Lite Flight, Inc., And Jump Shack, Inc., And John B. Sherman

LITE FLIGHT, INC. Lite Flight, Inc., and Jump Shack, Inc., and John B. Sherman and Chicago and Central States Joint Board Amalgamated Clothing and Textile Workers Union, AFL-CIO. Case 7-CA-21990 9 September 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 21 May 1984 the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding, directing Lite Flight, Inc. and Jump Shack, Inc. and John B. Sherman, inter alia, to make whole employees who had been unlawful- ly laid off for any loss of earnings they may have suffered by reason- of the Respondent's discrimina- tion against them. On 11 October 1984 the United States Court of Appeals for the Sixth Circuit en- tered its judgment enforcing in full the Board's Order.2 A controversy having arisen over the amount of backpay due under the Board's Order, as enforced by the court, the Regional Director for Region 7 on 26 March 1987 issued and duly served on the Respondents a backpay specification and notice of hearing alleging the amount of backpay due the discriminatees and notifying the Respond- ents that they must file a timely answer. On 8 June 1987 the General Counsel filed a Motion for Summary Judgment, styled as a Motion for Default Judgment, with respect to Respondent John B. Sherman, asserting that Sherman had not filed an answer to the backpay specification. On 15 June 1987 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted. No response was filed. The allega- tions are therefore undisputed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record the Board makes the f017 lowing Ruling on Motion for Summary Judgment Section 102.54 of the Board's Rules and Regula- tions provides that if an answer is not filed within 21 days from the service of the specification the Board may find the specification to be true. The backpay specification issued on 26 March 1987 spe- cifically states that the Respondent shall file an answer within 21 days from the date of the specifi- 1 270 NLRB 815 ( 1984). 2 NLRB v. Lite Fhte, Inc, et a!., No 84-5595. 649 cation, and that if the answer fails to deny the specification's allegations in the manner required under the Board's Rules and Regulations, and the failure to do so is not adequately explained, the al- legations shall be deemed to be true. The backpay specification and notice of hearing issued by the Regional Director on 26 March 1987 notes that Respondents Lite Flite, Inc., and Jump Shack, Inc. filed Petitions in Bankruptcy under Chapter 7 about 5 March 19843 and that the assets of Respondents Lite Flite , Inc., and Jump Shack, Inc. are insufficient to make any backpay payment under the terms of the judgment of the United States Court of Appeals for the Sixth Circuit en- forcing the Board's Order in this proceeding. Counsel for the General Counsel requests in his motion that Respondent John B . Sherman be or- dered to compensate the discriminatees as set forth in the backpay specification . The backpay specifi- cation and notice of hearing were sent to Respond- ent John B. Sherman by certified and ordinary mail at both his residence and work addresses. The cer- tified mail envelopes and their contents were subse- quently returned to the Regional Office; the certi- fied mail envelope mailed to Sherman 's residence address was returned with a notation by the Postal Service that it was unclaimed, and the certified mail envelope sent to the work address was re- turned marked "Refused."' The ordinary mail enve- lopes were not returned. On 21 April 1987 the Regional Attorney for Region 7 advised Respondent Sherman by certified mail that no answer had been received and that, should an answer not be filed by 12 May 1987, a Motion for Default Judgment would be filed. The certified letter mailed to Sherman's work address was returned marked "Refused." The certified letter sent to his residence address was not re- turned. The regional attorney again sent his 21 April 1987 notification letter to Respondent Sher- man on 27 April 1987. The letter was sent to both Sherman's residence and work addresses by certi- fied mail and was also sent by ordinary mail. The certified mail envelopes were returned from Sher- man's residence and work addresses marked "Un- claimed" and "Refused," respectively. The ordi- nary mail envelopes were not returned . Respondent Sherman has not filed an answer to the backpay specification. Respondent Sherman has been duly served with the backpay specification and notice of hearing. Service of process may not be avoided by willful refusal to accept mail. Pasco Packing Co., 115 3 Case No. 84-00822-B in the United States Bankruptcy Court for the Eastern District of Michigan, Southern Division 285 NLRB No. 90 650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB 437 (1956); Sheet Metal Workers Local 49 (Driver-Miller Plumbing Corp.), 124 NLRB 888, 890 (1959); Garden Fashions, 231 NLRB '72, 74 (1977). Moreover, the failure of the communications sent by ordinary mail to be returned to the Regional Office by the Postal Service indicates that Sherman was also actually served. Absent any explanation for Respondent Sherman's failure to file a timely answer, we grant the General Counsel's Motion for Summary Judgment. Accordingly, the Board concludes that the net backpay due the discriminatees is as stated in the computations of the backpay specification and orders Respondent John B. Sherman to pay those amounts. the discriminatees named below by payment to them of the amounts following their names, plus in- terest to be computed in the manner prescribed in New Horizons for the Retarded,4 and accrued to the date of payment, minus tax withholdings required by law. Mary Camaj $5,330.00 Sue Gibser 8,610.00 David Hillebrandt 6,837.00 Gene Miller 3,635.50 Howard Shunk 320.00 Edward Taylor 6,436.00 Jeffrey Wnowiecki 3,139.04 Marie Paremba 6,000.00 ORDER The National Labor Relations Board orders that the Respondent, John B. Sherman, Deland, Flori- da, his agents, successors, and assigns, make whole 4 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977)