Less Express Courier Systems

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 28 (N.L.R.B. 2001)

333 NLRB No. 28
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.
Less Express Courier Systems and District 6, Interna-
tional Union of Industrial Service, Transport
and Health Employees. Case 2–CA–31600
January 31, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND WALSH
On November 17, 1999, the National Labor Relations
Board issued a Decision and Order,1 inter alia, directing
the Respondent, Less Express Courier Systems, to make
whole employee Kevin Walker for loss of earnings and
other benefits resulting from his discharge in violation of
the National Labor Relations Act. On April 11, 2000, the
United States Court of Appeals for the Second Circuit
entered its judgment enforcing in full the Board’s Order.2
A controversy having arisen over the amount of back-
pay due the discriminatee, on July 11, 2000, the Acting
Regional Director for Region 2 issued a compliance
specification and notice of hearing alleging the amount
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,3 the
Respondent failed to file an answer.
By letter dated September 7, 2000, and sent by certi-
fied mail, the Region advised the Respondent that no
answer to the compliance specification had been received
and that unless an appropriate answer was filed by Sep-
tember 21, 2000, summary judgment would be sought.4
The Respondent filed no answer.
On December 27, 2000, the Acting General Counsel
filed with the Board a motion for summary judgment,
with exhibits attached. On December 29, 2000, 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 again filed no
response. The allegations in the motion and in the com-
pliance specification are therefore undisputed.

1 330 NLRB No. 6.
2 No. 00-4024 (unpublished).
3 A copy of the compliance specification was served on the Respon-
dent at its place of business by certified mail. This copy was returned
to the Regional Office by the Postal Service marked “refused.” The
Respondent’s failure or refusal to accept certified mail cannot defeat
the purposes of the Act. See, e.g., Michigan Expediting Service, 282
NLRB 210 fn. 6 (1986). Further, another copy of the compliance
specification subsequently was served on the Respondent by regular
mail, and a copy of the compliance specification was also served on the
Respondent’s counsel by regular mail.
4 This letter was also returned to the Regional Office, with a Postal
Service stamp indicating that the mail was “refused.”
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(a) of the Board’s Rules and Regula-
tions provides that the Respondent shall file an answer
within 21 days from service of a compliance specifica-
tion. Section 102.56(c) of the Board’s Rules and Regula-
tions states:
If the respondent fails to file any answer to the speci-
fication 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 respondent, find the
specification to be true and enter such order as may be
appropriate.
According to the uncontroverted allegations of the Mo-
tion for Summary Judgment, the Respondent, despite
having been advised of the filing requirements, has failed
to file an answer to the compliance specification. In the
absence 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 grant the Ge n-
eral Counsel’s Motion for Summary Judgment. Accord-
ingly, we conclude that the net backpay due the discrimi-
natee is as stated in the compliance specification and we
will order payment by the Respondent of that amount to
the discriminatee, plus interest accrued on that amount to
the date of payment.5
ORDER
The National Labor Relations Board orders that the
Respondent, Less Express Courier Systems, New York,
New York, its officers, agents, successors, and assigns,
shall make whole Kevin Walker by paying him $16,447,
plus interest as set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), and minus tax withhold-
ings required by Federal and State laws.
Dated, Washington, D.C. January 31, 2001

John C. Truesdale, Chairman

Peter J. Hurtgen, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

5 The compliance specification sets forth backpay owing to discrimi-
natee Walker through June 15, 2000, and alleges that the backpay pe-
riod continues to run as the Respondent has not made a valid offer of
reinstatement to Walker.