Pearle Express

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 669 (N.L.R.B. 2004)

PEARLE EXPRESS
342 NLRB No. 64
669
Europtics, Inc. d/b/a Pearle Express and Local 108,
Retail, Wholesale and Department Store Union,
U.F.C.W., AFL–CIO–CLC. Case 13–CA–41788
July 30, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
Union on March 25, 2004, the General Counsel issued
the complaint on April 30, 2004, against Europtics, Inc.
d/b/a Pearle Express, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the Act. The Respon-
dent failed to file an answer.
On June 10, 2004, the General Counsel filed a Motion
for Default Judgment with the Board. On June 15, 2004,
the Board issued 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 re-
sponse. The allegations in the motion are therefore un-
disputed.
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. In addition, the complaint affirmatively states
that unless an answer is filed within 14 days from service
of the complaint, all the allegations in the complaint will
be considered admitted.
The undisputed allegations in the motion for default
judgment disclose that on May 20, 2004, the Region sent
a letter to the Respondent, indicating that if an answer
was not filed by May 27, a motion for default judgment
would be filed. On May 25, the Region received a copy
of an undated letter, attached to a copy of the Region’s
May 20, 2004 letter to the Respondent. The undated
letter was addressed to Union President Charles Hall Jr.,
and stated that in light of recent negative economic
events, the Respondent was objecting to several proposed
modifications of the most recent “settlement agreement”
(apparently bargaining proposals) between the Union and
the Respondent. The letter did not refer to the complaint
or its allegations in any way. The letter was signed by
Isabella Gershengorin, the Respondent’s president.
On May 27, the Region sent a second letter to the Re-
spondent, stating that the documents sent to the Region
did not appear to correspond to the allegations in the
complaint, and informing the Respondent that its re-
sponse did not constitute an answer under the Board’s
Rules, because it failed to specifically address each of the
complaint allegations. The Respondent was given until
close of business on June 3, 2004, to file an answer in
which it addressed each complaint paragraph. The Re-
spondent failed to file an answer.
The Board typically has shown 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) (pro se respondent’s letter clearly denying
complaint allegations accepted as an answer). Indeed,
“[w]hen 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 General
Counsel even if the answer does not address all the fac-
tual allegations of the complaint.” American Gem Sprin-
kler Co., 316 NLRB 102, 103 fn. 5 (1995).
Here, however, although the letter from the Respon-
dent to the Union appears to be an attempt to demon-
strate that it had in fact bargained with the Union, it does
not specifically deny the unfair labor practice allegations.
There is no date on the letter, and therefore no indication
of whether the Respondent is claiming that it has bar-
gained with the Union since September 17, 2003, the
date of the alleged unfair labor practice. In addition, the
Respondent failed to address the substantive allegations
of the complaint in any way. Further, the Respondent
was apprised of the deficiencies in its response, and
made no attempt to correct them. Accordingly, we find
that the documents received by the Region from the Re-
spondent on May 25, 2004, do not constitute a proper
answer under Section 102.20 of the Board’s Rules and
Regulations because they fail to address any of the fac-
tual or legal allegations of the complaint, and are there-
fore legally insufficient under the Board’s Rules. Ameri-
can Gem Sprinkler Co., supra.1
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 default judgment.
On the entire record, the Board makes the following

1 Member Meisburg notes that, although he views the problems set
forth in the Respondent’s letter with sympathy, the letter does not con-
stitute a valid answer to the complaint nor does it set forth a legal de-
fense. In the absence of any contest of the factual allegations that the
Respondent refused to meet and bargain with the Union, the Board is
left with no choice under the law but to grant the General Counsel’s
motion for default judgment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Illinois cor-
poration with an office and place of business in Naper-
ville, Illinois, has been engaged in retail sales of eye-
glasses and related products. During the calendar year
preceding the issuance of the complaint, a representative
period, the Respondent, in conducting its operations,
derived gross revenues in excess of $500,000 and pur-
chased and received goods valued in excess of $50,000
directly from suppliers located outside the State of Illi-
nois. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that Local 108, Retail, Whole-
sale and Department Store Union, U.F.C.W., AFL–CIO–
CLC, the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all materials times Isabella Gershengorin held the
position of the Respondent’s president, and has been a
supervisor of the Respondent with the meaning of Sec-
tion 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
The following employees of the Respondent (the unit),
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:

All employees employed by the Employer at its facility
currently located at 680 S. State Street, Route 59, Na-
perville, Illinois, but excluding the store manager, assis-
tant manager, office employees, and guards, profes-
sional employees and supervisors as defined in the Act.

Since at least January 1, 1998, the Union has been the
exclusive collective-bargaining representative of the unit.
At all material times since at least January 1, 1998, the
Union, by virtue of Section 9(a) of the Act, has been, and
is, the exclusive collective-bargaining representative of
the unit.
Since about September 17, 2003 and at various times
thereafter, the Union, by letters and telephone calls from
Union President Charles N. Hall Jr., requested that the
Respondent bargain collectively with the Union as the
exclusive collective-bargaining representative of the unit.
Since September 17, 2003, and continuing to date, the
Respondent has failed and refused to meet and bargain
with the Union as the exclusive collective-bargaining
representative of the unit.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively with
the exclusive collective-bargaining representative of its
employees, and has thereby engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(5) and (1) and 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)(5)
and (1) by failing and refusing to bargain collectively
and in good faith with the exclusive bargaining represen-
tative of its employees since September 17, 2003, we
shall order it to bargain with the Union with respect to
wages, hours, and other terms and conditions of em-
ployment of the unit employees and, if an understanding
is reached, embody the understanding in a signed agree-
ment.
ORDER
The National Labor Relations Board orders that the
Respondent, Europtics, Inc. d/b/a Pearle Express, Naper-
ville, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain with Local 108, Re-
tail, Wholesale and Department Store Union, U.F.C.W.,
AFL–CIO–CLC, as the exclusive collective-bargaining
representative of the employees in the following unit:

All employees employed by the Employer at its facility
currently located at 680 S. State Street, Route 59, Na-
perville, Illinois, but excluding the store manager, assis-
tant manager, office employees, and guards, profes-
sional employees and supervisors as defined in the Act.

(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) On request, bargain with the Union as the exclusive
representative of the unit employees concerning their
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement.
(b) Within 14 days after service by the Region, post at
its facility in Naperville, Illinois, copies of the attached
PEARLE EXPRESS 671
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 17, 2003.
(c) 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.
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
violated Federal labor law and has ordered us to post and
obey this notice.

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.”
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 fail and refuse to bargain with Local 108,
Retail, Wholesale and Department Store Union,
U.F.C.W., AFL–CIO–CLC, as the exclusive collective-
bargaining representative of our employees in the follow-
ing unit:

All employees employed by us at our facility currently
located at 680 S. State Street, Route 59, Naperville, Il-
linois, but excluding the store manager, assistant man-
ager, office employees, and guards, professional em-
ployees and supervisors as defined in the Act.

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, on request, bargain with the Union as the
exclusive representative of our unit employees concern-
ing their terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement.
EUROPTICS, INC. D/B/A PEARLE EXPRESS