Associated Supermarket

National Labor Relations Board - Board Decisions

Feb 11, 2003

338 N.L.R.B. 780 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 780
Gun Hill Road Meat Corp. d/b/a Associated Super-
market and Pablo de la Cruz Suero and Fran-
cisco Regalado and Alcibiades Contreras and
United Food and Commercial Workers Local
342, AFL–CIO. Cases 2–CA–34286, 2–CA–
34308, 2–CA–34309, and 2–CA–34463
February 11, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
The complaint alleges that the Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act by discriminating against and discharging employees
because of their union activities. The General Counsel
has moved for summary judgment on the ground that the
Respondent failed to file a timely answer to the com-
plaint. For the reasons discussed below, we shall grant
the motion.1
Procedural Background
Upon charges filed by Pablo de la Cruz Suero on Janu-
ary 14, 2002,2 by Francisco Regalado and Alcibiades
Contreras on January 18, and by the United Food and
Commercial Workers Local 342, AFL–CIO on March
21, the General Counsel issued a consolidated complaint
on April 30 against Associated Supermarket, the Re-
spondent, alleging that it has violated Section 8(a)(1) and
(3). Although properly served copies of the charges and
complaint, the Respondent failed to file a timely answer.
On June 27, the General Counsel filed a Motion for
Summary Judgment, with exhibits attached. The Re-
spondent filed an answer to the complaint with the
Board’s Regional Office on June 28. On July 3, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the Motion for
Summary Judgment should not be granted. On August 8,
the Respondent filed a response to the Notice to Show
Cause, with affidavits attached. On August 18, the Gen-
eral Counsel filed a reply brief and motion to strike the
answer to the complaint.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for 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

1 The General Counsel has also moved to strike the Respondent’s
untimely filed answer. Because of our disposition of the case, we find
it unnecessary to address the motion to strike.
2 All dates hereafter are in 2002.
shown. In addition, the complaint explicitly states that
unless an answer is filed within 14 days of service, all the
allegations in the complaint will be deemed admitted and
will be so found by the Board.
The complaint was served by certified mail on the Re-
spondent on April 30. The complaint affirmatively states
that the Respondent had 14 days (or until May 14) to file
an answer. No answer was submitted by the May 14
deadline. On May 22, counsel for the General Counsel
sent a certified letter to the Respondent. That letter
quoted in full Section 102.20 of the Board’s Rules and
Regulations, stated that no answer had been submitted by
the May 14 deadline, and gave the Respondent until May
31 to file an answer. The letter also warned that if the
Respondent failed to file an answer by May 31, counsel
would recommend to the Regional Director that a Motion
for Summary Judgment be filed. On May 23, another
copy of the complaint was sent to the Respondent, to-
gether with a second warning that failure to file an an-
swer by May 31 would lead to a recommendation that a
Motion for Summary Judgment be filed. The Respondent
did not file an answer by the May 31 extended deadline.
On June 27, the General Counsel filed a Motion for
Summary Judgment. On June 28, the Respondent re-
tained counsel to represent it in this matter. That same
day, the Respondent’s counsel prepared and mailed an
answer to the complaint, which was received by the Re-
gion on July 1. On June 28 and July 2, in conversations
with counsel for the General Counsel, the Respondent’s
counsel pointed out that an answer had been filed and
asked the Region to withdraw the Motion for Summary
Judgment. On July 3, counsel for the General Counsel
suggested that the Respondent’s counsel submit the
withdrawal request in writing and he did so. On July 9,
the Respondent’s counsel was informed that the Regional
Director had rejected the request for withdrawal but had
extended the time to file a response to the Notice to
Show Cause until August 9. The Respondent filed that
response on August 8.
In defense of its failure to file a timely answer to the
complaint, the Respondent contends that its owner,
Damian Castillo, is an immigrant whose first language is
not English, that he is unsophisticated in legal matters
and labor relations, and that he believed his submission
during the Region’s investigation of this matter was an
adequate answer.
Contrary to the Respondent, we find that those consid-
erations do not support a showing of good cause. The
Regional Office mailed two copies of the complaint to
the Respondent, and the record reflects that the Respon-
dent received both. The complaint stated clearly that
failure to respond in a timely fashion would result in the
338 NLRB No. 104
ASSOCIATED SUPERMARKET 781
allegations therein being deemed admitted and found to
be true. Moreover, in the May 22 and 23 letters, counsel
for the General Counsel again notified the Respondent of
its obligation to file an answer. Despite repeated warn-
ings, Castillo did not supply an answer to the complaint
until some 6 weeks after the original deadline and 4
weeks after the extended deadline. The Respondent
never advised the Region that it did not understand what
it was required to do. Nor did he request an extension of
time to file an answer. See Lockhart Concrete, 336
NLRB 956, 958 fn. 3 (2001); Day & Zimmerman Ser-
vices, 325 NLRB 1046, 1047 (1998) (“A failure to
promptly request an extension of time to file an answer is
a factor demonstrating lack of good cause.”).3 The Board
has held that such a pattern of repeatedly ignoring the
Board’s procedures and warnings is incompatible with a
showing of good cause. Odaly’s Management Corp.,
292 NLRB 1283, 1284 (1989).4
The Board rejected strikingly similar excuses for the
employer’s failure to file a timely answer in Printing
Methods, Inc., 289 NLRB 1231, 1231 (1988):

Regarding its failure to file a timely answer, the Re-
spondent asserts that its owner, who was not born in this
country and who has lived here for many years but
speaks with an accent, is unfamiliar with Board proceed-
ings and has never been involved in an unfair labor prac-
tice case before; that on several occasions after the com-
plaint issued, the Respondent presented the Board with
both a meritorious defense to the complaint and oral
statements of its position and, in light of ongoing discus-
sions to resolve this case, thought the oral statements
were sufficient; that the Respondent was not represented
by an attorney in this matter and, as soon as it retained
an attorney, it filed an answer.

3 In connection with its suggestion that Castillo’s capacity to under-
stand and comply with the Board’s requirements was impaired by the
fact that he is not a native English speaker, the Respondent asserts that
the Board should have provided him, the owner of a small business,
with translation services. We find that, under the circumstances of this
case, the lack of provision of any language services does not give rise
to good cause, as it is evident that the Respondent owner’s comprehen-
sion of the English language (or the alleged lack thereof) was not the
cause of the Respondent’s failure to file a timely answer. Castillo’s
written submissions to the Board demonstrate an understanding of the
English language. Furthermore, Castillo, in his various telephone calls
(as recounted in Castillo’s affidavit) to counsel for the General Coun-
sel in conjunction with his receipt of the complaint and the General
Counsel’s letters of May 22 and 23, acknowledged that he understood
the need to take some additional action in response to the complaint and
subsequent letters, yet he failed to do so.
4 “It has long been established that an employer must apply no lesser
degree of ‘diligence and promptness’ in NLRA matters than in ‘other
business affairs of importance.’” Carmody, Inc., 327 NLRB 1230,
1231 fn. 6 (1999), citing J. H. Rutter-Rex Mfg. Co., 86 NLRB 470, 506
(1949). The Respondent has not met this standard.

The Board found these purported justifications for
failure to file an answer to be insufficient:

[I]t is undisputed that the General Counsel repeatedly
served copies of the complaint on the Respondent, in-
cluding one that counsel for the General Counsel per-
sonally served on its owner. The complaint indicated
the need to file an answer and that all allegations in the
complaint were to be deemed to be admitted to be true
unless an answer was filed. Further, the General Coun-
sel, in its September 24 letter to the Respondent, ex-
pressly noted that “[n]ot withstanding the fact that we
have entered into settlement discussions, you are still re-
quired to file” an answer and the General Counsel set
September 30 as the last date to file an answer. The Re-
spondent has not offered a sufficient explanation for its
failure to act until about 4 weeks after the extended
deadline for filing a timely answer. Id. at 1231.
In this case we also are unpersuaded by Castillo’s con-
tention that he thought his investigative submission con-
stituted a sufficient answer to the complaint. Even if
Castillo was convinced of the adequacy of those submis-
sions prior to his receipt of the May 22 and 23 letters
from the counsel for the General Counsel, those letters
made it clear that those submissions were inadequate.5
Despite the warnings contained in those letters, Castillo
neither informed the Region that he believed his earlier
submissions constituted an answer nor resubmitted those
position statements intending them to serve as an answer.
Finally, we reject the Respondent’s argument that the
Motion for Summary Judgment should be denied be-
cause the General Counsel was not prejudiced by the
Respondent’s failure to file a timely answer. It is not
necessary to show prejudice to the General Counsel to
require the Respondent to comply with the Board’s
Rules. South Atlantic Trucking, 327 NLRB 534, 535
(1999).
For these reasons, we find that the Respondent has not
shown good cause for its failure to file a timely answer.
We therefore grant the General Counsel’s Motion for
Summary Judgment.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, with an of-
fice and place of business at 320 East Gun Hill Road,
Bronx, New York, engages in the operation of a retail
grocery store. In the course and conduct of its business
5 The Board has consistently held that informal statements of posi-
tion in response to a charge, such as the one submitted by Castillo prior
to the complaint’s issuance here, are insufficient to constitute answers.
See, e.g., Unlimited Security, Inc., 338 NLRB 500, 500 (2002).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 782
operations just described, it annually derives gross reve-
nues in excess of $500,000 and purchases and receives at
its Bronx, New York facility products, goods, and mate-
rials valued in excess of $5000 directly from points out-
side the State of New York. We find that the Respondent
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that United
Food and Commercial Workers Local 342, AFL–CIO is
a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About January 12, the Respondent reduced the hours
of employment of Francisco Regalado and thereafter
subjected him to more onerous working conditions.
About January 7, 12, and 23, the Respondent discharged
Pablo de la Cruz Suero, Alcibiades Contreras, and Fran-
cisco Regalado, respectively, and since those dates has
failed and refused to reinstate or offer to reinstate them to
their former positions of employment. The Respondent
engaged in this discrimination because de la Cruz, Re-
galado, and Contreras engaged in concerted activities for
the purpose of collective bargaining and to discourage
employees from engaging in such activities.
CONCLUSIONS OF LAW
1. By the acts and conduct described above, the Re-
spondent has been interfering with, restraining, and co-
ercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, and has thereby engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. In addition, by the acts and conduct described
above, the Respondent has been discriminating in regard
to hire or tenure or terms and conditions of employment
of its employees, thereby discouraging membership in a
labor organization in violation 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 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.
Having found that the Respondent unlawfully reduced
the hours of employment of Francisco Regalado and sub-
jected him to more onerous work conditions, and has
discharged Regalado, Pablo de la Cruz Suero, and Alci-
biades Contreras, we shall order it to offer them immedi-
ate and full reinstatement to their former positions or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and to
make them whole for any loss of earnings they may have
suffered as a result of the unlawful discrimination. Re-
galado shall be employed at the hours and under the con-
ditions that prevailed before January 12. Backpay shall
be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest to be
computed in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). In addition, the
Respondent will, within 14 days of the issuance of the
enclosed Order, remove from its files any reference to
the unlawful discrimination directed against Pablo de la
Cruz Suero, Francisco Regalado, and Alcibiades
Contreras, and within 3 days thereafter notify them in
writing that this has been done and that the discrimina-
tion will not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Gun Hill Road Meat Corp. d/b/a Associated
Supermarket, Bronx, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Reducing the hours of, imposing more onerous
working conditions on, and discharging employees be-
cause they engage in concerted activities for the purpose
of collective bargaining and to discourage employees
from engaging in any such protected concerted activities.
(b) 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) Within 14 days from the date of this Order, offer
Pablo de la Cruz Suero, Francisco Regalado, and Alci-
biades Contreras full reinstatement to their former posi-
tions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed. Regalado shall be offered employment at the
hours and under the conditions that prevailed before
January 12, 2002.
(b) Make the discriminatees whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, 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 discrimina-
tion directed against Pablo de la Cruz Suero, Francisco
Regalado, and Alcibiades Contreras, and within 3 days
thereafter notify them in writing that this has been done
and that the discrimination 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
ASSOCIATED SUPERMARKET 783
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 backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility at 320 East Gun Hill Road, Bronx, New York,
copies of the attached notice marked “Appendix.”6 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 2, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 Re-
spondent shall mail, at its own expense, a copy of the
notice to all current employees and former employees
employed by the Respondent at any time since January 7,
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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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 a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 reduce employees’ hours, subject them to
more onerous working conditions, or discharge them
because they engage in concerted activities for the pur-
pose of collective bargaining or to discourage them from
engaging in such 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 Pablo de la Cruz Suero, Francisco Regalado,
and Alcibiades Contreras immediate and full reinstate-
ment to their former positions, or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed. Regalado will be offered
employment at the hours and under the conditions that
prevailed before January 12, 2002.
WE WILL make the employees whole for any loss of
earnings and other benefits resulting from the discrimina-
tion against them, less any net interim earnings, plus in-
terest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discrimination, and WE WILL, within 3 days thereafter,
notify the discriminatees in writing that this has been
done and that we will not use the discrimination against
them in any way.

GUN HILL ROAD MEAT CORP. d/b/a ASSO-
CIATED SUPERMARKET