Advanced Installations

National Labor Relations Board - Board Decisions

Jan 26, 1984

268 N.L.R.B. 640 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Advanced Installations, Inc. and Ventura County
District Council of Carpenters. Cases 31-CA-
8965, 31-CA-8972, 31-CA-9340, and 31-CA-
9536
26 January 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 20 August 1981 the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding in which the Board, inter alia,
ordered the Respondent to make whole certain em-
ployees for any losses in pay and benefits that
would have accrued to them but for the Respond-
ent's unlawful changes and modifications in the
contractual terms and to make whole certain em-
ployees for any loss of pay they may have suffered
as a result of the Respondent's discrimination
against them. On 12 November 1982 the United
States Court of Appeals for the Ninth Circuit en-
tered its Judgment enforcing the Board's Order. A
controversy having arisen over the amount of
backpay due under the Board's Order, as enforced
by the court, the Acting Regional Director for
Region 31 on 31 May 1983 issued a backpay speci-
fication and notice of hearing, alleging the amounts
due to employees, the discriminatees, and various
trust funds under the Board's Order, and notifying
the Respondent that it should file a timely answer
complying with the Board's Rules and Regulations.
The Respondent, by its attorney Robert F. Rubin,
acknowledged receipt of the backpay specification
and notice of hearing in a letter to the Regional
Director dated 7 June 1983, but stated that it
would not oppose the claims or file an answer.
Thereafter, on 25 July 1983, counsel for General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached. Subse-
quently, on 29 July 1983, the Board issued an order
transferring the proceedings to the Board and a
Notice to Show Cause why the General Counsel's
motion should not be granted. The Respondent, by
its attorney Robert F. Rubin, acknowledged receipt
of the order transferring the proceedings to the
Board and Notice to Show Cause in a letter to the
Board's Executive Secretary dated 11 August 1983,
but indicated that it would not oppose the claims
or file an answer.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
A 257 NLRB 845.
On the entire record in this proceeding, the
Board makes the following
Ruling on the Motion for Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions provides, in pertinent part, as follows:
(a) . . . The respondent shall, within 15 days
from the service of the specification, if any,
file an answer thereto ....
(c) . . . 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 sup-
port of the allegations of the specification and
without notice to the respondent, find the
specification to be true and enter such order as
may be appropriate.
The backpay specification, issued and served on
the Respondent on or about 31 May 1983, specifi-
cally states that the Respondent shall, within 15
days from the date of the specification, file with
the Regional Director for Region 31 an answer to
the specification and that, if the answer fails to
deny the allegations of the specification in the
manner required under the Board's Rules and Reg-
ulations and the failure to do so is not adequately
explained, such allegations shall be deemed to be
admitted to be true and the Respondent shall be
precluded from introducing any evidence contro-
verting them. As the Respondent has not filed an
answer to the specification, has not offered an ade-
quate explanation for its failure to do so, and has
also failed to file a response to the Notice to Show
Cause, the allegations of the specification and of
the Motion for Summary Judgment stand uncon-
troverted. Therefore, in accordance with the rules
set forth above, the allegations of the specification
are deemed to be admitted as true and are so found
by the Board without the taking of evidence in
support of said allegations.
Accordingly, the Board concludes that the net
backpay due to the employees and the discrimina-
tees and the payments due to various trust funds
are as alleged in the specification, and orders the
payment thereof by the Respondent to the employ-
ees, discriminatees, and various trust funds.2
i The specification alleges an amount due the Carpenter Industry Ad-
vancement Fund of Southern California. The cessation of payments into
such funds does not violate Sec. 8(a)(5) of the Act and a Board order
requiring payments into such funds is improper. See Urban Excavating
Ca, 264 NLRB No. 41 (1982), and Fox Painting Co., 263 NLRB 437
(1982), and cases cited therein. Accordingly, we have not included a pay-
ment to that fund in our Order.
Additionally, as noted below, our Order reflects the correction of cer-
tain computational errors in the backpay specification.
268 NLRB No. 93
640
ADVANCED INSTALLATIONS
ORDER
The National Labor Relations Board orders that
the Respondent, Advanced Installations, Inc., Ven-
tura, California, its officers, agents, successors, and
assigns, shall
1. Make whole the employees and discriminatees
named below by payment to them of the amounts
following their names, plus interest thereon to be
computed in the manner described in Florida Steel
Corp., 231 NLRB 651 (1977),3 until payment of all
backpay due is made, less tax withholdings re-
quired by Federal and state laws:
Ramond Bailey
Dennis Baker
Eric Beck
Keith Beck
Steve Bruton
Todd Bublitz
Robert Burlingame
Luis Calderon
Paul Campos
Mike Cherney
Jim Crosswhite
Craig Cumberland
Patrick Donlan
Clyde Dudley
Alfred Estralla
John Frazier
Dave Gallant
Phil Garcia
James D. Gibson
Brian Grigsby
Leonard Guidi
Billy G. Holladay
David Thompson
Robert Hudson
Emory Killian
David Kipp
$ 2,701.21
41,132.92
525,144.16
34.48
2,325.60
209.52
17.24
433.89
115.88
98.64
70.07
58.18
3,842.22
61,221.06
58.18
7,807.42
98.64
48.16
72,625.31
98.64
803.56
27.75
4,094.08
34.48
50.28
272.62
3 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
4 The specification figure of $1,165.80 has been changed to correct an
error in calculating gross travel stock hours for the second quarter of
1982.
' The backpay totals from Appendices A and B have been added to-
gether to arrive at this figure. The backpay total from Appendix B has
been changed from $22,348.34 to $22,348.79 to correct an error in calcu-
lating calendar quarter gross backpay for the fourth quarter of 1979.
6 The specification figure of $1,250 40 has been changed to correct an
error in calculating gross travel stock hours for the third quarter of 1980.
7 The specification figure of $2,742 41 has been changed to correct an
error in calculating gross travel stock hours for the fourth quarter of
1978.
s The specification figure of $1,295.56 has been changed to correct an
error in calculating net backpay per quarter for the first quarter of 1979
and in calculating the gross travel stock hours for the second quarter of
1979.
9 The specification figure of S23.71 has been changed to correct an
error in calculating net travel stock hours for the second quarter of 1979.
'O The backpay totals from Appendices A and B have been added to-
gether to arrive at this figure. The backpay total from Appendix A has
been changed from S243.26 to $259.14 to correct an error in calculating
net travel stock hours for the third quarter of 1979.
Robert F. Liening, Jr.
Stephen Lindberg
Pat Mergen
David Mills
Daryl Musser
Myron Nicholson
Kim W. Nix
Mark O'Leary
Mel Oliver
Frank Orona
Frank Pagano
Mark Pagano
Frank Parks
Larry Quintal
Reggie Reel
Joe Rodriquez
Gary Simmons
Darwin Skelly
Sam Smalley
Dave Spoll
Howard Stachey
Ken Stevens
Pat Stransky
Mike Tuel
Tom Voeltner
Donald Webb
Paul Wood
Earl Wyatt
Carlos Lopez
2. Make its employees
trust funds listed below
their names:"
i4,9i2.11
99.13
579.98
81,219.28
238.50
928.02
84.05
16,776.33
129.47
46.30
5,700.15
5,485.09
112.06
12.93
263.68
976.90
77.58
3,531.88
147.96
64.82
166.50
29.62
1,117.92
867.33
98.64
380.34
101,049.46
43.99
17.24
whole by paying to the
the amounts following
Carpenters Pension Trust Fund
for Southern California
Carpenters Health and Welfare
Trust for Southern
California
$19,628.38
1211,385.51
" Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of interest at a fixed rate on unlaw-
fully withheld fund payments. We leave to the compliance stage the
question of whether the Respondent must pay any additional amounts
into the benefit funds in order to satisfy our "make-whole" remedy.
These additional amounts may be determined, depending upon the cir-
cumstances of each case, by reference to provisions in the documents
governing the funds at issue and, where there are no governing provi-
sions, to evidence of any loss directly attributable to the unlawfully with-
holding action, which might include the loss of return on investment of
the portion of funds withheld, additional administrative costs, etc., but
not collateral losses. Merryweather Optical Co., 240 NLRB 1213 (1979).
12 The specification figure of $11,380.62 has been changed to correct
an error in calculating health and welfare payments for the second quar-
ter of 1982.
641
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenter Joint Apprenticeship
and for Southern California
Training Committee fund 603.91