New Jersey State Opera

363 NLRB No. 152 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. New Jersey State Opera and American Federation of Musicians, Local 16. Case 22–CA–029526 March 23, 2016 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the amended compliance specification. On September 30, 2013, the National Labor Relations Board issued a Decision and Order1 that, among other things, ordered the Respondent to make whole unit em- ployees for any loss of earnings and other benefits result- ing from the Respondent’s unfair labor practices in viola- tion of Section 8(a)(5) and (1) of the Act. On December 17, 2014, the United States Court of Appeals for the Third Circuit entered its judgment enforcing in its entire- ty the Board’s Decision and Order.2 A controversy having arisen over the amount of backpay due the unit employees, on October 26, 2015, the Regional Director issued an amended compliance specification and notice of hearing,3 alleging the amount due under the Board’s Order and notifying the Respond- ent that it should file an answer by November 16, 2015, complying with the Board’s Rules and Regulations. Alt- hough properly served with a copy of the amended com- pliance specification, the Respondent failed to file an answer.4 By letter dated December 14, 2015, the Regional Di- rector informed the Respondent that the deadline for re- 1 360 NLRB No. 5. 2 14-4199. 3 The Regional Director issued the initial compliance specification on August 24, 2015, and served it on the Respondent. The Respondent failed to file an answer. 4 The General Counsel served the compliance specification and the amended compliance specification to the Respondent’s officers by certified mail at the Respondent’s last known address. The United States Postal Service tracking system shows that the compliance speci- fication was returned to the Regional Office and that the amended compliance specification was undeliverable as addressed. The motion for default judgment was served by United Parcel Service at the same address and was returned with a notation that the receiver had moved. The motion was also served on the officers by electronic mail. Under the Board’s Rules, service of the various papers of the Board, such as the compliance specification here, is accomplished by deposit in the mail to the last known address of a respondent. This was done here and the Respondent’s failure to provide for receiving appropriate service cannot serve to defeat the purposes of the Act. See, e.g., National Automatic Sprinklers, Inc., 307 NLRB 481, 481 fn. 1 (1992). ceipt of its answer to the amended compliance specifica- tion was extended until the close of business on Decem- ber 21, 2015. The letter further informed the Respondent that if it did not file an answer by the deadline, a motion for default judgment would be filed. The Respondent again failed to file an answer. On December 24, 2015, the General Counsel filed a Motion for Default Judgment with the Board. On Janu- ary 4, 2016, 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, though duly served, filed no response. The allegations in the motion and in the amended compliance specification 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 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, has failed to file an answer to the amended compliance specification. In the absence of good cause for the Respondent’s failure to file an answer, we deem the allegations in the amended compliance specification to be admitted as true, and grant the General Counsel’s Motion for Default Judgment. Accordingly, we conclude that the backpay due to the unit employees, and the amount owed to the Union for unremitted contractual dues, are as stated in the amended compliance specification, and we will order the Re- spondent to pay those amounts, plus interest accrued to the date of payment. ORDER The National Labor Relations Board orders that the Respondent, New Jersey State Opera, Newark, New Jer- sey, its officers, agents, successors, and assigns, shall make whole its unit employees by paying them the amounts set forth below following their names, and shall make whole the Union for unremitted dues owed on be- half of its unit employees, plus interest accrued to the date of payment, as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kentucky River Medical Center, 356 NLRB 6 (2010), and minus tax withholdings as required by Federal and State laws.5 John Babich $ 500.61 David Bajamjiam $ 423.10 Frank Basile $ 478.28 Donald Batchelder $ 463.64 Karen Bogardus $ 98.73 Ruth Brons $ 423.11 Jerry Bryant $ 423.03 Kenneth Burward-Hoy $ 500.53 Vincent Carano $ 577.77 Anthony Cecere $ 73.49 Barry Centanni $ 1384.04 Dennis Cianciosi $ 478.28 Alan Cohen $ 398.78 John Connelly $ 423.11 Marya Columbia $ 423.11 Karen Conrad $ 355.63 Louis D’Amico $ 1495.506 Mark Davies $ 499.82 Dorothy Duncan $ 478.28 Douglas Edelman $ 500.27 Richard Foley $ 500.27 Jonathan Fowler $ 577.77 Lucille Goeres $ 407.51 Julie Goodale $ 423.11 Gary Grimaldi $ 423.11 Kathy Hannauer $ 294.39 Rebecca Hems-Lee $ 355.63 Susan Hereema $ 423.08 5 The Respondent made partial payments toward the backpay owed on various dates since the Board’s Order issued, as set forth and de- ducted in the amended compliance specification. As further set forth in the amended compliance specification, the Respondent is also liable for any adverse tax consequences for any unit employee receiving a lump- sum backpay award. Although the amended compliance specification calculated the adverse tax consequences, that amount may be updated to reflect the actual date of payment. 6 The addendum attached to the amended compliance specification states that D’Amico has waived any additional backpay and interest owed to him. By failing to file an answer to the compliance specifica- tion, the Respondent has admitted that it owes D’Amico $1495.50. Any questions regarding the waiver shall be resolved by the Region. Alfred Jorgensen $ 500.27 Joseph Kimura $ 423.11 Byung Konk-Kwak $ 833.78 Janet Lantz $ 355.63 Valerie Levy $ 355.63 Theresa Macdonneck $ 423.11 Susan Maren $ 423.11 Patrick Milando $ 432.96 Karla Moe $ 500.27 Laura Mole $ 423.11 Martha Mott-Gale $ 355.63 Tom Mulvaney $ 433.31 Lanny Pakin-Kim $ 500.27 Marie Pintaualle Tracy $ 356.63 Alice Poulson $ 355.63 Christa Robinson $ 423.11 Joel Rudin $ 355.63 Alan Schiller $ 423.11 William Shadel $ 500.27 Sebu Sirinian $ 537.83 Brad Siroky $ 423.11 David Steinberg $ 423.11 Yen Yu $ 423.11 Total Backpay owed $ 23,985.71 Total Dues owed to Union $ 1049.00 Total amount due: $ 25,034.71 Dated, Washington, D.C. March 23, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Kent Y. Hirozawa, Member ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD