Vince & Sons Co. and Jo Mo Enterprises, Inc. d/b/a Vince & Sons Pasta, alter-ego and/or Golden State

National Labor Relations Board - Board Decisions

Feb 17, 2016

363 NLRB No. 121 (N.L.R.B. 2016)

363 NLRB No. 121
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.
Vince & Sons Co. and Jo Mo Enterprises, Inc. d/b/a
Vince & Sons Pasta, alter-ego and/or Golden
State Successor and United Food and Commer-
cial Workers Local 1546. Case 13–CA–123828
February 17, 2016
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the compliance specification.
On March 31, 2015, the National Labor Relations
Board issued a Decision and Order,1 that, among other
things, ordered Respondent Vince & Sons Co. and Jo Mo
Enterprises, Inc. d/b/a Vince & Sons Pasta, alter-ego
and/or Golden State Successor, to make whole
discriminatees Rosario Diaz, Elvia Gutierrez, and Fer-
nando Salazar for any loss of earnings and other benefits
resulting from the Respondent’s unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act. On Au-
gust 5, 2015, the United States Court of Appeals for the
Seventh Circuit entered its judgment enforcing in its en-
tirety the Board’s Decision and Order.2
A controversy having arisen over the amount of
backpay due the discriminatees, on October 30, 2015, the
Acting Regional Director issued a compliance specifica-
tion and notice of hearing, alleging the amount due under
the Board’s Order and notifying the Respondent that it
should file an answer by November 20, 2015, complying
with the Board’s Rules and Regulations. Although
properly served with a copy of the compliance specifica-
tion, the Respondent failed to file an answer.
By letter of November 25, 2015,3 the Region advised
the Respondent that no answer to the compliance specifi-
cation had been received, and that unless an answer was
filed by December 2, 2015, a motion for default judg-
ment would be filed. To date, the Respondent has not
filed an answer.
On December 9, 2015, the General Counsel filed with
the Board a Motion for Default Judgment, with exhibits
attached. On December 18, 2015, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The Respondent again filed no response. The allega-

1 362 NLRB No. 62.
2 15–2326.
3 This letter was erroneously dated December 7, 2015.
tions in the motion and in the amended compliance spec-
ification are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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 Respondent, despite having
been advised of the filing requirements, has failed to file
an answer to the compliance specification. In the ab-
sence of good cause for the Respondent’s failure to file
an answer, we deem the allegations in the compliance
specification to be admitted as true, and we grant the
General Counsel’s Motion for Default Judgment. Ac-
cordingly, we conclude that the backpay due Diaz,
Gutierrez, and Salazar is as stated in the compliance
specification, and we will order the Respondent to pay
those amounts to the discriminatees, plus interest accrued
to the date of payment.
ORDER
The National Labor Relations Board orders that the
Respondent, Vince & Sons Co. and Jo Mo Enterprises,
Inc., d/b/a Vince & Sons Pasta, alter-ego and/or Golden
State Successor, Bridgeview, Illinois, its officers, agents,
successors, and assigns, shall make whole discriminatees
Rosario Diaz, Elvia Gutierrez, and Fernando Salazar, by
paying them the amounts following their names, plus
additional net backpay which accrues to the date the Re-
spondent makes them valid offers of reinstatement, plus
interest accrued to the date of payment, as prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010), and minus tax withholdings re-
quired by Federal and State laws:4

4 As set forth in the compliance specification, the Respondent is also
liable for the adverse tax consequences for any discriminatee receiving
a lump-sum backpay award. These amounts may be updated to reflect
the actual date of payment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Employee Backpay owed Excess Tax Amount
Rosario Diaz $42,215 $291
Elvia Gutierrez 48,290 155
Fernando Salazar 16,000 0
Totals $106,505 $446
Total amount due: $106,951
Dated, Washington, D.C. February 17, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD