Resistflame Kiesling & Hess Finishing Company

National Labor Relations Board - Board Decisions

Sep 17, 2010

355 NLRB No. 183 (N.L.R.B. 2010)

355 NLRB No. 183
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive 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.
Resistflame Acquisition Company, Inc. f/k/a Resist-
flame Kiesling & Hess Finishing Company
and Unite Here!, Philadelphia Joint Board,
AFL–CIO, CLC. Case 4–CA–36334
September 17, 2010
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
The Acting General Counsel seeks default judgment
in this case on the ground that the Respondent has
failed to file an answer to the compliance specification.
On March 6, 2009, the Board issued a Decision and
Order1 that, among other things, ordered the Respon-
dent to make whole the Welfare and Security Fund and
the Union for any losses suffered as a result of the Re-
spondent’s unfair labor practices in violation of Sec-
tion 8(a)(5) and (1) of the Act. On January 22, 2010,
the United States Court of Appeals for the Third Cir-
cuit entered its Judgment2 enforcing in full the provi-
sions of the Board’s Order.3
A controversy having arisen over the amount of con-
tributions due the Welfare and Security Fund and
withheld dues due the Union, on June 25, 2010, the
Regional Director issued a compliance 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 complying with the
Board’s Rules and Regulations. Although properly
served with a copy of the compliance specification, the
Respondent failed to file an answer.
By letter and email notification dated July 16, 2010,
the Region advised the Respondent that no answer to
the compliance specification had been received and
that unless an appropriate answer was filed by July 23,
2010, default judgment would be sought. The Re-
spondent filed no answer.

1 353 NLRB No. 107.
2 No. 09-2819.
3 Although this case was decided by only two Board Members,
the court’s order and mandate upholding that decision became final
prior to the Supreme Court’s decision in New Process Steel, L.P. v.
NLRB, 130 S.Ct. 2635 (2010), holding that a two-member group
may not exercise delegated authority when the membership of the
group falls below three. In these circumstances, we regard the mat-
ters finally resolved by the court of appeals as res judicata in this
proceeding. See Chicot County Drainage District v. Baxter State
Bank, 308 U.S. 371, 374–378 (1940); Nemaizer v. Baker, 793 F.2d
58, 65 (2d Cir. 1986) (cited with approval in United Student Aid
Funds, Inc. v. Espinosa, 130 S.Ct. 1367, 1377 (2010)).
On July 27, 2010, the Acting General Counsel filed
with the Board a motion for default judgment, with
exhibits attached. On July 29, 2010, 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 National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on 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 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 alle-
gations 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 default judgment, the Respondent, despite
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 Respondent’s fail-
ure to file an answer, we deem the allegations in the
compliance specification to be admitted as true, and
grant the Acting General Counsel’s Motion for Default
Judgment. Accordingly, we conclude that the net con-
tributions due the Welfare and Security Fund and the
net withheld dues owing the Union are as stated in the
compliance specification and we will order the Re-
spondent to pay those amounts to the Fund and the
Union, plus interest accrued to the date of payment4
ORDER
The National Labor Relations Board orders that the
Respondent, Resistflame Acquisition Company, Inc.
f/k/a Resistflame Kiesling & Hess Finishing Company,
Cincinnati, Ohio and Philadelphia, Pennsylvania, its
officers, agents, successors, and assigns, shall make

4 The compliance specification alleges that the Respondent made
Welfare and Security Fund contributions on the 10th of each month
following the month in which any bargaining unit employee worked.
The Respondent ceased operations at the facility involved in June
2009. Exh. A of the compliance specification shows the amounts of
contributions owed based on work performed as late as June 2009.
With respect to dues payments, as reflected in Exh. B of the compli-
ance specification, the Respondent’s obligation to remit dues to the
Union ended in November 2008, when the Respondent ceased de-
ducting any dues from the pay of bargaining unit employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
whole the Welfare and Security Fund and the Union,
by paying the Welfare and Security Fund the total
amounts of contributions, liquidated damages and in-
terest as set forth below and by paying the Union the
total amount of withheld dues as set forth below, plus
interest in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), accruing to the
date of payment.
Total due Welfare and Security Fund: $45,345.38
Total due Union: 2,494.00
COMBINED TOTAL DUE: $47,839.38
Dated, Washington, D.C. September 17, 2010
Craig Becker, Member
Mark Gaston Pearce, Member
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD