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)

______________
2

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.
3

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 emailing) had any realsignificance 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
4

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’srules or procedures, prohibiting employee discussion

of ongoing internal investigations, discharging Zambrano for

engaging in concerted employee activitiesincluding 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 Counselseeks 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.”
5

(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 personsfrom 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
6

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
7

“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 noncompliance 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 
8

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.
9

(A25.)

In a January 6, 2017 letter, the Region 22 compliance

officersummarized 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
10

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 hasreceived 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
11

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 email 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
12

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 Counselseeks an Order

requiring that Respondent send the notice to employees to its
13

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 noncompliance, the Board may issue an order providing a full

remedy for the violationsfound asis 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 itsremaining 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.”
14

(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’sfinal warning, Siebold had voluntarily terminated her

employment (her last day was July 29, 2016) and all reference

to the final warning wasremoved from her file (a copy of which

was enclosed as Exhibit F). “It is my understanding that the

enclosed confirmsthat European Wax Center of East Brunswick

is fully compliant with its obligations under the terms of the
15

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.
16

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 
17

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 hasrescinded 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).]
18

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
19

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
20

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 rulesresults, 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
21

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 isremedial, 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 Congressintended 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.
22

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 wasthe 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 challengesthe Board’s Order on
23

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
24

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’sfindings 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
25

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

DefaultJudgment 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 assetforth 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 emailed to employees on April 7, 2017 (A72), and a “copy of email 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 itsresponse to the notice

to show cause that the default motion should be denied and the
26

reissued compliantshould 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 submissionsto 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 thatsubstantial 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
27

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 circumstancessince 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 noncompliance 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).
28

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

notsufficient and if relief isto 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 nonoccurrence 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
29

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

ofsteps 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)).)
30

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 allegationsthat 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
31

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 email (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 EBEWCto

“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 email 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, EBEWCdid

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. 
32

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 groundsthat the employer had failed 

to comply with the terms of the informal settlement agreement 

by establishing and maintaining a discriminatory hiring 
33

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 violationsfound in

this case. (Respondent’s Brief at 36.) However, the Board

thereby exceeded the scope of its expansive yet still nonpunitive 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. 
34

(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 employeesthemselvesin 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 deadlinesfor

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 
35

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”).