APS Events

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 722 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 152
722
APS Events, LLC and International Alliance of The-
atrical Stage Employees, Moving Pictures Tech-
nicians, Artists and Allied Crafts of the United
States, its Territories and Canada, AFL–CIO,
CLC, Local No. 19. Case 5–CA–34875
August 27, 2010
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On October 30, 2009, the Board issued a Decision and
Order1 directing the Respondent, inter alia, to make unit
employees and benefit funds whole for any losses suf-
fered as a result of the Respondent’s failure to abide by
the terms of the parties’ collective-bargaining agreement
in violation of Section 8(a)(5) and (1) of the Act. On
January 5, 2010,2 the United States Court of Appeals for
the Fourth Circuit entered its judgment enforcing the
Board’s Order and issued a mandate enforcing the judg-
ment.3 A controversy having arisen over the amount of
backpay and benefit fund contributions due, on February
26, the Regional Director for Region 5 issued a compli-
ance specification and notice of hearing identifying the
amounts due under the Board’s Order and notifying the
Respondent that it must file a timely answer complying
with the Board’s Rules and Regulations.
On April 21, the Regional attorney for Region 5 re-
ceived a facsimile transmission dated April 20 from the
Respondent requesting the Regional Director to extend
the deadline for filing an answer. By letter dated April
27, the Regional attorney advised the Respondent that
the deadline was extended to May 7.
By letter dated May 7, the Respondent informed the
Regional attorney that it “do[es] not dispute the allega-
tions” set forth in the compliance specification. The Re-
spondent also stated, without further explanation, that
once it was “apparent” that payroll would not be proc-
essed in a “timely manner,” the “payroll company and
the job steward agreed that we could make partial pay-

1 354 NLRB No. 102.
2 All dates are in 2010, unless otherwise noted. The compliance
specification erroneously states that the court’s judgment was entered
on January 7. We note that the judgment was filed on January 5.
3 Although this case was decided by only two Board Members, the
court’s order and mandate upholding that decision became final prior to
the Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 560
U.S. __, 130 S.Ct. 2635 (2010), holding that a two-member group may
not exercise delegated authority when the membership of the group
falls below three. In these circumstances, we regard the matters finally
resolved by the court of appeals as res judicata in this proceeding. See
Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371,
374–378 (1940); Nemaizer v. Baker, 793 F.2d 58, 65 (2d Cir. 1986)
(cited with approval in United Student Aid Funds, Inc. v. Espinosa, 559
U.S. __, 130 S.Ct. 1367, 1377 (2010)).
ments.” The Respondent ends the correspondence by
stating, “I want to make this right with these men as they
were great workers and a great asset to our company for
many, many years.”
By letter dated May 7, the Regional attorney notified
the Respondent that its response had been deemed to
constitute an answer to the compliance specification and
that a Motion for Summary Judgment would be filed.
On May 26, the General Counsel filed a Motion for
Summary Judgment. The General Counsel argues that
the Respondent’s letter of May 7 is a legally sufficient
answer under Section 102.56 of the Board’s Rules and
Regulations, that the answer does not raise an issue of
material fact warranting a hearing, and that he is entitled
to summary judgment. Thereafter, on June 1, 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 did not file a response. The
allegations 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 the Motion for Summary Judgment
Section 102.56 of the Board’s Rules and Regulations
provides that:

(a) Filing and service of answer; form.—Each
respondent alleged in the specification to have com-
pliance obligations shall, within 21 days from the
service of the specification, file an original and four
copies of an answer thereto with the Regional Direc-
tor issuing the specification, and shall immediately
serve a copy thereof on the other parties. The an-
swer to the specification shall be in writing, the
original being signed and sworn to by the respondent
or by a duly authorized agent with appropriate power
of attorney affixed, and shall contain the mailing ad-
dress of the respondent.
(b) Contents of answer to specification.—The
answer shall specifically admit, deny, or explain
each and every allegation of the specification, unless
the respondent is without knowledge, in which case
the respondent shall so state, such statement operat-
ing as a denial. Denials shall fairly meet the sub-
stance of the allegations of the specification at issue.
When a respondent intends to deny only a part of an
allegation, the respondent shall specify so much of it
as is true and shall deny only the remainder. As to
all matters within the knowledge of the respondent,
including but not limited to the various factors enter-
ing into the computation of gross backpay, a general
denial shall not suffice. As to such matters, if the re-
spondent disputes either the accuracy of the figures
APS EVENTS, LLC 723
in the specification or the premises on which they
are based, the answer shall specifically state the ba-
sis for such disagreement, setting forth in detail the
respondent’s position as to the applicable premises
and furnishing the appropriate supporting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to backpay allegations of
specification.—If the respondent fails to file any an-
swer to the specification within the time prescribed
by this section, the Board may, either with or with-
out 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. If the respondent
files an answer to the specification but fails to deny
any allegation of the specification in the manner re-
quired by paragraph (b) of this section, and the fail-
ure so to deny is not adequately explained, such al-
legation shall be deemed to be admitted to be true,
and may be so found by the Board without the taking
of evidence supporting such allegation, and the re-
spondent shall be precluded from introducing any
evidence controverting the allegation.

We find that the Respondent’s May 7 letter is a legally
sufficient answer under Section 102.56 of the Board’s
Rules and Regulations.4 Summary judgment is appropri-

4 We note that the Respondent does not appear to have served the
other parties with a copy of its answer. On this basis, its answer could
be considered legally insufficient under Sec. 102.56(a) of the Board’s
Rules and Regulations. We have, however, given the Respondent the
benefit of any doubt on that issue.
We further note that the Respondent’s correspondence with Region
5 is signed by James T. Arth, the Respondent’s president. Assuming
without finding that the Respondent is not represented by counsel, we
note that “the Board has shown some leniency toward respondents who
proceed without benefit of counsel” in applying Sec. 102.56. See Nick
& Bob Partners, 345 NLRB 1092, 1093 (2005), quoting Convergence
Communications, Inc., 342 NLRB 918, 919 (2004). We find, however,
that the Respondent’s May 7 letter, even considered as a submission by
a pro se respondent, does not raise a genuine issue of material fact. As
discussed above, the Respondent has effectively admitted all allega-
tions in the compliance specification.
ate when a respondent does not raise a genuine issue of
material fact. Alpha Associates, 344 NLRB 782, 785–
786 (2005). As noted above, the Respondent stated that
it “do[es] not dispute the allegations” in the compliance
specification. Although the Respondent’s letter also con-
tends that the payroll company and the union steward
agreed that the Respondent could make partial payments,
the Respondent does not provide any further explanation
regarding the partial payment arrangement, or assert that
any partial payment arrangement affects its obligations
under the compliance specification. In addition, the Re-
spondent failed to file a response to the Board’s Notice to
Show Cause why the General Counsel’s motion should
not be granted. Under these circumstances, we find that
the Respondent’s answer does not raise a genuine issue
of material fact warranting a hearing. Therefore, we
grant the General Counsel’s motion for summary judg-
ment. Nick & Bob Partners, 345 NLRB 1092, 1093
(2005).
ORDER
IT IS ORDERED that the General Counsel’s Motion for
Summary Judgment is granted.
IT IS FURTHER ORDERED that the Respondent, APS
Events, LLC, Glen Burnie, Maryland, its officers, agents,
successors, and assigns, shall make whole the individuals
named below by paying them the backpay amounts fol-
lowing their names, plus interest as set forth in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987), accrued
to the date of payment and minus tax withholdings re-
quired by Federal and State laws, and by paying to the
benefit funds the total contribution amount of
$25,588.50, plus interest accrued to the date of payment.

TOTAL
BACKPAY
TOTAL FUND
CONTRIBUTIONS
Joseph Allen $24,939.00 $ 6,339.75
Michael Ziegler 36,693.00 9,775.25
Perry Ziegler 35,094.00 9,473.50
TOTALS $96,726.00 $25,588.50