Mohawk Flooring and Janitorial Service, Inc.

359 NLRB No. 21 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. Mohawk Flooring and Janitorial Service, Inc. and Maurice Barnwell and Juan Carlos Hernandez Navarrete. Case 11–CA–022379 November 14, 2012 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN The Acting General Counsel seeks default judgment in this case pursuant to the terms of a Stipulation and Waiver. On April 28, 2010, the Board issued an unpublished Order in this proceeding adopting, in the absence of ex- ceptions, an administrative law judge's decision. Among other things, the Order required the Respondent, Mo- hawk Flooring and Janitorial Service, Inc., to make whole discriminatee Juan Carlos Hernandez Navarrete for any loss of earnings and other benefits suffered as a result of the Respondent’s suspending and discharging him in violation of Section 8(a)(1) of the Act. On April 22, 2011, the United States Court of Appeals for the Fourth Circuit enforced in full the Board’s Order.1 Subsequently, the Respondents entered into a Stipula- tion and Waiver approved by the Acting Regional Direc- tor for Region 11 on December 7, 2011, setting forth the amount of backpay due and an installment payment plan. Although not named as a party in the original unfair la- bor practice litigation, Respondent Maurice Barnwell, the president and owner of Respondent Mohawk Flooring and Janitorial Service, Inc., also agreed under the terms of the Stipulation and Waiver to be held individually liable for the amounts due. The Stipulation and Waiver required the Respondents to make employee Juan Carlos Hernandez Navarrete whole by paying specified amounts monthly from December 2011 through October 2012 for a total sum of $6000. The Stipulation and Waiver contained the following clause concerning noncompliance by the Respondents with the agreed-upon terms: In the event of Respondents’ noncompliance with the terms of this Stipulation and Waiver, including but not limited to failure to make timely payment of the money in the form set forth above, and after 14 days notice from the Regional Director of the National Labor Rela- tions Board of such noncompliance without remedy by Respondent, the Regional Director may issue a Com- 1 Case No. 11-1245. pliance Specification reflecting that Respondent Barn- well is individually liable and reflecting the full remedy due, including but not limited to backpay and interest owing pursuant to the terms of this Stipulation and Waiver, plus additional interest. Thereafter, the Gen- eral Counsel may file a motion for summary judgment with the Board on the allegations of said Compliance Specification. In such an event, the allegations of the Compliance Specification may be deemed to be true by the Board, Respondents will not contest the validity of any such allegations, and the Board may enter findings of fact, conclusions of law, and an order on the allega- tions of the Compliance Specification. On receipt of said motion for summary judgment, the Board shall is- sue an Order requiring Respondents to show cause why said motion of the General Counsel should not be granted. The only issue that may be raised in response to the Board’s Order to Show Cause is whether Re- spondents defaulted upon the terms of this Compliance Stipulation. The Board may then, without necessity of trial or any other proceeding, find all allegations of the Compliance Specification to be true and make findings of fact and conclusions of law consistent with those al- legations adverse to Respondents, on all issues raised by the pleadings. The Board may then issue an Order providing a backpay remedy in accordance with the al- legations of the Compliance Specification. The Board’s Order may be entered thereon ex parte and, upon application by the Board to the appropriate United States Court of Appeals for enforcement of the Board’s Order, judgment may be entered thereon ex parte and without opposition from Respondents. The Respondents made the payments due through May 2012 but failed to timely remit the June payment. By letter dated July 18, 2012, the Region notified the Re- spondents that they had not complied with the terms of the Stipulation and Waiver with respect to the timely payment of backpay and warned that their failure to comply would result in the issuance of a compliance specification and the filing of a motion for summary judgment. By email dated July 27, 2012, the Respon- dents, by Maurice Barnwell, admitted their noncompli- ance, and by email dated August 9, stated that they had sent to the Region $50 towards a $1500 balance and would try to “catch up . . ., I will send something each month.” By emails dated July 31 and August 9, 2012, the Region’s compliance officer asked the Respondents about their ability and intent to pay the remaining sched- uled installment payments. The Region extended the deadline for payment but again warned the Respondents that if they did not comply with the installment payment DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 schedule by paying $600 to the Region by August 23, 2012, the Region would issue a compliance specification and the Acting General Counsel would file a motion for summary judgment. The Respondents failed to meet and satisfy their obli- gations under the installment payment schedule as modi- fied by the Region's extension of time. On September 12, 2012, the Acting Regional Director issued a compli- ance specification pursuant to the terms of the noncom- pliance provisions of the Stipulation and Waiver. On September 28, 2012, the Region received from the Respondents another $50 payment. By email dated Oc- tober 1, 2012, the Region inquired whether the Respon- dents would be able to make additional payments on the remaining $1400 owed. The Region received no re- sponse. On October 2, 2012, the Acting General Counsel filed with the Board a motion for default judgment, with ex- hibits attached. On October 3, 2012, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be granted. The Respondents filed no response. The allega- tions in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment According to the uncontroverted allegations in the mo- tion for default judgment, the Respondents have failed to comply with the terms of the Stipulation and Waiver with respect to the timely payment of backpay in sched- uled installments. Consequently, pursuant to the non- compliance provisions of the Stipulation and Waiver set forth above, we find that all of the allegations in the compliance specification are true.2 Accordingly, we grant the Acting General Counsel's Motion for Default Judgment. On the entire record, the Board concludes that the net backpay due discriminatee Juan Carlos Hernandez 2 See U-Bee, Ltd., 315 NLRB 667 (1994). Navarrete is as stated in the compliance specification as modified by the Motion for Default Judgment and we will order the Respondents to pay him that amount, plus interest accrued to the date of payment.3 ORDER The National Labor Relations Board orders that the Respondents, Mohawk Flooring and Janitorial Service, Inc. and Maurice Barnwell, Davie County, North Caro- lina, their officers, agents, successors, and assigns, shall make whole Juan Carlos Hernandez Navarrete, by paying him the amount of $1400, plus interest accrued to the date of payment, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), minus tax withholdings required by Fed- eral and State laws. Dated, Washington, D.C. November 14, 2012 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Brian E. Hayes, Member ______________________________________ Richard F. Griffin, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 Although the compliance specification alleges that the amount of backpay due is $1450, the Acting General Counsel’s uncontroverted motion states that the Respondents remitted $50 following the compli- ance specification’s issuance, and therefore the total amount of backpay due is $1400.