Liberty Source W, LLC

354 NLRB No. 59 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Liberty Source W, LLC and/or Trafford Distribution Center, its alter ego and/or Trafford Distribut- ing Center, Inc., Debtor and Federation of Inde- pendent Salaried Unions and International Un- ion of Electronic, Electrical, Salaried, Machine and Furniture Workers-Communications Workers of America, Local 601, AFL–CIO. Cases 6–CA–33661 and 6–CA–33729 July 31, 2009 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER The General Counsel seeks default judgment in this case on the ground that Respondent Liberty Source W, LLC (Respondent Liberty) and/or Trafford Distribution Center, its alter ego (Respondent Trafford) and/or Traf- ford Distributing Center, Inc., Debtor (Respondent Debtor) (collectively called the Respondent) has failed to file an answer to the compliance specification. On July 22, 2005, the Board issued a Decision and Or- der,1 that, among other things, ordered Respondent Lib- erty and Respondent Trafford to make unit employees whole for any loss of earnings and other benefits result- ing from Respondent Liberty’s and Respondent Traf- ford’s unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. On February 26, 2007, the United States Court of Appeals for the Third Circuit en- forced the Board’s Order,2 and on October 1, 2007, the Supreme Court denied Respondent Trafford’s petition for a writ of certiorari.3 On June 13, 2008, Respondent Trafford filed for pro- tection under Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court of the Southern District of Florida,4 and as a result thereof, Soneet Kapila was appointed Bankruptcy Trustee for Respondent Debtor.5 1 344 NLRB 1127 (2005). 2 748 F.3d 172 (3d Cir.). 3 128 S.Ct. 110. 4 Case No. 08-17980. 5 Although the Respondent is in bankruptcy, it is well established that the institution of bankruptcy proceedings does not deprive the Board of jurisdiction or authority to entertain and process an unfair labor practice case to its final disposition. See, e.g., Cardinal Services, 295 NLRB 933 fn. 2 (1989), and cases cited there. Board proceedings fall within the exception to the automatic stay provisions for proceed- ings by a governmental unit to enforce its police or regulatory powers. See id., and cases cited therein; NLRB v. 15th Avenue Iron Works, Inc., 964 F.2d 1336, 1337 (2d Cir. 1992). Accord Aherns Aircraft, Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983). A controversy having arisen over the amount of back- pay and other benefits due under the terms of the Board’s Order, on March 10, 2009, the Regional Director issued a compliance specification alleging the amounts due and notifying the Respondent that it should file a timely an- swer complying with the Board’s Rules and Regulations. Although properly served with a copy of the compliance specification,6 the Respondent has failed to file an an- swer. On May 11, 2009, the General Counsel filed with the Board a Motion for Default Judgment, with exhibits at- tached. On May 13, 2009, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent again failed to file a response. The allega- tions in the motion and in the compliance specification are therefore undisputed. Ruling on the Motion for Default Judgment7 Section 102.56(a) of the Board’s Rules and Regula- tions provides that the Respondent shall file an answer within 21 days from service of a compliance specifica- tion. Section 102.56(c) of the Board’s Rules and Regula- tions states: If the respondent fails to file any answer to the specifi- cation within the time prescribed by this section, the Board may, either with or without taking evidence in 6 Respondent Liberty ceased operating as of September 3, 2003. Accordingly, the compliance specification was served by certified mail on Respondent Trafford, Respondent Debtor, Respondent Debtor’s bankruptcy counsel, Bankruptcy Trustee Kapila, and the Bankruptcy Trustee’s counsel. 7 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009) (No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for rehearing denied Nos. 08-1162, 08-1214 (July 1, 2009). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 support of the allegations of the specification and with- out further notice to the respondent, find the specifica- tion to be true and enter such order as may be appropri- ate. According to the uncontroverted allegations of the Mo- tion for Default Judgment, the Respondent, despite hav- ing been advised of the filing requirements, has failed to file an answer to the compliance specification. In the absence of good cause for the Respondent’s failure to file an answer, we deem the allegations in the compliance specification to be admitted as true, and grant the Gen- eral Counsel’s Motion for Default Judgment. Accord- ingly, we conclude that the amounts due are as stated in the compliance specification, and we will order payment by the Respondent of those amounts, plus additional in- terest accrued to the date of payment. ORDER The National Labor Relations Board orders that the Respondent, Liberty Source W, LLC, and/or Trafford Distribution Center, its alter ego, and/or Trafford Dis- tributing Center, Inc., Debtor, Trafford, Pennsylvania, its officers, agents, successors, and assigns, shall make whole the individuals named in the compliance specifica- tion by paying them the amounts following their names, plus additional interest accrued to the date of payment, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax withholdings required by Federal and State laws: Federation of Independent Salaried Unions Bargain- ing Unit Employees TOTAL BACKPAY OBLIGATION INTEREST DUE Kundrick, George $ 78,483.24 $ 23,505.73 Geiger, Thayer 73,383.60 21,978.39 Tempero, Carmela 67,820.20 20,312.15 Cherry, Regis 76,499.59 22,911.63 Grace, William 114,482.76 34,287.59 Migliozzi, Joseph 48,535.48 14,536.38 Round, Douglas 21,127.87 6,327.80 Hoeg, Michael 16,838.43 5,043.11 Smith, Jeffrey 18,959.31 5,678.31 Miller, Christopher 8,405.52 2,517.45 Gooch, Randy 6,725.92 2,014.41 Fix, Charles 7,359.67 2,204.22 Yauger, Robert 6,932.67 2,076.34 Wolf, Aaron 6,910.46 2,069.68 Ulery, Shawn 5,540.67 1,659.43 Kulus, Thomas 1,230.77 368.62 TOTALS8 $559,236.16 $167,491.24 International Union of Electronic, Electrical, Sala- ried, Machine and Furniture Workers – Communica- tions Workers of America, Local 601, AFL–CIO Bar- gaining Unit Employees DISCRIMINATEE TOTAL BACKPAY OBLIGATION INTEREST DUE Muto, Joseph $ 53,742.96 $ 16,096.02 Bertani, Darryl 61,526.40 18,427.16 Stonebraker, Richard 53,207.27 15,935.58 Gavron, Frank 62,538.11 18,730.16 Young, John 53,481.03 16,017.57 Zilionis, William 63,663.31 19,067.16 Hutchinson, Thomas 60,963.11 18,258.45 Zahorchak, Richard 51,165.36 15,324.03 Joyce, Thomas 53,696.65 16,082.15 Welsh, Charles 48,458.88 14,513.43 Hoener Sr., Edward 54,698.95 16,382.33 Funk, William 49,944.96 14,958.52 Wampler, Dewey 44,592.48 13,355.45 Ferree, Howard 47,673.74 14,278.29 Abbott, Kenneth 48,860.85 14,633.83 Calisti, Keith 47,958.29 14,363.51 Pevornik, Mark 41,886.00 12,544.86 Whiteman, Ronald 45,471.69 13,618.77 Thomas, Kathleen 38,148.48 11,425.47 Markle, Daniel 40,735.38 12,200.25 Kuster, David 39,362.01 11,788.92 Kerlin, Holly 8,699.40 2,605.47 Hoener Jr., Edward 9,366.50 2,805.27 Joyce, James 9,582.23 2,869.88 Thomas, Eric 5,962.42 1,785.74 Barefoot, Michael 4,136.43 1,238.86 8 The compliance specification appendices are attached to this Sup- plemental Decision and Order as Attachment 1. We have corrected arithmetic mistakes made in App. C for the total backpay due to these employees, which was erroneously listed as $559,236.17, and for the total interest due to these employees, which was erroneously listed as $167,491.23. LIBERTY SOURCE W, LLC 3 Bobich, John 7,449.12 2,231.01 Snyder, Mathew 2,009.57 601.87 Salay, Robert 879.97 263.55 Hockman, Bryan 879.97 263.55 Binkley, Charles 757.86 226.98 Burnett, Ross 757.86 226.98 TOTALS9 $1,112,256.80 $333,121.07 9 We have corrected arithmetic mistakes made in App. D-2 of the compliance specification for the total backpay due to these employees, which was erroneously listed as $1,112,343.64, and for the total interest due to these employees, which was erroneously listed as $333,121.04. COMBINED TOTAL BACKPAY: $1,671,492.96 COMBINED TOTAL INTEREST: $ 500,612.31 COMBINED TOTAL DUE: $2,172,105.27 Dated, Washington, D.C. July 31, 2009 Wilma B. Liebman, Chairman Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ATTACHMENT 1 LIBERTY SOURCE W, LLC 5 ATTACHMENT 1 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 ATTACHMENT 1 LIBERTY SOURCE W, LLC 7 ATTACHMENT 1 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 ATTACHMENT 1 LIBERTY SOURCE W, LLC 9 ATTACHMENT 1 354 NLRB No. 59