Indiana Temporary Services

National Labor Relations Board - Board Decisions

Oct 14, 2003

340 N.L.R.B. 914 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914
Indiana Personnel Services d/b/a Indiana Temporary
Services and its alter egos Indiana Temporary
Services, Inc. and Indiana Temporary Services
East, Inc. and its Joint Employer Koorsen Pro-
tection Services, Inc. Party in Interest and Road
Sprinkler Fitters Local Union No. 669, U.A.,
AFL–CIO, a/w United Association of Journey-
man and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Can-
ada, AFL–CIO. Cases 25–CA–24069 Amended
and 25–CA–24189 Amended
October 14, 2003
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
The General Counsel seeks a default judgment1 in this
case on the ground that Respondent Indiana Temporary
Services (ITS) has failed to answer a compliance specifi-
cation. The compliance specification implements a
board Order2 requiring ITS to make whole employees
Melvin Curtis, Kirk Bickell, David Fulkerson, Gary
Garr, John Marye, Gary Ray,3 and David Douglas, in the
amounts specified, for their losses suffered as a result of
ITS’s refusal to hire them and consider them for em-
ployment.
The compliance specification alleged, inter alia, the
backpay amount owed by ITS pursuant to the Board’s
Order.4 It also notified ITS it should file a timely answer
complying with the Board’s Rules and Regulations. Al-
though properly served with a copy of the compliance
specification, ITS failed to file an answer as specified in
NLRB Rules and Regulations Section 102.56(b) and (c).5

1 The General Counsel seeks summary judgment on the ground that
the Respondent has failed to file an answer to the compliance specifica-
tion. Accordingly, we construe the General Counsel’s motion as a
motion for default judgment.
2 Unpub. (July 14, 1998), enfd. sub nom. NLRB v. Indiana Tempo-
rary Services, No. 98–3872, Unpub. (July 21, 1999).
3 Ray’s quarterly interim earnings exceeded, and thus offset, the
amount of backpay to which he was entitled. Accordingly, the compli-
ance specification contains no backpay computation for him.
4 The specification contained a chart summarizing the total backpay
obligation of joint employers ITS and Koorsen, the amount previously
paid by party-in-interest Koorsen, and the outstanding backpay obliga-
tion of ITS.
5 Sec. 102.56(b) of the Board’s Rules and Regulations requires that
the “answer specifically admit, deny, or explain each and every allega-
tion of the specification.” Sec. 102.56(c) provides, inter alia, that if the
respondent fails to answer the specification, the Board may find the
specification to be true and enter an appropriate order.
A copy of the compliance specification served by certified mail to
ITS’s Indianapolis, Indiana address was returned to the Regional Office
undelivered. Attorney, Robert Epstein, who is ITS’s resident agent for
service in Indiana, was successfully served by regular mail. In re-
By letter dated January 2, 2003, counsel for the Gen-
eral Counsel advised ITS that no answer to the compli-
ance specification had been received, and that unless ITS
contacted the Region by the close of business on January
13, 2003, summary judgment would be sought. ITS did
not respond.
On February 5, 2003, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On Febru-
ary 13, 2003, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. ITS did not file a
response. The allegations in the motion and in the com-
pliance specification 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
proscribed 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. Further, the undisputed
allegations in the General Counsel’s motion disclose that
the Region, by letter dated January 2, 2003, notified ITS
that unless an answer was received by close of business
on January 13, 2003, a Motion for Default Judgment
would be filed.
In the absence of good cause being shown for ITS’s
failure to file a timely answer, we grant the General
Counsel’s Motion for Default Judgment.6

sponse, Epstein sent a letter to the Regional Director asserting that ITS
is no longer in business.
6 Charges were filed against ITS and Koorsen Protection Services, as
joint employers, alleging various unfair labor practices. Each entered
into a separate, informal settlement agreement with the Charging Party,
agreeing, inter alia, to pay a specified share of the total backpay due the
named discriminatees under the settlement, and to be residually liable
for each other’s backpay obligation in the event of the other’s default.
Koorsen complied with the agreement by remitting the specified back-
pay amount. ITS did not comply. As a result, the General Counsel
revived the unfair labor practice complaint and successfully litigated
the case, leading to this compliance proceeding.
Koorsen Protection Services filed an objection to the Motion for
Summary Judgment, “to the extent the General Counsel seeks an order
declaring as true any allegations in the compliance specification con-
cerning Koorsen and to any remedy that adversely affects it.”
Koorsen’s interest in this compliance proceeding against ITS arises as a
result of Koorsen’s above-referenced settlement. The settlement agree-
ment provided that Koorsen would pay a portion of the total backpay
provided for each employee and would “pay the remainder of each such
amount only on being informed by the Regional Director that efforts to
340 NLRB No. 101
INDIANA TEMPORARY SERVICES 915

obtain payment from Charged Party, Indiana Personnel Services, Inc.
d/b/a Indiana Temporary Services have failed.” In light of ITS’s de-
fault, Koorsen contends that summary judgment is not appropriate here
because Koorsen “may have many defenses available to it in the
unlikely event that the Region attempts to collect any further amounts
from [it].”
We find that Koorsen’s objection to the Motion for Summary Judg-
ment against ITS is premature and, thus, lacks merit. We take no posi-
tion regarding any legal obligation Koorsen might have, or any de-
fenses it might raise, with regard to any remaining backpay liability
resulting from its settlement agreement with the Charging Party and
from this proceeding. Indeed, we need not do so. This summary judg-
ment proceeding is against ITS, in an attempt to establish and collect
the amount of backpay owed as a result of the Board’s Order against
ITS. If the General Counsel is unsuccessful in collecting ITS’s back-
pay obligation, and if, as a result, any party to these proceedings at-
tempts to proceed against Koorsen, Koorsen then will be able to raise
such defenses as it sees fit.
ORDER
The National Labor Relations Board orders that the
Respondent, Indiana Personnel Services, Inc. d/b/a Indi-
ana Temporary Services, Indianapolis, Indiana, its offi-
cers, agents, successors, and assigns, shall make whole
the individuals named below by paying them the
amounts following their names, plus interest and minus
tax withholdings required by Federal and State laws:

Bickel $10,748 Curtis $12,560
Douglas $ 1,636 Fulkerson $ 6,310
Garr $ 1,578 Marye $ 6,653