Pms Corp.

National Labor Relations Board - Board Decisions

Aug 17, 1988

290 N.L.R.B. 870 (N.L.R.B. 1988)

870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Property Management Services Corporation d/b/a
PMS Corporation and Hotel Employees and
Restaurant Employees Local 355, AFL-CIO,'
Hotel & Restaurant Employees' and Bartenders'
International Union, AFL-CIO and Mar Del
Plata Condominium Association , Inc., Party in
Interest. Case 12-CA-10621
August 17, 1988
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 5, 1987, the National Labor Rela-
tions Board issued a Decision and Order2 in which
the Board, inter alia, ordered the Respondent and
Mar del Plata Condominium Association, Inc. (Mar
del Plata) to make whole bargaining unit employ-
ees for any loss of pay suffered as a result of their
unlawful terminations and the subcontracting of
unit work. Mar del Plata fulfilled its obligation to
make the employees whole by settling the case and
paying its portion of the net backpay due.
On November 24, 1987, the United States Court
of Appeals for the Eleventh Circuit entered its
judgment enforcing the Board's Order concerning
the Respondent.3 A controversy having arisen over
the amount of backpay due from the Respondent
under the Board's Order, as enforced by the court,
the Acting Regional Director for Region 12, on
April 29, 1988, issued a backpay specification and
notice of hearing, alleging the amount of backpay
due from the Respondent and notifying the Re-
spondent that it should file a timely answer com-
plying with the Board's Rules and Regulations.4
The Respondent did not file an answer to the
backpay specification. On May 17, 1988, the Re-
gional Director wrote to counsel for the Respond-
ent and informed it of the need to file an answer by
May 20, 1988, or face a possible summary judg-
ment order. A copy of the Board's Rules govern-
ing the filing of an answer was mailed to the Re-
spondent's counsel on that date.
On May 26, 1988, the compliance officer for
Region 12 telephoned the Respondent's president
and informed him that he had failed to file an
answer to the backpay specification. The Respond-
ent's president stated that he did not intend to file
an answer. The compliance officer said that if an
1 Formerly, Hotel, Motel, Restaurant and Hi-Rise Employees and Bar-
tenders Union, Local 355.
2 Mar de: Plata Condominium Assn., 282 NLRB 1012 (1987).
8 No. 87-5881, enfd. mem. (Nov. 24, 1987).
4 The backpay specification was mailed to the Respondent by certified
mail, return receipt requested . The Respondent admits receiving the
backpay specification.
answer was not received by June 1, 1988, a Motion
for Summary Judgment would be filed with the
Board. The compliance officer also wrote the Re-
spondent's president on May 26, confirming the
substance of that day's telephone conversation.
On June 27, 1988, the General Counsel filed a
Motion for Summary Judgment.5 On June 29,
1988, 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.
Ruling on the Motion for Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions provides, in pertinent part, as follows:
(a) . . . The respondent shall, within 21 days
from the service of the specification, if any,
file an answer thereto... .
(c) . . . If the respondent fails to file any
answer to the specification within the time
prescribed by this section, the Board may,
either with or without taking evidence in sup-
port of the allegations of the specification and
without notice to the respondent, find the
specification to be true and enter such order as
may be appropriate. . . .
The backpay specification states that the Re-
spondent shall, within 21 days from the date of the
specification, file with the Regional Director for
Region 12 an answer to the specification. The
backpay specification further states that if the
answer fails to deny the allegations of the specifica-
tion in the manner required under the Board's
Rules and Regulations, and the failure to do so is
not adequately explained, the allegations shall be
deemed to be true and the Respondent shall be pre-
cluded from introducing evidence controverting
them.
In addition to the backpay specification and
notice of hearing, counsel for the General Counsel
notified the Respondent of its failure to file an
answer and that the General Counsel intended to
seek summary judgment if no answer was filed.
The Respondent has not filed an answer nor of-
fered any explanation for its failure to do so. In ac-
cordance with the rules set forth above, the allega-
tions in the backpay specification are deemed to be
admitted as true and the Board so finds.
S Counsel for the General Counsel states in his Motion for Summary
Judgment that the compliance officer wrote and telephoned the Respond-
ent's attorney on May 26 , 1988. Exhs . D and E to that motion indicate
that the compliance officer communicated with the Respondent's presi-
dent and sole shareholder on this date.
290 NLRB No. 98
PMS CORP. 871
Accordingly, the Board grants the Motion for Corporation d/b/a PMS Corporation, Miami
Summary Judgment and concludes that the amount Beach, Florida, its officers, agents, successors, and
due each of the bargaining unit employees is as assigns, shall make whole its bargaining unit em-
stated in the backpay specification . The Board ployees by payment to them of the respective
orders that payment to each bargaining unit em - amounts stated in the backpay specification, plus
ployee be made by the Respondent as set forth in interest to be computed in the manner prescribed in
the backpay specification . New Horizons for the Retarded, 283 NLRB 1173
ORDER (1987), less tax withholdings required by Federal
and state laws.
The National Labor Relations Board orders that
the Respondent , Property Management Services