East Brunswick European Wax v. NLRB

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
Nos. 20-2120 & 20-2233
EAST BRUNSWICK EUROPEAN WAX CENTER, LLC
v.
NATIONAL LABOR RELATIONS BOARD
East Brunswick European Wax Center, LLC,
Petitioner in No. 20-212
National Labor Relations Board,
Petitioner in No. 20-2233
______________
On Application for Enforcement and Cross-Petition for
Review of an Order of the National Labor Relations Board
(NLRB-1 No. 22-CA-178646)
______________
Argued October 26, 2021
BEFORE: GREENAWAY, JR., PHIPPS, and COWEN,
Circuit Judges
(Filed: January 11, 2022)
______________
Carmen M. Finegan
Law Office of Gerard C. Vince
1040 Amboy Avenue
Edison, NJ 08837
David Jasinski (argued)
3rd Floor
2 Hance Avenue
Tinton Falls, NJ 07724
Attorneys for Petitioner in Nos. 20-2120 and Respondent
in 20-2233
Jennifer A. Abruzzo, General Counsel
Julie B. Broido
David Habenstreit
David A. Seid (argued)
National Labor Relations Board
1015 Half Street, S.E.
Washington, DC 20003
Attorneys for Respondent in Nos. 20-2120 and Petitioner
in 20-2233
______________
OPINION OF THE COURT
______________
COWEN, Circuit Judge.
2
East Brunswick European Wax Center, LLC
(“EBEWC”) petitioned for review of the decision and order of
the National Labor Relations Board (“Board”). The Board, in
turn, cross-applied for enforcement of its order. In its decision
and order, the Board granted the General Counsel’s motion for
default judgment because EBEWC had defaulted on the terms
of the settlement agreement (“Settlement Agreement”) by
failing to “fully comply” with the Settlement Agreement’s
“Electronic Notification” provision requiring EBEWC to text
the requisite notice to its employees (“Notice”). Pursuant to the
Settlement Agreement, the Board then found that the allegations
set forth in the reissued complaint were true, made findings of
fact and conclusions of law consistent with the pleading’s
allegations, and granted the General Counsel’s request for a
“full remedy” for the violations the Board found.
However, the Board took such drastic action even though
EBEWC had purportedly “defaulted” on the terms of the
Settlement Agreement merely by sending the requisite Notice to
its employees by e-mail instead of by text message. The
Settlement Agreement did explicitly provide for the Notice to be
sent by text. But there is no indication that texting as opposed
to some other method of electronic communication (such as e-
mailing) had any real significance to EBEWC, its employees, or
the Board itself—and EBEWC otherwise fully complied with its
other obligations under the Settlement Agreement. Because the
agency overreached and acted punitively, we will grant
EBEWC’s petition for review and will deny the Board’s
application for enforcement.
I.
This proceeding arises out of charges of unfair labor
practices filed by a former EBEWC employee named Kellie
3
Meagan Zambrano. EBEWC operates a beauty and waxing
salon in East Brunswick, New Jersey. On November 30, 2016,
the General Counsel issued a complaint alleging that EBEWC
had violated Section 8(a)(1) and (3) of the National Labor
Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1) and (3), by
implying that employees would be discharged if they engaged in
union or protected concerted activity, soliciting employee
assistance in ascertaining the union and protected activities and
support of their co-workers, issuing a handbook rule subjecting
employees to discipline for gossiping or complaining about
EBEWC’s rules or procedures, prohibiting employee discussion
of ongoing internal investigations, discharging Zambrano for
engaging in concerted employee activities including discussion
and texting with her co-workers regarding the terms and
conditions of employment, and issuing a final written warning
to employee Liz Siebold.1 The complaint sought an order
requiring, among other things, EBEWC to read and post a
remedial notice. In the remedy section, the pleading also stated
that, “since Respondent communicates with its employees by
text message, the General Counsel seeks an Order requiring that
Respondent send the notice to employees to its employees by
text message, such text to contain an explanation of the notice as
directed by the Board.” (A21.)
On December 19, 2016, EBEWC signed an informal
settlement agreement, which Zambrano had signed on
November 30, 2016 and the Regional Director then approved on
January 3, 2017. As the Board observed in its decision,
EBEWC agreed to:
1
While the complaint, Settlement Agreement, and other
documents spell her name “Siebold,” her employment records
spell it “Sebold.”
4
(1) post at its facility the appropriate Board notice
for 60 days; (2) send the notice by text message to
all employees who work at the facility; (3) read,
or have a Board Agent read, the notice; (4)
comply with all the terms and provisions of the
notice, including rescinding handbook rules
prohibiting talking or complaining about wages,
hours, and working conditions or the
Respondent’s rules, policies, and/or procedures
and rescinding the final warning issued to Liz
Siebold; (5) make Kellie Zambrano whole by
paying her $20,000 in backpay and interest; (6)
remove from its files all references to Zambrano’s
discharge, and inform Zambrano in writing that it
had been done; and (7) notify the Regional
Director in writing what steps the Respondent had
taken to comply with the settlement.
E, Brunswick European Wax Ctr., 369 NLRB No. 77, 2020 WL
2476669, at *1 (May 13, 2020). The Settlement Agreement also
included a “Non-Admission Clause.” (A24 (“By entering into
this Settlement Agreement, the Charged Party does not admit
that it has violated the National Labor Relations Act.”).) But it
was also agreed as to the “SCOPE OF THE AGREEMENT”
that the Settlement Agreement “settles only the allegations in
the above-captioned case(s)” (including all the allegations
covered by the attached Notice made part of the Settlement
Agreement) “and does not settle any other case(s) or matters.”
(A24-A25 (“It does not prevent persons from filing charges, the
General Counsel from prosecuting complaints, or the Board and
the courts from finding violations with respect to matters that
happened before this Agreement was approved regardless of
whether General Counsel knew of those matters or could have
5
easily found them out. The General Counsel reserves the right
to use the evidence obtained in the investigation and prosecution
of the above-captioned case(s) for any relevant purpose in the
litigation of this or any other case(s), and a judge, the Board and
the courts may make findings of fact and/or conclusions of law
with respect to said evidence.”).)
The Settlement Agreement set forth the following
requirement governing electronic notification:
ELECTRONIC NOTICE.—The Charged Party
will send a copy of the signed Notice in English
and in additional languages if the Regional
Director decides that it is appropriate to do so, by
text to all employees who work at the facility
located at [address]. The message of the text
transmitted with the Notice will state: “We are
distributing the Attached Notice to Employees to
you pursuant to a Settlement Agreement approved
by the Regional Director of Region 22 of the
National Labor Relations Board in Case(s) 22-
CA-178646.” The Charged Party will forward a
copy of that text, with all of the recipients’ phone
numbers, to the Region’s Compliance Officer at
[e-mail address].
(A24.) Under the heading “PAYMENT OF WAGES AND
BENEFITS,” it was agreed that: “Within 14 days from
approval of this agreement, the Charged Party will make whole
the employee(s) named below by payment to each of them of
the amount opposite each name. The Charged Party will make
appropriate withholdings for each named employee. No
withholdings should be made from the interest portion of the
backpay. Kellie Zambrano $20,000.00” (Id.) In the
6
“NOTIFICATION OF COMPLIANCE” provision, the
parties to the Settlement Agreement agreed that they “will
notify the Regional Director in writing what steps the Charged
Party has taken to comply with the Agreement.” (A25.) “This
notification shall be given within 5 days, and again after 60
days, from the date of the approval of this Agreement,” and
“[n]o further action shall be taken in the above captioned case(s)
provided that the Charged Party complies with the terms and
conditions of this Settlement Agreement and Notice.” (Id.)
Furthermore, the Settlement Agreement included a
specific provision addressing “PERFORMANCE”:
Performance by the Charged Party with the terms
and provisions of this Agreement shall commence
immediately after the Agreement is approved by
the Regional Director, or if the Charging Party
does not enter into this Agreement, performance
shall commence immediately upon receipt by the
Charged Party of notice that no review has been
requested or that the General Counsel has
sustained the Regional Director.
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 includes the allegations covered
by the Notice to Employees, as identified above
in the Scope of Agreement section, as well as
filing and service of the charge(s), commerce
7
facts necessary to establish Board jurisdiction,
labor organization status, appropriate bargaining
unit (if applicable), and any other allegations the
General Counsel would ordinarily plead to
establish the unfair labor practices. 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
that it will have waived its right to file an Answer
to such Complaint. The only issue that the
Charged Party may raise before the Board will be
whether it defaulted on the terms of this
Settlement Agreement. The General Counsel
may seek, and the Board may impose, a full
remedy for each unfair labor practice identified in
the Notice to Employees. 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 at the last address provided
to the General Counsel.
8
(A25.)
In a January 6, 2017 letter, the Region 22 compliance
officer summarized EBEWC’s obligations under the Settlement
Agreement, specifically that it must post the enclosed Notice to
Employees, read the Notice to Employees in the presence of a
Board agent, send a copy of the signed Notice “by text” to all
employees who work at the facility, and complete and return the
enclosed certification of compliance forms (with the first part
due January 20, 2017 and the second part due by February 6,
2017). The compliance officer also indicated that the terms of
the Settlement Agreement and Notice should be read carefully
because EBEWC was “expected to comply with all such
provisions.” (A45 (“If you have any questions or if I can assist
you, please let me know.”).) “Specifically, the Settlement
Agreement requires” EBEWC to make Zambrano whole by
payment in the amount of $20,000.00 (no later than January 17,
2017). (Id.)
By letter dated February 1, 2017, the compliance officer
reminded EBEWC of its obligations:
As you are aware, the terms of the Agreement
require, among other things, that your client,
European Wax Center of East Brunswick, post a
notice to employees for 60 days, read the notice
aloud to employees in the presence of a Board
agent, distribute the notice electronically to
employees, pay Kellie Zambrano a total of
$20,000 in the method described in my January 6,
2017 opening compliance letter to you, and
remove from its files any reference to Ms.
Zambrano’s discharge and notify her in writing
that this has been done and that the discharge will
9
not be used against her in any way.. [sic]
Additionally, the Employer is required to
complete and return to me the Certification of
Compliance, Part One and Part Two forms, along
with a signed and dated copy of the notice. To
date, the Region has received none of the required
items from the Employer or any indication that
the Employer intends to comply with the
Settlement Agreement.
(A51.) EBEWC was advised that it must comply with the
provisions of the Settlement Agreement and arrange a date for
the compliance officer to visit its facility for the notice reading
“to take place no later than “February 15, 2017.” (Id.)
“Absent receipt of the backpay and the above-described actions
by this date, and without further notice to you, I will
recommend to the Regional Director that he revoke the
Settlement Agreement.” (Id.)
On March 20, 2017, the compliance officer
acknowledged by e-mail receipt of the backpay and interest
check for Zambrano and stated that, given this receipt, the
Regional Director was reluctantly willing to give EBEWC two
more weeks (i.e., by April 4, 2017) to comply with the
Settlement Agreement’s remaining provisions. According to
this e-mail, those outstanding items were: (1) posting of the
Notice; (2) reading of the Notice aloud to the employees; (3)
completing and returning the certification of compliance forms;
and (4) purging Zambrano’s personnel file of any reference to
her discharge (and notifying Zambrano in writing that this was
done and that her discharge would not be used against her).
According to the e-mail, no further extensions of time would be
granted. In a follow-up e-mail dated the same day, the
10
compliance officer added the requirement that Siebold’s written
discipline be purged from her personnel file (with written
confirmation to the Region that this step was completed).
On May 9, 2017, a compliance assistant identified by e-
mail the outstanding items required “to comply with the
[remaining] provisions of the Settlement Agreement.” (A90.)
These were posting of the Notice, reading of the Notice aloud to
employees, submission of the certification of compliance forms,
and purging Zambrano’s personnel file of all references to her
discharge (with written confirmation to the Region that this was
done).
On June 12, 2017, the Region’s compliance officer read
the Notice to the employees at the facility. In an e-mail dated
June 19, 2017, the compliance officer stated, among other
things, that:
There are remaining items that must be
completed by the end of this week by the
Employer:
1. The notice to employees must be sent via text
to all wax associates and general service
associates and the text must say “We are
distributing the attached Notice to Employees to
you pursuant to a Settlement Agreement approved
by the Regional Director of Region 22 of the
National Labor Relations Board” with the notice
attached.
(A57.) She also asked EBEWC to rescind Siebold’s final
warning, remove references to Zambrano’s discharge from its
files (and inform Zambrano of this action), and complete and
11
return the relevant forms by June 23, 2017. According to the
compliance officer, “[t]he Employer signed this settlement
agreement on December 19, 2016 and has been given a
generous amount of time to comply with the terms.” (A58.)
She warned that “[t]he Region will have no choice but to move
forward with seeking a default judgment if these remaining
provisions of the settlement have not been completed by the end
of this week.” (Id.)
On July 31, 2018, the Regional Director reissued the
complaint. In addition to setting forth the allegations of unfair
labor practices included in the original complaint, the reissued
complaint alleged that EBEWC had failed to fully comply with
all of the terms of the Settlement Agreement by:
1. Failing to remove from its files reference
to Zambrano’s discharge and notifying her
it has done so.
2. Failing to rescind Liz Siebold’s final
warning.
3. Failing to text the Notice to its employees;
and
4. Failing to return the required Certification
of Compliance forms to the Region to
document the steps Respondent took to
comply with the Settlement Agreement.
(A29.) As part of the remedy for the alleged unfair labor
practices, “and since Respondent communicates with its
employees by text message, the General Counsel seeks an Order
requiring that Respondent send the notice to employees to its
12
employees by text message, such text to contain an explanation
of the notice as directed by the Board.” (A34.)
The General Counsel also filed on the same day a motion
for default judgment, asking the Board to issue a decision and
order against EBEWC containing findings of fact and
conclusions of law based on the allegations of the reissued
complaint, and “ordering [EBEWC] to fully remedy the unfair
labor practices found, and granting such other, further relief as
may be proper in the circumstances.” (A36.) After
summarizing the history of this proceeding and specifically
addressing how EBEWC had failed to comply with the terms of
the Settlement Agreement, the General Counsel alleged that
“the Settlement Agreement provides that in the event of non-
compliance, the Board may issue an order providing a full
remedy for the violations found as is appropriate to remedy such
violations and that a U.S. Court of Appeals Judgment may be
entered enforcing the Board order.” (A40.) “As a result of
Respondent’s default, the General Counsel seeks an Order
requiring Respondent to fulfill all of its remaining undertakings
in the January 3, 2017 Settlement Agreement.” (Id.) The
General Counsel thereby moved that the Board find that: (1)
EBEWC had waived its right to file an answer to the reissued
complaint under the terms of the Settlement Agreement, that all
allegations of the reissued complaint be deemed to be true, and
that no hearing was necessary; (2) find that EBEWC had
violated Section 8(a)(1) and (3) as alleged in the reissued
complaint; (3) issue a decision and order containing findings of
fact and conclusions of law based on (and in accordance with)
the reissued complaint’s allegations “and provide a full remedy
for the unfair labor practices alleged”; and (4) “[g]rant any such
other, further, and different relief as may be appropriate and
proper to remedy the allegations in the reissued Complaint.”
13
(A40.)
On August 3, 2018, the matter was transferred to the
Board, and the Board issued a notice to show cause why the
General Counsel’s motion should not be granted.
On August 16, 2018, counsel for EBEWC sent the
General Counsel’s attorney a letter explaining that her client had
complied with its obligations under the Settlement Agreement:
Kindly find enclosed the Competed [sic]
Compliance Forms (Part One and Two) with
attached: Exhibit “A” (copy of e-mail
communication sent to all employees with
Notices pursuant to the Settlement Agreement);
Exhibit “B” (copy of e-mail confirming Manager,
Shani Guadalupe’s reading of the Notice on April
7, 2017); Exhibit “C” (e-mail communications
confirming Ms. Ficke’s [sic] Notice Reading at
European Wax Center on June 12, 2017); Exhibit
“D” (copy of the check issued to Ms. Zambrano
on February 7, 2017 and mailed to the NLRB on
March 6, 2017); and Exhibit “E” (copy of the
recent correspondence sent to Ms. Zambrano
confirming expungement of file per Settlement
Agreement in February 2017).
(A71.) Counsel also indicated that, as to the rescission of
Siebold’s final warning, Siebold had voluntarily terminated her
employment (her last day was July 29, 2016) and all reference
to the final warning was removed from her file (a copy of which
was enclosed as Exhibit F). “It is my understanding that the
enclosed confirms that European Wax Center of East Brunswick
is fully compliant with its obligations under the terms of the
14
Settlement Agreement in this matter. Kindly confirm that the
pending Notice to Show Cause will be withdrawn and no further
steps are required on behalf of our client.” (Id.)
The first part of the attached certification of compliance
forms contained an “Electronic Distribution” section stating
that: “The signed and dated Notice to Employees in the above
captioned matter was distributed electronically on (date) . . . by
the following means. (State means of distribution and attach
proof.). . .” (A72.) In handwriting, a date was provided (April
7, 2017), and EBEWC stated: “SEE COPY OF EMAIL
WITH FOUR (4) ATTACHED DOCUMENTS
ATTACHED HERETO AS EXHIBIT ‘A.’” (Id.)
In turn, Exhibit A included an e-mail dated April 7, 2017
from EBEWC to its employees entitled “Meeting Notes 4/7/17.”
(A76.) The “Topics discussed” listed the following item:
“Everybody please follow me into the call center to read
important documents and also see attachment. Any questions,
please come to me.” (A77.) The Notice was then attached to
the e-mail.
On August 17, 2018, EBEWC filed its opposition to the
reissued complaint, motion for default judgment and issuance of
decision and order, and the notice to show cause. In support of
its opposition, it “avers that the alleged deficiencies were all
addressed and complied with as set forth in the recent
submissions to [the attorney for the General Counsel].” (A66.)
A copy of the August 16, 2018 letter and its exhibits were
attached to the opposition. EBEWC thereby requested that the
Board deny the relief requested, find that it had fully satisfied
the terms and conditions of the Settlement Agreement, and enter
a final dismissal in this case.
15
On May 13, 2020, a three-member panel of the Board
issued its decision and order. First, it rendered the following
“Ruling on Motion for Default Judgment”:
In its response to the Notice to Show
Cause, the Respondent contends that the Motion
for Default Judgment should be denied and the
reissued complaint should be dismissed because
the documents attached to its response to the
Notice to Show Cause, which consist of copies of
completed compliance forms, an email
communication to employees, a copy of an email
stating that Manager Shania Guadalupe read the
notice on April 7, 2017, email communication
confirming the compliance officer’s reading of
the notice on June 12, 2017, a copy of the check
issued to Zambrano, a copy of the correspondence
sent to Zambrano confirming expungement of the
discharge from her personnel record, and a copy
of Siebold’s file with all references to the final
written warning she received removed, show “that
the alleged deficiencies were all addressed and
complied with.”
Although the Respondent asserts that it has
complied with the settlement agreement, the
Respondent has not established that it has sent the
notice to employees by text message to
employees. As noted above, the noncompliance
provision in the settlement agreement provides
that “[t]he only issue that the Charged Party may
raise before the Board will be whether it defaulted
on the terms of this Settlement Agreement.” As
16
described, the Respondent has not shown that it
has fully complied with that agreement. The
settlement agreement further provides that “[t]he
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.” Therefore,
because the Respondent has not established that it
complied with all of the terms of the settlement
agreement, we find that Respondent has failed to
raise any material issue of fact warranting a
hearing. [Footnote 1: The Respondent also has
not established that it has rescinded the handbook
rules prohibiting talking or complaining about
wages, hours, and working conditions or the
Respondent’s rules, policies, and/or procedures.
However, the Region has not cited this as a basis
for default, either in its Motion for Default
Judgment or its communications with the
Respondent, and therefore we do not rely on it
here.]
Accordingly, we grant the General
Counsel’s Motion for Default Judgment and find,
pursuant to the non-compliance provision of the
settlement agreement set forth above, that all of
the allegations in the reissued complaint are true.
[Footnote 2: See U-Bee, Ltd., 315 NLRB 667(1994).]
17
EBEWC, 2020 WL 2476669, at *3. Based on this default, the
Board then made findings of fact and conclusions of law on the
underlying unfair labor practices alleged in the reissued
complaint.
“Having found that the Respondent has engaged in
certain unfair labor practices, and in accordance with the
General Counsel’s request for a ‘full remedy’ for the violations
found, we shall order the Respondent to cease and desist and to
take certain affirmative action designed to effectuate the policies
of the Act.” Id. at *5. In a footnote, the Board added that, “[t]o
the extent that the Respondent has already complied with some
of the ordered remedies, it shall not be required to do so again.”
Id. at *5 n.3 (citing Able Bldg. Maint., 367 NLRB No. 134,
2019 WL 2176671 (May 16, 2019) (“ordering respondent to,
inter alia, make a discriminatee whole ‘to the extent that the
Respondents have not already done so.’”)).
The Board ordered EBEWC to cease and desist from the
unfair labor practices and from, in any like or related manner,
interfering with, restraining, or coercing employees in the
exercise of their rights. It also directed EBEWC to rescind the
policies the Board found unlawful, to expunge from its files any
discipline against employee Seibold and any reference to
Zambrano’s discharge and to notify them of those actions, and
to offer Zambrano full reinstatement to her former job and make
her whole for any loss of earnings or other benefits (including
backpay with interest, search-for-work and interim employment
expenses with interest, and compensation for any adverse tax
consequences for receiving a lump-sum backpay award). The
Board further noted that, “although Zambrano waived
reinstatement for the purposes of the settlement, we shall order
it as part of a full remedy for her unlawful discharge.” Id. at *5
18
n.4. Additionally, “[b]ecause it is unclear whether the total
amount set forth in the settlement agreement constitutes a full
make-whole remedy, we leave to compliance a determination of
the proper amount due to Zambrano.” Id. at *5 n.5; see also id.
at *5 n.6 (rejecting General Counsel’s request for reasonable
consequential damages because issue (which was not briefed)
would involve a change in Board law and Board was unprepared
to deviate from its current remedial practice at this time). The
order, in turn, required EBEWC to post the remedial notice,
distribute it by text message, and have it read at an employee
meeting. “[S]ince the Respondent communicates with its
employees by text message, we shall require the Respondent to
send the notice to its employees by text message. See, e.g.,
Pacific Green Trucking, Inc., [368 NLRB No. 14, 2019 WL
2715425 (June 27, 2019)].” Id. at *6. Finally, EBEWC had to
certify compliance with its obligations.
II.
The Board had jurisdiction over this proceeding pursuant
to 29 U.S.C. § 160(a). We have jurisdiction over the petition for
review and the application for enforcement under 29 U.S.C. §
160(e) and (f).
According to the Board, we review its decision to grant
default motions for abuse of discretion. For its part, EBEWC
asserts that we review the Board’s legal decisions de novo.
However, EBEWC points to this Court’s ruling in Livingston
Powdered Metals, Inc. v. NLRB, 669 F.2d 133 (3d Cir. 1982),
in support of its argument that the Board erred in its
interpretation of the Settlement Agreement. Livingston
Powdered Metals involved the Board’s entry of a default where
the employer’s answer to the complaint was mailed on the due
date and received several days later. Id. at 133. “Because the
19
answer alleges defenses that deserve evaluation by the agency,
late filing would not have delayed a hearing, and, because other
equities were present, we conclude that the Board abused its
discretion in refusing to accept the answer.” Id. at 133-34.
“Although the Board’s action was nominally a summary
judgment, it was in reality a default.” Id. at 136. We
emphasized that, “in a default case, more exacting judicial
scrutiny is in order.” Id. “In a summary judgment proceeding,
there is no dispute about the relevant facts. In a default,
however, the defendant’s contentions are not considered, but
rather the ex parte allegations of the adversary are accepted as
true.” Id. Accordingly, “[t]he possibility that an injustice may
occur is much more likely in those circumstances since the
controversies are decided upon a procedural technicality instead
of a ruling on the merits.” Id. (further relying on standard for
opening district court default judgments); see also, e.g., id. at
137 (“In summary, the answer mailed on the last day of the
designated period set out a meritorious defense to very serious
charges, and permission to file it would not have delayed the
previously scheduled hearing. We hold, therefore, that the
circumstances here constitute good cause to allow the pleading
to be filed.”). As EBEWC recognized: “[T]his Court stated,
‘there are instances where wooden and unreasoning insistence
upon technical procedural rules results, not in proper disposition
of a cause, but in injustice. Failure to take remedial measures
when such incidents occur constitutes an abuse of discretion.’”
(Petitioner’s Brief at 17 (quoting Livingston Powdered Metal,
669 F.2d at 137).)
Section 10(c) of the NLRA authorizes the Board, upon
finding the existence of unfair labor practices, to order the
violator “to cease and desist” from the violations found and
“take such affirmative action . . . as will effectuate the policies
20
of [the Act].” 29 U.S.C. § 160(c). The statute vests in the
Board “the primary responsibility and broad discretion to devise
remedies that effectuate the policies of the Act, subject only to
limited judicial review.” Sure-Tan, Inc. v. NLRB, 467 U.S.
883, 898-99 (1984); see also, e.g., St. John’s Gen. Hosp. of
Allegheny-ADR Ctr. v. NLRB, 825 F.2d 740, 746 (3d Cir.
1987) (stating that Board has broad discretionary power to
fashion remedies for unfair labor practices subject to limited
review). But the Board’s authority is thereby limited to
remedial actions and does not extend to punitive measures. The
NLRA’s “purpose is the ‘protection of employees and the
redress of their grievances . . . after the employees have been
made whole.’” Quick v. NLRB, 245 F.3d 231, 254-55 (3d Cir.
2001) (quoting Republic Steel Corp. v. NLRB, 311 U.S. 7, 11
(1940)). “Accordingly, it has long been recognized that the
NLRB’s ‘power to command affirmative action is remedial, not
punitive.’” Id. at 255 (quoting Republic Steel, 311 U.S. at 12).
As the Supreme Court explained in 1940, “[t]he Act is
essentially remedial” and accordingly does not set forth a penal
or punitive scheme prescribing fines and penalties for violating
public rights. Republic Steel, 311 U.S. at 10. “We do not think
that Congress intended to vest in the Board a virtually unlimited
discretion to devise punitive measures, and thus to prescribe
penalties or fines which the Board may think would effectuate
the policies of the Act.” Id. at 11. “[The Board’s] ‘authority to
order affirmative action does not go so far as to confer a
punitive jurisdiction enabling the Board to inflict upon the
employer any penalty it may choose because he is engaged in
unfair labor practices, even though the Board be of the opinion
that the policies of the Act might be effectuated by such an
order.’” Id. at 11-12.
21
We exercise plenary review over questions of law,
deferring to the Board on interpretation of labor matters. See,
e.g., Atl. Limousine, Inc. v. NLRB, 243 F.3d 711, 715 (3d Cir.
2001). In any event, default or compliance with a settlement
agreement does not implicate a uniquely labor-related question,
and we accordingly see no need to defer to the Board with
respect to such issues.
III.
EBEWC raises several overlapping arguments for why
this Court should grant relief from the Board’s decision and
order. Attacking the Board for taking “a sledgehammer to an
agreement where a chisel would have sufficed if Petitioner had
breached (which it did not),” it asks us to review “[w]hether
Petitioner substantially complied with the terms of the
Settlement Agreement” and “[w]hether the Board’s remedy
exceeded its authority and was punitive.” (Petitioner’s Brief at
3.) According to EBEWC, it substantially complied with the
Settlement Agreement, and “the Board’s decision is
unreasonable, unfair, and punitive.” (Id. at 24 (emphasis
omitted).) We agree that the Board overreached and acted in a
punitive fashion in this matter.
A. Section 10(e)
We must first address a threshold issue—whether
EBEWC adequately raised its objections before the Board as
required by Section 10(e) of the NLRA. According to the
Board, the only issue EBEWC purportedly raised before the
Board—which was the only issue it could have raised under the
Settlement Agreement—was the claim to have fully complied
with the Settlement Agreement. The Board contends that “on
review the Company belatedly challenges the Board’s Order on
22
newly minted grounds—most of which it is precluded from
raising by the noncompliance provisions of the Agreement
itself, and all of which it failed to raise before the Board.”
(Respondent’s Brief at 23 (footnote omitted).) While EBEWC
could have more clearly raised its objections, we conclude that
it adequately presented its (overlapping) objections of
substantial compliance, disproportionate forfeiture, and
punitiveness before the Board.
Section 10(e) of the Act provides that “[n]o objection
that has not been urged before the Board . . . shall be considered
by the court, unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances.” 29
U.S.C. § 160(e). “Application of Section 10(e) is mandatory,
not discretionary.” Oldwick Materials, Inc. v. NLRB, 732 F.2d
339, 341 (3d Cir. 1984) (quoting NLRB v. Ochoa Fertilizer
Corp., 368 U.S. 318, 322 (1961)). “In Marshall Field, the Court
declared that § 10(e) expresses ‘the salutary policy * * * of
affording the Board opportunity to consider on the merits
questions to be urged upon review of its order.’” NLRB v. Int’l
Union of Operating Eng’rs, Local 66, 357 F.2d 841, 844 (3d
Cir. 1966) (quoting Marshall Field & Co. v. NLRB, 318 U.S.
253, 256 (1943)). This policy is designed “to give full
recognition to the ‘function of the Labor Board as one of those
agencies presumably equipped or informed by experience to
deal with a specialized field of knowledge, whose findings
within that field carry the authority of an expertness which
courts do not possess.’” Id. (quoting Univ. Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)); see also, e.g., Local 900,
Int’l Union of Elec., Radio and Mach. Workers v. NLRB, 727
F.2d 1184, 1191 (D.C. Cir. 1984) (stating that Section 10(e)
serves notice function ensuring that the Board has opportunity
to resolve all issues properly within its jurisdiction and
23
adjudicatory efficiency by insuring against repetitive judicial
appeals); Livingston Powdered Metal, 669 F.2d at 136 (“Section
10(e) is intended to prevent a litigant from raising a matter in
the courts which had never been presented to the Board for its
consideration—a circumstance not present in this case. The
company did bring the matter to the Board’s attention so that it
had the opportunity to rule on the question. Accordingly, the
statutory purpose has been served and we reject the Board’s
contention that s 10(e) bars our review here.”).
“The crucial question in a section 160(e) analysis is
whether the Board ‘“received adequate notice of the basis for
the objection.”’” NLRB v. FedEx Freight, Inc., 832 F.3d 432,
437 (3d Cir. 2016) (quoting FedEx Freight, Inc. v. NLRB, 816
F.3d 515, 521 (8th Cir. 2016)). We are satisfied that the Board
received adequate notice of the basis of EBEWC’s objections.
Unlike in the case law cited by the Board, the party in this
proceeding did not simply fail to file, among other things, any
answer, response to a summary judgment motion, objections to
the Administrative Law Judge’s findings of fact and conclusions
of law, or motion for reconsideration. See, e.g., Woelke &
Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982)
(stating that issue decided by Board was not raised by either
General Counsel or by employer but that respondent could have
objected to decision in petition for reconsideration or rehearing);
Oldwick Materials, 732 F.2d at 341 (“Thus, this record is
devoid of any evidence indicating that petitioner ever filed any
answer to the amended complaint, any response to the motion
for summary judgment, any objection to the Board’s order, or
any request for reconsideration; instead of pursuing any of the
options available, petitioner filed for review by this court.”);
Int’l Union of Operating Eng’rs, 357 F.2d at 847 (“We therefore
conclude that respondent lost the right to complain of errors in
24
the Trial Examiner’s decision when it failed to file exceptions
with the Board.”).
On the contrary, EBEWC did file with the Board the
“Opposition of European Wax Center of East Brunswick to: (I)
The Reissued Complaint; (II) General Counsel’s Motion for
Default Judgment and Issuance of Decision and Order; and (III)
In Response to the August 3, 2018 Order Transferring
Proceeding to the Board and Notice to Show Cause.” (A66
(emphasis omitted).) In this filing, it expressly opposed the
reissued complaint, motion for default judgment, and notice to
show cause “and in support therefore avers that the alleged
deficiencies were all addressed and complied with as set forth in
the recent submissions to [the General Counsel’s attorney]
attached hereto as Exhibit 1.” (Id.)
EBEWC specifically asked the Board to deny the relief
requested by the General Counsel, find that it had fully satisfied
the terms and conditions of the Settlement Agreement, and enter
a final dismissal in this matter. The letter its counsel had sent to
the General Counsel’s attorney, a completed certification of
compliance confirming that the “Notice to Employees” was e-
mailed to employees on April 7, 2017 (A72), and a “copy of e-
mail communication sent to all employees with Notices
pursuant to the Settlement Agreement” were all included as part
of the attached exhibit (A71). In her letter, EBEWC’s attorney
asserted that the enclosed documentation confirmed that it was
fully compliant with its obligations under the terms of the
Settlement Agreement, and she asked for confirmation that the
notice to show cause would be withdrawn and no further actions
would be required on the part of his client. The Board, in turn,
acknowledged that EBEWC argued in its response to the notice
to show cause that the default motion should be denied and the
25
reissued compliant should be dismissed because the documents
attached to its response consisting of (among other things) the
completed compliance forms and an e-mail communication to
employees “show ‘that the alleged deficiencies were all
addressed and complied with.’” EBEWC, 2020 WL 2476669,
at *3.
Admittedly, EBEWC’s submissions to the Board argued
that it had fully performed its obligations under the Settlement
Agreement and did not explicitly refer to the concepts of
substantial compliance, disproportionate forfeiture, or
punitiveness. But we are satisfied that substantial compliance or
performance as well as the related concepts of punitiveness and
disproportionate forfeiture were essentially components of its
argument to the Board as well as the concept of “default” for
purposes of the Settlement Agreement and what EBEWC could
raise before the Board. According to EBEWC, “[t]o the extent
the Board claims it did not have notice that Petitioner believed
e-mailing was sufficient in conjunction with all the other acts it
took and the Board’s actions and that the matter should be
closed without any further remedy, those arguments are
encompassed by the aforementioned objection itself as well as
the content of the corresponding exhibits.” (Petitioner’s Reply
Brief at 13.) After all, it is undisputed that the Settlement
Agreement provided for the Notice to be sent by text but that the
Notice was actually sent by e-mail. Yet EBEWC clearly
indicated to the Board that its actions sufficed to justify the
denial of the relief requested by the General Counsel and a final
dismissal of the proceeding itself. Put another way, “[s]ince
Petitioner did not contend that it sent the text, the fact that it
believed that it nevertheless was in compliance more than
adequately puts the Board on notice that it believed it had done
enough to be considered in compliance whether or not the use of
26
the phrase ‘substantial compliance’ was used.” (Id. at 14 (citing
FedEx Freight, 832 F.3d 432).) Our conclusion is also
consistent with the established principle that, “in a default case,
more exacting judicial scrutiny is in order” because “the
defendant’s contentions are not considered, but rather the ex
parte allegations of the adversary are accepted as true,” and,
accordingly, “[t]he possibility that an injustice may occur is
much more likely in those circumstances since the controversies
are decided upon a procedural technicality instead of a ruling on
the merits.”2 Livingston Powdered Metal, 669 F.2d at 136.
B. The Merits
Turning to the merits, the Board contends that the
Settlement Agreement’s plain language set forth specific
consequences for EBEWC’s failure to comply with any of its
terms, including reissuance of the complaint, the filing of a
motion for default judgment, and the grant of a full remedy for
the allegations in the complaint (which would be deemed to be
true). Admittedly, the Settlement Agreement did specifically
state that “[t]he Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement Agreement
2
In turn, we note that the Board’s own position here does
seem to be “circuitous” (Petitioner’s Reply Brief at 10
(emphasis omitted).) On the one hand, it insists that, “[b]efore
the Board, the Company raised the only issue permitted by the
Agreement it had voluntarily signed: it claimed to have fully
complied with the Agreement.” (Respondent’s Brief at 22
(citing EBEWC, 2020 WL 2476669, at *1-*3).) On the other
hand, the Board takes EBEWC to task for failing to raise the
issues before the Board set forth in its appellate briefing (issues
the Board insists that EBEWC could not have raised in the first
place).
27
by the Charged Party, and after 14 days’ notice from the
Regional Director . . . of such non-compliance without remedy
by the Charged Party, the Regional Director will issue a
Complaint.” (A25 (emphasis added).) “If . . . the agreement
makes full performance a condition, substantial performance is
not sufficient and if relief is to be had under the contract, it must
be through excuse of the non-occurrence of the condition to
avoid forfeiture.” Restatement (Second) of Contracts § 237
cmt. d (citing Restatement (Second) of Contracts § 229 and
illus. 1). Accordingly, “[t]o the extent that the non-occurrence
of a condition would cause disproportionate forfeiture, a court
may excuse the non-occurrence of that condition unless its
occurrence was a material part of the agreed exchange.”
Restatement (Second) of Contracts § 229. “Under the present
Section a court may, in appropriate circumstances, excuse the
non-occurrence of a condition solely on the basis of the
forfeiture that would otherwise result.” Id. cmt. a. According to
the Restatement, “[t]he rule stated in the present Section is, of
necessity, a flexible one, and its application is within the sound
discretion of the court.” Id. cmt. b. “In determining whether the
forfeiture is ‘disproportionate,’ a court must weigh the extent of
the forfeiture by the obligee against the importance to the
obligor of the risk from which he sought to be protected and the
degree to which that protection will be lost if the non-
occurrence of the condition is excused to the extent required to
prevent forfeiture.” Id. In turn, “[t]he rule of this Section
applies only where occurrence of the condition was not a
material part of the agreed exchange.” Id. cmt. c. Under the
Restatement, “[a] court may, of course, ignore trifling
departures.” Id.
Exercising the scrutiny necessary to ensure that injustice
does not arise out of this default proceeding, see Livingston
28
Powdered Metal, 669 F.2d at 136, we are satisfied that the
occurrence of the condition was manifestly not a material part of
the agreed exchange and that the “forfeiture” is clearly
disproportionate. In short, there is no indication that texting as
opposed to some other method of electronic communication
(such as e-mailing) had any real significance to EBEWC, its
employees, or the Board itself. In addition, EBEWC otherwise
fully complied with its other obligations under the Settlement
Agreement.
We agree with the Board that “notice-distribution” “has
been an essential element of the Board’s remedies for unfair
labor practices since the earliest cases under the Act.” J. Picini
Flooring, 356 NLRB 11, 12 (2010) (citing Pa. Greyhound Lines,
Inc., 1 NLRB 1, 52 (1935), enforcement denied in relevant part,
91 F.2d 178 (3d Cir. 1937), rev’d, 303 U.S. 261 (1938)). Such
notices serve several important functions, including
counteracting the effect of unfair labor practices on employees
by notifying them of their rights and the Board’s role in
protecting the exercise of those rights, informing the employees
of steps to be taken to remedy violations and provide assurances
that future violations will not occur, and deterring future
violations. See, e.g., id. Furthermore, as the Board
acknowledges in its appellate brief, “when the Board requires a
charged party to electronically distribute the notice through its
customary means of communicating with employees, it
separates the type of electronic communication into specific
categories, such as text, email, intranet, and internet.”
(Respondent’s Brief at 28 (citing Pac. Green Trucking, 2019
WL 2715425, at *2; Dish Network Corp., 366 NLRB No. 119,
2018 WL 3209096, at *6 (June 28, 2018), review granted and
enforcement denied in part on other grounds by Dish Network
Corp. v. NLRB, 953 F.3d 370 (5th Cir. 2020)).)
29
There is no indication that texting (as opposed to other
means of electronic communication like e-mailing) had any real
significance to EBEWC, its employees, or the Board itself. In
the decisions cited by the Board, the employer was ordered to
provide notice by a particular electronic means if it customarily
communicated with its employees by such means. See Pac.
Green Trucking, 2019 WL 2715425, at *2 (“In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by text message, email, posting on an
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means.”); Dish Network, 2018 WL 3209096, at *6 (“Dish
shall also distribute remedial notices electronically via text
message, email, intranet, internet, or other appropriate electronic
means to its employees, in addition to the traditional physical
posting of paper notices, if it customarily communicates with
workers in this manner.” (citing J. Picini Flooring, 356 NLRB
11)). But EBEWC did not agree that it “customarily”
communicated with its employees by text. More broadly, the
Settlement Agreement did not provide any explicit reason for
why this particular means of electronic communications was
specified. The re-issued complaint as well as the original
pleading did state (as part of their remedy sections) that
EBEWC communicates with its employees by text. When the
Board invoked EBEWC’s agreement that all of the allegations
of the reissued complaint would be deemed admitted,
communicating with its employees by text was therefore not
among allegations that could be deemed admitted. EBEWC still
also had the right to raise the threshold issue of default under the
Settlement Agreement, and, in any event, neither the reissued
nor the original complaint actually alleged that it “customarily”
communicates via text. On the contrary, there is evidence in the
record indicating that EBEWC communicates with its
30
employees by e-mail, including the April 7, 2017 e-mail
summarizing the staff meeting held the same day (at which the
Notice was read out to the employees) and attaching the Notice
itself. Indeed, Zambrano herself preferred being notified by e-
mail (identifying this mechanism as the best way to contact her
on her time-off request forms).3
Nor has the agency consistently treated “texting” as
essential or even all that important. While the initial January 6,
2017 correspondence from the compliance officer did reference
texting, her subsequent February 1, 2017 letter merely stated
that the terms of the Settlement Agreement required EBEWC to
“distribute [the Notice] electronically to employees” without
specifying the specific means to be used. (A51.) In fact, the
compliance officer’s March 20, 2017 e-mails did not mention
electronic notification—in any format—at all.4 Similarly, the e-
mail from the compliance assistant dated May 9, 2017 did not
reference communicating by electronic means as an outstanding
item under the Settlement Agreement. By “distribut[ing] the
Notice electronically to employees” in April 2017, EBEWC did
more than enough to comply with its contractual obligations
based on the statements made by the agency’s own compliance
3
At oral argument, counsel for the Board asserted that
there was a reason that the Settlement Agreement specified
texting. Because he did not participate in the negotiation
process, he acknowledged that he did not know the actual
reason.
4
We note that the Board’s decision and order (evidently
copying from the reissued complaint) incorrectly stated that the
March 20, 2017 e-mail from the compliance officer “noted that
the Respondent . . .failed to . . . text the notice.” EBEWC, 2020
WL 2476669, at *2.
31
personnel.
More broadly, EBEWC—together with distributing the
Notice electronically—ultimately complied with its other
contractual obligations under the Settlement Agreement,
including the other notice requirements. It made Zambrano
“whole by paying her $20,000 in backpay and interest,”
EBEWC, 2020 WL 2476669, at *1, rescinded the final warning
issued to Siebold, and removed from its files all references to
Zambrano’s discharge (and informed her in writing this action
had been done). As for the Notice itself, it was physically
posted on site. The Notice was also read out loud at two
different staff meetings—first at the April 7, 2017 meeting by
EBEWC’s manager and then on June 12, 2017 by the
compliance officer. Finally, EBEWC notified the Regional
Director in writing of the steps it had taken to comply with the
Settlement Agreement.5
5
Arguing that it acted well within its discretion by
granting the motion for default judgment, the Board turns for
support to Outokumpu Stainless USA, LLC, 365 NLRB No.
127, 2017 WL 3953403 (Sept. 7, 2017), enforced, 773 F. App’x
531 (11th Cir. 2019), and Stagetech Productions, LLC, 358
NLRB No. 116, 2012 WL 3839414 (Aug. 31, 2012). However,
Outokumpu Stainless USA considered whether to grant default
judgment on the grounds that “the Respondent breached the
settlement agreement by posting, next to the Board’s remedial
notice, a side letter that detracted from the effectiveness of the
notice.” Outokumpu Stainless USA, 2017 WL 3953403, at *1.
In Stagetech Productions, the General Counsel sought default
judgment on the contested grounds that the employer had failed
to comply with the terms of the informal settlement agreement
by establishing and maintaining a discriminatory hiring
32
Given these circumstances, we determine that the Board
erred in granting the request for default. In addition, we
determine that the Board’s action in imposing a full remedy
after entering default was punitive and thereby inconsistent with
its obligations under the NLRA. According to the Board, it
properly exercised its broad remedial discretion by issuing its
“standard make-whole relief” based on the language of the
Settlement Agreement, the General Counsel’s request for a full
remedy, and the type of underlying labor law violations found in
this case. (Respondent’s Brief at 36.) However, the Board
thereby exceeded the scope of its expansive yet still non-
punitive authority by ordering EBEWC to offer Zambrano
reinstatement even though the Notice disseminated pursuant to
the Settlement Agreement stated that she had declined
immediate and full reinstatement to her former job or to a
substantially equivalent position. The Board likewise went too
far by ordering EBEWC to make Zambrano whole for any loss
of earnings or other benefits (including backpay with interest)
despite the fact that Settlement Agreement as well as the
January 6, 2017 letter indicated that the payment of $20,000
list/system and failing and refusing to call or return employees
to their normal work frequency. Stagetech Prods., 2012 WL
3839414, at *2.
In its decision, the Board observed that “the Respondent
also has not established that it has rescinded the handbook rules
prohibiting talking or complaining about wages, hours, and
working conditions or the Respondent’s rules, policies, and/or
procedures,” but it added that “the Region has not cited this as a
basis for default, either in its Motion for Default Judgment or its
communications with the Respondent, and therefore we do not
rely on it here.” EBEWC, 2020 WL 2476669, at *3 n.1.
33
(which was made by EBEWC) would suffice to make her
whole.
The Board took such drastic steps where the only alleged
“default” in this proceeding was EBEWC e-mailing rather than
texting the Notice to employees without any indication that the
use of this different electronic communications mechanism
affected the employees themselves in any way. On the contrary,
the employees were made whole, and EBEWC’s staff was
notified of their rights both at two separate meetings where the
Notice was read out loud and by receiving the Notice by e-mail
(and the Notice was also physically posted at the facility). See,
e.g., Quick, 245 F.3d at 254 (stating that purpose of NLRA is
protection of employees and redress of their grievances). At
best, the Board acted to punish EBEWC for its hyper-technical
and relatively insignificant violation of the Settlement
Agreement, for “repeatedly miss[ing] the Region’s deadlines for
full compliance” despite “the Region’s admonitions that its
continued failure to fully comply would lead” to reissuance of
the complaint and a motion for default judgment (Respondent’s
Brief at 18), and for its ultimately “belated compliance with
other terms of the Agreement” (id. at 27 (emphasis omitted)).
Accordingly, we cannot allow the Board’s punitive actions to
stand.6 See, e.g., Republic Steel, 311 U.S. at 11-12 (“[The
6
The decisions cited by the Board in support of its “full
remedy” approach involved more than merely technical and
otherwise harmless violations of the Settlement Agreement. See
Qawasmi Trading Inc., 369 NLRB No. 89, 2020 WL 3065370,
at *2 (May 27, 2020) (failure to comply with any of the terms of
settlement agreement); Able Bldg. Maint., 2019 WL 2176671,
at *2 (“According to the uncontroverted allegations in the
motion for default judgment, the Respondents have failed to
34
Board’s] ‘authority to order affirmative action does not go so far
as to confer a punitive jurisdiction enabling the Board to inflict
upon the employer any penalty it may choose because he is
engaged in unfair labor practices, even though the Board be of
the opinion that the policies of the Act might be effectuated by
such an order.’”).
IV.
For the foregoing reasons, we will grant EBEWC’s
petition for review and will deny the Board’s application for
enforcement.
comply with the terms of the settlement agreement” (i.e., “the
notice posting/mailing requirement and the submission of
compliance documentation”); L.J. Logistics, Inc., 339 NLRB
729, 730 (2003) (“According to the uncontroverted allegations
in the Motion for Summary Judgment, the Respondents have
failed to comply with the settlement agreement by failing to
remit the agreed-upon backpay amount due Christopher
Charnot”).
35