Diablo Paving

National Labor Relations Board - Board Decisions

Jan 31, 1989

292 N.L.R.B. 790 (N.L.R.B. 1989)

790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Victor Wooten , d/b/a Diablo Paving; Wesley L.
Mortimer and Operating Engineers Local
Union No . 3 of the International Union of Op-
erating Engineers , AFL-CIO. Case 20-CA-
19747
January 31, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 2, 1986, the National Labor Rela-
tions Board issued an unpublished Order in the
above-entitled proceeding,' directing Victor
Wooten, d/b/a Diablo Paving (Respondent
Wooten), inter alia, to reimburse the contractually
agreed-upon trust funds for contributions that Re-
spondent Wooten unlawfully failed to make on
behalf of the unit employees. On March 5, 1987,
the United States Court of Appeals for the Ninth
Circuit enforced the Board's Order.2 A controver-
sy having arisen over the amount of backpay due
under the Board's Order, the Acting Regional Di-
rector for Region 20 issued a backpay specification
and notice of hearing on May 29, 1987. On July 2,
1987, the Regional Director issued an amendment
to backpay specification. Respondent Wooten filed
an answer to the amended specification. On July
15, 1988, the Regional Director issued a second
amendment naming Wesley L. Mortimer as a Re-
spondent in this case.3 Respondent Mortimer filed
no answer.
On September 20, 1988, the General Counsel
filed a Motion for Summary Judgment. On Septem-
ber 22, 1988, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On
October 6, 1988, Respondent Wooten filed a letter
with the Board opposing the motion insofar as the
motion seeks to hold him liable for the make-whole
remedy. Respondent Mortimer filed no response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
I Wesley L. Mortimer was added as a Respondent in the backpay stage
of the proceeding.
8 No. 86-7737.
' The second amendment alleges that Respondent Mortimer was the
responsible managing employee of Respondent Wooten when the unfair
labor practices giving rise to the liability at issue were committed and
had knowledge of the litigation concerning the unfair labor practices;
that he acquired the assets and assumed the liabilities of Respondent
Wooten on January 7 , 1986; and that he is a successor to Respondent
Wooten for the purpose of remedying the unfair labor practices, and is
jointly and severally liable with Wooten for the backpay owed.
Ruling on Motion for Summary Judgment
Section 102.56 of the Board's Rules and Regula-
tions4 provides that if an answer to the specifica-
tion is not filed within 21 days from the date of
service of the specification, the Board may find the
specification to be true. Section 102.56 also pro-
vides that when an answer fails to deny the specifi-
cation's allegations in the manner required under
the Board's Rules and Regulations, and the failure
to do so is not adequately explained, the allegations
shall be deemed to be true.
In the absence of good cause being shown for
Respondent Mortimer's failure to file a timely
answer,5 and because Respondent Wooten' s answer
fails to deny the factual allegations of the specifica-
tion,6 we grant the General Counsel's Motion for
Summary Judgment.
Accordingly, the Board concludes that the net
payments due to the trust funds on behalf of em-
ployees and to employees in lieu of payments to
the vacation and holiday pay plan are as stated in
the computations of the backpay specification, and
orders the Respondents to pay those amounts.
ORDER
The National Labor Relations Board orders that
the Respondents, Victor Wooten, d/b/a Diablo
Paving and Wesley L. Mortimer, their officers,
agents , successors, and assigns , shall make whole
4 Formerly Sec. 102 . 54. The Board amended its rules governing pro-
ceedings concerning compliance with Agency orders effective November
13, 1988. The substance of former Secs. 102.54 and 102.55 has been incor-
porated into Sec. 102 . 56 as revised ; and former Sec. 102 . 56, with some
modification , has become the new Sec. 102 . 57, although the substance of
former Sec. 102.57 has become par. (c) of the new Sec. 102.55, in the
revised rules.
5 The undisputed allegations in the Motion for Summary Judgment dis-
close that the second amendment to the backpay specification was re-
ceived by Respondent Mortimer on July 22, 1988, and that on August 29,
1988, the acting Regional attorney for Region 20 sent Mortimer a letter
advising him that the General Counsel would move for summary judg-
ment if no answer was received within seven days of the date of the
letter . Respondent Mortimer did not respond . Therefore, based on the
amended specification 's allegations that are accepted as true, the Board
finds that Respondent Mortimer is Respondent Wooten's successor for
the purpose of remedying the unfair labor practices and is jointly and
severally liable with Respondent Wooten for the backpay owed.
6 Respondent Wooten's answer to the amended specification admits the
factual allegations and calculations , but denies that he owes the specified
sums because he ceased to be a respondent on January 7, 1986, by dis-
solving a partnership and assigning all rights and liabilities to Respondent
Mortimer . Respondent Wooten's response to the Notice to Show Cause
alleges that he did not have adequate counsel during the trial held De-
cember 5, 1985 ; that the judge was mistaken in finding that he under-
stood the consequences of entering into a valid collective -bargaining
agreement ; and that he does not have financial resources with which to
satisfy the backpay specification.
We find the allegations in the amended specification regarding Re-
spondent Wooten to be true. The answer and response contain no denials
that conform with the requirements of Sec. 102.56. The answer and re-
sponse do not warrant a hearing because they constitute either assertions
that, even if true, do not relieve a respondent of the obligation to remedy
unfair labor practices or attempts to raise contentions that are no longer
in issue . See Sneva's Rent-A-Car, 270 NLRB 1316 (1984).
292 NLRB No. 81
DIABLO PAVING 791
the trust funds and the employees by payment to to the date of payment, minus tax withholdings re-
them of the amounts set forth in the backpay speci- quired by law from vacation and holiday principal
fication , as amended, plus interest computed in the only
manner described in the specification and accrued