Robincrest Landscaping & Construction

National Labor Relations Board - Board Decisions

Jun 24, 1992

307 N.L.R.B. 974 (N.L.R.B. 1992)

974
307 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Case 90–2010 (unpublished).
2 303 NLRB 377. 1 Respondent’s name appears as amended at the hearing.
Robincrest Landscaping and Construction, Inc.,
Debtor, and Robincrest Landscaping and Con-
struction, Inc., Debtor-in-Possession and Joa-
quin Lopez. Case 13–CA–27857
June 24, 1992
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 27, 1989, the National Labor Rela-
tions Board issued an unpublished Order directing the
Respondent, inter alia, to make whole employee Carlos
Serpa for any loss of earnings and other benefits re-
sulting from the Respondent’s unfair labor practices in
violation of Section 8(a)(1) of the Act. On June 13,
1990, the United States Court of Appeals for the Sev-
enth Circuit granted enforcement of the Board’s
Order.1
Subsequently, a controversy having arisen over the
amount of backpay due Serpa under the Board’s Order,
the Regional Director for Region 13 issued a compli-
ance specification alleging the amount of backpay due
the discriminatee. Thereafter the Respondent filed an
answer admitting in part and denying in part the speci-
fication. The General Counsel filed with the Board a
Motion to Strike Portions of the Respondent’s Answer
and for Partial Summary Judgment. On June 12,
1991,2 the Board granted the General Counsel’s Mo-
tion to Strike and for Summary Judgment except with
regard to the allegations concerning the amount of in-
terim earnings. Pursuant to the Board’s Supplemental
Decision and Order, a hearing was held before Admin-
istrative Law Judge Harold Bernard Jr. concerning the
amount of interim earnings of discriminatee Serpa. Al-
though fully apprised of the hearing, the Respondent
did not enter any appearance or otherwise participate
in the hearing. On March 9, 1992, the judge issued the
attached supplemental decision granting the General
Counsel’s motion for judgment on the pleadings and
ordering that the Respondent make whole
discriminatee Serpa by paying him the amount set
forth in the compliance specification. Thereafter, the
General Counsel filed a limited exception.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record and the supple-
mental decision in light of the limited exception and
has decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Supple-
mental Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Supplemental Decision of the administra-
tive law judge and orders that the Respondent,
Robincrest Landscaping and Construction, Inc., Debtor,
and Robincrest Landscaping and Construction, Inc.,
Debtor-in-Possession, Skokie and Chicago, Illinois,
their officers, agents, successors, and assigns, shall
make whole Carlos Serpa by payment to him of
$6125, plus interest accrued to the date of payment as
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required
by Federal and state laws.
Diane Reynolds, Esq., for the General Counsel.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge. I heard
this backpay case in Chicago, Illinois, on January 10, 1992,
pursuant to the Board’s June 12, 1991 Supplemental Deci-
sion and Order, which directed that a hearing be conducted
before an administrative law judge for the purpose of taking
evidence concerning the amount of interim earnings attrib-
utable to employee Carlos Serpa for purposes of determining
the amount of backpay necessary to make him whole for any
loss of earnings resulting from Respondent’s unfair labor
practices in violation of Section 8(a)(1) of the Act. (G.C.
Exh. 1–(P).)
Although fully apprised by oral and written timely notice
beforehand of the date, time, place, and nature of the hearing
before me, Respondent1 made known its intention to the Re-
gional Office not to enter any appearance therein through
counsel or otherwise, and in fact made no appearance itself
or by any representative at this hearing. After first consid-
ering the proof establishing proper and timely notice, allow-
ing additional time for unforeseen delays which may have
confronted Respondent, and inquiring as to possible efforts
by Respondent or a representative to contact the court re-
garding its nonappearance, I concluded that Respondent in-
tended not to make an appearance, though it had been ac-
corded a full opportunity to do so, and opened the hearing.
Neither on that day or since has Respondent communicated
with the court, all of which clearly warrants the conclusion
that it intentionally relinquished its opportunity to contest the
allegations in the backpay specification set for hearing con-
cerning the amount due employee Serpa.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent having failed to present any evidence in sup-
port of its denial in its answer to the backpay specification
as it relates to employee Serpa or any evidence to support
its affirmative defense that Serpa willfully incurred losses in
earnings, the amounts of the award therein are established.
Mutual Maintenance Service, 244 NLRB 211 (1979), enfd.
as modified 659 F.2d 33 (7th Cir. 1980); Fischbach/Lord
Electric Co., 300 NLRB 474 (1990), and Aircraft & Heli-
975ROBINCREST LANDSCAPING & CONSTRUCTION
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 G.C. Exh. 1, p. 3–7.
4 Interest shall be computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987). Interest on amounts accrued
prior to January 1, 1987, shall be computed in accordance with Flor-
ida Steel Corp., 231 NLRB 651 (1977). Backpay continues to accrue
until Respondents comply with the Board’s Order.
copter Leasing, 227 NLRB 644, 646 (1976), enfd. mem. 97
LRRM 3228 (9th Cir. 1978). Accordingly, counsel for the
General Counsel’s motion at hearing for judgment on the
pleadings is granted.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Robincrest Landscaping and Construc-
tion, Inc., Debtor, and Robincrest Landscaping and Construc-
tion, Inc., Debtor-In-Possession, Skokie and Chicago, Illinois,
their officers, agents, successors, and assigns, shall make
whole employee Carlos Serpa the amount of backpay set
forth in the backpay specification.3 The Respondent shall pay
net backpay less tax withholding required by Federal and
state law. Interest shall be payable on any amount due until
such time as it is paid.4