Dependable Tile Co.

National Labor Relations Board - Board Decisions

Feb 10, 1989

292 N.L.R.B. 1034 (N.L.R.B. 1989)

1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jack E. Hartman, a Sole Proprietorship , d/b/a De-
pendable Tile Company and Tile Layers Local
Union No . 19, Bricklayers and Allied Craftsmen
of America, AFL-CIO. Case 20-CA-16909
February 10, 1989
SECOND SUPPLEMENTAL DECISION
AND ORDER GRANTING MOTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 28, 1988, the National Labor Relations
Board issued a Supplemental Decision and Order in
this proceeding.'
On May 25, 1988, the General Counsel filed with
the Board a motion for reconsideration. The
motion was unopposed.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The General Counsel, in her motion for recon-
sideration, avers that the Board, in its supplemental
decision, misconstrued the General Counsel's back-
pay specification as alleging that the Respondent
owed employees and the trust funds for amounts
due only to August 14, 1986. Rather, this date was
used because that was the most recent backpay in-
formation available as of the opening of the back-
pay hearing.
We grant the motion. We agree that liability
continues to accrue in the manner specified in the
amended backpay specification. Our decision is
based on the Board's underlying Decision and
Order in the unfair labor practice case that found
1 288 NLRB 710.
that the Union's relationship to the Respondent and
its employees was that of a 9(a) representative. The
Respondent was ordered to bargain, on request,
with the Union and to make the trust funds and
employees whole. This Decision and Order was en-
forced with minor modification by the Ninth Cir-
cuit.2 The Board lacks authority to modify an
order that a court has enforced.3
In our Supplemental Decision and Order, we de-
clined to pass on the issue of the Respondent's li-
ability for, or the effect of the Board's decision in
John Deklewa & Sons4 on, periods subsequent to
the erroneously assumed cutoff date of August 14,
1986. On further consideration, and in finding that
the Respondent's liability continues to accrue, we
view the principles of Deklewa as inapplicable here.
Under the pre-Deklewa order enforced by the
court, the Respondent has contractual liability
based on a 9(a) relationship with the Union. Pay-
ments for that liability must be offered before the
case can be closed on compliance. We do not,
however, pass on the issue of the effect of Deklewa
on periods subsequent to the Respondent's compli-
ance with the Board's Order. Based on the forego-
ing, the Board will grant the General Counsel's
motion.
ORDER
It is ordered that the Board's Decision and
Order dated April 28, 1988, is modified to find that
the backpay period ran from April 1, 1981, to
present, in the manner specified in the amended
backpay specification.
2 774 F.2d 1376 (9th Cir. 1985).
2 See, e.g., Royal Typewriter Co., 239 NLRB 1, 2 (1978).
4 282 NLRB 1375 (1987).
292 NLRB No. 116