Spencer Group Ltd.

National Labor Relations Board - Board Decisions

Sep 12, 2005

345 N.L.R.B. 58 (N.L.R.B. 2005)

345 NLRB No. 58
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.
The Spencer Group Inc., Ltd., and James S. Robinson
and Local 24, Hotel Employees & Restaurant
Employees International Union, AFL–CIO.1
Case 7–CA–43704
September 12, 2005
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondents have
failed to file an answer to the compliance specification.
On April 25, 2002, the Board issued an Order2 that,
among other things, ordered Respondent The Spencer
Group, Inc., Ltd. (Respondent Spencer) to make whole
Charles McClain for any loss of earnings and benefits
resulting from his discharge in violation of Section
8(a)(1) of the Act. On September 26, 2002, the United
States Court of Appeals for the Sixth Circuit issued its
judgment enforcing in full the Board’s Order.3
A controversy having arisen over the amount of back-
pay due McClain and any alter ego and successor liabil-
ity, the Regional Director issued a compliance specifica-
tion and notice of hearing on April 27, 2005.4 The com-
pliance specification alleged the amount due McClain
under the Board’s Order, and that Respondent James S.
Robinson (Respondent Robinson) is personally liable for
the unfair labor practices committed by Respondent
Spencer. The compliance specification notified the Re-
spondents that they should file an answer complying with
the Board’s Rules and Regulations within 21 days from
the date of the specification. Although properly served
with a copy of the compliance specification, the Respon-
dents failed to file an answer.
On July 26, 2005, the Acting General Counsel filed
with the Board a motion for default judgment. On July
28, 2005, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why

1 On July 8, 2004, the Hotel Employees and Restaurant Employees
International Union, AFL–CIO merged with the Union of Needletrades,
Industrial, and Textile Employees, AFL–CIO, and the Charging Party’s
name changed to Local 24, UNITE HERE, AFL–CIO.
2 Unpublished Order adopting, in the absence of exceptions, the de-
cision of Administrative Law Judge John T. Clark issued on March 15,
2002 (JD–37–02).
3 02-2008.
4 The Acting General Counsel’s motion alleges that Respondent
Spencer ceased operation on February 20, 2002, and no longer exists.
Thus, the compliance specification was served on Respondent James S.
Robinson, Respondent Spencer’s principal officer.
the motion should not be granted. The Respondent did
not file a response. The allegations in the motion and in
the compliance specification are therefore undisputed.
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.
According to the uncontroverted allegations of the mo-
tion for default judgment, the Respondents, despite hav-
ing been advised of the filing requirements, have failed
to file an answer to the compliance specification. In the
absence of good cause for the Respondents’ failure 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.
As stated above, Respondent Spencer ceased operation
on February 20, 2002, and no longer exists. The compli-
ance specification alleges, and we find, that Respondent
Robinson is personally liable for all of Respondent
Spencer’s unfair labor practices because he has commin-
gled his funds with those of Respondent Spencer, and
participated in the creation of a new corporate entity in
order to avoid Respondent Spencer’s liability to pay
backpay to Charles McClain. Accordingly, we conclude
that Respondent Robinson is personally liable for the
unfair labor practices committed by Respondent Spencer.
We further find that the net backpay due McClain is as
stated in the compliance specification. Thus, we will
order the Respondents to pay that amount to McClain,
plus interest accrued to the date of payment.
ORDER
The National Labor Relations Board orders that the
Respondents, The Spencer Group Inc., Ltd., and James S.
Robinson, Romulus, Michigan, their officers, agents,
successors, and assigns, shall, jointly and severally, make
whole Charles McClain by paying him $10,387.20, plus
interest accrued to the date of payment, as prescribed in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Dated, Washington, D.C. September 12, 2005
Robert J. Battista, Chairman
Wilma B. Liebman, Member
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
New Horizons for the Retarded, 283 NLRB 1173 (1987),
minus tax withholdings required by Federal and State
laws.