Big Apple Launch

National Labor Relations Board - Board Decisions

Jun 14, 1993

311 N.L.R.B. 1087 (N.L.R.B. 1993)

1087
311 NLRB No. 115
BIG APPLE LAUNCH
1 306 NLRB 735.
2 The compliance specification sets forth computations of backpay
up to the time of issuance of the specification with the proviso that
the backpay period for each discriminatee continues in the absence
of valid offers of reinstatement. Footnote 1 of the compliance speci-
fication further states that because the Respondent has failed to pro-
vide its payroll and other requested records, the Region reserves the
right to claim additional hours of work and increased rates of pay
upon production and review of these records. In the absence of any
opposition to this reservation, we approve the reservation as stated
by the General Counsel.
Elite Marine Service, Ltd. d/b/a Big Apple Launch
and Local 333, United Marine Division, Inter-
national Longshoremen’s Association, AFL–
CIO. Cases 29–CA–14981, 29–CA–15453, and
29–CA–15551
June 14, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 19, 1992, the National Labor Relations
Board issued a Decision and Order,1 inter alia, order-
ing Elite Marine Service, Ltd. d/b/a Big Apple Launch
to make whole certain of its unit employees for loss
of earnings and other benefits resulting from their dis-
charges in violation of the National Labor Relations
Act. According to the backpay specification, on or
about September 8, 1992, the Respondent and the Gen-
eral Counsel entered into a stipulation in which Re-
spondent waived its right to contest either the propriety
of the Board’s Order issued March 19, 1992, or the
findings of fact and conclusions of law underlying that
Order.
A controversy having arisen over the amount of
backpay due discriminatees, on December 31, 1992,
the Regional Director for Region 29 issued a compli-
ance specification and notice of hearing alleging the
amount due under the Board’s Order, and notifying the
Respondent that it should file a timely answer com-
plying with the Board’s Rules and Regulations. Al-
though properly served with a copy of the compliance
specification, the Respondent has failed to file an an-
swer.
By letter dated March 31, 1993, counsel for the
General Counsel advised the Respondent and its attor-
ney that no answer to the compliance specification had
been received and that unless an appropriate answer
was filed by April 23, 1993, summary judgment would
be sought. The Respondent filed no answer.
On May 18, 1993, the General Counsel filed with
the Board a Motion for Summary Judgment where the
Respondent has failed to file an answer with exhibits
attached. On May 20, 1993, the Board issued an order
transferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be granted.
The Respondent again filed no response. The allega-
tions in the motion and in the compliance specification
are therefore undisputed.
Ruling on the Motion for Summary Judgment
Section 102.56(a) of the Board’s Rules and Regula-
tions provides that the Respondent shall file an answer
within 21 days from service of a compliance specifica-
tion. Section 102.56(c) of the Board’s Rules and Regu-
lations states:
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 support of the allegations of
the specification and without further notice to the
respondent, find the specification to be true and
enter such order as may be appropriate.
According to the uncontroverted allegations of the
Motion for Summary Judgment, the Respondent, de-
spite having been advised of the filing requirements,
has failed to file an answer to the compliance speci-
fication. In the absence of good cause for the Respond-
ent’s failure to file an answer, we deem the allegations
in the compliance specification to be admitted as true,
and grant the General Counsel’s Motion for Summary
Judgment. Accordingly, we conclude that the net back-
pay due the discriminatees at this time2 is as stated in
the compliance specification and we will order pay-
ment by the Respondent to the discriminatees.
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Inasmuch as we have already ordered the Respondent, on March
19, 1992, at 306 NLRB 735, to offer Joseph Fitzgerald, James
Behan, and John McGowan immediate and full reinstatement to their
former jobs or, if those jobs no longer exists, to substantially equiva-
lent positions, without prejudice to their seniority or other rights and
privileges, and to make these individuals whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against them, with interest, we deny, as unnecessary, the General
Counsel’s motion to repeat that Order here.
ORDER
The National Labor Relations Board orders that the
Respondent, Elite Marine Service, Ltd. d/b/a Big
Apple Launch, Staten Island, New York, its officers,
agents, successors, and assigns, shall make whole the
individuals named below, by paying them the amounts
following their names, plus any additional backpay
which may accrue in the absence of valid offers of re-
instatement,3 with interest to be computed in the man-
ner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required
by Federal and state laws:
Joseph Fitzgerald $4490
John McGowan 2670
James Behan 8080