Ferndale Foods, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1194 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
Ferndale Foods, Inc. and United Food and Commer-
cial Workers Union, Local 44, AFL–CIO. Case
19–CA–28279
August 21, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent failed to file an
answer to the complaint. Upon a charge filed by United
Food and Commercial Workers Union, Local 44, AFL-
CIO (the Union) on October 24, 2002, the General Coun-
sel issued a complaint on January 28, 2003,2 against
Ferndale Foods, Inc. (the Respondent) alleging that it
violated Section 8(a)(1) and (3) of the Act. The Respon-
dent failed to file an answer.
On March 7, Counsel for the General Counsel filed a
Motion for Summary Judgment with the Board. On
March 10, 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. Thereafter, the Re-
spondent filed a response opposing the granting of the
General Counsel’s motion, to which the General Counsel
filed a reply.
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, the Board may find that the alle-
gations in the complaint are true. In this case, the com-
plaint and notice of hearing issued on January 28, alleg-
ing that the Respondent unlawfully discharged employee
Antonio Angulo. The Respondent neither filed an an-
swer nor requested an extension of time to do so.3
Counsel for the General Counsel, by letter dated Feb-
ruary 19 and sent by certified mail, first-class mail, and

1 Because counsel for the General Counsel requests judgment on the
ground that the Respondent has failed to file an answer, we construe the
motion as a request for default judgment.
2 All dates are in 2003, unless otherwise noted.
3 The complaint stated that the hearing would commence on March
18 in Bellingham, Washington. On February 6, the Respondent re-
quested a 120-day extension of the hearing date, assertedly to allow it
adequate time for financial restructuring. The Respondent also claimed
that it could not afford to hire an attorney, and that it could not afford to
pay backpay or offer reinstatement to the terminated employee. On
February 13, the Acting Regional Director denied the request for a
continuance.
facsimile transmission, notified the Respondent that it
had not received a timely answer to the complaint and
that the time for filing an answer would be extended to
March 5. The letter further stated that, if Respondent
failed to file an answer by that date, counsel for the Gen-
eral Counsel would file a Motion for Summary Judg-
ment.
On March 7, no response to her letter having been re-
ceived, counsel for the General Counsel filed a Motion
for Summary Judgment. Counsel for the General Coun-
sel attached a copy of the complaint and her February 19
letter, and proof that the facsimile transmission of the
letter had been received and that the certified mail copy
of the letter had been signed for, on February 20, by
“J.G. Eacott.” On March 10, the Board issued its Notice
to Show Cause.
By letter received by the Board on March 26, the Re-
spondent opposed the motion. In that letter, the Respon-
dent asserted that it never received either mailed copy of
counsel for the General Counsel’s February 19 letter. It
essentially admitted, however, receiving the facsmile
transmission of the letter. With respect to the copy of the
letter sent certified mail, the Respondent claimed that
“Graham Eacott” was not an employee of the Respon-
dent, and that he had signed for the letter at the post of-
fice as a favor to the Respondent’s owner, Margaret
Kent. The Respondent further asserted that Eacott “did
not realize that the letter had any legal implications,” and
that the letter never reached the attention of a responsible
official at the Respondent prior to the March 5 deadline.
Counsel for the General Counsel filed a reply to the
Respondent’s opposition. Counsel asserted that all cor-
respondence from her to the Respondent had been mailed
to the address furnished to counsel by the Respondent,
and that the facsimile transmission had been sent to the
telephone number previously used by the Respondent in
communicating with counsel and appearing on the Re-
spondent’s letterhead stationery. In addition, counsel for
the General Counsel asserted and furnished proof that
“J.G. Eacott” had previously signed documents on behalf
of the Respondent. Indeed, counsel furnished proof that
Eacott had signed the certified mail receipt for the com-
plaint in this case, which the Respondent never denied
receiving.
Based on the evidence that counsel for the General
Counsel has presented, we find that the Respondent re-
ceived the complaint and the February 19 letter, which
gave the Respondent additional time in which to respond
to the complaint. Nevertheless, and despite the General
Counsel’s repeated warnings, the Respondent failed to
339 NLRB No. 155
FERNDALE FOODS, INC. 1195
file an answer at any time.4 Accordingly, on this record
and in the absence of good cause shown for the failure to
file an answer, we grant the General Counsel’s motion.
Our dissenting colleague raises or refers to the same
arguments that the Board fully considered and rejected in
Patrician Assisted Living Facility, 339 NLRB 1153
(2003). We reject them again here, for the reasons set
out in Patrician. Thus, we do not reach our colleague’s
assessment of the Respondent’s assertions in the context
of his analytical framework that the Board rejected in
Patrician.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Ferndale Foods, Inc,
a Washington corporation, with an office and place in
business in Ferndale, Washington, has been engaged in
the business of operating a slaughter and meat processing
facility. During the 12-month period preceding the issu-
ance of the complaint, a representative period, the Re-
spondent, in the course and conduct of its business opera-
tions, has sold and shipped goods or provided services
from its facilities within the State of Washington, to cus-
tomers outside that State, or sold and shipped goods or
provided services to customers within the State of Wash-
ington, which customers were themselves engaged in
interstate commerce by other than indirect means, of a
total value in excess of $50,000. We find that the Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act and that
United Food and Commercial Workers Union, Local 44,
AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICE
On September 18, 2002, the Respondent discharged
employee Antonio Angulo because he joined and as-
sisted the Union and engaged in concerted activities and
to discourage employees from engaging in these activi-
ties. Respondent therefore violated Section 8(a)(1) and
(3) of the Act by discharging Angulo.

4 In her written statement accompanying the March 26 letter, Re-
spondent’s owner Kent asserted that on September 18, 2002, the Re-
spondent discharged an employee for “food safety related issues and
absenteeism. Violation of food safety practices is not condoned at this
facility and is taken very seriously.” Although Kent did not refer to the
employee by name, we assume that she was referring to Angulo, whom
the complaint alleged was discharged on that date. Nevertheless, we
decline to accept Kent’s statement as an answer to the complaint. Even
when a respondent is representing itself pro se, an attempt to answer
complaint allegations in a response to a Notice to Show Cause is un-
timely and will not defeat a Motion for Default Judgment. See, e.g.,
Kenco Electric & Signs, 325 NLRB 1118 (1998).
CONCLUSIONS OF LAW
By the acts and conduct described above, the Respon-
dent has violated Section 8(a)(1) and (3) of the Act, and
has thereby engaged in unfair labor practices affecting
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.5 Specifically, having
found that the Respondent has unlawfully discharged
employee Antonio Angulo, we shall order the Respon-
dent to offer him immediate and 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,
and make him whole for any loss of earnings suffered as
a result of the discrimination against him, computed on a
quarterly basis, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). We shall also order
that the Respondent remove from its records all refer-
ences to Antonio Angulo’s unlawful discharge and notify
him in writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Ferndale Foods, Inc., Ferndale, Washington,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against its
employees because they joined and assisted United Food
and Commercial Workers Union, Local 44, AFL–CIO
and engaged in concerted activities.
(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
Antonio Angulo immediate and 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.
(b) Make Antonio Angulo whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
5 At the General Counsel’s request, we have provided for a Spanish
language translation of the Board’s notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
crimination against him, in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to Antonio Angulo’s
unlawful discharge, and within 3 days thereafter, notify
him in writing that this has been done and that his unlaw-
ful discharge will not be used against him 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 to be
designated by the Board or its agents, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records, including an
electronic 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 Ferndale, Washington copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
19, after being signed by the Respondent’s authorized
representative, shall be translated into Spanish and both
Spanish and English notices shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, 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 facility involved in this proceeding, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 18, 2002.
(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 SCHAUMBER, dissenting.
Contrary to my colleagues, I would deny the General
Counsel’s Motion for Default Summary Judgment. In
my view, the Respondent has established “good cause”
for its failing to file a timely answer to the complaint.
The majority’s strict construction of the “good cause”
requirement in Section 102.20 of the Board’s Rules and

6 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.”
Regulations is inconsistent with the construction given
that same term by the federal courts, lacks a sound policy
basis1 and poses an undue risk of injustice.
FACTS
On January 28, 2003,2 the General Counsel issued a
complaint alleging, inter alia, that Respondent operates a
slaughter and meat processing facility in Ferndale, Wash-
ington. The complaint further alleges that Respondent
violated Section 8(a)(1) and (3) of the Act by terminating
employee Antonio Angulo. After Respondent failed to
answer the complaint, the General Counsel, on March 7,
filed a Motion for Default Judgment with the Board.
On March 26, John Smrke, “Owners Agent,” who is
admittedly not an attorney, filed a letter on Respondent’s
behalf “vigorously oppos[ing]” the General Counsel’s
motion. A signed statement from Respondent’s owner,
Margaret Kent, accompanied Smrke’s opposition letter.
Owner Kent avers that “On November 13, 2003 [sic] I
was forced to shut the facility down on short notice. A
cattle supplier utilizing the USDA Packers and Stock-
yards Act forced me to immediately liquidate my inven-
tory to pay for cattle processed at my facility. . . .”
Smrke states in his opposition letter that, by the end of
November 2002, “all food inventory had been removed
from the freezers and all employees were laid off.” [em-
phasis in original] Smrke also states that Kent has been
spending considerable time away from the office work-
ing on alternative business and financing arrangements
as she attempts to reopen the facility.3
Regarding the failure to file an answer, Owner Kent
claims the General Counsel’s letter setting March 5 as
the deadline for filing an answer “did not reach Mr.
Smrke’s attention prior to the deadline. This is because
Mr. Smrke was not in the office and Mr. Eacott who
picked up the mail that day did not realize that the letter
had any legal implications.”4 Smrke’s opposition letter
notes that two Board agents visited Respondent’s facility
on February 27, and they failed to mention the deadline
for filing an answer. Smrke claims that, during the
agents’ visit, he rejected the Board agents’ settlement
proposals and specifically informed them that Respon-
1 See, e.g., NLRB v. The Washington Star Co.,, 732 F.2d 974 (D.C.
Cir. 1984), and NLRB v. Central Mercidita, Inc., 273 F.2d 370 (1st Cir.
1959) (circuit courts refused to defer to the Board’s harsh application of
its deadlines for filing exceptions to decisions of administrative law
judges).
2 All dates are in 2003, unless otherwise noted.
3 There is no assertion, however, that the Respondent has filed for
bankruptcy.
4 Smrke’s letter states that Graham Eacott, who purportedly is not an
employee, picked up mail at Respondent’s post office box and signed
for General Counsel’s letter as a favor to Kent.
FERNDALE FOODS, INC. 1197
dent would be proceeding with the scheduled hearing on
March 18.
On the merits, Owner Kent asserts in her signed state-
ment that “[o]n September 18, 2002, an employee was
terminated by my Human Resources Manager for food
safety related issues and absenteeism. Violation of food
safety practices is not condoned at this facility and is
taken very seriously.” Although Kent does not mention
the discriminatee by name, September 18, 2002, is the
date on which the complaint alleges that Angulo’s dis-
charged occurred.
Analysis
Section 102.20 of the Board’s Rules and Regulations
permits a late answer upon a showing of “good ”’cause.”
While the majority’s grant of default judgment in this
case is consistent with Board precedent interpreting the
“good cause” proviso, in my dissenting opinion in Patri-
cian Assisted Living Facility, 339 NLRB 1153 (2003), I
express my criticism of this precedent because it is “in-
consistent with Section 102.121, which provides that the
Board’s rules and regulations ‘shall be liberally con-
strued’; with the Board’s own stated policy preference
for decisions on the merits; and . . . with the literal mean-
ing of Section 102.20 itself.”5 My criticism does not
stand alone. In an analogous case, NLRB v. Washington
Star, supra at fn. 1, which involved the late filing of ex-
ceptions, the D.C. Circuit declined to defer to the
Board’s application of its filing deadline in part because
the Board failed to articulate policy reasons for so nar-
rowly interpreting its “good cause” requirement, an in-
terpretation which is at odds with the federal courts’ in-
terpretation of “good cause” under the federal rules.
Now then, for reasons fully explained in Patrician, I
believe the Board should apply to default judgment pro-
ceedings the same “good cause” standard used by the
federal courts in deciding whether to set aside an entry of
default. “In applying that standard, three factors typi-
cally will be material: the reason or reasons the answer
was untimely, the merits of the respondent’s defense,6

e.

5 Sec. 102.20 provides that if no answer is filed the allegations of the
complaint will be deemed to be admitted as true “unless good cause to
the contrary is shown.” Thus, the determination as to whether “good
cause” exists necessarily encompasses not only the reason(s) why no
answer was filed (or why it was filed late) but also whether respondent
has a meritorious defense and whether the nonmoving party will suffer
any prejudice if the delayed answer is accepted for filing. However,
unlike the Federal courts, the Board refuses even to consider any other
factor unless it is satisfied with the reason the answer was late. More-
over, the Board has rejected myriad reasons for untimeliness, and has
accepted few reasons, further narrowing its construction of the “good
cause” proviso to the point of virtually eliminating it. See Patrician,
339 NLRB at 1154.
6 Ideally, a late-answering respondent will set forth the merits of its
defense in its response to the Notice to Show Cause, or in an affidavit
and whether any party would suffer prejudice were the
default set aside. Where appropriate, however, my
analysis will take into consideration other relevant fac-
tors ‘in a practical, commonsense manner, without rigid
adherence to, or undue reliance upon, a mechanical for-
mula.’”7
The first factor is the reason or reasons the answer was
untimely. Here, the Respondent is unrepresented by
counsel and did not fully appreciate the draconian conse-
quences of missing an answering deadline in Board pro-
ceedings. This is not surprising for a pro se litigant.
Moreover, the Respondent contends that it has cooper-
ated fully with the Region during investigation of allega-
tions against it and that Board agents visiting its facility
in late February discussed settlement of this case and
failed to communicate the consequences of not answer-
ing the complaint even after the Respondent stated that it
would appear at the scheduled hearing. These circum-
stances, and the vigor with which the Respondent now
contests the allegations against it, make it plain that the
default was not willful.
Turning next to the merits of the Respondent’s de-
fense, Owner Kent has claimed in her signed statement
that she terminated an employee on September 18, 2002
“for food safety related issues and absenteeism.” Al-
though Kent does not mention the alleged discriminatee
by name, I agree with the majority that she was referring
to Angulo. Kent’s representations, if credited, would
compel dismissal of the 8(a)(1) and (3) allegations
against the Respondent. Therefore, I find that the
Respondent has presented a facially meritorious defens
Finally, with regard to the third factor, the issue is not
one of mere delay, but rather its accompanying dangers
that include the loss of evidence and the enhanced oppor-
tunity for fraud or collusion. There is no showing in this
case that relevant evidence has been lost or that the Gen-
eral Counsel’s witnesses have become unavailable. And

attached thereto, as Respondent here has done. However, it would be
both unrealistic and unfair to insist on such a showing in every case.
Nothing in the Board’s applicable controlling precedent or in the boi-
lerplate language of its Notice to Show Cause puts a late-answering
respondent on notice of the need to explain its defense, as opposed to
simply admitting or denying the several allegations of the complaint
without further comment. By contrast, an abundance of precedent puts
a Federal-court defendant on notice that it must set forth the merits of
its defense in order to obtain relief from a default. Accordingly, unless
and until controlling Board precedent furnishes similar notice to late-
answering respondents in Board cases, and the Notice to Show Cause is
revised accordingly, I will overlook a respondent’s failure to explain
the merits of its defense in its response to the Notice to Show Cause
where other relevant factors favor denying the Motion for Default
Judgment.
7 Patrician, 339 NLRB at 1159, quoting KPS & Associates, Inc. v.
Designs by FMC, Inc., 318 F.3d 1, 12 (1st Cir. 2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
there is no showing that the alleged discriminatee Angulo
will suffer prejudice by delay. Indeed, assuming the
General Counsel proves the alleged unlawful discharge,
the Respondent’s cessation of operations has fixed the
backpay period and Angulo would not be deprived of
any immediate reinstatement opportunity by litigating
this matter.
Based on the foregoing, I would deny the General
Counsel’s Motion for Default Judgment. I believe that,
in these circumstances, such an approach is consistent
with our rules and fosters responsible labor relations.
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
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any 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 joined and assisted
United Food and Commercial Workers Union, Local 44,
AFL–CIO and engaged in concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Antonio Angulo immediate and full re-
instatement 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 and privi-
leges previously enjoyed.
WE WILL make Antonio Angulo 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 decision.
WE WILL remove from our files any reference to Anto-
nio Angulo’s unlawful discharge and notify him in writ-
ing that this has been done and that our unlawful action
will not be used against him in any way.
FERNDALE FOODS, INC.