Rick's Painting and Drywall

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1091 (N.L.R.B. 2003)

RICK’S PAINTING & DRYWALL 1091
Rick’s Painting and Drywall and Anthony Mcgrath.
Case 30–CA–15309–1
April 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by An-
thony McGrath on October 4, 2000, the General Counsel
of the National Labor Relations Board issued a complaint
on December 28, 2000, against Rick’s Painting and Dry-
wall, the Respondent, alleging that it has violated Section
8(a)(1) and (3) of the National Labor Relations Act. Al-
though properly served with copies of the charge and
complaint, the Respondent failed to file a timely answer.
On February 22, 2001, the General Counsel filed a
Motion for Summary Judgment with the Board. On
March 5, 2001, 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,
on March 19, 2001, filed a Response to the Notice to
Show Cause.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
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
from service of the complaint, unless good cause is
shown. The complaint itself states that unless an answer
is filed within 14 days of service, “all of the allegations
in the Complaint shall be considered to be admitted to be
true and shall be so found by the Board.” Further, exhib-
its attached to the motion indicate that counsel for the
General Counsel for Region 30, by certified letter dated
January 26, 2001, notified Respondent that, unless an
answer was received by February 5, 2001, a motion for

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer to the com-
plaint. Accordingly, we construe the General Counsel’s motion as a
motion for default judgment.
2 The General Counsel moves for leave to file a reply to the Respon-
dent’s response to the Notice to Show Cause. Because the General
Counsel’s motion and the Respondent’s response to the show cause
notice are sufficient to decide the matter, and we have, in any event,
granted the General Counsel’s motion, we find it unnecessary to con-
sider the General Counsel’s reply brief and therefore deny the motion
for leave to file a reply.
default judgment would be filed. The Respondent did
not file an answer by February 5, 2001.
The Board’s well-settled standard for granting sum-
mary judgment as a result of default is that the allega-
tions in the complaint shall be deemed admitted unless
good cause is shown. Windward Roofing & Construc-
tion Co., 333 NLRB 658 (2001); South Atlantic Truck-
ing, 327 NLRB 534 (1999).
The Respondent initially argues that when the Board
considers the propriety of a Default Summary Judgment
Motion it should use the test set forth in Livingston Pow-
dered Metal v. NLRB, 669 F.2d 133 (3d Cir. 1982). We
reject this argument. The Board has not previously
adopted the Livingston standard, Bricklayers Local 31,
309 NLRB 970, 972 (1992) (then-Chairman Stephens,
concurring), and does not do so today.3
In Livingston, the United States Court of Appeals for
the Third Circuit considered the Board’s entry of default
summary judgment against the respondent according to
standards employed by Federal appellate courts in de-
termining whether to open default judgments in the dis-
trict courts: 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. Id. at 136–137.
One of the considerations motivating the Third Circuit
in that case was its perception that the Board’s Rules
concerning filing and service dates were not clearly
spelled out. Subsequent to the Livingston decision, and
in reaction to several decisions of the courts, the Board
“substantially revis[ed]” those Rules. 51 FR 23744
(1986). The relevant Rules, which have not materially
changed in the intervening years, have met with general
acceptance from the courts. See, e.g., Father & Sons
Lumber & Bldg. Supplies v. NLRB, 931 F.2d 1093 (6th
Cir. 1991); NLRB v. Dane County Dairy, 795 F.2d 1313,
1316–1321 (7th Cir. 1986). Moreover, despite ample
notice of the applicable Rules and the grant of an exten-
sion of time from the General Counsel, the Respondent’s
first appearance in this case, its response to the Notice to
Show Cause, was not filed until well over a month after
the extended deadline for filing its answer.
The Respondent also argues that its pro se status and
its inexperience with Board procedures led to its good-
3 Chairman Battista does not pass on the Livingston standard. In his
view, even under that standard, default judgment is appropriate. In this
regard, he notes particularly that the remedy here is far less sweeping
than the one in Livingston. The remedy in Livingston was to reopen a
closed plant and rehire the employees. The remedy here is to reinstate
and make whole one employee.
338 NLRB No. 167
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
faith belief that filing an answer was not necessary and
that the charge would be deferred to arbitration.
However, the Respondent’s pro se status does not con-
stitute good cause for utter failure to file a timely answer.
See Calyer Architectural Woodworking Corp., 338
NLRB 315 (2002) (“[M]erely being unrepresented by
counsel does not constitute good cause for the failure to
file a timely answer.”); Karel of Cumberland, 313 NLRB
1237 (1994) (“The lack of legal counsel is not a legally
sufficient ground for failing to file a timely answer.”);
Printing Methods, Inc., 289 NLRB 1231 (1988) (finding,
inter alia, that pro se respondent’s unfamiliarity with
Board proceedings is insufficient to constitute good
cause). Although the Board may show leniency to a re-
spondent proceeding without the benefit of counsel if
that respondent files a timely answer that can reasonably
be construed as denying the substance of the complaint’s
allegations, where as here, the Respondent has not filed
any form of answer, the Board does not extend the same
forbearance. Calyer, supra.
The Respondent finally argues that the General Coun-
sel failed to explain to the Respondent “in plain and un-
derstandable language” the consequences of a failure to
answer. The complaint, however, clearly stated that fail-
ure to file a timely answer would result in the complaint
allegations being deemed admitted and found to be true.
Moreover, in a January 26, 2001 letter, the General
Counsel sent the Respondent an additional warning that
summary judgment would be sought if the Respondent
did not file an answer by February 5, 2001, and that if
summary judgment were granted the Respondent would
be found by the Board to have admitted the complaint
allegations. The Respondent still did not attempt to an-
swer the complaint or request an extension of time to do
so. Such a pattern of disregarding the Board’s proce-
dures and its warnings of possible consequences is in-
compatible with a showing of good cause. Ravid Artistic
Designs, Inc., 300 NLRB 1121, 1121–1122 (1990).
For these reasons, we find that the Respondent’s ex-
planations do not constitute a showing of good cause for
the failure to file a timely answer. Accordingly, we grant
the General Counsel’s Motion for Default 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 Eagle River, Wis-
consin, has been engaged in business as a painting and
drywall contractor. Annually, the Respondent, in con-
ducting its business operations described above, pur-
chases and receives goods valued in excess of $50,000
from other enterprises located within the State of Wis-
consin, who in turn purchased these same goods and ma-
terials directly from points located outside the State of
Wisconsin. We find that the Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About the first week of June 2000, the Respondent, by
its agent, Rick Strobel, threatened the employment of
employees involved in union activities. Subsequently,
on or about June 27, 2000, the Respondent, by Strobel,
interrogated an employee by telephone regarding a meet-
ing between the Union’s business agents and the Re-
spondent’s employees. About July 11, 2000, the Re-
spondent, by Strobel, interrogated an employee about
that employee’s vote in the election. Also on about July
11, 2000, the Respondent, by its supervisor, Fred Verde,
interrogated an employee about that employee’s vote in
the election. By engaging in the above interrogations,
the Respondent created the impression that the employ-
ees’ union activities were under surveillance. Also, the
Respondent, by Strobel, on July 19, 2000, requested an
employee to engage in surveillance of other employees’
union activities. On July 21, 2000, the Respondent, by
Strobel, stated that ongoing contract talks were futile and
that no contract would be reached. We find that by en-
gaging in the above acts, the Respondent violated Sec-
tion 8(a)(1) of the Act.
On August 3, 2000, the Respondent, by Supervisor
Verde, laid off employee Anthony McGrath because he
had joined, supported, or assisted the Union and engaged
in concerted activity for the purposes of collective bar-
gaining or other mutual aid or protection, and in order to
discourage employees from engaging in such activities
for the purposes of collective bargaining or other mutual
aid or protection. We find that the Respondent violated
Section 8(a)(1) and (3) of the Act by this treatment of
McGrath.
CONCLUSIONS OF LAW
1. By threatening the employment of employees in-
volved in union activities, by interrogating employees
regarding their own or other employees’ union activities,
sympathies, or desires, by creating the impression that
the employees’ union activities were under surveillance,
by requesting an employee to engage in surveillance of
other employees’ union activities, and by stating that
contract talks were futile, the Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
RICK’S PAINTING & DRYWALL 1093
2. By laying off Anthony McGrath because he had
joined, supported, or assisted the Union and engaged in
concerted activity for the purposes of collective bargain-
ing or other mutual aid or protection, the Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully laid off
employee Anthony McGrath, we shall order it to offer
him immediate and full reinstatement to his former posi-
tion or, if this position no longer exists, to a substantially
equivalent position, 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
suffered as a result of the Respondent’s unlawful con-
duct. Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Further, we shall require the Re-
spondent to remove from its files any references to the
unlawful layoff, and to notify Anthony McGrath in writ-
ing that this has been done and that the layoff will not be
used against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Rick’s Painting and Drywall, Eagle River,
Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening the employment of employees in-
volved in union activities.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Creating the impression that the employees’ union
activities were under surveillance.
(d) Requesting employees to engage in surveillance of
other employees’ union activities.
(e) Telling employees that ongoing contract talks were
futile.
(f) Laying off or otherwise discriminating against any
employee for supporting the Union.
(g) 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.
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
Anthony McGrath full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Anthony McGrath whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest, in the manner
set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoff of An-
thony McGrath, and within 3 days thereafter, notify him
in writing that this has been done, and that the unlawful
conduct will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records including an electronic copy of such re-
cords 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 facility in Eagle River, Wisconsin, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
30, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees employed by the Respon-
dent since June 1, 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

4 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
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
by 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 threaten the employment of employees
engaged in union activities.
WE WILL NOT interrogate employees regarding employ-
ees’ union activities.
WE WILL NOT create the impression that the union ac-
tivities of employees are under surveillance.
WE WILL NOT request employees to engage in surveil-
lance of other employees’ union activities.
WE WILL NOT tell employees that ongoing contract
talks are futile and that no contract will be reached.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Northern Wiscon-
sin Regional Council of Carpenters or any other labor
organization.
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 Anthony McGrath full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Anthony McGrath whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against him, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful layoff of Anthony McGrath, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done, and that our unlawful conduct will not be
used against him in any way.

RICK’S PAINTING AND DRYWALL