Ariga Textile Corp.

National Labor Relations Board - Board Decisions

May 3, 1979

241 N.L.R.B. 1257 (N.L.R.B. 1979)

ARIGA TEXTILE CORP.
Ariga Textile Corp. and International Ladies' Gar-
ment Workers' Union, Local 415-475, AFL-CIO.
Case 12-CA-6758
May 3, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On April 20, 1976, the National Labor Relations
Board issued an unreported Order adopting, absent
exceptions, the Administrative Law Judge's Decision
directing Respondent, inter alia, to offer reinstate-
ment to Fernando Basso, Victor Giordano, and
Eduardo Lopez, and to make them whole for any loss
of pay resulting from Respondent's unfair labor prac-
tices against them in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended.
On December 27, 1976, the United States Court of
Appeals for the Fifth Circuit entered its judgment en-
forcing the Board's Order. A controversy having
arisen over compliance issues, including Respondent's
refusal to offer reinstatement to Fernando Basso and
its corollary effect on the length of his backpay period
and the amount of backpay owed him, and also the
backpay due Victor Giordano and Eduardo Lopez,
on December 22, 1978, the Regional Director for Re-
gion 12 issued and served on the parties his backpay
specification and notice of hearing, alleging the
amount of backpay due. On January 31, 1979, Re-
spondent filed an answer to the backpay specification.
On February 22, 1979, counsel for the General
Counsel filed with the Board a motion to strike Re-
spondent's answer to backpay specification and a
Motion for Summary Judgment with exhibits at-
tached.' Subsequently, on March 6, 1979, the Board
issued an Order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's motion to strike Respondent's answer to
backpay specification and Motion for Summary
Judgment should not be granted. Respondent did not
file a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
I On February 26, 1979, the Regional Director for Region 12 issued an
Order postponing the hearing indefinitely pending the Board's ruling on the
General Counsel's motion.
Ruling on the Motion To Strike Respondent's
Answer to Backpay Specification and for Summary
Judgment
Section 102.54(b) and (c) of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, provides as follows:
(b) Contents of the answer to specification.-
The answer to the specification shall be in writ-
ing, the original being signed and sworn to by
the respondent or by a duly authorized agent
with appropriate power of attorney affixed, and
shall contain the post office address of the re-
spondent. The respondent shall specifically ad-
mit, deny, or explain each and every allegation
of the specification, unless the respondent is
without knowledge, in which case the respondent
shall so state, such statement operating as a de-
nial. Denials shall fairly meet the substance of
the allegations of the specification denied. When
a respondent intends to deny only a part of an
allegation, the respondent shall specify so much
of it as is true and shall deny only the remainder.
As to all matters within the knowledge of the
respondent, including but not limited to the var-
ious factors entering into the computation of
gross backpay, a general denial shall not suffice.
As to such matters, if the respondent disputes
either the accuracy of the figures in the specifica-
tion or the premises on which they are based, he
shall specifically state the basis for his disagree-
ment, setting forth in detail his position as to the
applicable premises and furnishing the appropri-
ate supporting figures.
(c) Effect offailure to answer or to plead specif-
ically and in detail to the specification. -If the re-
spondent fails to file any answer to the specifica-
tion within the time prescribed by this section,
the Board may, either with or without taking evi-
dence in support of the allegations of the specifi-
cation and without notice to the respondent, find
the specification to be true and enter such order
as may be appropriate. If the respondent files an
answer to the specification but fails to deny any
allegation of the specification in the manner re-
quired by subsection (b) of this section, and the
failure so to deny is not adequately explained,
such allegation shall be deemed to be admitted
to be true, and may be so found by the Board
without the taking of evidence supporting such
allegation, and the respondent shall be precluded
from introducing any evidence controverting
said allegation.
The backpay specification duly served on Respon-
dent states that "Respondent shall file with the Re-
gional Director, acting in this matter as agent of the
241 NLRB No. 201
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board, within 15 days from
the service of this Specification, an original and four
copies of an answer to said Specification." The back-
pay specification also states that to the extent Re-
spondent's answer to said specification "fails to deny
allegations of the Specification in the manner re-
quired under the Board's Rules and Regulations 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 intro-
ducing any evidence controverting them."
The motion to strike Respondent's answer to back-
pay specification and Motion for Summary Jugment
allege that on January 5, 1979, Respondent filed with
the Regional Director for Region 12 a "letter" in
which Respondent generally denied the allegations of
the backpay specification. On January 19, 1979, Re-
spondent was notified by registered mail that, in the
Regional Director's view, its "letter" did not meet the
requirements of the Board's Rules and Regulations
regarding an answer to a backpay specification. On
January 31, 1979, after being furnished with a copy of
Section 102.52 through Section 102.59 of the Board's
Rules and Regulations, Respondent filed with the Re-
gional Director for Region 12 a document entitled
"Answer to Backpay Specification," which, in con-
tent, is the same leter with an affidavit attached.
Copies of both Respondent's "letter" of January 5,
1979, and its "Answer" of January 31, 1979, are at-
tached to the motion to strike Respondent's answer to
backpay specification and Motion for Summary
Judgment as exhibits, and are uncontroverted by Re-
spondent. Our examination of Respondent's "letter"
and "Answer" reveals that both merely state that of-
fers of rehire were made to two of the claimants, Vic-
tor Giordano and Eduardo Lopez. Regarding the
third claimant, Fernando Basso, both Respondent's
"letter" and "Answer" state that his services "were
unsatisfactory," and that, "[A]lthough it was re-
quested that we rehire him, we did not make any such
offer due to the fact that he was already employed."
The General Counsel submits that Respondent's
answer to the backpay specification fails to comply
with the requirements of Section 102.54 (b) and (c) of
the Board's Rules and Regulations. We agree.
As indicated, no response to the Notice To Show
Cause has been filed by Respondent. No good cause
to the contrary having been shown, in accordance
with the rule set forth above, the Board deems Re-
spondent to have admitted all allegations of the back-
pay specification to be true. Accordingly, we grant
the General Counsel's motion to strike Respondent's
answer to backpay specification; and, because there
are no matters in issue requiring a hearing, we hereby
grant the General Counsel's Motion for Summary
Judgment; and we shall issue an appropriate Order.2
On the basis of the backpay specification and the
entire record in this case, the Board makes the follow-
ing findings of fact:
We find that Victor Giordano, Eduardo Lopez, and
Fernando Basso are entitled to be made whole under
the Board's Order and the court's decree by payment
to them of the amounts as summarized and calculated
in the General Counsel's backpay specification;
namely, by payments of $1,094.07 and $381.78 to
Victor Giordano and Eduardo Lopez, respectively,
plus interest accrued to the date of payment, minus
the tax withholdings, if any, as required by Federal
and state laws. We further find that Fernando Basso
is entitled to payment of $19,247.10 for backpay
through the end of 1977, plus whatever additional
sum is computed by the compliance officer for Region
12 for 1978 and any period of time thereafter until
such date as Respondent makes him a valid offer of
reinstatement, plus interest accrued to date of pay-
ment, minus any required tax withholdings.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Ariga
Textile Corp., Hialeah, Florida, its agents, successors,
and assigns, shall pay to the employees involved in
this proceeding as net backpay the following
amounts:
Victor Giordano $ 1,094.07
Eduardo Lopez 381.78
Fernando Basso 19,247.10
(net backpay through 1977)
IT IS FURTHER ORDERED that the compliance officer
for Region 12 submit an additional backpay compu-
tation regarding Fernando Basso for 1978 and any
period of time thereafter until Respondent makes him
a valid offer of reinstatement.
2 The backpay specification sets forth specifically and in detail for each of
the three discriminatee claimants the backpay periods broken down by cal-
endar quarters, the specific figures and basis of computation as to gross
backpay and interim earnings, the expenses for each quarter, the net back-
pay due, and information regarding computation of the backpay due the
claimants.
While stating that the backpay periods for claimants Giordano and Lopez
end on May 27, 1976, and June 9, 1976, respectively, the backpay specifica-
tion sets forth the amount of backpay owed to claimant Basso only through
the end of 1977 and advises Respondent that, because it has refused to offer
reinstatement to Basso, the backpay period for him has not been tolled and
shall continue until a valid offer of reinstatement is made.
In our Order, we shall specify that the compliance officer for Region 12 be
directed to submit backpay computation for claimant Basso for 1978 and
any period of time thereafter until Respondent makes a valid offer of rein-
statement.
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