D.v.Copying & Printing

National Labor Relations Board - Board Decisions

Jun 23, 1980

250 N.L.R.B. 45 (N.L.R.B. 1980)

D. V. COPYING AND PRINTING
D. V. Copying and Printing, Inc. and Local 1, Amal-
gamated Lithographers of America, ITU, AFL-
CIO. Case 2-CA-15177
June 23, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 8, 1979, 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 Richard DeMonico,
Christopher Carson, Alan Cooper, Hector Adorno,
Joanne Buttacavole, and Laverne Vanderhorst for
their losses resulting from Respondent's unfair
labor practices in violation of Section 8(a)(3) of the
Act. Thereafter, on June 29, 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 2, on February 11, 1980, issued and served
on the parties a backpay specification and notice of
hearing alleging the amounts of backpay due the
employees under the Board's Order and notifying
Respondent that it was its obligation to file a
timely answer to the specification in compliance
with the Board's Rules and Regulations, Series 8,
as amended. Respondent, however, did not submit
a timely answer in response to the specification.
Accordingly, on March 5, 1980, counsel for the
General Counsel advised Respondent, by registered
mail, that no answer had been received and that if
an answer was not received by March 13, 1980,
counsel for the General Counsel intended to move
for summary judgment in accordance with the
specification and the Board's Rules and Regula-
tions. Thereafter, by telegram dated March 13,
1980, Respondent's counsel requested that, inas-
much as the backpay hearing was then set for June
18, 1980, the time for submission of an answer be
extended to March 24, 1980. By letter dated March
21, 1980, the Regional Director advised counsel
that in the absence of a showing of proper cause,
as required by Section 102.55 of the Board's Rules
and Regulations, counsel's request for an extension
was denied and that, pursuant to Sections 102.24,
102.50, and 102.54(b) and (c), the Regional Office
intended to file a Motion for Summary Judgment
with the Board. Subsequently, on April 4, 1980,
counsel for the General Counsel filed a Motion for
' 240 NLRB 1276.
2 The cojrt's decision has not been reported.
250 NLRB No. 5
Summary Judgment. On April 9, 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. 3 On
April 23, 1980, Respondent's counsel submitted 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:
(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 ....
(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 without notice to the re-
spondent, find the specification to be true and
enter such order as may be appropriate....
Section 102.55 of the Board's Rules and Regula-
tions, Series 8, as amended, further provides:
Extension of time for filing answer to specifica-
tion.-Upon his own motion or upon proper
cause shown by any respondent, the regional
director issuing the specification may by writ-
ten order extend the time within which the
answer to the specification shall be filed.
In its response to the Notice To Show Cause,
Respondent's counsel argues that its March 13 re-
quest for an extension of time in which to file its
answer should have been granted since the hearing
was scheduled for June 18, 1980, and thus counsel
for the General Counsel would have had nearly 3
months to study the answer, which was offered to
be filed in late March 1980. Respondent's counsel
contends that, in view of the extended period of
time before the scheduled hearing, its failure to
submit a timely answer is immaterial. In addition,
counsel now claims that the reason for his March
13 request for an extension of time to file an
answer was that both he and his secretary were ill
I The hearing on the hackpay specificatiln. then set for June 18, 1980,
was postponed indefinitely
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, thus, were unable to prepare an answer. In
light of these facts and the large amount of back-
pay involved herein, Respondent requests that the
General Counsel's motion be denied and the pro-
ceeding be set for hearing before an administrative
law judge.
We find Respondent's arguments without merit.
Respondent's request of March 13 for an extension
was unaccompanied by a demonstration of proper
cause as required by Section 102.55 of the Rules
and Regulations; therefore, the Regional Director's
decision not to grant the request was correct. The
Board does not insist upon a slavish adherence to
the filing requirements set forth in its Rules and
Regulations. Indeed, the Regional Director had
earlier permitted Respondent an unrequested 2-
week extension, from February 29 to March 13, for
submitting its response. However, this action did
not excuse Respondent from substantiating its re-
quest, submitted on March 13, for an additional
time to respond. Nonetheless, it failed to do so.
Now, for the first time, Respondent is alleging that
its counsel and his secretary were ill and, thus,
were unable to comply with the Regional Office's
repeated requests for an answer to the specifica-
tion. We note that counsel's claim of illness could
have been cited as warranting an extension of time
for submitting an answer had it been offered at the
time of the request for an extension. However, rais-
ing this issue for the first time at this juncture of
the proceeding does not, in our view, constitute
proper cause for Respondent's prior failure to act
in a timely fashion.4 We further note that Respond-
ent did not attach an answer to the specification to
its response to the Notice To Show Cause, nor had
4 See. g. O .R. Coopcr and Sn., 225 NI. RH 1255 (197h)
it subsequently served a copy thereof upon the
Board. In sum, despite repeated opportunity to do
so, Respondent has to this date still failed to file
the requisite answer to the specification.
Consequently, in the absence of any answer, we
find that the allegations of the specification, in ac-
cordance 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 discrimina-
tees, Richard DeMonico, Christopher Carson, Alan
Cooper, Hector Adorno, Joanne Buttacavole, and
Laverne Vanderhorst, is as stated in the computa-
tions of the specification, and hereinafter orders
that payment be made by Respondent to each dis-
criminatee 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,
D. V. Copying and Printing, Inc., New York, New
York, its officers, agents, successors, and assigns,
shall make whole each of the discriminatees named
below by payment to each of them the amount set
forth adjacent to his or her name, plus interest as
set forth in Florida Steel Corporation, 231 NLRB
651 (1977), 5 less any lawful tax withholdings:
Richard DeMonico S 9,353
Christopher Carson 809
Alan Cooper 767
Hector Adorno 7,474
Joanne Buttacavole 11,607
Laverne Vanderhorst 10,970
r Sec generally, i I'i Phlng & /leating Co., 138 N.RB 71h (1962)
46