GREENVILLE FEDERAL FINANCIAL CORPORATION D/B/A GREENVILLE FEDERAL

National Labor Relations Board - Board Decisions

Mar 12, 2014

09-CA-075284 (N.L.R.B. Mar. 12, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
GREENVILLE FEDERALFINANCIAL CORPORATION
d/b/a GREENVILLE FEDERAL
and Cases 09-CA-075284
09-CA-081417
TAMARA SACKETT 09-CA-086178
ORDER DENYING MOTION1
Upon charges and an amended charge filed by Tamara Sackett on February 24,
May 21, July 20, and July 27, 2012, the General Counsel issued a consolidated
complaint against Greenville Federal Financial Corporation d/b/a Greenville Federal, the
Respondent, on September 26, 2012, alleging that it violated Section 8(a)(1) and (4) of
the Act. On October 25, 2012, the Regional Director of Region 9 approved an informal
settlement agreement as resolution of the allegations in the consolidated complaint.
Pursuant to the terms of the settlement agreement, the Respondent agreed,
among other things, to “revise Tammy Sackett’s 2012 Annual Appraisal and remove
from it and its Action Plan any negative comments about Sackett’s protected concerted
activities, as well as language directing Sackett to ‘[r]efrain from unwelcome
conversations or actions that would make others uncomfortable, especially regarding
sensitive matters.’” The Respondent further agreed that it would re-evaluate Sackett for
a merit raise based on the revised appraisal and pay her for any loss of wages or other
benefits suffered due to the negative comments based on her protected concerted
activity contained in her 2012 Annual Appraisal. The settlement agreement also
contained the following provision:

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2
The Charged Party agrees that in case of non-compliance with any of the
terms of this Settlement Agreement by the Charged Party, and after 14
days notice from the Regional Director of the National Labor Relations
Board of such non-compliance without remedy by the Charged Party, the
Regional Director will issue a complaint that will include the allegations
spelled out above in the Scope of Agreement section. Thereafter, the
General Counsel may file a motion for default judgment with the Board on
the allegations of the complaint. The Charged Party understands and
agrees that all of the allegations of the complaint will be deemed admitted
and it will have waived its right to file an Answer to such complaint. The
only issue that may be raised before the Board is whether the Charged
Party defaulted on the terms of this Settlement Agreement. The Board
may then, without necessity of trial or any other proceeding, find all
allegations of the complaint to be true and make findings of fact and
conclusions of law consistent with those allegations adverse to the
Charged Party on all issues raised by the pleadings. The Board may then
issue an order providing a full remedy for the violations found as is
appropriate to remedy such violations. The parties further agree that a
U.S. Court of Appeals Judgment may be entered enforcing the Board
order ex parte, after service or attempted service upon Charged
Party/Respondent at the last address provided to the General Counsel.
Thereafter, the General Counsel informed the Respondent that it had not
complied with the settlement agreement, set out the actions needed for compliance, and
indicated that if the Respondent did not cure its non-compliance, the Regional Director
would reissue the complaint, in accordance with the performance clause of the
settlement agreement. The Respondent responded that it did not consider itself to be in
non-compliance, and it declined to take further action.
Accordingly, on August 22, 2013, the Regional Director reissued the Order
Consolidating Cases and Consolidated Complaint. On August 23, 2013, also in
accordance with the settlement agreement, the Regional Director filed a motion for
default judgment with the Board, along with a supporting brief asserting that the
Respondent had defaulted on the terms of the settlement agreement. On August 27,
2013, the Board issued an Order Transferring Proceeding to the Board and Notice to
Show Cause why the motion should not be granted. On September 10, 2013, the
3
Respondent filed a memorandum in opposition to the motion for default judgment,
disputing the allegation that the settlement had been breached. On September 20,
2013, the General Counsel filed a response.
Having duly considered the matter, we find that default judgment is not
appropriate under the circumstances of this case because, based on the conflicting
representations of the parties, genuine issues of material fact exist which prevent a final
determination as to whether the terms of the settlement agreement have been
breached.
In his Motion for Default Judgment, the General Counsel acknowledges that the
Respondent issued Sackett a revised appraisal in which it deleted the phrase from the
2012 appraisal that is specified in the settlement agreement and one other comment.
However, the General Counsel contends that the Respondent failed to delete three
other negative comments from the 2012 appraisal related to Sackett’s protected
concerted activities and denied Sackett a merit raise based on the non-compliant
revised evaluation. The Respondent does not dispute that it failed to remove the three
references that the General Counsel claims violate the terms of the settlement
agreement, but argues that these comments do not reference Sackett’s protected
concerted activities. Thus, a factual dispute exists as to whether the comments that the
Respondent did not delete from Sackett’s appraisal actually refer to Sackett’s protected
concerted activity or some other unprotected conduct.2 If the Respondent’s assertion
that it complied with the terms of the settlement agreement is true, dismissal of the

2 The General Counsel specified in the settlement agreement that certain quoted
language was to be removed but, without explanation, left the Respondent to interpret
what other language was encompassed by the phrase “any negative comments about
Sackett's protected concerted activities.”
4
complaint is warranted. We therefore find that the denials contained in the
Respondent’s response to the Notice to Show Cause, filed in accordance with the
settlement agreement, are sufficient to require a hearing on the question of whether the
Respondent fully complied with the terms of the settlement agreement.
Accordingly, we deny the General Counsel’s motion for default judgment and
remand this proceeding to the Regional Director for Region 9 for further appropriate
action.
Dated, Washington, D.C., March12, 2014
MARK GASTON PEARCE, CHAIRMAN
PHILIP A. MISCIMARRA, MEMBER
KENT Y. HIROZAWA, MEMBER