H.W. Weidco/Ren LLC d/b/a South Jersey Extended Care

National Labor Relations Board - Board Decisions

May 10, 2019

367 NLRB No. 126 (N.L.R.B. 2019)

367 NLRB No. 126
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.
H.W. Weidco/Ren LLC d/b/a South Jersey Extended
Care and United Food and Commercial Workers
Union Local 152. Case 04–CA–213035
May 10, 2019
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that H.W. Weidco/Ren, LLC d/b/a
South Jersey Extended Care (the Respondent) failed to file
an answer to the complaint. Upon a charge and amended
charges filed by the United Food and Commercial Work-
ers Union Local 152 (the Union) on January 16 and 31 and
February 2, 2018, the General Counsel issued a complaint
on June 26, 2018, alleging that the Respondent violated
Section 8(a)(1) of the Act. The Respondent failed to file
an answer.
On July 25, 2018, the General Counsel filed with the
National Labor Relations Board a Motion for Default
Judgment. Thereafter, on August 3, 2018, the Board is-
sued an order transferring the proceeding to the Board and
a Notice to Show Cause why the motion should not be
granted. The Respondent filed no response. The allega-
tions in the motion are therefore undisputed.
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 a 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 stated that unless
an answer was received by July 10, 2018, the Board may
find, pursuant to a motion for default judgment, that the
allegations in the complaint are true. Further, the undis-
puted allegations in the General Counsel’s motion dis-
close that the Region, by letter dated July 11, 2018, ad-
vised the Respondent that unless an answer was received
by July 18, 2018, a motion for default judgment would be
filed. Nonetheless, the Respondent failed to file an an-
swer.
In the absence of good cause being shown for the failure
to file an answer, we deem the allegations in the complaint
to be admitted as true. Nevertheless, as discussed below,
we deny the General Counsel’s motion for default judg-
ment without prejudice to renewing his motion in the
event that the complaint is amended and the Respondent
again fails to file an answer.
The Complaint Allegations
At all material times, the Respondent, a New Jersey lim-
ited liability company, has operated a rehabilitation and
long-term care nursing facility in Bridgeton, New Jersey
(the facility).
During the year preceding issuance of the complaint, the
Respondent, in conducting its business operations de-
scribed above, derived gross revenues in excess of
$100,000 and purchased and received at the facility goods
valued in excess of $50,000 directly from points outside
the State of New Jersey.
At all material times, the Respondent has been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and a health-care institu-
tion within the meaning of Section 2(14) of the Act, and
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
At all material times, the following named individuals
held the positions at the facility set forth opposite their re-
spective names and have been supervisors of the Respond-
ent within the meaning of Section 2(11) of the Act and
agents of the Respondent within the meaning of Section
2(13) of the Act:
Joshua Rosenberg Administrator
Marquise Williams Dietary Director
About December 27, 2017, the Respondent, by Joshua
Rosenberg, at a conference room at the facility, denied the
request of its employee Rosalind Hickman to be repre-
sented by a union representative during an investigatory
interview.
Rosalind Hickman had reasonable cause to believe that
the interview described above would result in disciplinary
action being taken against her.
About December 27, 2017, the Respondent, by Joshua
Rosenberg and Marquise Williams, at a conference room
at the facility, conducted the interview described above
with Rosalind Hickman, even though the Respondent de-
nied the employee’s request for union representation de-
scribed above.
Analysis
We decline to grant the General Counsel’s Motion for
Default Judgment. The complaint does not include an ex-
plicit allegation that the Union is the exclusive bargaining
representative of the unit employees, a necessary element
of a Weingarten violation. See, e.g., Provider Services
Holdings, LLC, 356 NLRB 1434, 1435 (2011). Nor does
the complaint allege that Hickman is a unit employee. Ab-
sent the allegation of those necessary facts, we cannot
find, for the purposes of this proceeding, that the Respond-
ent violated the Act by denying Hickman a union repre-
sentative. See, e.g., Cannon Valley Woodwork, Inc., 333
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB No. 97, slip op at 1 fn. 1 (2001) (denying default
judgment to the extent 8(a)(5) complaint alleged a failure
to bargain over decision to close plant, as “the bare asser-
tions of the complaint do not support a cause of action
given the Supreme Court’s decision in First National
Maintenance”); Rio Piedras Mfg. Corp., 236 NLRB 1198,
1198 fn. 1 (1978) (denying default judgment to the extent
complaint alleged 8(a)(3) plant closure since General
Counsel had failed to allege “facts, not disputed by an an-
swer, showing that Respondent was continuing operations
at other facilities,” as required by Darlington).
We note that the case cited by our colleague, Artesia
Ready Mix Concrete, Inc., 339 NLRB 1224, 1226 (2003),
presents a different situation. In that case, the complaint
successfully pled all the elements necessary for finding the
violations alleged.
Nothing herein will require a hearing if, in the event the
complaint is appropriately amended, the Respondent
again fails to answer, thereby admitting evidence that
would permit the Board to find the alleged violation. In
such circumstances, the General Counsel may renew the
motion for default judgment with respect to the amended
complaint allegations.
ORDER
IT IS ORDERED that the General Counsel’s motion for de-
fault judgment is denied and the proceeding is remanded
to the Regional Director for Region 4 for further appropri-
ate action.
Dated, Washington, D.C. May 10, 2019
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
I would grant the Motion for Default Judgment. Both
Section 102.15 of the Board’s Rules and Regulations and
Board precedent make clear that a complaint need not
plead and substantiate each and every evidentiary element
of an alleged violation—it is enough under a basic “notice
pleading” standard to state clearly the violation alleged.
Artesia Ready Mix Concrete, Inc., 339 NLRB 1224, 1226
(2003). Unlike in civil litigation, in an administrative pro-
ceeding such as this—where the filing of the complaint is
preceded by the filing of an unfair labor practice charge
by a third party and an administrative investigation—the
respondent is already aware of the charges against it and
has been given an opportunity to present its position. Id.
at 1226–1227 (citing Patrician Assisted Living Facility,
339 NLRB 1153 (2003)). In these circumstances, default
judgment can ordinarily be appropriate without implicat-
ing due process concerns so long as the complaint pro-
vides sufficient notice of the basis of the General Coun-
sel’s claim. Id. at 1227. Contrary to my colleagues’ view,
the complaint here certainly meets that standard and raises
no significant due process concerns. The omitted allega-
tions from the complaint—the Union’s representative sta-
tus and the relevant employee’s inclusion in the bargain-
ing unit—are all implicit in the related allegations and es-
tablished by the second amended unfair labor practice
charge, which the Region served on the Respondent.
Thus, the Respondent was in no way compromised in its
ability to answer the complaint. Because it failed to do so,
default judgment is appropriate.
Dated, Washington, D.C. May 10, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD