Cassidy Cleaning, Inc

898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cassidy Cleaning, Inc. and Michael Limes. Case 5- CA-17614 August 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On October 30, 1986, the National Labor Rela- tions Board entered its Order' directing Cassidy Cleaning, Inc., among other actions, to make whole certain employees for any losses resulting from the Respondent's unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. The United States Court of Appeals for the Fourth Circuit en- forced the Board's Order on December 21, 1987.2 A controversy having arisen over the amount of backpay due under the Board's Order, the Region- al Director for Region 5 on February 18, 1988, issued a backpay specification and notice of hearing alleging the amounts of backpay due and notifying the Respondent that it should file a timely answer. The Respondent failed to file an answer. On April 8, 1988, the General Counsel filed a Motion for Summary Judgment. On April 13, 1988, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the General Counsel's motion should not be grant- ed. The Respondent thereafter filed a response to the Notice to Show Cause. On the entire record, the Board makes the fol- lowing Ruling on the 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 states that the Re- spondent shall file an answer within 21 days from the date of service of the specification, and that if the answer fails to deny the specification's allega- tions in the manner required under the Board's Rules and Regulations, and the failure to do so is not adequately explained, the allegations shall be deemed to be true. Further, the undisputed allega- tions in the Motion for Summary Judgment dis- close that on March 17, 1988, no answer having been received from the Respondent, the superviso- ry compliance officer sent a letter to the Respond- ent informing it that unless an answer to the speci- fication was received by March 24, 1988, a Motion for Summary Judgment would be filed. The Re- ' Not reported in Board volumes. 2 No. 87-3641. spondent did not file an answer to the backpay specification within the required time, and the Gen- eral Counsel moved for summary judgment. In its order transferring proceeding to the Board and Notice to Show Cause, issued April 13, 1988, the Board specified that the Respondent's written reply be filed with the Board in Washington, D.C., on or before April 27, 1988. The Respondent's reply, dated April 26, 1988, did not respond to any part of the backpay specification but raises, instead, an independent issue. In its letter the Respondent notified the Board that due to the hardship placed on the Company by an Internal Revenue Service levy on the Com- pany's finances it was unable to comply with the Board's Order to pay the back wages. We find that the Respondent's bare assertion that it is unable to satisfy the backpay order because of hardship is an invalid defense. In a backpay pro- ceeding the issue is the amount due and not wheth- er the Respondent is able to pay. The Respondent's reply to the Board's Notice to Show Cause does not specifically deny or respond in any way to the allegations of the backpay speci- fication as required by Section 102.54(b) of the Board's Rules and Regulations. Moreover, its asser- tion of hardship does not constitute an adequate ex- planation of the Respondent's failure to file a timely answer to the backpay specification.3 We find that the allegations of the backpay specifica- tion are therefore admitted as true. In the absence of any explanation for the Re- spondent's failure to file a timely answer, we grant the General Counsel's Motion for Summary Judg- ment. Accordingly, the Board concludes that the net backpay due the discriminatees is as stated in the computations of the backpay specification, and orders the Respondent to pay those amounts to the discriminatees. ORDER The National Labor Relations Board orders that the Respondent, Cassidy Cleaning, Inc., Bethesda, Maryland, its officers, agents, successors, and as- signs, make whole each employee named below by paying the amounts set forth adjacent to their names, with interest computed in the manner pre- scribed in New Horizons for the Retarded,4 and ac- s Star Grocery Co., 245 NLRB 196 (1979). 4 283 NLRB 1173 (1987). Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 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). 290 NLRB No. 107 CASSIDY CLEANING 899 crued to date of payment, minus tax withholdings Robinson 5626.82 required by law. Gerald R. Scales 3056.15 Denise D. Seymour 6757 44 James W. Dickens Karen Smith . 8143 82 Jr $4125.49 . . Sherry L. Walters 5228 37 Clarice D. Glover 1300.76 . Limes Michael E 2806.52 James L. . Washington 5118 10 Branton L. Powell 3608.46 . Walter White 2883 24 Bryant M. .