Summit Mechanical Contractors

National Labor Relations Board - Board Decisions

Mar 9, 1995

316 N.L.R.B. 699 (N.L.R.B. 1995)

699
316 NLRB No. 114
SUMMIT MECHANICAL CONTRACTORS
1 312 NLRB No. 6 (not reported in Board volumes).
2 A copy of the compliance specification was sent to the Respond-
ent’s counsel by certified mail and to the Respondent’s last known
address by regular mail. The Respondent’s counsel received the
compliance specification, but the Respondent’s copy was returned
with a label stating ‘‘Moved - Left No Address - Unable to Forward
- Return to Sender.’’ We find service sufficient in these cir-
cumstances. It is well established that the failure to provide for re-
ceiving appropriate service cannot serve to defeat the purposes of the
Act. See National Automatic Sprinklers, 307 NLRB 481 fn. 1
(1992); and Michigan Expediting Service, 282 NLRB 210 fn. 6
(1986).
Summit Mechanical Contractors, Inc. and Patrick
E. Henehan. Case 17–CA–16697
March 9, 1995
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On August 31, 1993, the National Labor Relations
Board issued a Decision and Order,1 inter alia, order-
ing Summit Mechanical Contractors, Inc., to offer rein-
statement to employee Patrick Henehan and make him
whole for any loss of earnings or benefits he may have
suffered as a result of his discriminatory discharge in
violation of the National Labor Relations Act. On De-
cember 3, 1993, the United States Court of Appeals for
the Tenth Circuit entered a judgment enforcing the
Board’s Order.
A controversy having arisen over the amount of
backpay due the discriminatee, on December 9, 1994,
the Regional Director for Region 17 issued a compli-
ance specification and notice of hearing alleging the
amount due under the Board’s Order, and notifying the
Respondent that it should file a timely answer comply-
ing with the Board’s Rules and Regulations. Although
properly served with a copy of the compliance speci-
fication, the Respondent failed to file an answer.2
By letter dated January 13, 1995, counsel for the
General Counsel advised the Respondent and its coun-
sel that no answer to the compliance specification had
been received and that unless an appropriate answer
was filed by close of business on January 20, 1995,
summary judgment would be sought. The Respondent
filed no answer.
On February 14, 1995, the General Counsel filed
with the Board a Motion to Transfer Proceeding to the
Board and for Summary Judgment, with exhibits at-
tached. On February 16, 1995, 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 compliance speci-
fication are therefore undisputed.
The Board has delegated its authority in this pro-
ceeding 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 Regu-
lations states:
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 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
Motion for Summary Judgment, the Respondent, de-
spite having been advised of the filing requirements,
has failed to file an answer to the compliance speci-
fication. In the absence of good cause for the Respond-
ent’s failure to file an answer, we deem the allegations
in the compliance specification to be admitted as true,
and grant the General Counsel’s Motion for Summary
Judgment.
Accordingly, we conclude that the unpaid wages and
backpay due Patrick Henehan is as stated in the com-
pliance specification and we will order payment by the
Respondent of the amounts to him, plus interest ac-
crued on the amounts to the date of payment.
ORDER
The National Labor Relations Board orders that the
Respondent, Summit Mechanical Contractors, Inc.,
Lenexa, Kansas, its officers, agents, successors, and as-
signs, shall make whole the individual named below,
by paying him the amounts following his name, plus
interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), and minus tax
withholdings required by Federal and state laws:
Patrick Henehan
Unpaid Wages $178.13
Backpay 3,084.00