Teamsters Local Union No. 455 (Cargill Meat Solutions Corporation)

National Labor Relations Board - Board Decisions

Oct 4, 2016

364 NLRB No. 127 (N.L.R.B. 2016)

364 NLRB No. 127
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.
Teamsters Local Union No. 455 (Cargill Meat Solu-
tions Corporation) and Said Ali. Case 27–CB–
168294
October 4, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent, Teamsters Local
Union No. 455, has failed to file a timely answer to the
complaint. Upon a charge filed by Said Ali on January
25, 2016,1 and amended on April 28, the General Coun-
sel issued a complaint and notice of hearing on May 24,
alleging that the Respondent had violated Section
8(b)(1)(A) of the National Labor Relations Act. Alt-
hough properly served copies of the charge and the com-
plaint, the Respondent failed to file an answer.
By letter dated June 8, the Board’s Region 27 in-
formed the Respondent that it had not received the Re-
spondent’s answer to the complaint, which had been due
on June 7. That letter warned that unless the Respondent
filed its answer with the Regional Director by June 22,
the Region would seek summary judgment and all com-
plaint allegations would be deemed admitted. The Re-
spondent did not file an answer by the June 22 deadline.
On June 23, the General Counsel filed with the Board a
Motion to Transfer Proceeding to the Board and Motion
for Default Judgment, with exhibits attached; on the
same date, the Respondent filed an answer to the com-
plaint. On June 24, the Board issued an Order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On July 8,
the Respondent filed a Response to the Notice to Show
Cause and opposition to the General Counsel’s Motion to
Transfer the Proceeding to the Board and Motion for
Default Judgment, and the General Counsel filed a brief
in support of his Motion to Transfer the Proceeding to
the Board and Motion for Default Judgment.
On the entire record, the National Labor Relations
Board makes the following
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days

1 All dates are in 2016 unless otherwise stated.
from the service of the complaint, unless good cause is
shown. The complaint in this case affirmatively states
that an answer “must be received by [Region 27] on or
before June 7” and that if no answer is filed, or an an-
swer is filed untimely, “the Board may find, pursuant to a
Motion for Default Judgment, that the allegations in the
complaint are true.” In addition, the General Counsel’s
motion asserts (and the Respondent’s opposition
acknowledges) that, by letter dated June 8, Region 27
advised the Respondent that unless it received an answer
by June 22, it would file a motion for “summary” judg-
ment, which we construe as a motion for default judg-
ment.
Despite receiving the complaint and the Region’s
warning letter, the Respondent neither filed an answer
nor requested an extension of time to do so before the
June 22 deadline expired. Instead, it filed an answer on
June 23, the same day that the General Counsel filed the
Motion for Default Judgment. The Respondent also filed
an opposition to the Motion for Default Judgment, in
which it contends that the failure to timely file an answer
was the result of inadvertent oversight by legal counsel
and “administrative errors.” The Respondent argues that
the Board has the discretion to deny the General Coun-
sel’s Motion and that failing to do so will result in preju-
dice because a hearing is necessary to address genuine
issues of fact that have been raised in its response to the
Board’s Notice to Show Cause and its untimely answer.
We find the Respondent’s arguments unavailing. The
Respondent did not file an answer to the complaint by
either the June 7 or 22 deadline. Nor did it request an
extension of time to file an answer. Such failure to
promptly request an extension of time is a factor demon-
strating lack of good cause. See, e.g., V. Garofalo Cart-
ing, 362 NLRB No. 170, slip op. at 1 (2015); A.C.E.
Construction, Inc., 340 NLRB 609, 610 (2003); CAC
Services, Inc., 338 NLRB 993, 993 (2003); Associated
Supermarket, 338 NLRB 780, 781 (2003).
On June 23, when the Respondent filed an untimely
answer, it did not comply with the express instructions
for doing so in Section 102.111(c) of the Board’s Rules
and Regulations. That is, it did not file “a motion that
states the grounds relied on for requesting permission to
file untimely,” accompanied by an affidavit containing
the facts relied on to support the motion. In Elevator
Constructors Local 2 (Unitec Elevator Services Co.), 337
NLRB 426, 428 (2002), the Board announced that in
cases under the excusable-neglect provision of Sec-
tion 102.111(c) of the Board’s Rules and Regulations,
the Board would “strictly adhere to our rule that the spe-
cific facts relied on to support the motion to accept a late
filing shall be set forth in affidavit form and sworn to by
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
individuals with personal knowledge of the facts.” Be-
cause the Respondent did not comply with the require-
ments of Section 102.111(c) of the Board’s Rules and
Regulations, its untimely answer was improperly filed.
Moreover, the unsworn assertions that the Respondent
has provided in its opposition do not demonstrate good
cause for its failure to file a timely answer. First, counsel
for the Respondent avers that “the date for the filing of
an Answer was overlooked” due “entirely [to] an over-
sight by legal counsel” and should not be attributed to the
Respondent itself. The Board has consistently held that
counsel inattention is not sufficient to establish good
cause. See, e.g., King Courier, 344 NLRB 485, 485
(2005); South Atlantic Trucking, 327 NLRB 534, 534–
535 (1999); Sherwood Coal Co., 252 NLRB 497, 497
(1980). Similarly, the Respondent’s explanation for its
failure to file a timely answer in response to the Region’s
June 8 warning letter—that the letter was “apparently
placed directly into the case file, thus unintentionally by-
passing” its legal proceedings “suspense system”—does
not establish good cause. See South Atlantic Trucking,
327 NLRB at 534–535 (misplacement of copies of an-
swer not good cause for failing to file timely answer).
Next, even assuming, as the Respondent claims, that its
position statement and supporting affidavits denied alle-
gations in the unfair labor practice charges, the filing of a
position statement during the precomplaint investigative
stage of an unfair labor practice proceeding does not con-
stitute good cause for not filing a timely answer. Cf.
Electra-Cal Contractors, 339 NLRB 370, 371 (2003)
(“[P]osition statements . . . are insufficient to constitute
an answer.”). Finally, the Respondent’s assertion that a
hearing is warranted because of the existence of genuine
issues of fact is also not sufficient to establish good
cause. The Board has stated that “it will not address a
respondent’s assertion that it has a meritorious defense
unless good cause has been shown for the late response.”
Patrician Assisted Living Facility, 339 NLRB 1153,
1154 (2003), citing Dong-A Daily North America, Inc.,
332 NLRB 15, 16 (2000).
For the foregoing reasons, we find that the Respondent
has failed to show good cause why the Board should not
find all of the allegations in the complaint to be true.
Accordingly, we reject the late answer that the Respond-
ent filed in response to the Motion for Default Judgment.
In the absence of good cause being shown for the failure
to file a timely answer, we deem the allegations of the
complaint to be admitted as true, and we grant the Mo-
tion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Cargill Meat Solutions Corpora-
tion (the Employer), a domestic corporation with an of-
fice and place of business located in Fort Morgan, Colo-
rado, has been engaged in the manufacturing, processing,
and nonretail sale of meat.
During the 12-month period preceding issuance of the
complaint, the Employer sold and shipped from its facili-
ty in Fort Morgan, Colorado, goods valued in excess of
$50,000 directly to points outside the State of Colorado.
We find that Cargill Meat Solutions Corporation is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Re-
spondent is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Norberto Ricardo (business
agent), Adan Morales (assistant business agent), and Ali
Gele Elmi (steward) have held positions that qualify as
agents of the Respondent within the meaning of Section
2(13) of the Act.
About early November 2015, at the Employer’s facili-
ty, Respondent’s agents Ricardo, Morales, and Elmi (1)
told employees that the Respondent would no longer
represent them because they objected to the payment of
dues and fees for nonrepresentational activities; (2)
threatened employees with preventing them from being
promoted because they objected to the payment of dues
and fees for nonrepresentational activities; and (3) inter-
rogated employees about why they objected to the pay-
ment of dues and fees for nonrepresentational activities.
About December 16, 2015, Morales and Elmi, at the
Employer’s facility, told employees that the Respondent
no longer represented them because they objected to the
payment of dues and fees for nonrepresentational activi-
ties.
CONCLUSIONS OF LAW
By the conduct described above, the Respondent has
been restraining and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act in viola-
tion of Section 8(b)(1)(A) of the Act.
The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain 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. Specifically, we shall
TEAMSTERS LOCAL UNION NO. 455 (CARGILL MEAT SOLUTIONS CORPORATION) 3
order the posting of an appropriate notice, attached here-
to as “Appendix.”2
ORDER
The National Labor Relations Board orders that the
Respondent, Teamsters Local Union No. 455, Fort Mor-
gan, Colorado, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Telling employees that the Union would no longer
represent them because they object to the payment of
dues and fees for nonrepresentational activities.
(b) Threatening employees with preventing them from
being promoted because they object to the payment of
dues and fees for nonrepresentational activities.
(c) Interrogating employees regarding why they object
to the payment of dues and fees for nonrepresentational
activities.
(d) In any like or related manner restraining or coerc-
ing 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 after service by the Region, post at
its Fort Morgan, Colorado facility copies of the attached
notice marked “Appendix” in English, Spanish, Somali,
and such other languages as the Regional Director de-
termines are necessary to fully communicate with em-
ployees and members.3 Copies of the notice, on forms
provided by the Regional Director for Region 27, in Eng-
lish, Spanish, Somali, and such other languages as the
Regional Director determines are necessary to fully
communicate with employees and members, 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 members are customarily posted.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its members by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notic-
es are not altered, defaced, or covered by any other mate-
rial.

2 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.”
3 In the complaint, the General Counsel requests that the Notice be
posted in Spanish, Somali, and any other languages that may be appro-
priate, and we grant this request.
(b) Within 14 days after service by the Region, deliver
to the Regional Director for Region 27 signed copies of
the notice in sufficient number for posting by the Em-
ployer at its Fort Morgan, Colorado facility, if it wishes,
in all places where notices to employees are customarily
posted.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 27 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. October 4, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS AND 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell you that the Union will no longer
represent you because you object to the payment of dues
and fees for nonrepresentational activities.
WE WILL NOT threaten to prevent you from being pro-
moted because you object to the payment of dues and
fees for nonrepresentational activities.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT ask you why you object to the payment
of dues and fees for nonrepresentational activities.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
TEAMSTERS LOCAL UNION NO. 455
The Board’s decision can be found at
www.nlrb.gov/case/27–CB–168294 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.