Calyer Architectural Woodworking Corp.

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 315 (N.L.R.B. 2002)

CALYER ARCHITECTURAL WOODWORKING CORP. 315
Calyer Architectural Woodworking Corp. and United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO, New York District Council
of Carpenters. Case 29–CA–24762
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On June 3, 2002, Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.
The issue raised in this case is whether the judge prop-
erly granted the General Counsel’s Motion for Default
Summary Judgment. The General Counsel argues that
summary judgment was appropriate because the Respon-
dent neither answered the complaint nor filed an exten-
sion of time to do so. The Respondent argues that sum-
mary judgment was improper, despite its nonanswer,
because it ultimately appeared pro se at the hearing and
was prepared at that time to defend against the allega-
tions of the complaint. We find that the judge properly
granted the General Counsel’s Motion for Summary
Judgment.1
The Respondent is a woodworking firm wholly owned
and operated by proprietor Rino Buschemi. The com-

1 Contrary to the view of our dissenting colleague, the Board’s Rules
and Regulations clearly permit the judge to entertain and rule on Mo-
tion for Summary Judgment, default or otherwise. Pursuant to Sec.
102.35(a)(8), an administrative law judge has the authority, without
qualification, to “dispose of procedural requests, motions, or similar
matters, including . . . motions for summary judgment. ” Similarly,
Sec. 102.24(a) states that motions made at the hearing are to be made to
the administrative law judge either in writing or orally on the record.
Although the record before us is incomplete as to the General Coun-
sel’s actual Motion for Summary Judgment, the General Counsel’s
brief to the Board indicates that such motion was made at the opening
of the hearing, and the judge’s decision, entitled “Decision on Motion
for Summary Judgment,” indicates that he took such motion under
consideration. Under these circumstances, we think it apparent that
such a motion was, in fact, made to the judge, and we will presume the
regularity of the acts of public officials in the absence of clear evidence
to the contrary. See, e.g., Lutheran Home at Moorestown, 334 NLRB
340, 341 (2001); and Crow Gravel Co., 168 NLRB 1040, 1044 fn. 24
(both relying on U.S. v. Chemical Foundation, Inc., 272 U.S. 1, 14–15
(1926) (presumption of regularity attaches to official acts of public
officers in the absence of clear evidence to the contrary)). Such a pre-
sumption is especially warranted in this case, where the Respondent,
now represented by counsel before the Board, filed no exceptions to the
judge’s decision based on the procedural irregularity alleged by our
dissenting colleague.
plaint alleges that Buschemi unlawfully interrogated em-
ployees regarding their union activities and unlawfully
discharged one employee because of that employee’s
union activity.2 The Respondent failed to answer the
General Counsel’s complaint. Buschemi did, however,
appear at the hearing pro se. When asked by the judge
about his failure to answer the complaint, Buschemi re-
sponded that he had instructed his then-secretary to re-
spond in writing to the complaint, but could not produce
such a letter at the hearing because the secretary is no
longer in his employ and she “[took] all the paperwork.”
The judge explicitly discredited Buschemi’s explanation
for the absence of any document that could be construed
as a responsive pleading.3 The judge then granted the
General Counsel’s Motion for Summary Judgment based
on the Respondent’s failure to file an answer to the Gen-
eral Counsel’s complaint.
The Respondent, now represented by counsel, excepts
to the entry of summary judgment, and argues that even
though it failed to answer the complaint, Buschemi ap-
peared at the hearing pro se and was prepared to defend
against the allegations in the complaint. The Respondent
essentially argues that its pro se status, coupled with
Buschemi’s ultimate appearance at the hearing, constitute
good cause for his failing to file a timely answer. The
Respondent further argues that no prejudice would befall
either the Charging Party or the discriminatee if this mat-
ter was remanded for further proceedings. We find no
merit in the Respondent’s exceptions.
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if no answer is filed within 14
days from service of the complaint, unless good cause is
shown. In considering a party’s noncompliance with the
Board’s Rules, the Board has shown some leniency to-
ward respondents who proceed without the benefit of
counsel. However, these cases generally involve respon-
2 The complaint and notice of hearing was issued by the Regional
Director on March 15, 2002, and required the Respondent to file an
answer by March 29, 2002. The complaint explicitly provided that if
the Respondent failed to file an answer, all of the allegations of the
complaint shall be deemed to be true, and summary judgment may be
entered against the Respondent by the Board. The complaint also ad-
vised the Respondent that a hearing was set on the matter for May 13,
2002. After the Respondent failed to answer the complaint in a timely
fashion, on April 9, 2002, counsel for the General Counsel sent a letter
to Respondent admonishing it to file an answer to the allegations in the
complaint by 5:30 p.m. on April 23, 2002, in order to avoid summary
judgment against it, and reminding the Respondent of the May 13 hear-
ing date. The record contains postal return receipts of both the com-
plaint and the April 9 letter.
3 The Respondent concedes in its brief to the Board that such “letter
was never was never received by the [Regional Office]” and therefore it
has “fail[ed] to formally answer the Complaint at an earlier stage of the
proceedings[.]”
338 NLRB No. 33
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316
dents that have timely filed some written response that
can reasonable be construed as denying the substance of
the allegations contained in the complaint,4 or that have
offered as good cause an explanation other than simply
their pro se status.5 The Board, however, has not ex-
tended that forbearance to uncounseled respondents that
have filed untimely answers, for instance, after the Board
has issued a Notice to Show Cause why summary judg-
ment should not be granted.6 This is true even in cases in
which the respondent asserts that it has cooperated in the
investigation or will ultimately put on a meritorious de-
fense.7 Finally, the Board has held that a party’s “failure
to promptly request an extension of time to file an an-
swer is a factor demonstrating lack of good cause.”8
In this case, the record demonstrates that while pro-
ceeding pro se, the Respondent failed to file any docu-
ment, timely or untimely, that could reasonably be con-
strued as denying the complaint’s allegations. Nor has it
shown good cause for failing to do so. It is undisputed
that the Respondent received both the General Counsel’s
March 15, 2002 complaint as well as the April 9, 2002
followup letter reminding it to answer the complaint and
warning that summary judgment may issue in the ab-
sence of an answer. Upon receipt of both the complaint
and the warning letter, it is further undisputed that Re-
spondent filed neither an answer nor a request for an ex-
tension of time to do so. We consider that Buschemi’s
4 See, e.g., Harborview Electric Construction Co., 315 NLRB 301,
302 (1994) (respondent’s president, acting pro se, timely submitted
letter that was not in proper form, but could reasonably be construed as
denying the allegations in the complaint, thus raising substantial and
material issues of fact warranting a hearing and precluding the entry of
summary judgment); and A.P.S. Production/A. Pimental Steel, 326
NLRB 1296, 1297 (1998) (although pro se respondent filed answer that
did not comply with the signature and service requirements of Sec.
102.21 of the Board’s Rule and Regulations, clear and specific denials
of complaint allegations in the timely answer preclude summary judg-
ment).
5 The Board has held that “merely being unrepresented by counsel
does not establish a good cause explanation for failing to file a timely
answer.” Lockhart Concrete, 336 NLRB 956, 957 (2002).
6 See, e.g., Lockhart Concrete, supra at 956–957 (pro se letter pur-
porting to answer the complaint filed after the Notice to Show Cause
issued failed to explain failure to timely answer or request extension of
time to do so, and therefore did not cure the procedural defect); Su-
preme Trucking Co., 337 NLRB No. 21, slip op at 1–2 (2001) (not
reported in bound volume) (filing, pro se, first response after issuance
of Notice to Show Cause is not by itself good cause for failing to file a
timely answer); Kenco Electric & Signs, 325 NLRB 1118 (1998)
(same).
7 Lockhart, 336 NLRB supra at 956–957 (the Board will not address
a respondent’s assertion that it has a meritorious defense unless good
cause has been shown for the tardy response); Dong-A Daily North
America, 332 NLRB 15, 16 (2000) (same); Day & Zimmerman Ser-
vices, 325 NLRB 1046, 1047 (1998) (same).
8 Dong-A Daily North America, supra at 16 (2000) (citing Day &
Zimmerman Services, 325 NLRB 1046, 1047 (1998)).
ultimate appearance at the hearing with an offer to testify
on his own behalf, following these substantial procedural
defects, is akin to an attempt to answer the complaint in a
untimely fashion, which requires showing of good cause.
Under the precedent cited above, merely being unrepre-
sented by counsel does not constitute good cause for the
failure to file a timely answer, and the other explanations
proffered by the Respondent are also insufficient.9 There-
fore, under these circumstances, we shall adopt the
judge’s recommendation to grant the General Counsel’s
Motion for Summary Judgment.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Calyer Architectural Woodworking Corp.,
Brooklyn, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in un-
ion activity or other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
(b) Coercively interrogating employees about union
support or union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
9 We cannot agree with the Respondent’s assertion that its failure to
file a timely answer should be excused on the ground that it verbally
denied the allegations of the charge in a telephone call with the General
Counsel prior to the issuance of the complaint. Even assuming this
conversation took place, “[t]o permit this to constitute good cause
would effectively nullify the requirements of Section [102].20 [of the
Board’s Rules]. . . .” Sorenson Industries, 290 NLRB 1132, 1133
(1988).
We also reject the Respondent’s claim that remanding this matter to
the judge for hearing will not prejudice the Charging Party or the al-
leged discriminatee. 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.
10 Member Bartlett agrees that a respondent who chooses to proceed
pro se must file some written statement that can be reasonably con-
strued as raising litigable issues with respect to complaint allegations.
The Respondent has failed to establish that it did so, and thus summary
judgment is appropriate. However, in future cases, when dealing with
pro se respondents that have failed to timely answer the complaint,
Member Bartlett believes that the best practice for regional Board of-
fices to follow would be both (1) to send a “warning letter” to the re-
spondent notifying it that summary judgment will be sought if an an-
swer is not filed, and (2) to attempt to contact the respondent by tele-
phone in order to repeat the obligation to file an answer and to clarify
any possible misunderstanding about what will satisfy this obligation.
Although neither the Act nor the Board’s Rules and Regulations require
this practice, Member Bartlett believes that it would best serve the
public’s interests and assure that parties with a viable legal claim have
the opportunity to present it.
CALYER ARCHITECTURAL WOODWORKING CORP. 317
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
Walter E. Clayton Jr. full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make Walter E. Clayton Jr. whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Walter E. Clayton Jr., and within 3 days thereafter notify
him in writing that this has been done and that the dis-
charge will not be used against him 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, social
security payment records, timecards, personnel records
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 facilities in Brooklyn, New York, copies of the attached
notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent 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 current
employees and former employees employed by the Re-
spondent at any time since February 11, 2002.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

11 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.”
MEMBER COWEN, dissenting.
I disagree with my colleagues’ decision to adopt the
judge’s ruling to grant summary judgment in favor of the
General Counsel. The General Counsel never filed a Mo-
tion for Default Summary Judgment with the Board as
contemplated by Section 102.24(a) and (b) of the Board’s
Rules and Regulations. Therefore, I would reverse the
judge’s ruling and remand the case for hearing.
Pursuant to Section 102.24(a) and (b),1 a request for de-
fault summary judgment should be submitted, by the party
seeking such relief, in the form of a written motion to the
Board itself, normally no later than 28 days prior to the
scheduled hearing. Such motions often result in the issu-
ance of a Notice to Show Cause and the postponement of
the scheduled hearing before the judge. Here, without
explanation, the General Counsel failed to follow these
established procedures to the detriment of a pro se respon-
dent prepared to respond to the complaint allegations at
the hearing. As a further consequence, the hearing was not
postponed, and the considerable expense and loss of pro-
ductive time incurred by the parties and the judge could
have been avoided if the General Counsel had followed
the requirements of Section 102.24(a) and (b).
Prior to the hearing, the General Counsel notified the
Respondent that he would seek summary judgment on the
complaint allegations unless an answer was filed by April
23, 2002. Yet, it is undisputed that the General Counsel
never filed a written Motion for Default Summary Judg-
ment with the Board prior to the hearing held on May 13,
2002. In his answering brief to the Respondent’s excep-
tions, the General Counsel claims that at the opening of
the trial he made a Motion for Summary Judgment on the
basis of the Respondent’s alleged failure to file a timely
answer. However, the record before us does not support
this claim. The formal hearing exhibits submitted by the
General Counsel contain no written motion seeking sum-
1 Sec. 102.24(a) and (b) provide, in pertinent part:
(a) All motions for summary judgment or dismissal made
prior to the hearing shall be filed in writing with the Board pursu-
ant to the provisions of section 102.50. . . . All motions made at
the hearing shall be made in writing to the administrative law
judge or stated orally on the record.
(b) All motions for summary judgment or dismissal shall be
filed with the Board no later than 28 days prior to the scheduled
hearing. Where no hearing is scheduled, or where the hearing is
scheduled less than 28 days after the date for filing an answer to
the complaint or compliance specification, whichever is applica-
ble, the motion shall be filed promptly. Upon receipt of the mo-
tion, the Board may deny the motion or issue a notice to show
cause why the motion should not be granted. If a notice to show
cause is issued, the hearing, if scheduled, will normally be post-
poned indefinitely. If a party desires to file an opposition to the
motion prior to issuance of the notice to show cause in order to
prevent postponement of the hearing, it may do so. [Emphasis
added.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 318
mary judgment against the Respondent, and the hearing
transcript has no oral statement on the record by the Gen-
eral Counsel seeking such relief. Thus, it appears that the
judge acted, sua sponte, and improperly granted sum-
mary judgment.2
Therefore, I would reverse the judge’s decision and
order a remand for further proceedings. Once remanded,
if the Respondent, now represented by counsel, fails to
timely answer the complaint, I would permit the General
Counsel to file a default summary judgment with the
Board in accordance with Section 102.24(a) and (b) of
the Board’s Rules.
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 or otherwise discriminate
against any of you because you engage in union activity
or other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL NOT coercively question you about your un-
ion support or 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 Walter E. Clayton Jr. full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.

2 I agree with my colleagues that Sec. 102.35(a)(8) of the Board’s
Rule and Regulations provides that the administrative law judge has the
authority, subject to the Rule and Regulations of the Board, “To dis-
pose of . . . motions for summary judgment.” Nevertheless, as noted
above, there is no evidence in the record that such a Motion for Sum-
mary Judgment was filed or otherwise made under the Board’s Rules
and Regulations. Unlike my colleagues, I am not willing to substitute
speculation for evidence of a properly filed motion.
WE WILL make Walter E. Clayton Jr. whole for any
loss of earnings and other benefits resulting from his
discharge, less any net interim 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 discharge of Walter E. Clayton Jr., and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the discharge will not be used
against him in any way.

CALYER ARCHITECTURAL WOODWORKING
CORP.

Scott R. Cardell, Esq., for the General Counsel.
Rino Buschemi, pro se, for the Respondent.

DECISION ON MOTION FOR SUMMARY JUDGMENT
RAYMOND P. GREEN, Administrative Law Judge. This case
was heard by me in Brooklyn, New York, on May 13, 2002.
The charge and first amended charge were filed on February 13
and March 14, 2002. A complaint and notice of hearing was
issued by the Regional Director of Region 29 on March 15,
2002.
The complaint and notice of hearing stated that the Respon-
dent is required to file an answer with the Regional Director
within 14 days from the service of the complaint. (By March
29, 2002.) The notice further provided that if the Respondent
failed to file an answer all of the allegations in the complaint
shall be deemed to be admitted by it to be true and may so be
found by the Board.
The Respondent failed to file an answer to the complaint.
Additionally, the Regional Office sent a followup letter to the
Respondent reminding it that no answer had been filed and that
to avoid judgment against it the Respondent was required to file
an answer by 5:30 p.m. on April 23, 2002. An examination of
the formal papers (GC Exh. 1) shows that the complaint was
served by certified mail, return receipt requested, on March 15,
2002, and that the followup letter was served in the same man-
ner on April 9, 2002.
At the opening of the hearing, the Respondent’s owner, Rino
Buschemi, appeared in person, but without counsel. He ac-
knowledged receipt of the complaint and his initial response
was that he was not aware that he was required to file an an-
swer. When told that the complaint explicitly required him to
file an answer, he then asserted that he sent some kind of letter
to the Regional Office. However, when asked to produce a
copy of this letter, Buschemi said that he did not have one, as
his secretary had quit and taken the paperwork with her. I don’t
believe him.
Therefore in accordance with Sections 102.20, 102.21, and
102.35 (h) of the Board’s Rules and Regulations, I grant the
General Counsel’s Motion for Summary Judgment and make
the following
FINDINGS AND CONCLUSIONS
1. The Respondent, a corporation with its principal office
and place of business at 325 Calyer Street, Brooklyn, New
CALYER ARCHITECTURAL WOODWORKING CORP. 319
York, has been engaged in the manufacture of architectural
woodworking.
2. During the past year, which is representative of its annual
operations generally, the Respondent, in the course and conduct
of its operations, provided services valued in excess of $50,000
to customers located within the State of New York, who in turn
are directly engaged in interstate commerce.
3. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
4. The Union has been a labor organization with the mean-
ing of Section 2(5) of the Act.
5. Rino Buschemi has been the Respondent’s owner and an
agent of the Respondent acting on its behalf.
6. On or about February 11, 2002, the Respondent, by
Buschemi, at its Brooklyn facility, interrogated employees
about their union activities.
7. On or about February 11, 2002, the Respondent dis-
charged Walter E. Clayton Jr. and since that date had failed to
reinstate or offer to reinstate him to his former position of em-
ployment.
8. The Respondent discharged and failed to reinstate Walter
E. Clayton Jr. because he engaged in union activity and to dis-
courage employees from engaging in such union activities or
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.
9. By the conduct described above, the Respondent has in-
terfered with, restrained, and coerced employees in the exercise
of the rights guaranteed to them by Section 7 of the Act and has
violated Section 8(a)(1) of the Act.
10. By the conduct described above, the Respondent has
discriminated in regard to the hire or tenure or terms or condi-
tions of employment of its employees, thereby discouraging
membership in a labor organization in violation of Section
8(a)(1) and (3) of the Act.
11. The aforesaid violations of the Act affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Walter
E. Clayton Jr., it must offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of his discharge to the date of his
reinstatement or a valid reinstatement offer, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). See also Florida Steel Corp.,
231 NLRB 651 (1977).
[Recommended Order omitted from publication.]