V. Garofalo Carting, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 2015

362 NLRB No. 170 (N.L.R.B. 2015)

362 NLRB No. 170
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.
V. Garofalo Carting, Inc. and Local 339, United Ser-
vice Workers Union, International Union of
Journeymen and Allied Trades. Case 29–CA–
141798
August 17, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent, V. Garofalo
Carting, Inc. has failed to file a timely answer to the
complaint. Upon a charge filed on November 25, 2014,
by Local 339, United Service Workers Union, Interna-
tional Union of Journeymen and Allied Trades, the Gen-
eral Counsel issued a complaint and notice of hearing on
January 30, 2015,1 against the Respondent, alleging that
it violated Section 8(a)(5) and (1) of the National Labor
Relations Act. Although properly served copies of the
charge and the complaint, the Respondent failed to file
an answer.
By letter and email dated February 17, the Board’s
Region 29 informed the Respondent that it had not re-
ceived the Respondent’s answer to the complaint, which
was due on February 13. That letter warned that, unless
the Respondent filed its answer with the Regional Direc-
tor by February 20, the Region would seek Summary
Judgment, and all complaint allegations would be
deemed admitted. The Respondent did not file an answer
by the February 20 deadline. On March 2, the General
Counsel filed with the Board a Motion for Default Judg-
ment. On March 3, the Respondent filed an answer to
the complaint and a request that the Motion for Default
Judgment be withdrawn. On March 4, the Board issued
an Order transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not be
granted. On April 10, the Respondent filed a Memoran-
dum in Opposition to the Motion, and the General Coun-
sel filed a reply, with exhibits attached.
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 the service of the complaint, unless good cause is

1 All dates are in 2015 unless otherwise stated.
shown. The complaint in this case affirmatively states
that an answer “must be received by [Region 29] on or
before February 13,” and that if no answer is filed, or an
answer is filed untimely, “the Board may find, pursuant
to a Motion for Default Judgment, that the allegations in
the complaint are true.” In addition, the General Coun-
sel’s motion asserts (and the Respondent’s opposition
does not dispute) that, by letter and email dated February
17, Region 29 advised the Respondent that unless it re-
ceived an answer by February 20, it would file a motion
for default judgment.
Despite receiving the complaint and the Region’s
warning letter, the Respondent neither filed an answer
nor requested an extension of time to do so before the
February 20 deadline expired. Instead, it filed an answer
on March 3, a day after the General Counsel filed the
Motion for Default Judgment. The Respondent also filed
an opposition to the Motion for Default Judgment, in
which it contends that it has established good cause to
file the answer late. Specifically, the Respondent argues
that its attorney had other commitments, that the Region
should have given the Respondent even more time to
answer before filing the motion, that the Respondent
attempted to settle the case, and that the Union was not
prejudiced by the Respondent’s delay in filing an answer.
We find the Respondent’s arguments unavailing. The
Respondent did not file an answer to the complaint by
either the February 13 or the February 20 deadline. Nor
did it request an extension of time to file an answer.
Such failure to promptly request an extension of time is a
factor demonstrating lack of good cause. See, e.g.,
A.C.E. Construction, Inc., 340 NLRB 609, 610 (2003);
CAC Services, 338 NLRB 993, 993 (2003); Associated
Supermarket, 338 NLRB 780, 781 (2003). On March 3,
when the Respondent filed an untimely answer, it did not
comply with the express instructions for doing so in Sec-
tion 102.111(c)(2) of the Board’s Rules and Regulations.
That is, it did not file “a motion that states the grounds
relied on for requesting permission to file untimely,”
accompanied by an affidavit containing the facts relied
on to support the motion. In Elevator Constructors Lo-
cal 2 (Unitec Elevator Services Co.), 337 NLRB 426,
428 (2002), the Board announced that in cases under the
excusable-neglect provision of Section 102.111(c) of the
Board’s Rules and Regulations, the Board would “strictly
adhere to our rule that the specific facts relied on to sup-
port the motion to accept a late filing shall be set forth in
affidavit form and sworn to by individuals with personal
knowledge of the facts.” Because the Respondent did
not comply with the requirements of Section
102.111(c)(2) of the Board’s Rules and Regulations, its
untimely answer was improperly filed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Moreover, the unsworn assertions the Respondent has
provided in its opposition do not demonstrate good cause
for its failure to file a timely answer. First, counsel for
the Respondent avers that he has been “inordinately sub-
dued [sic] in other matters,” and that the delay in the fil-
ing of the answer is not attributable to the Respondent.
An attorney’s heavy workload does not constitute good
cause for the failure to file a timely answer. See, e.g.,
U.S. Telefactors Corp., 293 NLRB 567, 567 (1989) (no
good cause shown where respondent’s attorneys had un-
usually heavy workload and one attorney was ill); Father
& Sons Lumber, 297 NLRB 437, 437 (1989) (no good
cause where answer was late because respondents’ attor-
ney was involved in litigation and had a breakdown of
staff communication and responsibility), enfd. 931 F.2d
1093 (6th Cir. 1991).2
Second, the Respondent argues that the Region should
have further delayed its filing of a motion for default
judgment. The Region, however, had already refrained
from filing its motion from February 13 to 20, in connec-
tion with its warning letter to counsel for the Respondent,
and had no obligation to delay its filing even further. In
fact, the Board has held that the failure of a Regional
Office to issue the recommended warning prior to filing
a default judgment motion does not excuse a respond-
ent’s antecedent failure to file a timely answer. See
Bricklayers Local 31, 309 NLRB 970, 970 (1992), enfd.
mem. 992 F.2d 1217 (6th Cir. 1993).3
Counsel for the Respondent avers that he attempted to
settle the complaint allegations with the Union, and for
this reason, he submitted two requests for extensions of
time to respond to the instant motion, each of which the
Region granted. The Respondent argues that the grant-

2 Counsel for the Respondent claims that the Region was aware of
his other commitments because he had asked for a postponement of the
hearing date in the case. Any scheduling conflicts in March and April
with respect to the hearing would have had no bearing on the Respond-
ent’s ability to file an answer in February. A respondent’s communica-
tion with the Region about the litigation does not constitute good cause
for the failure to file a timely answer. See, e.g., Electra-Cal Contrac-
tors, 339 NLRB 370, 370–371 (2003) (rejecting argument that re-
spondent could reasonably infer from charging party’s request for post-
ponement of hearing that it would not have to file timely answer);
Associated Interior Contractors, Inc., 339 NLRB 18, 18 (2003) (find-
ing no good cause for failing to file timely answer where respondents’
counsel requested postponement of hearing date).
3 The Region’s actions were fully consistent with Sec. 10280.3 of
the Board’s Casehandling Manual, which advises that, if a respondent
fails to timely file an answer, counsel for the General Counsel should
write to the respondent advising that no answer has been filed and
warning that a motion for default judgment will be filed within a certain
period of time, “normally not to exceed 1 week from [the] date of writ-
ten communication.” Sec. 10280.3 further states that if an answer is
not filed within the specified period, “counsel for the General Counsel
should file a Motion for Default Judgment with the Board.”
ing of these requests shows that the Union was not preju-
diced by the delay in filing an answer. But the possible
settlement of a case does not exempt a respondent from
the requirement to file an answer. See Sorenson Indus-
tries, 290 NLRB 1132, 1133 (1988); see also U.S.
Telefactors Corp., above at 567 (combination of possible
settlement, illness of one of respondent’s attorneys, and
unusually heavy workload of respondent’s attorneys did
not constitute good cause for failure to file timely an-
swer). Thus, the Respondent’s settlement efforts are not
a good cause to deny a Motion for Default Judgment.
Lastly, the Respondent contends that its delay in filing
an answer has not prejudiced the Union because it filed
its answer “well before the hearing date.” In support of
its argument, the Respondent cites Stage Employees
IATSE (Crossing Guard Productions, Inc.), 316 NLRB
808 (1995). That case is readily distinguishable: the
Board found that the respondent’s delay in filing its an-
swer was excusable where the Regional Office was im-
plicated in the delay because of a miscommunication
between the respondent and counsel for the General
Counsel. Id. at 808. Moreover, the Board only discussed
the lack of prejudice as an additional, not the primary,
reason for denying the motion. Id. at 809.
For the foregoing reasons, we find that the Respondent
has failed to show good cause why the Board should not
find all of the allegations in the complaint to be true.
Accordingly, we reject the late answer that the Respond-
ent filed in response to the Motion for Default Judgment.
In the absence of good cause being shown for the failure
to file a timely answer, we deem the allegations of the
consolidated complaint to be admitted as true, and we
grant the General Counsel’s Motion for Default Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a domestic cor-
poration with an office and place of business located at
926 Crooked Hill Road, Brentwood, New York, has been
engaged in providing sanitation services to residential
and commercial customers.
During the past year, which period is representative of
its annual operations in general, the Respondent, in the
course and conduct of its business operations described
above, derived revenues in excess of $50,000 from
providing sanitation services for various entities includ-
ing the towns of Huntington, Smithtown, and
Brookhaven, New York, each of which is directly en-
gaged in interstate commerce.
3
V. GAROFALO CARTING
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 is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Mario Garofalo has held the po-
sition of the Respondent’s president and has been a su-
pervisor of the Respondent within 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 constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
Included: All full-time and regular part-time residential
garbage/refuse removal truck drivers and helpers, roll
off drivers, retriever drivers, front and rear end drivers
employed by the Employer at its 926 Crooked Hill
Road, Brentwood, New York facility.
Excluded: Mechanics, mechanics helpers, yard per-
sonnel, office clerical employees, guards and supervi-
sors as defined in the Act.
At all times since October 14, 2010, the Respondent
has recognized the Union as the exclusive collective-
bargaining representative of the employees in the unit.
The Respondent and the Union have embodied that
recognition in a collective-bargaining agreement, effec-
tive from March 1, 2011, through February 28, 2014.
At all times since October 14, 2010, based on Section
9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the employees in the
unit.
About September 17, 2014, the Union and the Re-
spondent reached complete agreement on the terms and
conditions of employment to be incorporated in a collec-
tive-bargaining agreement.
Since about September 25, 2014, the Union has re-
quested that the Respondent execute a written contract
containing the parties’ agreement.
Since about September 25, 2014, the Respondent, by
Mario Garofalo, has failed and refused to execute the
parties’ agreement.
Since about September 17, 2014, the Respondent has
failed and refused to apply the terms of the parties’
agreement to the unit employees.
CONCLUSIONS OF LAW
1. By the conduct described above, the Respondent
has been failing and refusing to bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of unit employees, in violation of Section
8(a)(5) and (1).
2. The Respondent’s unfair labor practices 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 violated Section 8(a)(5) and
(1) of the Act by failing and refusing to execute and im-
plement the agreement it reached with the Union on Sep-
tember 17, 2014, we shall order the Respondent to exe-
cute and implement the agreement and give retroactive
effect to its terms. We shall also order the Respondent to
make whole the unit employees for any loss of earnings
and other benefits attributable to its failure to execute the
agreement, as set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
and Kraft Plumbing & Heating, 252 NLRB 891 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010).
Additionally, in accordance with Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014),
we shall order the Respondent to compensate the unit
employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards and to file a report
with the Social Security Administration allocating the
backpay awards to the appropriate calendar quarters for
each unit employee.
We shall also order the posting of an appropriate no-
tice, attached hereto as “Appendix.”
ORDER
The National Labor Relations Board orders that the
Respondent, V. Garofalo Carting Inc., Brentwood, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to execute and implement, as
requested by Local 339, United Service Workers Union,
International Union of Journeymen and Allied Trades
since about September 25, 2014, a collective-bargaining
agreement containing the terms and conditions of em-
ployment agreed to on September 17, 2014, for employ-
ees in the following bargaining unit:
Included: All full-time and regular part-time residential
garbage/refuse removal truck drivers and helpers, roll
off drivers, retriever drivers, front and rear end drivers
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
employed by the Employer at its 926 Crooked Hill
Road, Brentwood, New York facility.
Excluded: Mechanics, mechanics helpers, yard per-
sonnel, office clerical employees, guards and supervi-
sors as defined in the Act.
(b) Failing and refusing to bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of bargaining unit employees, in violation of
Section 8(a)(5) and (1) of the Act.
(c) 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 action necessary to effectuate
the policies of the Act.
(a) Execute and implement the agreement with the
Union, described above in paragraph 1(a), and give ret-
roactive effect to its terms to the effective date of the
agreement.
(b) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s failure to sign and effectuate the agreement,
plus daily compound interest, as set forth in the remedy
section of this decision.
(c) Compensate unit employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each unit employee.
(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 rec-
ords 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 Brentwood, New York, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of

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.”
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since September 17, 2014.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 17, 2015
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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.
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.
5
V. GAROFALO CARTING
WE WILL NOT fail and refuse to execute and imple-
ment, as requested by Local 339, United Service Work-
ers Union, International Union of Journeymen and Allied
Trades since about September 25, 2014, a collective-
bargaining agreement containing the terms and condi-
tions of employment agreed to on September 17, 2014,
for employees in the following bargaining unit:
Included: All full-time and regular part-time residential
garbage/refuse removal truck drivers and helpers, roll
off drivers, retriever drivers, front and rear end drivers
employed by the Employer at its 926 Crooked Hill
Road, Brentwood, New York facility.
Excluded: Mechanics, mechanics helpers, yard per-
sonnel, office clerical employees, guards and supervi-
sors as defined in the Act.
WE WILL NOT fail and refuse to bargain collectively
with the Union as the exclusive collective-bargaining
representative of our bargaining unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL execute and implement the collective-
bargaining agreement with the Union containing the
terms and conditions of employment agreed to on Sep-
tember 17, 2014, and give retroactive effect to its terms
to the effective date of the agreement.
WE WILL make unit employees whole for any loss of
earnings and other benefits suffered as a result of our
failure to sign and effectuate the agreement, plus interest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file a report with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters for each unit
employee.
V. GAROFALO CARTING, INC.
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-141798 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.