Bighorn Beverage

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 662 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bighorn Beverage and Teamsters Local No. 45, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind. Case 19-CA-9223
January 14, 1981
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On June 7, 1978, 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 offer reinstatement to
Barry Mortensen and make him whole for any loss
of earnings suffered by reason of the Respondent's
discrimination against him. On March 24, 1980, the
United States Court of Appeals for the Ninth Cir-
cuit entered 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 Regional Director for
Region 19, on August 26, 1980, issued and duly
served on the Respondent a backpay specification
and notice of hearing, alleging the amount of back-
pay due the discriminatee 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 failed to file such
an answer.
Thereafter, on October 23, 1980, counsel for the
General Counsel filed directly with the Board a
Motion for Summary Judgment, a Supporting Affi-
davit, and Certification of Nonfiling of Answer.
Subsequently, on November 3, 1980, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the Gen-
eral Counsel's motion should not be granted. The
Respondent failed to 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:
Ruling on the Motion for Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions, Series 8, as amended, provides, in pertinent
part, as follows:
i 236 NLRB 736 (1978)
254 NLRB No. 81
(a) . . . The respondent shall, within 15 days
from the service of the specification, if any,
file an answer thereto ....
a * a * *
(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 August 26, 1980, spe-
cifically states that the Respondent shall, within 15
days from the date of the specification, file with
the Regional Director for Region 19 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.
By letter dated September 17, 1980, Respondent
was informed of its default in failing to submit an
answer to the backpay specification and advised
that an answer should be filed as soon as possible.
Thereafter, by letter dated September 30, 1980, Re-
spondent was further warned that further action
would be taken unless Respondent's answer was re-
ceived by the close of business on October 10,
1980.
On October 6 and 14, 1980, respectively, Re-
spondent's counsel telephonically advised the Gen-
eral Counsel that Respondent would not file any
answer to the backpay specification. On October
23, 1980, the date of the Motion for Summary
Judgment, Respondent had filed no answer and to
date has not indicated that it intends to file an
answer. The Respondent also failed to file a re-
sponse to the Notice To Show Cause and, there-
fore, the allegations of the Motion for Summary
Judgment stand uncontroverted. As the Respond-
ent has not filed an answer to the specification and
has not offered any explanation for its failure to do
so, in accordance with the rules set forth above,
the allegations of the specification are deemed to
be true and are so found by the Board without the
taking of evidence in support of the said allega-
tions.
Accordingly, we grant the General Counsel's
Motion for Summary Judgment, conclude that the
662
BIGHORN BEVERAGE
net backpay due the discriminatee, Barry M. Mor-
tensen, is as stated in the computations of the speci-
fication, and order the payment thereof by the Re-
spondent to the discriminatee.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
2 See, generally, Isis Plumbing Heating Co, 138 NLRB 716 (1962)
Bighorn Beverage, Helena, Montana, its officers,
agents, successors, and assigns, shall make whole
Barry M. Mortensen by the payment to him the
amount of $9,547.14, plus interest thereon, comput-
ed in the manner prescribed in Florida Steel Corpo-
ration, 231 NLRB 651 (1977),2 until payment of all
backpay due is made as provided for in F. W.
Woolworth Company, 90 NLRB 289 (1950), less tax
withholding required by Federal and state laws.
663