SRC Painting, LLC, PBN, LLC, and Liquid Systems, James Wierzbicki, Karen Wierzbicki, Edmund Wierzbic

356 NLRB No. 74 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Sec- retary, National Labor Relations Board, Washington, D.C. 20570, of any ty- pographical or other formal errors so that corrections can be included in the bound volumes. SRC Painting, LLC, PBN, LLC, and Liquid Systems, and James Wierzbicki, Karen Wierzbicki, Ed- mund Wierzbicki, Eric Wierzbicki, Constance Wierzbicki, and Erin Wierzbicki, indiviually1 and International Union of Painters and Allied Trades, District Council No. 7, AFL–CIO. Cases 30–CA–16577 and 30–CA–16813 January 5, 2011 SUPPLEMENTAL DECISION AND ORDER REMANDING BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES On March 31, 2006, the National Labor Relations Board issued a Decision and Order in this proceeding.2 On June 14, 2007, the United States Court of Appeals for the Seventh Circuit entered its consent judgment enforc- ing in full the Board’s Order. A controversy having arisen over the amounts due under the Board’s Order, the Regional Director for Region 30 issued a compliance specification and notice of hearing on June 30, 2010,3 alleging the amounts due under that Order, and notifying the Respondents that they should file a timely answer complying with the Board’s Rules and Regulations. Al- though properly served with a copy of the compliance specification, the Respondents failed to file an answer. By letter dated July 23, the Deputy Regional Director advised the Respondents that no answer to the compli- ance specification had been received and that unless an answer was filed by August 2, a motion for default judgment would be filed. The Deputy Regional Director also enclosed a copy of Section 102.56 of the Board’s Rules and Regulations. To date, Respondents SRC, LLC (SRC), PBN, LLC (PBN), James Wierzbicki, and Erin Wierzbicki have failed to file an answer. On August 2, Respondents Liquid Systems, Eric Wierzbicki, and Edmund Wierzbicki filed an answer. By letter dated August 4, the Region informed Respondents Liquid Systems, Eric Wierzbicki, and Edmund Wierz- bicki that the answer to the compliance specification was deficient under applicable sections of the Board’s Rules 1 The caption appears as noted in the Board’s Decision and Order reported at 346 NLRB 707 (2006). In that decision, the Board found that Constance Wierzbicki and Karen Wierzbicki were not personally liable for the corporate respondents’ unfair labor practices, and the Acting General Counsel makes no claims against these individuals. 2 346 NLRB 707. 3 Dates are 2010 unless otherwise noted. and Regulations. Another copy of Section 102.56 was included. The letter further noted that if a proper answer was not received by August 10 the Regional Office would file a Motion for Summary Judgment. On August 10, Respondents Liquid Systems, Eric Wierzbicki, and Edmund Wierzbicki filed an amended answer to the compliance specification. On August 27, the Acting General Counsel filed with the Board a Motion to Transfer Proceedings to the Board, Motion for Partial Summary Judgment, Motion for De- fault Judgment, and Motion to Strike, with argument in support and exhibits attached. None of the Respondents filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. On the entire record, the Board makes the following Ruling for Motion to Transfer Proceeding to the Board, Partial Summary Judgment and Motion to Strike Section 102.56(b) and (c) of the Board’s Rules and Regulations states: (b) Contents of answer to specification.—The an- swer shall specifically admit, deny, or explain each and every allegation of the specification, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. Denials shall fairly meet the substance of the allegations of the specification at issue. When a respondent intends to deny only a part of an allega- tion, the respondent shall specify so much of it as is true and shall deny only the remainder. As to all matters within the knowledge of the respondent, in- cluding but not limited to the various factors enter- ing into the computation of gross backpay, a general denial shall not suffice. As to such matters, if the re- spondent disputes either the accuracy of the figures in the specification or the premises on which they are based, the answer shall specifically state the ba- sis for such disagreement, setting forth in detail the respondent’s position as to the applicable premises and furnishing the appropriate supporting figures. (c) Effect of failure to answer or to plead specifi- cally and in detail to backpay allegations of specifi- cation.—If the respondent fails to file any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allegations of the specifi- cation and without further notice to the respondent, find the specification to be true and enter such order as may be appropriate. If the respondent files an an- swer to the specification but fails to deny any allega- tion of the specification in the manner required by DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 paragraph (b) of this section, and the failure so to deny is not adequately explained, such allegation shall be deemed to be admitted to be true, and may be so found by the Board without the taking of evi- dence supporting such allegation, and the respondent shall be precluded from introducing any evidence controverting the allegation. The Acting General Counsel submits that he is entitled to partial summary judgment against Respondents Liquid Systems, Eric Wierzbicki, and Edmund Wierzbicki, be- cause they failed to file an answer that conforms to the requirements of Section 102.56 of the Board’s Rules and Regulations. Specifically, he asks that all allegations, with the exception of those relating to mitigation and interim earnings, in the compliance specification be deemed true. We agree with the Acting General Counsel’s conten- tions. Respondents Liquid Systems, Eric Wierzbicki, and Edmund Wierzbicki’s amended answer is substan- tially deficient insofar as it contains general denials con- cerning matters within the Respondents’ knowledge. It is insufficient because it does not fairly meet the sub- stance of the allegations of the compliance specification, nor does it reveal any basis cognizable under Section 102.56(b) for disagreement with the compliance specifi- cation’s allegations. The Respondents also failed to set forth any figures or alternative premises in support of its denials. Notably, these deficiencies occurred despite numerous notifications advising the Respondents of the Section 102.56 requirements. The Acting General Counsel also moves to strike evi- dence contained in portions of these Respondents’ amended answer, pursuant to Federal Rules of Evidence 403 and 404. Specifically, he requests that we strike the parts of Respondents’ answer to paragraphs 19, 20, 22, and 23 of the compliance specification that contain per- sonal information concerning a discriminatee. We find that the information contained in those sections of the answer may be relevant to the issues concerning mitiga- tion and interim earnings, but nevertheless find that those responses are insufficient and lack specificity as answers to allegations for which the Acting General Counsel seeks summary judgment. Accordingly, we shall grant the Acting General Coun- sel’s Motion to Transfer Proceedings to the Board and Motion for Partial Summary Judgment, but shall deny its Motion to Strike, and shall direct a hearing limited to issues concerning mitigation and interim earnings. Be- cause we have found that Respondents Liquid Systems, Eric Wierzbicki, and Edmund Wierzbicki’s general deni- als as to the allegations in the compliance specification are insufficient under Section 102.56(b) and (c) of the Board’s Rules and Regulations, we deem these Respon- dents to have admitted those allegations, as well as the allegations they have specifically admitted to be true. Ruling on the Motion to Default Section 102.56(a) of the Board’s Rules and Regula- tions provides that a respondent shall file an answer within 21 days from service of a compliance specifica- tion. Section 102.56(c) provides that if the respondent fails to file any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allega- tions of the specification and without further notice to the respondent, find the specification to be true and enter such order as may be appropriate. The Acting General Counsel claims that he is entitled to default judgment against Respondents SRC, PBN, James Wierzbicki, and Erin Wierzbicki for failing to file any answer to the compliance specification. As stated above, despite having been advised of the fil- ing requirements, Respondents SRC, PBN, James Wierzbicki, and Erin Wierzbicki have failed to file an answer to the compliance specification. Nonetheless, we deny the Acting General Counsel’s Motion for Default Judgment. The answer timely filed by Respondents Liq- uid Systems, Eric Wierzbicki, and Edmund Wierzbicki serves to preclude the entry of a default judgment against Respondents SRC, PBN, James Wierzbicki, and Erin Wierzbicki, since the corporate respondents have been found to be alter egos of one another.4 ORDER IT IS ORDERED that the Acting General Counsel’s Mo- tion to Transfer Proceedings to the Board is granted. IT IS FURTHER ORDERED that the Acting General Coun- sel’s Motion for Partial Summary Judgment, concerning all allegations in the compliance specification except as to amounts of mitigation and interim earnings, is granted. IT IS FURTHER ORDERED that the Acting General Coun- sel’s Motion to Strike is denied. IT IS FURTHER ORDERED that this proceeding is re- manded to the Regional Director for Region 30 for the purpose of issuing a notice of hearing and scheduling a hearing before an administrative law judge for the pur- pose of taking evidence concerning mitigation and in- terim earnings. The judge shall prepare and serve on the parties a decision containing findings of fact, conclusions of law, and recommendations based on all the record evidence. Following service of the judge’s decision on 4 346 NLRB 707. See Metro Demolition Co., 348 NLRB 272 (2006), and cases cited therein. SRC PAINTING, LLC 3 the parties, the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable. Dated, Washington, D.C. January 5, 2011 Wilma B. Liebman, Chairman Mark Gaston Pearce, Member Brian E. Hayes, Member (SEAL) NATIONAL LABOR RELATIONS BOARD