NOTICE:  This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions.  Readers are requested to notify the Executive 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.

 

Hempstead Lincoln Mercury Motors Corp. and Local 917, International Brotherhood of Teamsters.  Case 29–CA–27601

March 16, 2007

ORDER DENYING MOTION FOR DEFAULT
JUDGMENT AND REMANDING

By Members Schaumber, Kirsanow, and Walsh

Upon a charge filed by Local 917, International Brotherhood of Teamsters (Union), on April 24, 2006,1 the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on September 28, 2006, against Hempstead Lincoln Mercury Motors Corp., the Respondent, alleging that it violated Section 8(a)(5) and (1) of the National Labor Relations Act.2  Copies of the charge and the complaint were properly served on the Respondent.  The answer to the complaint was due October 12, 2006.

The Regional Office did not receive an answer by October 12.  On Monday, October 16, the Respondent’s counsel telephoned the Regional Office.  Counsel acknowledged missing the October 12 deadline, and stated that he would fax and send by overnight mail his answer that day.  The Regional Office received the answer the next day, October 17, unaccompanied by a request for an extension of time.

On October 30, counsel for the General Counsel filed a Motion for Default Judgment.  On November 1, the Board issued an order transferring the proceeding to itself and a Notice to Show Cause why the motion should not be granted.  On November 3, the Respondent filed a memorandum in opposition to counsel for the General Counsel’s Motion for Default Judgment.  On November 9, counsel for the General Counsel filed a response to the Respondent’s memorandum in opposition.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

In the memorandum in opposition, counsel for the Respondent avers the following.  On Monday, October 16, he spoke by telephone with the supervisory attorney for Region 29 assigned to this case.  He told her that his recent work schedule had prevented his filing an answer by October 12.  When he told her that he would send the answer by overnight mail and by fax that day, the supervisory attorney responded by telling him “it was not a problem.”

Counsel for the Respondent asserts that, on those facts, “the need for a formal request for an extension was obviated” because he had “obtained authorization to file” late.3  Counsel also contends that the Regional Office disregarded the Board’s Casehandling Manual, Part One, which states:

 

10280.3 No Answer Filed;
Motion for Default Judgment

 

If an answer has not been filed within the time allowed, counsel for the General Counsel should communicate in writing with respondent’s counsel, or with respondent if it is not represented, advising that no answer has been filed in accord with the Rules and Regulations and that if an answer is not filed within a certain period of time (normally not to exceed 1 week from date of written communication), counsel for the General Counsel will file a Motion for Default Judgment with the Board. If an answer is not filed within the applicable deadline, counsel for the General Counsel should file a Motion for Default Judgment with the Board.

 

It is undisputed that the Regional Office sent no such written communication.

In her pleadings, counsel for the General Counsel acknowledges that the Respondent’s counsel telephoned the Regional Office on October 16, but she does not admit or deny that the supervisory attorney assigned to the case stated that the late filing “was not a problem.”  Counsel for the General Counsel maintains that, even if the supervisory attorney made that statement, the Respondent’s counsel could not have relied on it to his detriment because the deadline for filing an answer had already passed by the time of their telephone conversation.  In response to counsel for the Respondent’s citation of the Casehandling Manual, counsel for the General Counsel cites cases holding that the Casehandling Manual is not binding on Regional Office personnel.4

Analysis

We find, in the absence of any denial, that the Regional Office’s supervisory attorney made the statement attributed to her by counsel for the Respondent.  And, even though counsel for the General Counsel is correct in asserting that the Respondent was already in default at the time of the telephone conversation, we do not find that fact dispositive: Section 10280.3 of the Casehandling Manual, quoted above, contemplates that additional time will usually be granted after the time for filing the answer has passed, and our case law demonstrates that such informal extensions have been granted in those circumstances.5  On the facts of this case, we find that the supervisory attorney effectively extended the filing deadline, in a manner akin to that suggested by Casehandling Manual Section 10280.3, by her oral response to counsel for the Respondent.  Accordingly, the General Counsel’s Motion for Default Judgment is denied.6

ORDER

It is ordered that the General Counsel’s Motion for Default Judgment is denied.

It is further ordered that this proceeding is remanded to the Regional Director for Region 29 for further appropriate action.

Dated, Washington, D.C.   March 16, 2007

 

______________________________________

Peter C. Schaumber,                 Member

 

______________________________________

Peter N. Kirsanow,                                   Member

 

______________________________________

Dennis P. Walsh,                                     Member

 

(seal)            National Labor Relations Board

 


1 All dates are in 2006, unless otherwise noted.

2 The complaint alleges that, beginning in December 2005, the Respondent failed to pay a required 20-percent increase in its monthly contribution to the Union’s pension fund, and thereby did not fulfill its obligations under the expired collective-bargaining agreement.

3 The Respondent relies on Stage Employees IATSE (Crossing Guard Productions), 316 NLRB 808, 808–809 (1995), where the Board denied summary judgment after a misunderstanding arising out of a telephone conversation between counsel led to a late-filed answer.

4 Bricklayers Local 31, 309 NLRB 970 (1992), enfd. mem. 992 F.2d 1217 (6th Cir. 1993); Superior Industries, 289 NLRB 834, 835 fn. 13 (1988), enfd. mem. 902 F.2d 40, 41 (9th Cir. 1990).  The Casehandling Manual is issued by the General Counsel, not the Board, and we have repeatedly stated, with court approval, that it is not binding authority on the Board.  See, e.g., NLRB v. Cedar Tree Press, Inc., 169 F.3d 794, 796 and cases cited in fn. 2 (3d Cir. 1999); Sioux City Foundry Co. v. NLRB, 154 F.3d 832, 838 (8th Cir. 1998), citing Children’s National Medical Center, 322 NLRB 205, 205 fn. 1 (1996).  Indeed, as the Casehandling Manual expressly states in its introduction, it is intended to be used for guidance only, and it does not bind the Board or even the conduct of the Regional Offices or other General Counsel staff.  Accordingly, we do not join our colleague’s statement that it is “misleading” for the Board or the General Counsel to disseminate the manual but take the position that it is not binding authority.

5 See, e.g., Lake States Industrial Services, 349 NLRB No. 25 (2007) (granting default judgment where the respondent missed its filing deadline, which the Region had extended following the respondent’s failure to file by the due date in the complaint); Willis Roof Consulting, 349 NLRB No. 24 (2007) (same).

6 Member Schaumber additionally observes that the Board generally disfavors default judgments: “While the Board strongly encourages strict compliance with its procedural rules, including those concerning the manner of filing and serving answers to complaints, the Board recognizes that the law favors a determination on the merits.”  Paolicelli, 335 NLRB 881, 882 (2001) (citing M. J. McNally, Inc., 302 NLRB 120 (1991)).  Moreover, the Casehandling Manual clearly indicates that counsel for the General Counsel “should” send an advisory letter and give a brief extension where a respondent has failed to file a timely answer.  The Board holds its Casehandling Manual out to the public, and the home page of the Board’s public website includes a link to it.  While there is language in the introduction indicating that the Manual is not binding, there is additional language that it is “expected” that Regional Directors and their staffs will follow the Manual’s guidelines, although there will be situations in which they may adapt the guidelines to the circumstances.  Member Schaumber finds it misleading to take the position that the Casehandling Manual provision regarding untimely filing is not binding (see cases at fn. 4, above) while simultaneously holding it out to the public as indicating the manner in which the General Counsel should operate.