Russell Nelson Inc.

National Labor Relations Board - Board Decisions

Jun 26, 2012

358 N.L.R.B. 575 (N.L.R.B. 2012)

575
RUSSELL NELSON, INC.

358 NLRB No. 71
Russell Nelson, Inc. and Operative Plasterers and
Cement Masons Local Union No. 538. Case 17–
CA–025175
June 26, 2012
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting General Counsel seeks default judgment in
this case on the ground that the Respondent, Russell Nel-
son, Inc., has failed to file an answer to the compliance
specification. On November 2, 2011, the Board issued a
Decision and Order1 that, among other things, ordered
the Respondent to make unit employees whole for any
loss of earnings and other benefits suffered as a result of
the Respondent’s unlawful conduct in violation of Sec-
tion 8(a)(5) and (1).
A controversy having arisen over the amounts due the
discriminatees, on February 24, 2012, the Regional Di-
rector issued a compliance specification and notice of
hearing alleging the amount of backpay due under the
Board’s Order and notifying the Respondent that it
should file a timely answer complying with the Board’s
Rules and Regulations. Although service of the compli-
ance specification was proper, the Respondent failed to
file an answer.2

1 357 NLRB 1288.
2 The Acting General Counsel’s motion for default judgment indi-
cates that the compliance specification was served by certified mail on
February 24, 2012, upon the last known address on file for the Re-
spondent at 12120 State Line Road, #314, Leawood, Kansas, 66209.
However, despite information on the United States Postal Services
“Track and Confirm” system that the letter had been delivered on Feb-
ruary 25, 2012, the compliance specification was returned to the Re-
gional Office on March 26, 2012, with a notification that the Respond-
ent was no longer located at that address and that the compliance speci-
fication could not be forwarded. The Region unsuccessfully attempted
to reach the Respondent by telephone to obtain current contact infor-
mation and also unsuccessfully searched for additional contact infor-
mation using the CLEAR database, which the Region states is an online
investigative platform designed to find personal information contained
in public databases. Finally, the Region reviewed the Kansas Secretary
of State’s website and sent a letter dated March 28, 2012, with the
compliance specification enclosed, to the mailing address for the Re-
spondent listed on that website—P.O. Box 11424, Overland Park, Kan-
sas, 66207—noting that an answer had not been filed in response to the
compliance specification and extending the deadline to file an answer
to April 2, 2012. On March 30, 2012, the letter was returned as “unde-
liverable.” Thereafter, counsel for the Acting General Counsel trav-
elled to the Respondent’s Leawood address to attempt personal service
of the March 28, 2012 letter. It was discovered that the Leawood ad-
dress was a United Parcel Service store, which provides mail boxes.
Counsel for the Acting General Counsel attempted to leave the March
28, 2012 letter with a staff member of the store, but was told that the
Respondent no longer maintained a box at that facility.
It is well settled that a respondent’s failure or refusal to accept certi-
fied mail or to provide for appropriate service cannot serve to defeat the
On April 2, 2012, the Acting General Counsel filed
with the Board a Motion to Transfer Proceeding to Board
and for Default Judgment, with exhibits attached. On
April 3 and 4, 2012, the Board issued an Order Transfer-
ring the Proceeding to the Board and a Notice to Show
Cause, and a Corrected Order Transferring Proceeding to
the Board and Notice to Show Cause, respectively, why
the motion should not be granted. The Respondent failed
to file a response. The allegations in the motion and the
compliance 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
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.
Here, according to the uncontroverted allegations of
the motion for default judgment, the Respondent 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 compli-
ance specification to be admitted as true and 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, plus interest accrued to the date of payment.
ORDER
The National Labor Relations Board orders that the
Respondent, Russell Nelson, Inc., Leawood, Kansas, 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, plus interest accrued to the date of
payment, as prescribed in New Horizons, 283 NLRB
1173 (1987), computed daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010), enf. denied

purposes of the Act. See, e.g., Apollo Detective, Inc., 358 NLRB No. 1,
slip op. at 1 fn. 2 (2012) (not reported in Board volumes); I.C.E. Elec-
tric, Inc., 339 NLRB 247, 247 fn. 2 (2003), and cases cited therein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 576
on other grounds sub nom. Jackson Hospital Corp. v.
NLRB, 647 F.3d 1137 (D.C. Cir. 2011), minus tax with-
holdings required by Federal and State laws:

Johnson, Ron $ 898
Stegge, Gaylord 998

Thompson, Ted 998
Vosberg, Timothy 498
TOTAL:3 $ 3392

3 The compliance specification inadvertently lists the total of these
sums as $3391.