SPCA in Cattaraugus County, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2014

360 N.L.R.B. 742 (N.L.R.B. 2014)

742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 88
SPCA in Cattaraugus County, Inc. and Linda Vane.
Case 03–CA–090311
April 30, 2014
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On February 22, 2013, the National Labor Relations
Board issued a Decision and Order1 that, among other
things, ordered the Respondent, SPCA in Cattaraugus
County, Inc., to make whole employee Linda Vane for
any loss of earnings and other benefits suffered as a re-
sult of the Respondent’s discrimination against her. On
May 15, 2013, the United States Court of Appeals for the
Second Circuit entered its judgment enforcing the
Board’s Order.2
A controversy having arisen as to the amount of back-
pay due Vane under the terms of the Board’s Order, on
July 12, 2013,3 the Regional Director for Region 3 issued
a compliance specification and notice of hearing, setting
forth the amounts due under the Board’s Order and noti-
fying the Respondent that it was required to file an an-
swer in conformity with the Board’s Rules and Regula-
tions. Although properly served with a copy of the com-
pliance specification, the Respondent failed to file an
answer.
By letter dated August 8, the Respondent was advised
that no answer to the compliance specification had been
received and that unless it filed an answer by close of
business August 15, a motion for default judgment would
be filed. On August 20, the General Counsel filed with
the Board a Motion for Default Judgment, contending
that the Respondent failed to file an answer to the com-
pliance specification. On September 13, the Board is-
sued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. On September 25, the Respondent filed an
opposition to the motion.
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 the 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 allega-

1 359 NLRB No. 68 (2013) (not reported in Board volumes).
2 No. 13–1124 (unpublished decision).
3 All dates are in 2013, unless otherwise indicated.
tions of the specification and without further notice to the
respondent, find the specification to be true and enter
such order as may be appropriate.”
The Respondent does not dispute that, despite having
been advised of the filing requirements, it failed to file an
answer to the compliance specification. Rather, it asserts
in its opposition that its prior agents mismanaged the
organization and its prior board of directors left many
issues unresolved. The Respondent further asserts that it
is unable to provide any information as to why an answer
was not filed, as it contacted four members of the Re-
spondent’s former board of directors, and two did not
respond and the other two did not provide a reason for
failing to file an answer.4 With that explanation, and
because it now has a new board of directors, the Re-
spondent asserts that it deserves a second chance to file
an answer.
We find that the Respondent has not shown good cause
for its failure to file an answer. By its own admission,
the Respondent offers no specific reason for not filing an
answer, and instead offers a more general explanation
that the failure to file was attributable to individuals no
longer associated with the Respondent. “Good cause,
however, is not established by the absence of a respond-
ent’s agents or by the departure of key employees.”
Carwash on Sunset, 355 NLRB 1259, 1260 (2010).
Therefore, without more, the circumstances described in
the Respondent’s opposition are insufficient to establish
good cause. See Klein’s Park Manor, 235 NLRB 64, 65
(1978) (good cause not established by assertion that em-
ployer delegated preparing an answer to its accountant
who failed to do so).5

4 The Respondent also contends in its opposition that the Board
lacks jurisdiction over the Respondent, that the calculation of the back-
pay period and the gross payroll computation are erroneous, and that it
does not have the resources to pay a backpay award. Because, as ex-
plained herein, we find that the Respondent has not shown good cause
for its failure to file an answer, we find it unnecessary to address these
other contentions. See e.g., Dong-A Daily North America, Inc., 332
NLRB 15, 16 (2000), “The Board . . . will not address a respondent’s
assertion that it has a meritorious defense if good cause has not other-
wise been demonstrated.”
5 Member Johnson would hold the General Counsel’s Motion for
Default Judgment in abeyance for 14 days. The Respondent has filed
an opposition to the General Counsel’s motion to transfer proceeding to
the Board and for default judgment and issuance of a supplemental
Board decision and order. Citing various factors, the Respondent re-
quests an opportunity to file its answer out of time. In Unitec Elevator
Services Co., 337 NLRB 426, 428 (2002), the Board announced that in
cases under Sec. 102.111(c) of the Board’s Rules and Regulations, the
Board would “strictly adhere to our rule that the specific facts relied on
to support the motion to accept a late filing shall be set forth in affidavit
form and sworn to by individuals with personal knowledge of the
facts.” Here, the Respondent’s request to file an answer is not support-
ed by any affidavit. Member Johnson would give the Respondent
fourteen (14) calendar days from the date of this order to explain, with
SPCA IN CATTARAUGUS COUNTY, INC. 743
Accordingly, in the absence of good cause shown for
its 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 Default Judg-
ment. We conclude that the Respondent is liable for the
net backpay due Linda Vane as stated in the compliance
specification. We shall order the Respondent to pay that
amount to Linda Vane, plus interest accrued to the date
of payment.

supporting affidavits, why an answer to the compliance specification
was not timely filed. Member Johnson would not entertain any argu-
ments that the prior default judgment should be set aside.
Chairman Pearce and Member Hirozawa note that the Respondent
provided an explanation that does not demonstrate good cause for its
failure to file a timely answer. In these circumstances, they find, con-
trary to their colleague, that giving the Respondent an additional 14
days to repeat that explanation, with supporting affidavits, is not war-
ranted.
ORDER
The National Labor Relations Board orders that the
Respondent, SPCA in Cattaraugus County, Olean, New
York, its officers, agents, successors, and assigns, shall
make Linda Vane whole by paying her $16,756, plus
interest accrued to the date of payment as prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as set forth in Kentucky River Medical Center, 356
NLRB 6 (2010), minus tax withholdings required by
Federal and State laws.6

6 As set forth in the Board’s Decision and Order, the Respondent is
also liable for any adverse tax consequences of Vane receiving a lump-
sum backpay award. Although the compliance specification calculated
the adverse tax consequences, that amount will be updated to reflect the
actual date of payment.