Tom Cat Development Corp.

National Labor Relations Board - Board Decisions

Nov 22, 2002

338 N.L.R.B. 749 (N.L.R.B. 2002)

TOM CAT DEVELOPMENT CORP. 749
Tom Cat Development Corp. and Local 46, Metallic
Lather Union and Reinforcing Ironworkers of
New York City and Vicinity and Alberto Bota.
Cases 2–CA–34267 and 2–CA–34600
November 22, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The General Counsel seeks summary judgment in this
case on the ground that the Respondent has failed to file an
answer to the complaint. Upon a charge filed in Case 2–
CA–34267 by Local 46, Metallic Lather Union and Rein-
forcing Ironworkers of New York City and Vicinity (the
Union or Local 46) on January 7, 2002, and a charge filed
in Case 2–CA–34600 by Alberto Bota on May 9, 2002, the
General Counsel issued an order consolidating cases, con-
solidated complaint and notice of hearing on June 28,
2002, against Tom Cat Development Corp., the Respon-
dent, alleging that it has violated Section 8(a)(1) and (3) of
the Act. The Respondent failed to file an answer.
On August 8, 2002, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On August
14, 2002, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent failed
to file a timely response.1 The allegations in the motion
are therefore undisputed.
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, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, on
July 16, 2002, by facsimile transmission, served the Re-
spondent with a letter informing the Respondent that
unless an answer was received by July 26, 2002, a Mo-
tion for Summary Judgment would be filed.

1 The Respondent’s response to the Notice to Show Cause was due
to be filed with the Board on or before August 28, 2002. No response
was filed by this due date. Instead, on October 31, 2002, the Respon-
dent filed a document titled “Affidavits and Memorandum in Support
of Application to Vacate a Default Declared by Counsel for the General
Counsel and In Opposition to a Motion for Summary Judgment.” The
General Counsel filed a memorandum in opposition to the Respon-
dent’s submission on November 13, 2002. We reject the Respondent’s
response to the Notice to Show Cause as untimely. We find that the
Respondent has failed to show good cause for failing to make a timely
response to the General Counsel’s Motion for Summary Judgment.
The Respondent replied by letter dated July 17, 2002,
from Thomas Pampalone, who is identified in the com-
plaint as the Respondent’s president. The letter acknowl-
edged receipt of the complaint and the Region’s subse-
quent communication. The letter continued as follows:

Please be advised that as a follow-up to my con-
versation with you; we must now state for the record
that Tom Cat Development Corp. did not do any
work at 148 Madison Street and did not have any
contracts or sub contracts for any works [sic] at 148
Madison Street. Furthermore as stated to you under
separate cover Tom Cat Development Corp. has
ceased doing business since mid February, 2002.
We have and will continue to cooperate fully with
you and your office but we must state for the records
once more that Tom Cat Development Corp. did not
do any work at 148 Madison Street.
In your early letters of March–April 2002 you
mentioned Arcade Restoration. We feel that this
should be the area of your pursuit. If we could be of
any further assistance please do not hesitate to con-
tact me.

We find that the Respondent’s July 17, 2002 letter
does not constitute a proper answer under Section 102.20
of the Board’s Rules and Regulations. The Board typi-
cally has shown some leniency toward a pro se litigant’s
efforts to comply with procedural rules. See, e.g., Mid-
Wilshire Health Care Center, 331 NLRB 1032, 1033
(2000). Nevertheless, even in pro se cases, the Board has
found answers legally insufficient if they “fail to address
any of the factual or legal allegations of the complaint.”
Eckert Fire Protection Co., 329 NLRB 920 (1999); ac-
cord: Kloepfers Floor Covering, Inc., 330 NLRB 811
(2000). In the present case, the Respondent’s letter does
not respond to any of the complaint’s factual or legal
allegations, which concern the discharge of two employ-
ees in November and December 2001 because of their
union activities. Instead, the letter asserts that the Re-
spondent “did not do any work at 148 Madison Street”
and “ceased doing business since mid February, 2002.”
Therefore, even considering the Respondent’s pro se
status, the letter is legally insufficient to constitute a
proper answer.2
2 Our dissenting colleague argues that it was sufficient for the Re-
spondent to deny the charge allegation that one of the discharged em-
ployees was employed at a particular construction site. We disagree.
As the case quoted in the dissent makes clear, the Respondent’s obliga-
tion is to address the allegations of the complaint, not the charge. See
Sec. 102.20 of the Board’s Rules and Regulations: “The respondent
shall specifically admit, deny, or explain each of the facts alleged in the
complaint . . . .” (Emphasis added.) See generally Redd-I, 290 NLRB
1115, 1116–1117 (1988) (discussing the distinction between the charge
338 NLRB No. 89
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’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 New York
corporation, with an office and place of business located
at 35 Fifth Avenue, Bay Shore, New York, has been en-
gaged in the business of concrete and masonry construc-
tion work.
Annually, the Respondent, in conducting its business
operations purchases and receives at various jobsites
goods and materials valued in excess of $50,000 directly
from other enterprises located within the State of New
York, each of which other enterprises had received these
goods directly from points outside the State of New
York.
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, Local 46, is a labor
organization within the meaning of Section 2(5) of the
Act. We also find that, at all material times, Local 45,
United Brotherhood of Carpenters and Joiners of Amer-
ica (Local 45) has been a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times the following individuals held the
positions set forth opposite their respective names and
have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent, acting on its behalf:

Thomas Pampalone President
Peter Pampalone Labor Foreman
Frank Bartolotti Superintendent
Richard Slueck Supervisor

On about November 30, 2001, the Respondent dis-
charged its employee Philip Peyton. Since that date, the
Respondent has failed and refused to reinstate, or offer to
reinstate, Peyton to his former position of employment.
The Respondent discharged Peyton because he was a
member of and supported Local 46 and engaged in con-
certed activities, and to discourage employees from en-
gaging in these activities.
On about December 1, 2001, the Respondent dis-
charged its employee Alberto Bota. Since that date, the

and the complaint). Here, as stated above, the Respondent’s letter does
not address any of the allegations of the complaint and is therefore
legally insufficient under the Board’s Rules.
Respondent has failed and refused to reinstate, or offer to
reinstate, Bota to his former position of employment.
The Respondent discharged Bota because he was a
member of and supported Local 45 and engaged in con-
certed activities, and to discourage employees from en-
gaging in these activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has discriminated in regard to the hire or tenure or
terms or conditions of employment of its employees,
thereby discouraging membership in a labor organization
in violation of Section 8(a)(1) and (3) of the Act. The
unfair labor practices of the Respondent affect commerce
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, having
found that the Respondent has violated Section 8(a)(1)
and (3) by discharging employees Peyton and Bota, we
shall order the Respondent to offer the discriminatees full
reinstatement to their former jobs, or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed. We also shall order the
Respondent to make Peyton and Bota whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them. 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). In addition, the
Respondent shall also be required to remove from its
files any references to the unlawful discharges, and to
notify the discriminatees in writing that this has been
done and that the discharges will not be used against
them in any way.3
ORDER
The National Labor Relations Board orders that the
Respondent, Tom Cat Development Corp., Bay Shore,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they are members of and support
labor organizations and engage in concerted activities.
3 We recognize that, in its July 17, 2002 letter, the Respondent al-
leged that it ceased operations in February 2002. The effect of the
alleged closing on our standard reinstatement and make-whole reme-
dies is an issue that may be resolved at the compliance stage of this
proceeding.
TOP CAT DEVELOPMENT CORP. 751
(b) 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
Philip Peyton and Alberto Bota full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously enjoyed.
(b) Make whole Philip Peyton and Alberto Bota for
any loss of earnings and other benefits suffered as a re-
sult of their unlawful discharges, 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 discharges of
Philip Peyton and Alberto Bota, and within 3 days there-
after notify the discriminatees in writing that this has
been done and that the discharges will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records 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 Bay Shore, New York, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
2, 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 and former employees em-
ployed by the Respondent at any time since November
30, 2001.

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.”
(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.

MEMBER COWEN, dissenting.
Contrary to my colleagues, I would deny the General
Counsel’s Motion for Summary Judgment because I con-
sider the Respondent’s July 17, 2002 letter to the Region
a legally sufficient answer.
The complaint alleges that the Respondent unlawfully
discharged employees Philip Peyton and Alberto Bota.
The underlying charge with respect to the former avers
that Peyton was employed at a construction site at Madi-
son and Pike Streets. Neither the other charge nor the
complaint indicates a specific employment location. On
July 17, 2002, Thomas Pampalone, identified in the
complaint as the Respondent’s president, timely submit-
ted a letter to the Region in response to its letter advising
that an answer to the complaint should be filed. In that
letter, Pampalone referred to a prior conversation with
the Region and pertinently averred that he “must now
state for the record” that the Respondent did not do any
work at 148 Madison Street and did not have any con-
tracts or subcontracts for any work at that location.
As the Board has held:

When a pro se respondent’s answer clearly denies the
unfair labor practice allegations of the complaint, the
Board will not grant summary judgment for the Gen-
eral Counsel even if the answer does not address all the
factual allegations of the complaint.

American Gem Sprinkler Co., 316 NLRB 102, 103 fn. 5
(1995). Contrary to my colleagues and consistent with this
view, I find that this pro se Respondent has filed a legally
sufficient answer. In this regard, the Respondent, in re-
sponse to the Region’s request for an answer to the com-
plaint, has denied that he employed any workers at the only
site referenced in the underlying documents. Consistent
with American Gem Sprinkler and similar precedent reflect-
ing the Board’s established policy of leniency towards pro
se respondents, I find this denial sufficient despite the fact
that it does not address all the factual allegations in the
complaint. Although the General Counsel did not bother to
specifically allege in the complaint the location at which
Peyton and Bota supposedly worked for the Respondent, the
charge against the Respondent does allege the location, and
the Respondent’s letter explicitly denies that it had any con-
tracts or subcontracts covering work at that location. Thus,
when one reads the complaint in conjunction with the
charge on which it is based, the Respondent’s letter can
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
reasonably be understood as denying the complaint allega-
tion that the Respondent violated the Act with respect to
Peyton and Bota. In finding the Respondent’s letter to be
inadequate, my colleagues allow the General Counsel’s
inartful pleading to prevail over the Respondent’s specific
response that appears to address the key issue in dispute.
Thus, I would deny the General Counsel’s motion and re-
mand the case for hearing

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 had found that we vio-
lated 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 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 discharge or otherwise discriminate
against our employees because they are members of and
support labor organizations and engage in concerted
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, within 14 days from the date of the Board’s
Order, offer Philip Peyton and Alberto Bota full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make whole Philip Peyton and Alberto Bota
for any loss of earnings and other benefits suffered as a
result of their unlawful discharges, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful discharges of Philip Peyton and Alberto Bota, and WE
WILL within 3 days thereafter notify them in writing that
this has been done and that the discharges will not be
used against them in any way.

TOM CAT DEVELOPMENT CORP.