Chemtronics, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1980

250 N.L.R.B. 17 (N.L.R.B. 1980)

CHEMTRONICS, INC.
Chemtronics, Inc. and Local 42, Industrial Employ-
ees Production Union. Case 29-CA-5374
June 19, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On May 18, 1978, the National Labor Relations
Board issued its Decision and Order' in the above-
entitled proceeding in which it ordered, inter alia,
that Respondent make whole Edward Biondi,
Robert Sohl, Rosemarie Sohl, and Thomas Sugden
for their losses resulting from Respondent's unfair
labor practices in violation of Section 8(a)(3) of the
Act. Thereafter, on January 9, 1979, the Court of
Appeals for the Second Circuit entered its judg-
ment enforcing the Board's Order.2
A controversy having arisen as to the amounts of
backpay due under the terms of the Board's Order,
as enforced by the court, the Regional Director for
Region 29, on June 26, 1979, issued a backpay
specification and notice of hearing alleging the
amounts of backpay due the employees under the
Board's Order and notifying Respondent of its obli-
gation to file a timely answer in compliance with
the Board's Rules and Regulations, Series 8, as
amended, in the absence of which the allegations of
the specification would be deemed to be admitted
to be true. Respondent did not file a timely answer
and on December 20, 1979, after repeated but un-
successful attempts to contact Respondent's counsel
by telephone, counsel for the General Counsel tele-
phoned Respondent's president, Al Friedman, and
stated, that unless an answer was filed forthwith,
appropriate action would be taken by the Regional
Office. On or about December 28, 1979, Respond-
ent sent a telegram to the Regional Office stating
that it had been unable to contact its counsel and
that it would submit an answer when alternate
counsel was obtained or when Hugh Husband, its
current labor counsel, was contacted. Respondent
also requested that the hearing, originally sched-
uled for January 7, 1980, be postponed.
By letter dated January 4, 1980, counsel for the
General Counsel sent a letter to Respondent and its
counsel indicating that an answer had not been
filed and that, unless an answer was submitted im-
mediately, counsel for the General Counsel would
move for summary judgment. On or about January
7, 1980, counsel for the General Counsel contacted
Husband, Respondent's labor counsel, who stated
that he did not intend to file an answer unless and
236 NLRB 178.
' The court's decision has not been reported.
250 NLRB No. 6
until counsel for the General Counsel filed his
Motion for Summary Judgment. On January 8,
1980, the Regional Director for Region 29 issued
an order rescheduling the hearing to March 10,
1980.
On February 21, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 4,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not granted. By letter dated
March 5, 1980, Respondent's general counsel,
Franklin Rand Weiss, notified the Board that Re-
spondent's failure to respond was due to former
counsel Husband's inattendance to this matter and
requested that the Board adjourn the proceeding
for 90 days to enable Respondent to obtain counsel
conversant in labor matters who could prepare and
submit an appropriate response. By letter dated
March 12, 1980, Weiss notified the Board that until
further notice he was attorney of record for Re-
spondent. Following several extensions of time
granted by the Board's Executive Secretary's
Office for a submission of a response to the Notice
To Show Cause, Respondent, on May 14, 1980,
submitted an affidavit of Respondent's vice presi-
dent, Louis Friedman, as an opposition to the
Notice To Show Cause and an answer to the back-
pay specification.
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:
(a) Filing and service of answer to specifica-
tion. The respondent shall, within 15 days from
the service of the specification, if any, file an
answer thereto; an original and four copies
shall be filed with the regional director issuing
the specification and a copy thereof shall im-
mediately be served on any other respondent
jointly liable.
(b) Contents of the answer to specification.
The answer to the specification shall be in
writing, the original being signed and sworn to
by the respondent or by a duly authorized
agent with appropriate power of attorney af-
fixed, and shall contain the post office address
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the respondent. The respondent shall spe-
cifically admit, 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 state-
ment operating as a denial. Denials shall fairly
meet the substance of the allegations of the
specification denied. When a respondent in-
tends 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 re-
spondent, including but not limited to the var-
ious factors entering into the computation of
gross backpay, a general denial shall not suf-
fice. As to such matters, if the respondent dis-
putes either the accuracy of the figures in the
specification or the premises on which they
are based, he shall specifically state the basis
for his disagreement, setting forth in detail his
position as to the applicable premises and fur-
nishing the appropriate supporting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to the specification. If the
respondent fails to file any answer to the speci-
fication within the time prescribed by this sec-
tion, the Board may, either with or without
taking evidence in support of the allegations of
the specification and without notice to the re-
spondent, find the specification to be true and
enter such order as may be appropriate....
In its affidavit submitted in opposition to the
General Counsel's Motion for Summary Judgment,
Respondent's vice president, Louis Friedman, as-
serts that "the failure of the Respondent to put in
an answer to the Backpay Specification within the
time required under the Rules was an excusable de-
fault based upon the fact that Respondent had as-
sumed its labor attorney of record at the time had
put in an answer whereas the labor counsel had
ceased representing the respondent without giving
respondent or the Board notice of the fact." Fried-
man also avers that Respondent is a small business
and that no in-house executive or individual is re-
sponsible for labor matters. Rather, Respondent
must rely exclusively on outside labor counsel for
labor representation and, as a result, Respondent is
not always aware of said counsel's actions or inac-
tion. Finally, Friedman claims that once Respond-
ent learned of the default it promptly took steps to
rectify the situation by securing new counsel, thus
enabling Respondent to proceed in an appropriate
and timely fashion. Thus, Respondent argues that
since it is prepared to prove a meritorious defense,
i.e., changed economic circumstances in the middle
of the backpay period, and since its failure to re-
spond was caused by the neglect of former counsel
whose actions were unbeknownst to Respondent,
Respondent should be accorded its "day in court"
and the Motion for Summary Judgment should be
denied.
We find no merit in Respondent's arguments. At
the very latest, Respondent was made aware of its
failure to submit an answer on or about December
20, 1979, 2 months before counsel for the General
Counsel filed his current motion and nearly 5
months before Respondent submitted its answer.
Further, Respondent, by telegram dated December
28, 1979, acknowledged to the Regional Office that
it was unable to contact its labor counsel and that,
if necessary, it would secure alternate representa-
tion to prepare an answer to the specification. Fol-
lowing numerous requests for extensions of time in
which to file a response, Respondent on May 14,
1980, responded to the Notice To Show Cause,
issued on March 4, 1980, and attached thereto its
answer to the specification. Examination of the re-
sponse to the Notice To Show Cause reveals that
Respondent is alleging former labor counsel's ne-
glect as justification for its failure to file a timely
answer to the specification. As evidenced by its
telegram of December 28, 1979, we note that Re-
spondent was aware of this problem at that time,
yet failed to take steps to comply with the Board's
Regional Office's repeated requests for the submis-
sion of an answer. Furthermore, the answer now
submitted is not a response prepared by newly re-
tained counsel, the acquisition of whom was the
basis for Respondent's requests for delaying the
proceeding, but rather is an affidavit by Respond-
ent's vice president. And the affidavit merely sets
forth a defense based on facts apparently known by
Respondent at the time of the service of the specifi-
cation in June 1979. In view of these facts, we find
that Respondent has not demonstrated good cause
for failing to answer the specification in a timely
fashion,3 particularly in view of the protracted
length of time from the service of the specification
in June 1979 to the service of the answer in May
1980. We shall therefore reject Respondent's
answer as being untimely and find that the allega-
tions of the specification, in accordance with the
rules set forth above, are deemed to be admitted as
true.
Accordingly, on the basis of the allegations of
the specification, the Board finds the facts as set
forth therein to be true, concludes that the net
backpay due the discriminatees, Edward Biondi,
Robert Sohl, Rosemarie Sohl, and Thomas Sugden,
is as stated in the computations of the specification,
3 See, e g., Hillcrest Packing Ca,, Inc., 247 NLRB No. 187 (1980).
18
CHEMTRONICS, INC.
and orders that payment be made by Respondent
to each discriminatee named below.
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,
Chemtronics, Inc., Hauppauge, New York, its offi-
cers, agents, successors, and assigns, shall make
whole each of the discriminatees named below by
payment to each of them the amound set forth ad-
jacent to his or her name, plus interest as set forth
in Florida Steel Corporation, 231 NLRB 651
(1977), 4 less any lawful tax withholdings.
Robert Sohl $9,530
Rosemarie Sohl 4,436
Edward Biondi 6,189
Thomas Sugden 100
4 See, generally, Isis Plumbing & Heating Co., 138 NIRHB 176 (1962)
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