Odaly'S Managment Corp

National Labor Relations Board - Board Decisions

Feb 23, 1989

292 N.L.R.B. 1283 (N.L.R.B. 1989)

ODALY S MANAGEMENT CORP 1283
Odaly's Management Corp and Edwin Elias Case
2-CA-22316
February 23, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a charge filed by Charging Party Edwin
Elias on June 29, 1987,1 the General Counsel of
the National Labor Relations Board issued a com-
plaint August 13 against Odaly's Management
Corp, the Respondent, alleging that it has violated
Section 8(a)(1) and (3) of the National Labor Rela-
tions Act Although properly served copies of the
charge and complaint, the Respondent has failed to
file a timely answer
On November 16 the General Counsel filed a
Motion for Summary Judgment, with exhibits at-
tached On November 19 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 December 14 the Respondent filed
an answer to the complaint with supporting affida
vits in which it opposed the General Counsel's
motion
The National Labor Relations Board has delegat-
ed 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 Regula
tions 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 The complaint states
that unless an answer is filed within 14 days of
service, "all of the allegations in the Complaint
shall be deemed to be admitted to be true and shall
be so found by the Board' Further, the undisputed
allegations in the General Counsel's petition in sup-
port of the Motion for Summary Judgment disclose
that the Respondent was afforded numerous oppor-
tunities to answer the complaint, but repeatedly
failed to do so Thus, after having been served with
a copy of the complaint on August 17, the Re
spondent's president, Rodolfo Foster, informed the
Regional Office on August 26 that he had either
lost or mislaid the complaint That same day, a
second copy of the complaint was mailed to the
Respondent at the address to which the first copy
had been sent On September 14 Examiner Esther
Morales telephoned Foster, who claimed he had
not received the second copy of the complaint
' All dates are in 1987
Morales informed him that another copy would be
sent, that he had until September 28 to answer it,
and that he must make a written request for an ex-
tension of time to file an answer A third copy of
the complaint was mailed to Foster on September
14, but provoked no response 2 Foster did, howev
er, request an extension of time
On October 15, counsel for the General Counsel
sent Foster a certified letter informing him that no
answer had been received and that he would be
given one more chance to respond She also
warned Foster that unless an answer was received
by October 22, the Region would file a Motion for
Summary Judgment with the Board The Respond
ent apparently claimed the letter on October 27,
but still failed to file either an answer or a request
for a further extension of time until after the
Motion for Summary Judgment had been filed and
the Notice to Show Cause had issued 3
In defense of its failure to file a timely answer,
the Respondent asserts that until he retained coun-
sel on November 29, Foster had handled all aspects
of the case pro se The Respondent also claims that
Foster had believed that he had complied with the
Board's procedures by filing a letter dated July 8,
apparently in response to the charge, stating that
Elias had been discharged because of poor job per
formance and constant absenteeism 4 According to
the Respondent, Foster thought his letter constitut
ed a sufficient answer to the allegations and that
the matter would be set for a hearing
On the basis of all the foregoing, we find that
the Respondent's failure to file a timely answer has
not been supported by a showing of good cause
See Rule 102 20 of the Board's Rules and Regula
tions (all allegations to the complaint shall be
deemed to be admitted to be true if ro answer is
filed unless good cause to the contrary is shown)
The Regional Office mailed no fewer than three
copies of the complaint to the Respondent, of
which number it appears that the Respondent re
ceived at least two The complaint stated clearly
that failure to respond in a timely fashion would
result in the allegations therein being deemed to be
admitted and found to be true When Examiner
Morales learned from Foster that he had not re-
ceived the second copy of the complaint, she in-
2 Neither the second nor the third copy of the complaint was returned
to the Regional Office
3 Although counsel for the General Counsel warned Foster that Octo
her 22 was the final deadline for submitting an answer she did not file
the Motion for Summary Judgment immediately on the Respondents fail
ure to file by that date The motion is dated November 9 the scheduled
date for the hearing and was not filed until November 16
41 he Respor dent states in particular that the absenteeism of Elias a
doorman was contributing to the existence of a serious drug problem on
its premises and that Elias had been warned about his job performance
several times before he was discharged
292 NLRB No 140
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formed him that another copy would be sent and
that he would have until September 28 to file an
answer, nevertheless, no answer from the Respond-
ent was forthcoming When Foster was warned in
a certified letter from counsel for the General
Counsel that she would seek summary judgment if
the Respondent did not file an answer by October
22, he did not even claim the letter until October
27 Then, although unquestionably on notice that
the time to file an answer had (at last) run out, the
Respondent still did not attempt to answer the
complaint, or request a further extension of time to
do so, until almost a month after the General
Counsel had moved for summary judgment and the
Board's show cause notice had issued 5 Such a pat
tern of repeatedly ignoring the Board's procedures
and its warnings of the possible consequences is in
compatible with a showing of good cause
We are unpersuaded by Foster's belated assertion
that he thought his letter of July 8 constituted a
sufficient answer to the complaint Although we
can conceive of circumstances in which a respond
ent, unrepresented by counsel, might sincerely
(though erroneously) believe that such a communi
cation constituted an answer,6 those circumstances
do not exist here The Respondent was warned re
peatedly that it was necessary for it to file an
answer At one point, Foster was informed that he
would have to request an extension of time to file
an answer, and he requested an extension It is dif-
ficult to believe that Foster would have made such
a request f he had actually thought he did not
have to file an answer Moreover, there is no indi
cation that Foster ever indicated to anyone at the
Regional Office that he was under the impression
that his July letter constituted an answer-that is,
until the Respondent was served with the show
cause notice Again, we simply cannot believe that
a respondent that really thought it had filed an
answer would do nothing in the face of repeated
official indications to the contrary and warnings
that it was in danger of default 7 Foster's assertion
has all the earmarks of a post hoc rationalization,
and we shall treat it as such
Accordingly, we find that the Respondent has
failed to show good cause why the allegations of
the complaint should not be found to be true,8 and
5Indeed in typical fashion the Respondent waited until December 14
to file its answer and opposition to the Motion for Summary Judgment
I1 days after the December 3 deadline contained in the Notice to Show
Cause
6 See e g Kinnear Corp v Crawford Door Sales Co 49 FRD 3
(D S C 1970) Dalminter Inc v Jessie Edwards Inc 27 FRD 491 (S D
Tex 1961)
7 See Wilson v Moore & Associates 564 F 2d 366 (9th Cir 1977)
8 Member Cracraft does not believe that the multipart test suggested
by her concurring colleague would provide a better framework for deter
mining whether a respondent has shown good cause for failure to file an
we therefore grant the Motion for Summary Judg-
ment 9
FINDINGS OF FACT
I JURISDICTION
The Respondent, a domestic corporation with an
office and place of business at 1035 Grand Con-
course , Bronx , New York, engages in the manage-
ment and/or operation and rental of apartment
buildings, including the buildings located at 1000
Grand Concourse, Bronx, New York, and at 1035
Grand Concourse, Bronx, New York In the course
and conduct of its business operations just de-
scribed, it annually derives gross revenues in excess
of $500,000 We find that the Respondent is an em
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that Local
32-E, Service Employees International Union,
AFL-CIO (the Union), is a labor organization
within the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
About March 27, 1987, the Respondent dis
charged its employee, Edwin Elias, from his em-
ployment at 1035 Grand Concourse, Bronx, New
York, and reduced his hours of employment at
1000 Grand Concourse, Bronx, New York On
April 27, 1987, the Respondent discharged Elias
from his employment at 1000 Grand Concourse,
Bronx, New York Since the dates set forth above
in this paragraph, the Respondent has failed and re-
fused to reinstate, or to offer to reinstate, Elias to
his former positions of employment The Respond-
answer to a complaint Determining good cause is an exercise of the
Board s discretion involving equitable as well as legal considerations in
this regard Member Cracraft finds the test proposed by her concurring
colleague does not provide enough flexibility for considering the equities
of any given case She thinks for example that the Board needs to be
able to consider a respondents reasons for delay when the allegations of
the complaint are substantial and the remedy is wide ranging even if the
respondent has made only a conclusory denial Such a consideration
would not be possible under her concurring colleagues test because a
conclusory denial would not constitute a facially meritorious defense and
would result in an immediate grant of summary judgment Although
Member Cracraft finds that all the factors present in her concurring col
leagues test may be considered by the Board at given times in given
cases she objects to ranking them in the rigid sequence proposed by her
concurring colleague
9 The facts in this case are remarkably similar to those in Printing
Methods 289 NLRB 1231 (1988) In Printing Methods the Board granted
the General Counsels Motion for Summary Judgment against a pro se
respondent that failed to file a timely answer to the complaint even
though it claimed to have alleged a meritorious defense several times fol
lowing issuance of the complaint and thought such allegations were suffi
dent in light of ongoing settlement discussions The Board noted that the
respondent had been served with several copies of the complaint all of
which stressed the need to file an answer that the General Counsel had
explicitly informed the respondent that notwithstanding the pending set
tlement discussions it was still required to file an answer and that even
so the respondent did not file an answer until some 4 weeks after the
extended filing deadline On the entire record the Board makes the fol
lowing
ODALY S MANAGEMENT CORP
ent engaged in the conduct described above in this
paragraph because Elias joined, supported, or as
sisted the Union and engaged in concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, and in order to dis-
courage employees from engaging in such activities
or other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion Accordingly, we find that the Respondent dis-
charged Elias and reduced his hours in violation of
Section 8(a)(3) and (1) of the Act
CONCLUSIONS OF LAW
By the acts described above in the paragraph en-
titled "Alleged Unfair Labor Practices," the Re-
spondent has discriminated, and is discriminating,
in regard to the hire or tenure or terms or condi-
tions of employment of its employees, thereby dis
couraging membership in a labor organization, and
thereby has been engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(3) and (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 designed to effectuate the policies of the
Act
Having found that the Respondent has unlawful-
ly reduced the hours of employment of, and dis-
charged, employee Edwin Elias, we shall order it
to offer Elias immediate and full reinstatement to
his former positions (and, with respect to his posi-
tion at 1000 Grand Concourse, at his former hours
of employment) or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to his seniority or any other rights or
privileges previously enjoyed and to make him
whole for any loss of earnings he may have suf-
fered as a result of his unlawful discharge Backpay
shall be computed in the manner prescribed in
F W Woolworth Co, 90 NLRB 289 (1950), with
interest thereon to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283
NLRB 1173 (1987) 10
ORDER
The National Labor Relations Board orders that
the Respondent, Odaly's Management Corp,
10 The complaint requests that as part of the remedy the Order include
a provision for a visitatorial clause authorizing the Board for compliance
purposes to obtain discovery from the Respondent under the Federal
Rules of Civil Procedure under the supervision of the United States court
of appeals enforcing the Order Under the circumstances of this case we
find it unnecessary to include such a clause Cherokee Marine Terminal
287 NLRB 1080 (1988)
1285
Bronx, New York, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Reducing the hours of, and discharging, em-
ployees because they join, support, or assist labor
organizations or engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to discourage employ-
ees from engaging in any such concerted protected
activities
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Offer Edwin Elias immediate and full rein-
statement to his former positions (and, with respect
to 1000 Grand Concourse, at his former hours of
employment) or, if those positions no longer exist,
to substantially equivalent positions, without preju-
dice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the
manner set forth in the remedy section of the deci-
sion
(b) Remove from its files any reference to the
unlawful discharge of Elias, and notify him in writ-
ing that this has been done and that the discharge
will not be used against him in any way
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, 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 facilities at 1000 Grand Concourse
and 1035 Grand Concourse, Bronx, New York,
copies of the attached notice marked "Appen-
dix "i i Copies of the notice, on forms provided by
the Regional Director for Region 2, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly 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
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 Nation
al 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
1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
CHAIRMAN STEPHENS , concurring
I agree with my colleagues that the General
Counsel 's Motion for Summary Judgment should
be granted However , I am concerned that in this
case and others of this nature the Board has not set
forth consistently or with precision the factors it
considers in deciding whether or not it is proper to
grant summary judgment Accordingly , I write
separately to suggest what is, in my view, a more
coherent and consistent framework for analysis
than the Board has hitherto employed
I observe at the outset that although this pro-
ceeding is nominally one for summary judgment it
is, in substance , one in which the Board determines
whether to enter a default judgment against the
Respondent Livingston Powdered Metal v NLRB,
669 F 2d 133 , 136 (3d Cir 1982) A true summary
judgment is not granted unless the parties are in
agreement concerning the material facts By con
trast , in a default-and in proceedings such as this
one-although the parties are in dispute over the
material facts , one party 's version (here , the Gener-
al Counsel 's) is accepted as true , and the other's is
not considered at all Id Although the party
against whom judgment is sought has come to this
pass because of its own failure to follow the proce
dural rules of the forum , it is nevertheless true that
injustice is more likely to result in these circum
stances than if a hearing were held on the merits
Id For that reason the Board 's rules allow a Re
spondent to avoid summary judgment, even if it
has failed to file a timely answer , if it can show
"good cause" why judgment should not be en-
tered 1
In Livingston , the court of appeals considered the
Board 's entry of summary judgment against the re
spondent according to the standards employed by
appellate courts in determining whether to open
default judgments in the district courts-i e ,
whether the respondent willfully caused the default
whether the respondent had presented a facially
meritorious defense , and whether the General
Counsel or the charging party would be prejudiced
as a result of a delayed decision on the merits 669
F 2d at 136-137 2 The court observed that the re-
I See Sec 102 20 of the Board s Rules and Regulations
2 Other courts of appeals have looked to the elements of willfulness by
the defaulting party possible prejudice to the nondefaulting party and
the existence of a meritorious defense in reviewing lower courts deci
sions entering default or granting default judgments See e g Meehan v
Snow 652 F 2d 274 277 (2d Cir 1981) Keegel v Key West & Caribbean
Trading Co 627 F 2d 372 373 (D C Cir 1980) US v One Parcel of
Real Property 763 F 2d 181 183 (5th Cir 1985) United Coin Meter Co v
Seaboard Coastline Railroad 705 F 2d 839 844 (6th Cir 1983) Farnese v
spondent's attorney, who mailed the answer on the
last day on which it could have been timely re-
ceived, was inexperienced in Board proceedings
and that his practice had been disrupted by person-
al problems It also remarked that the respondent's
filing an untimely answer would not have delayed
a decision on the merits, inasmuch as the answer
was received more than 2 months before the date
scheduled for the hearing "Most compelling," in
the court's view, was the fact that the respondent
had proffered a facially meritonous defense, of
which it had made the General Counsel aware in a
letter responding to a previous charge (that was
later withdrawn) Having found the existence of a
meritorious defense, absence of prejudice to the
General Counsel, and lack of willfulness on the
part of the respondent, the court denied enforce
ment of the Board's order granting summary judg-
ment Id
I think the Board should adopt the Third Cir-
cuit's approach in Livingston for determining
whether a respondent has demonstrated "good
cause" for avoiding summary judgment Thus,
when determining whether a dilatory respondent
has shown "good cause' within the meaning of
Section 102 20 of the Board's rules,3 the Board
should consider first whether the respondent has
enunciated a facially meritorious defense 4 If it has
Bagnasco 687 F 2d 761 764 (3d Cir 1982) To similar effect see Taylor v
Boston & Taunton Transportation Co 720 F 2d 731 733 (1st Cir 1983)
and Breuer Electric Mfg Co v Toronado Systems of America 687 F 2d
182 185 (7th Cir 1982) (each considering defaulting party s culpability
and existence of meritorious defense but not prejudice to nondefaulting
party)
3 The good cause standard contained in Sec 102 20 of the Board s
Rules is analogous to the standard of Fed R Civ P 55(c) under which a
court may set aside a default entry for good cause shown Rule 55(c)
also allows a court to set aside a default judgment in accordance with the
standards of Fed R Civ P 60(b)-i e because of (niter al a) mistake mad
vertence surprise excusable neglect or any other reason justifying relief
from the judgment Court generally consider the standard for setting
aside a defauit entry to be more lenient to the defaulting party than that
for vacating a default judgment Jackson v Beech 636 F 2d 831 835 (D C
Cir 1980) Meehan v Snow supra 652 F 2d at 276 US v One Parcel of
Real Property supra 763 F 2d at 183 Breuer Electric Mfg Co supra 687
F 2d at 187 Feliciano v Reliant Tooling Co 691 F 2d 653 656 (3d Cir
1982) 10 Wright Miller & Kane Federal Practice and Procedure Civil
(2d) sec 2694 ( 1983) even though the same factors are considered in ap
plying either standard Breuer supra at 187 Feliciano supra at 656
Wright Miller & Kane supra sec 2694 In summary judgment proceed
ings such as the instant one the Board s issuance of a show cause order
to the respondent is tantamount o entering a finding of default (but not a
judgment) against the respondent and giving it the opportunity to show
good cause why the default entry should be set aside and why summa
ry judgment should not be granted Should the respondent not demon
strate good cause thei the Board in granting the General Counsels
motion proceeds to issue what is the equivalent of a default judgment
Given the posture of the case when a judgment order has not as yet
been entered the Board should normally use (at least implicitly) the more
lenient standard for setting aside a default entry rather than the standard
associated with setting aside final judgments
4 The respondent s burden of stating a facially meritorious defense is
not a heavy one The respondent should not have to prove its case or
even demonstrate likelihood of success to meet this requirement its alle
Continued
ODALY S MANAGEMENT CORP
not, summary judgment should be granted There
is no point in affording a hearing to a party that
has willfully, or because of inexcusable neglect,
failed to comply with the Board's rules, when the
party has not set forth any theory under which it
might prevail on the merits 5
A respondent should not be able to avoid sum
mary judgment, however, merely by alleging a
meritorious defense 6 To hold otherwise would
make a mockery of the Board's Rules, because any
respondent could thumb its nose at the Board's
processes indefinitely and still escape summary
judgment by filing a belated answer containing
such a defense Instead, when a respondent has al
leged a meritorious defense, the Board should de
termine whether the respondent's tardiness was the
result of willfulness or inexcusable neglect, or
whether, by contrast, it was the product of excusa
ble neglect or simple inadvertence If the answer
was untimely filed for either of the latter reasons-
i e , inadvertence or excusable neglect-our prefer
ence for hearings on the merits normally should
lead to denial of the motion
If, on the other hand, the Board finds that the re-
spondent's untimeliness was due to its own willful
ness or inexcusable neglect, it should balance the
respondent's degree of culpability against the
extent to which the General Counsel or the charg
ing party might be prejudiced by a delayed deci
sion on the merits When such prejudice appears to
be minimal, summary judgment should be granted
only if the respondent's actions evince clear disre
gard or contempt for the Board's procedures Even
when the respondent has been only inexcusably
negligent, however, the Board still should grant
summary judgment if the respondents tardiness
threatens more serious prejudice to the General
Counsel's case
Such prejudice could be found when the re
spondent's delay has resulted in the loss of evi-
dence, increased opportunity for fraud or collusion,
or the inability of the Board to provide a meaning
ful remedy for the respondents unlawful acts 7
gations should be deemed meritorious if they contain even a h nt of a
suggestion which proven at trial would constitute a complete defense
Keegel supra 627 F 2d at 374 See also United Coin Meter supra 705
F 2d at 845 The defense must however consist of more than a mere
denial that a violation occurred Breuer supra 687 F 2d at 186 Sony
Corp v Elm State Electronics 800 F 2d 317 320 (2d Cir 1986)
5 Cf US v $55 518 05 in US Currency 728 F 2d 192 195 (3d Cir
1984)
6 See Taylor v Boston & Taunton Transportation Co supra 720 F 2d at
733 (meritorious defense alone not sufficient to avoid default judjment
defaulting party must also show good reason for the default)
7 See e g Feliciano v Reliant Tooling Co supra 691 F 2d at 657 999
a Corp v Cox & Co 574 F Supp 1026 1029-1030 (ED Mo 1983)
Wright Miller & Kane supra sec 2699
1287
The Board also could find prejudice when the
General Counsel is unduly delayed in her attempt
to obtain a decision on the merits I realize that
courts have often held that mere delay in recover
ing on a claim does not constitute sufficient preju-
dice to the nondefaulting party to prevent the
opening of a default judgment 8 With all due re
spect to the courts, however, I view actions by the
General Counsel as significantly different from
most civil actions Proceedings in unfair labor prac
tice cases are not simply actions to enforce private
rights, they are also actions to enforce the public
policy guaranteeing to employees under Section 7
of the Act the rights of organization and of collec
tive action, as well as the right to refrain from such
activity 9 Delay on the part of respondents in com
plying with the Board's procedures substantially
impairs the General Counsel's ability to implement
the public policy guaranteeing those employee
rights, and in my opinion such delay may consti
tute prejudice substantial enough to warrant entry
of summary judgment II
Applying the foregoing analysis to the facts of
this case, I find, first, that the Respondent has
stated a meritorious defense In its answer, the Re
spondent avers that Elias was terminated for just
cause and failure to perform services under the
terms of employment with the respondent " In an
attached supporting affidavit, Foster claims that
Elias' discharge was not based on his union activi
ties He states that, as a doorman, Elias was respon-
sible for controlling persons entering and leaving
the premises, that he was constantly absent from
his post, that, as a result, drugs were constantly
flowing through the building, and that Elias had
been warned several times concerning his job per
formance prior to his discharge Foster further
states that he is a retired union member for over
two decades, that he harbors no antiunion senti
merits, and that he has never wrongfully interfered
with any employee rights protected by the Act
The Respondent thus has alleged facts that, if es
tablished at a hearing, would demonstrate not only
a lack of antiunion animus but also a valid business
reason for discharging Elias Accordingly, I con
elude that the Respondent has enunciated a merito
rious defense to the complaint
Turning, therefore, to the Respondent's culpabil
ity in failing to file a timely answer, I agree, for the
8 See e g Feliciano supra 691 F 2d at 656-657 United Coin Meter
supra 705 F 2d at 845 Keegel supra 627 F 2d at 374 US v One Parcel
of Real Property supra 763 F 2d at 183
9 See Virginia Electric Co v NLRB 319 U S 533 543 (1943)
10 As the Supreme Court has noted [I]n the labor field as in few
others time is crucially important in obtaining relief NLRB v C & C
Plywood Corp 385 U S 421 430 (1967)
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reasons discussed in the majority opinion , that the
Respondents tardiness was willful and that his as-
sertion that he thought he had already filed an
answer is unpersuasive Moreover , I find that here,
in contrast with Livingston , the General Counsel is
prejudiced as a result of the Respondent 's extended
delay in filing its answer In Livingston , the re-
spondent 's delay (of only a few days) would not
have postponed a resolution of the case on the
merits because the answer was filed more than 2
months in advance of the scheduled hearing In this
case , in spite of the Regional Office's repeated
warnings and extensions of time , the Respondent
waited until a month after the scheduled hearing
date to file its answer The resulting delay (which,
given the practical difficulties in rescheduling the-
hearing , would have been considerably more than a
month) caused prejudice to the General Counsel by
impeding her efforts to enforce the public policy
protecting Elias' Section 7 rights
In summary , I find that , although the Respond-
ent has set forth a facially meritorious defense to
the complaint , its failure to file a timely answer to
the complaint was willful and caused prejudice to
the General Counsel Accordingly , I agree with
the majority that the Respondent has not shown
good cause why the allegations of the complaint
should not be found to be true, and I join with
them in granting the Motion for Summary Judg
ment
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 ordered us to post and abide by this notice
WE WILL NOT reduce the hours of, or discharge,
employees for joining, supporting , or assisting any
labor organization or for engaging in concerted ac
tivities for the purpose of collective bargaining or
other mutual aid or protection , 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 exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Edwin Elias immediate and full
reinstatement to his former positions (and, at 1000
Grand Concourse , Bronx , New York , at his former
hours of employment ) or, if those positions no
longer exist, to substantially equivalent positions,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge , less any
net interim earnings , plus interest
WE WILL notify Edwin Elias that we have re
moved from our files any reference to his dis
charge and that the discharge will not be used
against him in any way
ODALY S MANAGEMENT CORP