Mohawk Flooring and Janitorial Service, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 2012

359 NLRB No. 21 (N.L.R.B. 2012)

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On April 28, 2010, the Board issued an unpublished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 BOARD2
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.