Pabst Theater Foundation

National Labor Relations Board - Board Decisions

Dec 29, 2009

354 N.L.R.B. 121 (N.L.R.B. 2009)

354 NLRB No. 121
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Pabst Theater Foundation, Inc. and Milwaukee The-
atrical Stage Employees Union, Local #18 of The
International Alliance of Theatrical Stage Em-
ployees, Moving Picture Technicians, Artists
and Allied Crafts of the United States, its Terri-
tories and Canada, AFL–CIO, CLC. Case 30–
CA–18389
December 29, 2009
ORDER DENYING MOTION
BY CHAIRMAN AND LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
Union on July 22, 2009, the General Counsel issued the
complaint on September 18, 2009 against Pabst Theater
Foundation, Inc., the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the Act. The Respon-
dent failed to file an answer.
On October 20, 2009, the General Counsel filed a Mo-
tion for Default Judgment with the Board. Thereafter, on
October 22, 2009, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
Ruling on Motion for Default Judgment1
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

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Narricot Industries, L.P. v. NLRB, ___
F.3d ___, 2009 WL 4016113 (4th Cir. Nov. 20, 2009); Snell Island
SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed
78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process
Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted ___ S.Ct.
___, 2009 WL 1468482 (U.S. Nov. 2, 2009); Northeastern Land Ser-
vices v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78
U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213); Teamsters Local
523 v. NLRB, ___ F.3d ___, 2009 WL 4912300 (10th Cir. Dec. 22,
2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB,
564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185
(U.S. Sept. 29, 2009) (No. 09-377).
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively states
that the answer must be received on or before October 2,
2009. The complaint further states that if no answer was
filed, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the complaint are
true. Further, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by letter
dated October 5, 2009, advised the Respondent that
unless an answer was received by October 13, 2009, a
motion for default judgment would be filed. We there-
fore find that the Respondent has not shown good cause
for failing to file a timely answer. Nevertheless, as dis-
cussed below, we deny the General Counsel’s motion for
default judgment.
The Complaint Allegations
At all material times, the Respondent, a corporation,
has been engaged in the management and operation of a
facility for performing arts at its Milwaukee, Wisconsin
facility.
During the past calendar year, the Respondent, in con-
ducting its operations described above, derived gross
revenues in excess of $1 million and purchased and re-
ceived goods and materials valued in excess of $5000
directly from suppliers located outside the State of Wis-
consin.
At all material times, the Respondent has been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
At all material times, the Union has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
At all material times, Gary Witt has held the position
of executive director, and has been a supervisor of the
Respondent within the meaning of Section 2(11) of the
Act and an agent of the Respondent within the meaning
of Section 2(13) of the Act.
The employees of the Respondent, in the unit de-
scribed more particularly in article VII of the collective-
bargaining agreement in effect from April 1, 2009 to
March 31, 2010, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
About January 27, 2009, the Union and the Respon-
dent reached a complete agreement on the terms and
conditions of employment of the unit to be incorporated
in a collective-bargaining agreement.
About February 16, March 12, April 6 and 16, June 10,
17 and 18, 2009, the Union requested that the Respon-
dent execute a written contract containing the agreement
described above.
From about February 16 until September 2, 2009, the
Respondent, by Gary Witt, failed and refused to execute
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the agreement described above and unduly delayed exe-
cution of the written collective-bargaining agreement.
Analysis
We decline to grant the General Counsel’s Motion for
Default Judgment. There is no allegation in the com-
plaint that the Union is or has been the exclusive collec-
tive-bargaining representative of the unit employees.
Absent that allegation, we cannot find, for purposes of
this proceeding, that the Respondent violated the Act as
alleged by unduly delaying execution of a written collec-
tive-bargaining agreement between the Respondent and
the Union. Nothing herein will require a hearing if, in
the event of an amendment to the complaint alleging that
the Union has been the exclusive collective-bargaining
representative during the relevant time period, the Re-
spondent again fails to answer, thereby admitting evi-
dence that would permit the Board to find the alleged
violation. In such circumstances, the General Counsel
may renew the motion for default judgment with respect
to the amended complaint allegations.2
ORDER
IT IS ORDERED that the General Counsel’s motion for
default judgment is denied and the proceeding is re-
manded to the Regional Director for Region 30 for fur-
ther appropriate action.
Dated, Washington, D.C. December 29, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

2 See, e.g., Plaza Properties of Michigan, Inc., 340 NLRB 983
(2003) (default judgment denied based on insufficient complaint allega-
tions).