Random Acquisitions, LLC

National Labor Relations Board - Board Decisions

Sep 16, 2013

360 NLRB No. 1 (N.L.R.B. 2013)

360 NLRB No. 1
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.
Random Acquisitions, LLC and Sherrie Cvetnich.
Case 07–CA–052473
September 16, 2013
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The Acting General Counsel seeks default judgment in
this case on the ground that the Respondent has failed to
file an answer to the amended compliance specification.
For the reasons stated below, we deny this motion.
On August 2, 2011, the Board issued a Decision and
Order1 that, among other things, ordered the Respondent
to offer reinstatement to discriminatees Sherrie Cvetnich,
Eric Cvetnich, and Teresa Burge and make them whole
for any loss of earnings and other benefits resulting from
their unlawful discharges in violation of Section 8(a)(1)
of the Act. On March 16, 2012, the United States Court
of Appeals for the Sixth Circuit entered its judgment
enforcing the Board’s Order.2 On January 28, 2013, the
Board issued a Supplemental Decision and Order3 grant-
ing the Acting General Counsel’s motion for partial
summary judgment based upon the inadequacy of the
Respondent’s answer to the compliance specification.
The Board determined that the backpay calculations con-
tained in the compliance specification regarding gross
backpay were true as a matter of law and remanded the
proceeding to the Region to hold a hearing before an
administrative law judge for the limited purpose of tak-
ing evidence regarding the amounts of interim earnings
and net backpay involved in paragraphs 6 and 7 of the
compliance specification, as well as the remaining para-
graphs of the compliance specification as to which sum-
mary judgment was not granted.4
Thereafter, on April 30, 2013, the Regional Director
issued an amended compliance specification and notice
of hearing alleging the amount of backpay due under the
Board’s Supplemental Order, and notifying the Respond-
ent that it should file an answer complying with the
Board’s Rules and Regulations. Although properly

1 357 NLRB No. 32.
2 No. 11-2434.
3 359 NLRB No. 55.
4 359 NLRB No. 55, slip op. at 3.
served with a copy of the amended compliance specifica-
tion,5 the Respondent failed to file an answer.
By letter dated May 30, 2013, the Region advised the
Respondent that no answer to the amended compliance
specification had been received and that unless an answer
was filed by June 6, 2013, a motion for default judgment
would be filed. To date, the Respondent has failed to file
an answer.
On June 14, 2013, the Acting General Counsel filed
with the Board a motion for default judgment, with ex-
hibits attached.6 On June 17, 2013, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The Respondent again filed no response. The allega-
tions in the motion and in the amended compliance spec-
ification are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on the 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 hav-
ing been advised of the filing requirements, has failed to
file an answer to the amended compliance specification.
Although the Respondent failed to answer the amended
compliance specification, the Board will not grant default
judgment on an allegation denied in a timely-filed an-
swer to a compliance specification, even though the re-
spondent later fails to timely answer an amended specifi-
cation repeating the allegation, provided that the repeated
allegation is not substantively changed from the original.
Kolin Plumbing Corp., 337 NLRB 234, 235 (2001).
Here, we find that the allegations in the amended com-
pliance specification were not substantively changed
from those in the original compliance specification. In
these circumstances, the Respondent may be excused
from filing an amended answer that would have been

5 On May 3, 2013, after discovering that the Respondent had
changed its address, the Region reissued and served the amended com-
pliance specification on the Respondent at its most recent address.
6 There is no indication in the motion why this case did not proceed
to a hearing, as directed in the Board’s earlier Decision and Order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
unchanged from its initial answer. We shall therefore
deny the Acting General Counsel’s motion for default
judgment, and we shall remand the proceeding to the
Region for further appropriate action.
ORDER
The National Labor Relations Board orders that this
proceeding is remanded to the Regional Director for Re-
gion 7 for the purposes of issuing a notice of hearing and
scheduling the hearing before an administrative law
judge, for the limited purpose of taking evidence to de-
termine the amounts of interim earnings and net backpay
involved in paragraphs 6 and 7 and to the remaining par-
agraphs of the amended compliance specification as to
which summary judgment was not granted in the Board’s
earlier supplemental decision.7
It is further ordered that the administrative law judge
shall prepare and serve on the parties a supplemental

7 If the Respondent fails to participate in the hearing, nothing herein
will prevent the judge from granting a motion for summary judgment at
that time.
decision containing findings of fact, conclusions of law,
and recommendations based on all of the record evi-
dence. Following service of the administrative law
judge’s decision on the parties, the provisions of Section
102.46 of the Board’s Rules shall be applicable.
Dated, Washington, D.C. September 16 , 2013
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD