Lee's Industries, Inc. Lee's Home Health Services, Inc. and Lee's Companies, Inc. (Single Employer)

LEE’S INDUSTRIES, INC. 605 359 NLRB No. 69 Lee’s Industries, Inc. and Lee’s Home Health Ser- vices, Inc. and Lee’s Companies, Inc. and Ber- nice Brown. Case 04–CA–036904 February 28, 2013 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK The Acting General Counsel seeks default judgment in this case on the ground that the Respondent has failed to file an answer to the corrected compliance specification. On September 30, 2010, the Board issued a Decision and Order1 that, among other things, ordered the Re- spondent, Lee’s Industries, Inc., Lee’s Home Health Ser- vices, Inc., and Lee’s Companies, Inc., a single employ- er, to make whole discriminatee Bernice Brown for any loss of earnings and other benefits resulting from the Respondent’s unfair labor practices in violation of Sec- tion 8(a)(3) and (1) of the Act. On July 20, 2011, the United States Court of Appeals for the Third Circuit en- tered its judgment enforcing the Board’s Order.2 A controversy having arisen over the amount of back- pay due Bernice Brown, on October 11, 2012, the Re- gional Director issued a corrected compliance specifica- tion and notice of hearing alleging the amount due under the Board’s Order, and notifying the Respondent that it should file an answer complying with the Board’s Rules and Regulations. Although properly served with a copy of the corrected compliance specification, the Respond- ent failed to file an answer. By letter dated November 5, 2012, the Region advised the Respondent that no answer to the corrected compli- ance specification had been received and that unless an answer was filed by November 12, 2012, a motion for default judgment would be filed. By letter dated November 12, 2012, the Respondent’s president, Eric Lamback, requested an extension of time to file an answer to the corrected compliance specifica- tion.3 On November 14, 2012, the Regional Director granted the request and extended the time for filing an answer to November 21, 2012. Nevertheless, the Re- spondent failed to file an answer. 1 355 NLRB 1267. 2 No. 10-4690. 3 In its request, the Respondent stated that “Lee’s Industries, Inc. is in the initial stages of Bankruptcy and need[s] more time due to Re- structuring.” It is well established that the institution of bankruptcy proceedings does not constitute good cause for the failure to file an answer and does not deprive the Board of jurisdiction or authority to entertain and process an unfair labor practice case to its final disposi- tion. Dubin Paper Co., 359 NLRB 518 (2012) (not reported in Bound volume); OK Toilet & Towel Supply, Inc., 339 NLRB 1100, 1100 (2003). On November 29, 2012, the Acting General Counsel filed with the Board a Motion for Default Judgment, with exhibits attached. On December 3, 2012, the Board is- sued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The alle- gations in the motion and in the corrected compliance specification are therefore undisputed. Ruling on Motion for Default Judgment 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 an 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 specification and without further notice to the re- spondent, find the specification to be true and enter such order as may be appropriate. According to the uncontroverted allegations of the mo- tion for default judgment, the Respondent, despite having been advised of the filing requirements and being granted an extension of time to file an answer, has failed to file an answer to the corrected compliance specification. In the absence of good cause for the Respondent’s failure to file an answer, we deem the allegations in the corrected compliance specification to be admitted as true, and we grant the Acting General Counsel’s Motion for Default Judgment. Accordingly, we conclude that the net back- pay due discriminatee Bernice Brown is as stated in the corrected compliance specification and we will order the Respondent to pay that amount, plus interest accrued to the date of payment.4 ORDER The National Labor Relations Board orders that the Respondent, Lee’s Industries, Inc., Lee’s Home Health Services, Inc. and Lee’s Companies, Inc., a single em- ployer, Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall make whole Bernice Brown by paying her the amount of $19,647.49 as set 4 As set forth in the corrected compliance specification, on February 29, 2012, the discriminatee, Bernice Brown, tendered her resignation to the Respondent and waived any future rights to employment. 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD forth in the corrected compliance specification, plus in- terest 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 Medi- cal Center, 356 NLRB 6 (2010), and minus tax withhold- ings required by Federal and State laws.5 5 In Latino Express, Inc., 359 NLRB No. 44 (2012), the Board adopted two new remedies: the first requiring respondents to submit appropriate documentation to the Social Security Administration (SSA) allocating backpay, when it is paid, to the appropriate calendar quarters; and the second requiring respondents to reimburse employees for any additional income taxes they owe as a consequence of receiving a lump-sum backpay award covering more than 1 calendar year. The Board decided to apply both remedial policies retroactively, but not to apply the second to cases, such as this one, that already were in the compliance stage on the date Latino Express issued. Id. at slip op. 4 fn. 36. We note that nothing in Latino Express prevents the Acting Gen- eral Counsel from requesting that the Board modify a previously issued order in a pending case to include an applicable remedy, at least where the Board still has jurisdiction to do so. That is not the case here, how- ever. See Scepter, Inc. v. NLRB, 448 F.3d 388, 390–391 (D.C. Cir. 2006) (Board has no authority to modify the remedy in a court-enforced order).