D.A. Fiori Construction Co.

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 27 (N.L.R.B. 2001)

333 NLRB No. 27
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
D.A. Fiori Construction Company and International
Union of Operating Engineers, Local Union No.
66, 66A, B, C, D, O, & R, AFL–CIO. Case 6–
CA–30331
January 31, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND WALSH
On July 12, 1999, the National Labor Relations Board
issued a Decision and Order,1 inter alia, directing the
Respondent, D.A. Fiori Construction Company, to make
whole certain of its employees for loss of earnings and
other benefits resulting from the Respondent’s unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act. On May 18, 2000, the United States Court of
Appeals for the Third Circuit entered its judgment en-
forcing in full the Board’s Order.
A controversy having arisen over the amount of back-
pay due the discriminatees, on November 9, 2000, the
Regional Director for Region 6 issued a compliance
specification and notice of hearing alleging the amount
due under the Board’s Order, and notifying the Respon-
dent that it should file a timely answer complying with
the Board’s Rules and Regulations. Although properly
served with a copy of the compliance specification, the
Respondent failed to file an answer.
By letter dated December 4, 2000, the Regional Attor-
ney advised the Respondent that no answer to the com-
pliance specification had been received and that unless
an appropriate answer was filed by the close of business
on the third day following the receipt of the letter, sum-
mary judgment would be sought. The Respondent filed
no answer.
On January 2, 2001, the General Counsel filed with the
Board a Motion for Summary Judgment, with exhibits
attached. On January 4, 2001, 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 allegations in

1 328 NLRB No. 136 (1999).
the motion and in the compliance specification are there-
fore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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 Regula-
tions states:

If the respondent fails to file any answer to the specifi-
cation 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 with-
out further notice to the respondent, find the specifica-
tion to be true and enter such order as may be appropri-
ate.

According to the uncontroverted allegations of the Mo-
tion for Summary Judgment, the Respondent, despite
having been advised of the filing requirements, has failed
to file an answer to the compliance specification. In the
absence of good cause for the Respondent’s failure to file
an answer, we deem the allegations in the compliance
specification to be admitted as true, and grant the Ge n-
eral Counsel’s Motion for Summary Judgment.2 Accord-
ingly, we conclude that the net backpay due the discrimi-
natees is as stated in the compliance specification and we
will order payment by the Respondent of the amounts to
the discriminatees, plus interest accrued on the amounts
to the date of payment.3

2 The General Counsel’s compliance specification requests that the
Board order the Respondent to make “payment to each of the discrimi-
natees of the amount of any excess federal and state income taxes they
may incur as an increased tax liability as a result of receiving a lump
sum backpay distribution in one tax year that represents a backpay
award for a multi-year backpay period that would have encompassed
several tax years.” The General Counsel’s proposed order would repre-
sent a change in Board law. See, e.g., Hendrickson Bros. , 272 NLRB
438, 440 (1985), enfd. 762 F.2d 990 (2d Cir. 1985). We believe that
the question raised by the General Counsel should be resolved after a
full briefing by the affected parties. See Kloepfers Floor Covering, 330
NLRB No. 126 fn. 1 (2000). Because there has been no such briefing
in this no-answer case, we decline to include this additional relief in the
Order.
3 The compliance specification sets forth the backpay owing to the
discriminatees through September 30, 2000, and alleges that their
backpay periods continue to run until the Respondent makes valid
offers of reinstatement to them.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
ORDER
The National Labor Relations Board orders that the
Respondent, D.A. Fiori Construction Company, Pitts-
burgh, Pennsylvania, its officers, agents, successors, and
assigns, shall make whole the individuals named below,
by paying them the amounts following their names, plus
interest as set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987), and minus tax withholdings
required by Federal and state laws:

Sean Puz $17,245.00
Jeff Whitico 3,678.00
TOTAL: $20,923.00

Dated, Washington, D.C. January 31, 2001

John C. Truesdale, Chairman

Peter J. Hurtgen, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD