Dale D. Akins, Inc.

National Labor Relations Board - Board Decisions

Dec 2, 1975

221 N.L.R.B. 942 (N.L.R.B. 1975)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dale D . Akins, Inc. and Walter Krise and Daniel C.
Fogle: Cases 6-CA-6902 and, 6-CA-6914
December 2, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY-AND MEMBERS
FANNING AND PENELLO
On- April 5, 1974, the National Labor Relations
Board, in the absence of exceptions, issued an Order
in the above-captioned proceeding in which it
directed, inter alia, the Respondent to make whole
Walter Krise and Daniel C. Fogle for their losses
resulting from the Respondent's unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act.
On November 22, 1974, the Court of Appeals for the
Third Circuit, entered its judgment enforcing in full
the Board's Order. A controversy having arisen over
the amount of backpay due under the terms of the
Board's Order as enforced by the court, the Regional
Director for Region 6 on July 1, 1975, issued and
duly served on the Respondent by registered mail a
backpay specification and notice of hearing setting
forth the amount due the discriminatees under the
Board's Order and notifying the Respondent that it
must file a timely answer pursuant to the Board's
Rules and Regulations, Series 8, as amended. The
Respondent counsel's request for a 7-day extension
for filing an answer was granted, extending filing
time from July IT to -July 24, 1975. The Respondent
failed to file an answer. On August 4, 1975, counsel
for the General Counsel filed with the Board in
Washington, D.C., a Motion for Summary Judgment
based on Respondent's failure to -file an answer in
compliance with Section 102.54(c) of the Board's
Rules and Regulations. The Board, on August 22,
1975, issued an order transferring the proceeding to
the Board and Notice to Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. The time for filing a response
to the Notice to Show Cause was extended from
September 5 to September 22, 1975. Respondent did
not 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
National Labor Relations Board has delegated its
authority 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 provides, in pertinent part, as follows:
221 NLRB No. 141
(a) The respondent shall, within 15 days from
the service of the specification, if any, file an
answer thereto ... .
(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 support 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 by the Regional
Director for Region 6 and served on Respondent on
July 1, 1975, specifically states that the Respondent
shall, within 15 days from the date of the specifica-
tion, file an answer thereto and that, if the answer
fails to deny the allegations of the specification in the
manner required under the Rules and Regulations of
the Board and the failure to do so is not adequately
explained, such allegations shall be deemed to be
admitted as true and the Respondent shall be
precluded from introducing any evidence controvert-
ing them.. By telegram dated July 16, 1975, the
Respondent's counsel requested a 7-day extension to
file= an answer. A 7-day extension from July 17 to
July 24, 1975, was granted by the Regional Director.
According to the Motion for Summary Judgment, no
answer having been filed, counsel for the General
Counsel on July 25, 1975, telephoned the Respon-
dent's counsel and called his attention to, the
Respondent's obligation to file an answer and of the
effect of a failure to answer or plead specifically to
the specification. On July 29, 1975, counsel for the
General Counsel again telephoned the Respondent's
counsel who stated that the Respondent " had not
furnished him information which would enable him
to file an answer to the backpay specification in the
specificity and detail required by the Board's Rules
and Regulations and that he was unable to state
when an answer would be filed.
Despite the extension of time for filing the response
to the Notice to Show Cause, the Respondent again
failed to respond and, therefore, the allegations of the
General Counsel's motion stand uncontroverted. As
the Respondent has not filed an answer to the
specification nor 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 admitted as true and are so found by the Board.
Accordingly, the Board finds, on the basis of the
allegations of the backpay specification, which are
accepted as true, the facts as set forth therein,
concludes that the net backpay due the discrimina-
tees, Walter Krise and Daniel C. Fogle, is as stated in
the computations of the specification, and herein-
DALE D. AKINS, INC, 943
after orders that payment be made by , the Respon-
dent to each discriminatee named below.
ORDER
Pursuant to Section 10(c) of the,National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Dale D . Akins, Inc., Altoona, Pennsylvania, its
officers, agents, successors , and assigns , shall make
whole each of the discriminatees named below by
payment , to each of them of the amount set forth
adjacent to,-their names , plus.interest accrued at the
rate of 6 percent per annum to be computed in the
manner specified , in Isis Plumbing & Heating Co., 138
NLRB 716 ( 1962), until payment of all backpay due,
less tax withholding required by Federal and state
laws:
Walter Krise $6,345.47
Daniel C. Fogle 6,417.97