Third Garage, LLC

National Labor Relations Board - Board Decisions

Nov 29, 2007

351 N.L.R.B. 60 (N.L.R.B. 2007)

351 NLRB No. 60
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.
Third Garage, LLC and Teamsters Local Union 657
affiliated with International Brotherhood of
Teamsters. Case 16–CA–24373
November 29, 2007
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
The General Counsel seeks default judgment in this
case on the ground that the Respondent has withdrawn its
answer to the compliance specification. On July 11,
2006, the Board issued an unpublished Order1 that,
among other things, ordered the Respondent to make
whole unit employees for any loss of earnings and other
benefits resulting from the Respondent’s unlawful con-
duct in violation of Section 8(a)(5), (3), and (1) of the
Act. On December 29, 2006, the United States Court of
Appeals for the Fifth Circuit entered its judgment enforc-
ing the Board’s Order.2
A controversy having arisen over the amount of back-
pay due the discriminatees under the Board’s Order, on
June 29, 2007, the Regional Director for Region 16 is-
sued a compliance specification and notice of hearing
specifying the amounts due under the Board’s Order.
The compliance specification notified the Respondent
that it should file an answer within 21 days from the date
of the specification, complying with the Board’s Rules
and Regulations. On July 23, 2007, the Respondent filed
an answer to the specification. On August 16, 2007, the
Respondent filed an amended answer to the specification.
On September 14, 2007, the Respondent withdrew its
answer and amended answer to the compliance specifica-
tion.
By letter dated September 14, 2007, the Region ad-
vised the Respondent that the withdrawal of its answer
and amended answer to the compliance specification
constituted a failure to file an answer to the compliance
specification, and unless an answer was refiled by Sep-
tember 21, 2007, a Motion for Default Judgment would
be filed. The Respondent failed to refile an answer.
On September 27, 2007, the General Counsel filed
with the Board a Motion for Default Judgment, with ex-
hibits attached. On October 2, 2007, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be
granted. The Respondent did not file a response. The
allegations in the motion and in the compliance specifi-
cation are therefore undisputed.

1 Unpublished Order adopting, in the absence of exceptions, the de-
cision of Administrative Law Judge George Carson II issued on May
11, 2005 (JD (ATL)–21–06).
2 Case No. 06–-60935.
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.
Here, according to the uncontroverted allegations of
the motion for default judgment, although the Respon-
dent initially filed an answer and amended answer to the
compliance specification, the Respondent, by counsel,
subsequently withdrew its answers on September 14,
2007. The withdrawal of an answer has the same effect
as a failure to file an answer, i.e., the allegations in the
compliance specification must be considered to be true.3
Accordingly, based on the withdrawal of the Respon-
dent’s answers to the compliance specification, and in
absence of good cause being shown otherwise, we deem
the allegations in the compliance specification to be ad-
mitted as true, and we grant the General Counsel’s Mo-
tion for Default Judgment. Accordingly, we conclude
that the net backpay due the discriminatees is as stated in
the compliance specification and we will order the Re-
spondent 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, Third Garage, LLC, Harlingen, Texas, its
officers, agents, successors, and assigns, shall make
whole the individuals named below, by paying them the
amounts following their names, plus interest accrued to
the date of payment, as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), minus tax with-
holdings required by Federal and State laws:
Jorge Delgado $15,878.79
Margarito Garcia 14,123.15
Diego Longoria 23,065.00
Roel Martinez 23,967.00
Enrique Prieto 20,352.23
Nelson Torres 15,362.00
TOTAL BACKPAY DUE $112,748.17
Dated, Washington, D.C. November 29, 2007

3 See Maislin Transport, 274 NLRB 529 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Wilma B. Liebman, Member
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD