Red Devil Auto & Fleet Repair, LLC

National Labor Relations Board - Board Decisions

Jan 24, 2017

365 NLRB No. 19 (N.L.R.B. 2017)

365 NLRB No. 19
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.
Red Devil Auto & Fleet Repair, LLC and Robert D.
Kamalo. Cases 28–CA–146421, 28–CA–152886
January 24, 2017
SUPPLEMENTAL DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that Red Devil Auto & Fleet Repair,
LLC (the Respondent) has failed to file an answer to the
compliance specification.
On March 17, 2016, the Board issued an Order1 that,
among other things, ordered the Respondent to offer re-
instatement to discriminatee Robert D. Kamalo and make
him whole for any loss of earnings and other benefits
resulting from his unlawful discharge in violation of Sec-
tion 8(a)(3) and (1) of the Act.
A controversy having arisen over the amount of back-
pay due Kamalo, on September 29, 2016, the Regional
Director for Region 62 issued a compliance specification
and notice of hearing setting forth backpay for a closed
period from February 13, 2015 (the date of Kamalo’s
discharge, as stated in the compliance specification3), to
May 23, 2016 (the date Kamalo declined the Respond-
ent’s offer of reinstatement), and notifying the Respond-
ent that an answer must be filed by October 20, 2016, in
conformity with the Board's Rules and Regulations. Alt-
hough properly served with a copy of the compliance
specification, the Respondent failed to file an answer.
By letter and email dated October 27, 2016, the Region
advised the Respondent that no answer to the compliance
specification had been received, and that unless an an-
swer was received by November 3, 2016, a motion for
default judgment would be filed. Nevertheless, the Re-
spondent failed to file an answer.
On November 4, 2016, the General Counsel filed with
the Board a motion to transfer and continue matter before
the Board and for default judgment, with exhibits at-

1 Unpublished order, adopting, in the absence of exceptions, the de-
cision of Administrative Law Judge Gerald M. Etchingham issued on
February 3, 2016 (JD (SF)-04-16).
2 On March 21, 2016, the General Counsel issued an Order transfer-
ring these cases from Region 28 to Region 6.
3 The judge’s order states that the date of Kamalo’s discharge was
February 12, 2015, but the compliance specification states that the date
of Kamalo’s discharge was February 13, 2015. Because we deem the
allegations in the compliance specification to be true, we find that the
backpay period begins on February 13, 2015, as stated in the compli-
ance specification.
tached. On November 8, 2016, the Board issued an Or-
der 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 compliance specification are
therefore undisputed.
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 failure to file an answer, we
deem the allegations in the compliance specification to
be admitted as true, and we grant the General Counsel’s
Motion for Default Judgment. Accordingly, we conclude
that the backpay due Kamalo is as stated in the compli-
ance specification and we will order the Respondent to
pay that amount, plus interest accrued to the date of
payment.
ORDER
The National Labor Relations Board orders that the
Respondent, Red Devil Auto & Fleet Repair, LLC, Sur-
prise, Arizona, its officers, agents, successors, and as-
signs, shall make whole discriminatee Robert D. Kamalo
by paying him the amount of $10,281.40, plus interest
accrued to the date of payment as prescribed in New Ho-
rizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010), and minus tax withholdings required by Feder-
al and State laws.4

4 This amount does not yet include any excess tax. As set forth in
the compliance specification, the Respondent is also liable for the ad-
verse tax consequences for any discriminatee receiving a lump-sum
backpay award. These amounts may be updated to reflect the actual
date of payment. Any adverse tax consequences shall be reported in
accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016); Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No.
10 (2014).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dated, Washington, D.C. January 24, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD