Duro Pleating

National Labor Relations Board - Board Decisions

May 25, 1995

317 N.L.R.B. 614 (N.L.R.B. 1995)

614
317 NLRB No. 97
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The only significant difference between the new and original
complaints is that the new complaint alleges the unlawful discharge
of only two of the three employees. By separate order dated Novem-
ber 15, 1994, the Regional Director approved withdrawal of that por-
tion of the charge, and dismissed that portion of the complaint, per-
taining to the third employee.
2 Form NLRB-4775, the settlement agreement form used here, ex-
pressly provides that approval of the settlement agreement ‘‘shall
constitute withdrawal of any Complaint(s) and Notice of Hearing
heretofore issued in this case, as well as any answer(s) filed in re-
sponse.’’ (Emphasis added.)
3 See, e.g., Orange Data, Inc., 274 NLRB 1018 (1985); Ofalco
Properties, 281 NLRB 84 (1986); and Signage Systems, 312 NLRB
1115 (1993).
4 See Bricklayers Local 31, 309 NLRB 970 (1992), and cases cited
in fn. 5.
Duro Pleating, Inc. and Erotida Bonachea. Case 22–
CA–19581
May 25, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
Upon a charge filed by Erotida Bonachea, an indi-
vidual, on November 17, 1993, the General Counsel of
the National Labor Relations Board issued a complaint
on February 28, 1994, against Duro Pleating, Inc., the
Respondent, alleging that it violated Section 8(a)(1) of
the National Labor Relations Act by discharging three
employees. On May 16, 1994, the Respondent filed an
answer to the complaint.
Thereafter, on November 15, 1994, the Regional Di-
rector approved an informal settlement agreement be-
tween the Respondent and the Charging Party in dis-
position of the complaint. On January 26, 1995, how-
ever, the Regional Director issued an order revoking
the informal settlement agreement and a new com-
plaint realleging essentially the same allegations con-
tained in the original complaint,1 on the ground that
the Respondent had failed to comply with the settle-
ment agreement.
Although properly served copies of the January 26,
1995 complaint, the Respondent failed to file an an-
swer thereto. Accordingly, on March 13, 1995, the
General Counsel filed a Motion for Summary Judg-
ment with the Board. On March 15, 1995, the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. On March 30, 1995, the Re-
spondent filed an Order to Show Cause as to why the
Petitioner’s Motion for Summary Judgment should not
be granted. On April 3, 1995, the General Counsel
filed a response to the Respondent’s Order to Show
Cause.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
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 an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the January 26,
1995 complaint affirmatively notes that unless an an-
swer is filed within 14 days of service, all the allega-
tions in the complaint will be considered admitted.
Further, the undisputed allegations in the Motion for
Summary Judgment disclose that the Region, by letter
dated February 22, 1995, notified the Respondent that
unless an answer were received by March 1, 1995, a
Motion for Summary Judgment would be filed. Never-
theless, as indicated above, the Respondent failed to
file an answer to the January 26, 1995 complaint.
Although the Respondent did file an answer to the
original complaint, that answer was withdrawn by the
explicit terms of the settlement agreement,2 and was
not thereafter revived by the Regional Director’s order
vacating and setting aside the settlement. Thus, as the
Respondent’s answer to the original complaint does
not remain extant, it does not preclude summary judg-
ment.3
In its Order to Show Cause the Respondent asserts
that its failure to file an answer was a result of the Re-
spondent’s attorney not being ‘‘familiar with the for-
mat of the documents which were received on January
26, 1995.’’ According to the Respondent, the com-
plaint was contained in an order and ‘‘stated nothing
concerning a time of answer.’’ The Respondent filed
an answer with its Order to Show Cause.
Contrary to the Respondent, we find that the Re-
spondent’s failure to file a timely answer has not been
supported by a showing of good cause. The Respond-
ent admittedly received from the Regional Director a
document dated January 26, 1995, with the caption,
‘‘Order Revoking Informal Settlement Agreement,
Complaint and Notice of Hearing,’’ and this document
clearly states, inter alia, that the Respondent must file
an answer within 14 days of service pursuant to Sec-
tions 102.20 and 102.21 of the Board’s Rules and Reg-
ulations. Further, by letter dated February 22, 1995,
the Regional attorney informed the Respondent that no
answer had been received, that the time for filing an
answer was extended until March 1, 1995, and that if
an answer was not received by that date, a Motion for
Default Judgment would be filed.
In light of the Respondent’s having received clear
notice of its obligation to file a timely answer, the Re-
spondent’s attorney’s claim of unfamiliarity with the
Board’s documents does not constitute good cause for
the Respondent’s late filing of its answer.4 We there-
615DURO PLEATING
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
fore decline to accept the answer that the Respondent
filed with its Order to Show Cause.
Accordingly, in the absence of good cause being
shown for the failure to file a timely answer to the
January 26, 1995 complaint, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a corporation,
with an office and place of business in North Bergen,
New Jersey, has been engaged in the pleating of gar-
ments for other business entities. During the 12 months
preceding issuance of the complaint, the Respondent,
in conducting its business operations, provided services
valued in excess of $50,000 for other companies in the
garment industry within the State of New Jersey that
are directly engaged in interstate commerce. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On an unknown date in early November 1993, the
Respondent’s employees Erotida Bonachea, Sonia
Cepeda, and others concertedly complained to the Re-
spondent regarding the wages, hours, and working con-
ditions of the Respondent’s employees, by requesting
that the method of employee compensation be
changed.
About November 9, 1993, the Respondent dis-
charged Erotida Bonachea and Sonia Cepeda because
they had engaged in the foregoing conduct and to dis-
courage employees from engaging in these and other
concerted activities.
CONCLUSION OF LAW
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 guaran-
teed them by Section 7 of the Act, and has thereby en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent unlawfully
discharged Erotida Bonachea and Sonia Cepeda on
November 9, 1993, we shall order the Respondent to
offer these employees immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or any other rights and privileges pre-
viously enjoyed, and to make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). The Respondent shall also be
required to expunge from its files any and all ref-
erences to the unlawful discharges, and to notify the
discriminatees in writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Duro Pleating, Inc., North Bergen, New
Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engaged in protected con-
certed activities or to discourage employees from en-
gaging in such activities.
(b) In any like or related manner interfering with,
restraining, 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) Offer immediate and full reinstatement to Erotida
Bonachea and Sonia Cepeda to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or any
rights and privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
with interest, in the manner set forth in the remedy
section of the decision.
(b) Remove from its files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in North Bergen, New Jersey,
copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Re-
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
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 notices are not
altered, defaced or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against our employees because they engage in pro-
tected concerted activities or to discourage employees
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 offer immediate and full reinstatement to
Erotida Bonachea and Sonia Cepeda to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority
or any other rights and privileges previously enjoyed,
and make them whole for any loss of earnings and
other benefits suffered as a result of our discrimination
against them, with interest.
WE WILL remove from our files any references to
the unlawful discharge of the employees and WE WILL
notify them in writing that this has been done and that
the action will not be used against them in any way.
DURO PLEATING, INC.