Law-Den Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 2020

369 N.L.R.B. 45 (N.L.R.B. 2020)

369 NLRB No. 45
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.
Law-Den Nursing Home, Inc. and SEIU Healthcare
Michigan. Case 07‒CA‒233610
March 17, 2020
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that Law-Den Nursing Home, Inc.
(the Respondent) has failed to file an answer to the com-
pliance specification and notice of hearing.
On October 16, 2019, the National Labor Relations
Board issued a Decision and Order1 granting the General
Counsel’s motion for default judgment on the grounds
that the Respondent failed to file an answer to the com-
plaint. The Board ordered the Respondent, in relevant
part, to make employees whole for any losses suffered by
reason of its failure to abide by the terms and conditions
of its agreement with the Union over the effects of the
closure of its Detroit, Michigan facility by failing and
refusing to pay employees their accrued vacation pay and
accrued sick pay.
A controversy having arisen over the amount of back-
pay due, on July 12, 2019, the Regional Director for Re-
gion 7 issued a compliance specification and notice of
hearing alleging the amounts due under the Board’s Or-
der and notifying the Respondent that an answer must be
filed by August 2, 2019, in conformity with the Board’s
Rules and Regulations. The Respondent failed to file an
answer.2
1 368 NLRB No. 95 (2019).
2 The corrected motion for default judgment and attached exhibits
indicate that the Region sent a copy of the compliance specification by
certified mail to the Respondent’s last known address. Tracking infor-
mation provided by the United States Postal Service (Postal Service)
indicates that the delivery attempt failed. The Region sent a reminder
letter, including another copy of the compliance specification, by certi-
fied and regular mail on August 6, 2019, to the last known address of
the Respondent. Tracking information provided by the Postal Service
confirms delivery of the letter sent by certified mail. In addition, the
letter with the included compliance specification sent by regular mail
was not returned as undeliverable.
A respondent’s failure or refusal to accept certified mail or to pro-
vide for receiving appropriate service cannot serve to defeat the pur-
poses of the Act. See Cray Construction Group LLC, 341 NLRB 944,
944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003).
Further, the failure of the Postal Service to return documents served by
regular mail indicates actual receipt of those documents.
Id.; Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. sub nom. NLRB
v. Sherman, 843 F.2d 1392 (6th Cir. 1988).
By letter dated August 6, 2019, the Region advised the
Respondent that no answer to the compliance specifica-
tion had been received and that unless an answer was
filed by August 13, 2019, a motion for default judgment
would be filed. To date, the Respondent has failed to file
an answer.
On January 8, 2020, the General Counsel filed correct-
ed motions to transfer case to and continue proceedings
before the Board and for default judgment.3 Thereafter,
on February 4, 2020, the Board issued a Supplemental
Notice to Show Cause why the General Counsel’s cor-
rected motion for default judgment should not be grant-
ed. The Respondent did not file a response. The allega-
tions in the corrected motion and the compliance specifi-
cation are therefore undisputed.
Ruling on the Corrected 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 cor-
rected motion for default judgment, the Respondent, de-
spite 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 failure to file an
answer, we deem the allegations in the compliance speci-
fication to be admitted as true, and we grant the General
Counsel’s corrected motion for default judgment. Ac-
cordingly, we conclude that the net backpay due the af-
fected employees 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, Law-Den Nursing Home, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall make whole the individuals named below by paying
them the amounts following their names, plus interest
3 On October 25, 2019, the General Counsel filed motions to trans-
fer case to and continue proceedings before the Board and for default
judgment, which inadvertently failed to include certain attachments.
On October 31, 2019, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why the motions
should not be granted. The General Counsel subsequently filed cor-
rected motions that included the omitted attachments, and the Board
then issued a Supplemental Notice to Show Cause.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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), minus tax withholdings required by Federal
and State laws.4
Karen Alexander $1,706.80
Pearl Bell $1,204.80
Stephanie Brooks $2,208.80
Donniea Buck $1,204.80
Jeaneen Burks $1,204.80
Angela Carey $1,204.80
Catlin McEntire $2,208.80
Ebony Christian $1,204.80
Keyonna Denham $1,204.80
Eddrienna Franklin $1,204.80
Kenya Greene $2,208.80
Brian Haynes $1,204.80
Kettana Hicks $2,710.80
Isobo Ikiiriko $1,204.80
Antonette Jackson $1,204.80
Eula Jackson $2,710.80
Emmanuel Jones $1,204.80
Valery Lisbon $1,204.80
Joyce McCroy $2,710.80
Cassandra McIlwain $1,204.80
David Mixon $1,204.80
Loleather Newson $2,710.80
Christopher Oneal $1,204.80
Sherie Osakwe $1,204.80
Dorothy Randolph $1,706.80
Tiffany Richardson $1,204.80
Darrell Shipp $1,706.80
Constance Showers $1,706.80
Deborah Smith $200.80
Miriah Smith $1,204.80
4 These amounts do not yet include any excess tax liability. As set
forth in the compliance specification, the Respondent is also liable for
the adverse tax consequences for any employee 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 101
(2014).
Michelle Smith $1,204.80
Paris Taylor $1,204.80
Angela Toney $1,204.80
Elijah Troupe $1,204.80
Shanta Tyler $1,204.80
Brianna Williams $1,204.80
Dameka Williams $1,706.80
Sherry Williams $1,706.80
Tanisha Williams $1,204.80
Total Backpay Due $58,031.20
Dated, Washington, D.C. March 17, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD