2001.
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, on request, bargain in good faith with the
Operating Engineers Local 3, International Union of Op-
erating Engineers, AFL–CIO, and put in writing and sign
any agreement reached on terms and conditions of em-
ployment for our employees and WE WILL invest our bar-
gaining representatives with sufficient authority to con-
duct meaningful bargaining with the Union.

draws between court and Board litigation, see my dissent in Patrician
Assisted Living Facility, 339 NLRB 1153 (2003).
ARTESIA READY MIX CONCRETE, INC. 1231
WE WILL restore the terms and conditions of employ-
ment in effect before our unlawful unilateral changes,
and make the unit employees whole for any loss of earn-
ings and other benefits attributable to our unlawful con-
duct, with interest.
WE WILL provide the Union with information it re-
quested on March 19, 2001.
ARTESIA READY MIX CONCRETE, INC., THE
ARTESIA COMPANIES, INC., AND ARTESIA
READY MIX CONCRETE, INC./THE ARTESIA
COMPANIEES, INC.