Clean and Shine

National Labor Relations Board - Board Decisions

Apr 21, 1981

255 N.L.R.B. 1144 (N.L.R.B. 1981)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clean and Shine and Union Trabajadores Indus-
triales De Puerto Rico. Case 24-CA-4341
April 21, 1981
ORDER DENYING MOTION
On December 5, 1980,1 the Board issued a Deci-
sion and Order2 in this case in which it granted the
General Counsel's Motion for Summary Judgment
on the ground that Respondent Clean and Shine
had failed to file an answer to the complaint and
found that Respondent had violated Section 8(a)(1)
and (3) of the Act, as alleged in the complaint.3
Thereafter, on December 23, Respondent, in an un-
timely manner, filed a brief with the Board oppos-
ing the General Counsel's Motion for Summary
Judgment. 4 In its brief, Respondent contends that
the Board lacks jurisdiction over it but that, for the
reasons stated below, it has not been afforded the
opportunity to present evidence in support of its
contention.
Thus, Respondent asserts that its failure to file an
answer to the complaint was the result of a mistak-
en belief that the proceedings before the Board
were related to a separate matter which it had
pending before the Department of Labor. Further-
more, it claims that upon discovering its error on
or about September 10, it immediately sought the
advice of a Board agent who allegedly informed
Respondent that "it was too late, that nothing
could be done and that [Respondent] should not
even be bothered in writing to Washington since
Washington is pro-labor and any position would
therefore be answered in the negative." Respond-
ent asserts it relied on that "advice" and told the
Board agent to figure out how much it owed. 5 In
view of the above, Respondent contends that the
Board should vacate its Decision and Order in this
case and either deny the General Counsel's Motion
for Summary Judgment and dismiss the complaint
in its entirety or direct that a hearing be held so
that Respondent could present evidence establish-
ing the Board's lack of jurisdiction over it. We find
no merit to Respondent's contention.
On the basis of the above facts, which are de-
rived solely from Respondent's brief, it is apparent
I All dates hereinafter are in 1980, unless otherwise indicated.
a 253 NLRB 610.
3 On September 5, the Board had issued to Respondent a Notice To
Show Cause, by September 19, why the General Counsel's Motion for
Summary Judgment should not be granted. Respondent having failed to
reply to the Notice To Show Cause, the Board, pursuant to Sec. 102.20
of its Rules and Regulations, Series 8, as amended, deemed all of the alle-
gations in the complaint to be admitted as true.
4 In view of the nature of the allegations raised by Respondent in its
brief (discussed infra) and inasmuch as the brief was filed within the
period of time allowed for the filing of a motion for reconsideration, we
have decided to treat this as a motion for reconsideration of the Board's
Decision and Order cited in fn. 2, supra.
I Apparently Respondent was not represented by counsel at the time.
255 NLRB No. 150
that Respondent's admitted failure to answer the
complaint was the result of its own negligence.
Thus, the complaint and notice of hearing, which
was duly served on Respondent, clearly states that
the proceedings herein had been instituted by the
General Counsel of the National Labor Relations
Board, that a hearing would be held at a hearing
room located at the Board's Regional Office at the
time and date specified therein, and that an answer
to the complaint was required. Furthermore, in a
subsequent letter containing the address and tele-
phone number of the Board's Regional Office, the
Regional Director advised Respondent that it had
failed to answer the complaint as required and fur-
ther advised that, if Respondent did not file an
answer by the time specified in the letter, the Gen-
eral Counsel would move for a default judgment
against it. Under these circumstances, we find that
Respondent knew or should have known that the
Board proceedings were in no way related to the
proceeding which it purportedly had pending
before the Department of Labor and that Respond-
ent's failure to file an answer based on that mistak-
en belief cannot constitute good cause under the
Board's Rules and Regulations. 6
We also find no merit to the argument that Re-
spondent's failure to file a timely answer to the
Board's Notice To Show Cause is excused by its
reliance on the Board agent's alleged misrepresen-
tations. In this regard, we note that aside from the
bare assertions made in its brief, which was submit-
ted by Respondent's attorney, no supporting affida-
vit from the person to whom these alleged misrep-
resentations were made was submitted by Respond-
ent in support of this allegation. Furthermore, as-
suming arguendo that the alleged misrepresentations
were in fact made, Respondent, as noted above,
had been duly served with a Notice To Show
Cause advising it that a response to the General
Counsel's Motion for Summary Judgment was due
by September 19, 9 days hence. Under these cir-
cumstances, we find that Respondent had been put
on notice of what was required of it to oppose the
summary judgment, and thus was in a position to
determine that the Board agent's remarks were in-
correct7 and that in fact it still had sufficient time
in which to file a timely response. Additionally, we
note that, even after having been afforded two sep-
arate opportunities in which to file an answer to
the complaint and after having learned that the in-
' See Sec. 102.20 of the Board's Rules and Regulations, Series 8, as
amended.
? See Capilol Temptrol Corporation, 243 NLRB 5751 (1979), and Stoke-
ly-Van Camp. Inc.. and Bordo Products Co.. d/b/a Stokely-Bordo, 130
NLRB 869 (1961), in which the Board, inter alia, held that it is not bound
to any informal or personal advice given by Board agents to parties in-
volved in Board proceedings.
CLEAN AND SHINE 1145
stant proceedings were not related to the Depart-
ment of Labor matter, Respondent did not file, nor
request permission to file, a late answer to the com-
plaint. 8 Moreover, Respondent, by its own admis-
sion, did not attempt to seek legal counsel until
recommended to do so by a Board agent during a
conference held on November 17 on an unrelated
representational matter.9 In view of the foregoing,
' Nor has it done so to this date.
9 According to Respondent, during the November 17 conference held
in Case 24-RC-6556, the Board agent in charge, noting Respondent's un-
familiarity with Board proceedings, asked Respondent if it was represent-
ed by counsel. When Respondent replied in the negative, the conference
was postponed until the following day to allow Respondent an opportu-
nity to retain legal counsel. The following day, Respondent appeared
we find that Respondent has offered no valid rea-
sons why the Board's Decision and Order in this
case should be vacated and we shall, accordingly,
deny its motion for reconsideration.
It is hereby ordered that Respondent's motion
for reconsideration be, and it hereby is, denied as
lacking in merit.
with its attorney and, for the first time. questioned the Board's jurisdic-
tion over it. Prior to a hearing, the petition in Case 24-RC-6556 was
withdrawn and Respondent, contending that it was denied the opportuni-
ty to present evidence in support of its jurisdictional argument. has, with
its brief, submitted evidence which it contends establishes the Board's
lack of jurisdiction over it. However. having carefully considered the
evidence submitted by Respondent, we find that it fails to establish that
the Board lacks jurisdiction over it. Consequently. we find Respondent's
contention in this regard to be without merit.