East Side Importing Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1413 (N.L.R.B. 1985)

EASTSIDE IMPORTING CO.
East Side Importing Co. and Teamsters, Automotive,
Petroleum and Allied Trades, Local Union No.
50, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 14-CA-16392
30 September 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 10 December 1984 the National Labor Rela-
tions Board issued an unpublished Order in the
above-entitled proceeding adopting , absent excep-
tions, the findings and conclusions of the adminis-
trative law judge's decision and requiring, inter
alia, that the Respondent make whole its employees
by paying all fringe benefit fund contributions, as
provided in the parties' expired collective-bargain-
ing agreement, which have not been paid and
which would have been paid absent the Respond-
ent's unlawful unilateral discontinuance of such
payments in violation of Section 8(a)(5) and (1) of
the National Labor Relations Act. On 28 May 1985
the U.S. Court of Appeals for the Seventh Circuit
entered its judgment enforcing in full the Board's
Order, including its backpay provisions.'
A controversy having arisen over the amount of
backpay due under the terms of the Order, as en-
forced by the court, the Regional Director for
Region 14, on 28 June 1985, issued a backpay spec-
ification and notice of hearing alleging the amounts
of backpay due under the Board's Order and noti-
fying the Respondent that it should file a timely
answer complying with the National Labor Rela-
tions Board Rules and Regulations . On 15 July
1985 the Respondent filed its answer to the back-
pay specification . The Respondent's answer is lim-
ited to a statement that another legal action is
pending between "these same parties , or persons
identical in interest , for the same or similar relief"
in the United States District Court for the South-
ern District of Illinois which would subject the Re-
spondent to liability for double payment for all or
part of the moneys requested in the backpay speci-
fication.
The General Counsel informed the Respondent
of the specific pleading requirements of the Board's
rules and notified it that its answer failed to meet
those requirements . The Respondent was also in-
formed that if an amended answer were not filed,
the General Counsel would file a motion for sum-
mary judgment . The Respondent did not file an
amended answer.
1 NLRB r. East Side Importing Co., No . 85-1475.
276 NLRB No. 162
1413
Thereafter , on 22 July 1985 , the General Counsel
filed directly with the Board in Washington, D.C.,
a Motion for Summary Judgment on Backpay
Specification and Notice of Hearing and a brief in
support, with appendices attached . On 25 July 1985
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the General Counsel 's Motion for Summary Judg-
ment should not be granted . The Respondent failed
to file a response to the Notice to Show Cause.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record, the Board makes the fol-
lowing
Ruling on Motion for Summary Judgment
Section 102 .54 of the Board 's Rules and Regula-
tions provides , in pertinent part, as follows:
(b) . . . The respondent shall specifically
admit, deny, or explain each and every allega-
tion of the specification, unless the respondent
is without knowledge, in which case the re-
spondent shall so state, such statement operat-
ing as a denial . Denials shall fairly meet the
substance of the allegations of the specification
denied . When a respondent intends to deny
only a part of an allegation , the respondent
shall specify so much of it as is true and shall
deny only the remainder. As to all matters
within the knowledge of the respondent, in-
cluding but not limited to the various factors
entering into the computation of gross back-
pay, a general denial shall not suffice. As to
such matters, if the respondent disputes either
the accuracy of the figures in the specification
or the premises on which they are based, he
shall specifically state the basis for his dis-
agreement , setting forth in detail his position
as to the applicable premises and furnishing
the appropriate supporting figures.
(c) . . . If the respondent files an answer to
the specification but fails to deny any allega-
tion of the specification in the manner required
by subsection (b) of this section, and the fail-
ure so to deny is not adequately explained,
such allegation shall be deemed to be admitted
to be true, and may be so found by the Board
without the taking of evidence supporting such
allegation, and the respondent shall be pre-
cluded from introducing any evidence contro-
verting said allegation.
The backpay specification issued and served on
the Respondent on 28 June 1985 specifically states
that the Respondent shall , within 15 days from the
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of the specification, file an answer to the spec-
ification with the Regional Director for Region 14,
and that if the answer fails to deny the allegations
of the specification in the manner required under
the Board's Rules and Regulations, and the failure
to do so is not adequately explained, such allega-
tions shall be deemed to be admitted to be true and
the Respondent shall be precluded from introduc-
ing any evidence controverting them.
The Respondent's answer to the backpay specifi-
cation does not conform to the requirements of
Section 102.54(b). In its answer the Respondent
does not specifically deny or respond to the allega-
tions of the backpay specification. The Respondent
failed to state specifically whether it disputed the
accuracy of the figures in the specification or the
premises on which they are based and the basis for
any disagreement, if such exists. Nor did the Re-
spondent specifically set forth in detail its position
on any applicable premises or furnish appropriate
supporting figures.
The allegation raised in the Respondent's answer
concerning the existence of collateral court pro-
ceedings presents an issue fully litigated in the un-
derlying unfair labor practice proceeding. The ad-
ministrative law judge's decision, as adopted by the
Board and enforced by the Seventh Circuit, found
that the institution of Federal district court pro-
ceedings by health and welfare and pension fund
trustees does not preclude the Board from finding
and remedying violations of the Act. We, there-
fore, find that the issue the Respondent raised in its
answer does not warrant a hearing.
The Respondent's failure in its answer to deny
the allegations of the specification in the manner
mandated by Section 102.54(b), or to explain ade-
quately its failure to do so, requires that the allega-
tions be deemed admitted to be true in accord with
Section 102 .54(c). Accordingly, the Board finds the
backpay specification allegations correct and grants
the unopposed motion of the General Counsel for
summary judgment.
Therefore, on the basis of the allegations of the
specification which are accepted as true , the Board
finds the facts, as set forth therein, concludes that
the employer contributions due to the relevant
fringe benefit funds on behalf of employee Robert
Billups are as stated in the computations of the
specification,a and orders that payment thereof be
made as set forth in the backpay specification.
ORDER
The National Labor Relations Board orders that
the Respondent , East Side Importing Co., East St.
Louis, Illinois, its officers, agents, successors, and
assigns, shall pay to the Union 's Health and Wel-
fare Fund the amount of $3774 plus interest and
the Union 's Pension Fund the amount of $4551 plus
interest on behalf of employee Robert Billups.
a App. B of the backpay specification, which sets forth the total
amount of delinquent pension fund contributions owed, contains a mathe-
matical error. The total pension contributions due is $4551.