Exhibitus, LLC

National Labor Relations Board - Board Decisions

Jul 6, 2011

357 NLRB No. 10 (N.L.R.B. 2011)

357 NLRB No. 10
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.
Exhibitus, LLC and New Jersey Regional Council of
Carpenters, United Brotherhood of Carpenters
and Joiners of America. Case 4–CA–37328
July 6, 2011
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has failed
to file an answer to the compliance specification. On
October 18, 2010, the Board issued an Order1 that found
that the Respondent violated Section 8(a)(5) and (1) of
the Act by failing and refusing to bargain with the Union
about the effects of its decision to close its Moorestown,
New Jersey facility. The Board required the Respondent,
among other things, to pay all bargaining unit employees
no less than 2-weeks’ wages, less any interim earnings,
for the period commencing 5 days after the date of the
Board’s Order.2
A controversy having arisen regarding the amount of
backpay due under the terms of the Board’s Order, the
Regional Director issued a compliance specification and
notice of hearing on April 6, 2011, alleging the amounts
due under the Board’s Order and notifying the Respon-
dent that it should file a timely answer complying with
the Board’s Rules and Regulations. Although properly
served with a copy of the compliance specification, the
Respondent failed to file an answer.
By letter dated April 28, 2011, the Region advised the
Respondent that no answer to the compliance specifica-
tion had been received and that unless an answer was
filed by May 5, 2011, a motion for default judgment

1 Unpublished Order adopting, in the absence of exceptions, the de-
cision of Administrative Law Judge Robert A. Giannasi issued on Sep-
tember 3, 2010 (JD-49-10).
2 The Board required the Respondent to pay backpay to employees
in the bargaining unit in a manner similar to that required in Transma-
rine Navigation Corp., 170 NLRB 389 (1968), as clarified by Melody
Toyota, 325 NLRB 846 (1998), for any loss of pay resulting from the
Respondent’s unfair labor practices.
Consistent with his dissenting view in Kadouri International Foods,
Inc., 356 NLRB No. 148, slip op. at 1, fn. 1 (2011), Member Hayes
disagrees with the portion of the Transmarine remedy that imposes a 2
weeks’ minimum back pay remedy on the Respondent, without regard
to actual losses incurred. Nonetheless, in the context of this default
judgment proceeding, and in light of the fact that the remedy is applied
only to three employees who were permanently laid off due to the
Respondent’s decision to close, Member Hayes agrees to apply extant
remedial precedent.
would be filed with the Board. To date, the Respondent
has failed to file an answer.
On May 9, 2011, the Acting General Counsel filed
with the Board a Motion for Default Judgment, with ex-
hibits attached. On May 10, 2011, 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 Respondent again filed no response. The
allegations in the motion and in the compliance specifi-
cation 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 having
been advised of the filing requirements, has failed to file
an answer to the compliance specification. In the ab-
sence of good cause for the Respondent’s failure to file
an answer, we deem the allegations in the 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 backpay due the
discriminatees is as stated in the compliance specifica-
tion, and we will order the Respondent to pay those
amounts to the discriminatees, plus interest accrued to
the date of payment.
ORDER
The National Labor Relations Board orders that the
Respondent, Exhibitus, LLC, Moorestown, New Jersey,
its officers, agents, successors, and assigns, shall make
whole the individuals named below by paying them the
amounts following their names, plus interest accrued to
the date of payment, as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), minus tax with-
holdings required by Federal and State laws:3

3 The Board has declined to apply its new policy, announced in
Kentucky River Medical Center, 356 NLRB No. 8 (2010), of daily
compounding of interest on backpay awards, in cases such as this, that
were already in the compliance stage on the date that decision issued.
Rome Electrical Systems, Inc., 356 NLRB No. 38, slip op. at 1 fn. 2
(2010).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Terry Coyle $2,131.20
Joe Senatore, Jr. 2,131.20
William Senatore 2,131.20
TOTAL BACKPAY DUE $6,393.60
Dated, Washington, D.C. July, 6, 2011
Craig Becker, Member
Mark Gaston Pearce, Member
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD