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

National Labor Relations Board - Board Decisions

Feb 28, 2013

359 N.L.R.B. 605 (N.L.R.B. 2013)

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 Order
1
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).