Eazor Express

National Labor Relations Board - Board Decisions

May 7, 1984

270 N.L.R.B. 464 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eazor Express, Inc. and Joseph M. Pantoja. Case
13-CA-21168
7 May 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 12 September 1983 the National Labor Rela-
tions Board issued a Decision and Order' in the
above-entitled proceeding in which the Board,
inter alia, ordered the Respondent to make whole
certain employees for any loss of pay suffered by
reason of the Respondent's discrimination against
them. On 10 November 1983 the United States
Court of Appeals for the Seventh Circuit entered
its judgment enforcing the Board's Order. A con-
troversy having arisen over the amount of backpay
due under the Board's Order, as enforced by the
court, the Regional Director for Region 13, on 10
January 1984, issued a backpay specification and
notice of hearing alleging the amounts of backpay
due the discriminatees under the Board's Order and
notifying the Respondent that it should file a
timely answer complying with the Board's Rules
and Regulations. The Respondent failed to file such
an answer.
Thereafter, on 21 February 1984, counsel for the
General Counsel filed directly with the Board a
Motion to Transfer Proceedings to the Board and
Motion for Summary Judgment, with exhibits at-
tached. Subsequently, on 23 February 1984, the
Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the
General Counsel's motion should not be granted.
The Respondent failed to file a response to the
Notice to Show Cause.2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Upon the entire record in this proceeding, the
Board makes the following
' 267 NLRB 1180.
2 On 8 March 1984 the Respondent filed a Motion for Stay of Pro-
ceedings to which the General Counsel filed a response. The Respondent
argues that an involuntary petition filed against it under ch. 7 of the
Bankruptcy Code triggers the automatic stay provision of the code. See
II U.S.C. § 362(a). We deny the motion, however, because the automatic
stay provision does not operate to stay Board proceedings in the compli-
ance stage which fix the amount of the debtor's monetary liability for
having committed unfair labor practices. Board proceedings fall within
the exceptions to the automatic stay provision for proceedings by a gov-
ernmental unit to enforce its police or regulatory powers. D. M. Barber,
Inc. v. Valverde, 110 LRRM 3095 (U.S. Bk. Ct. 1981); see also NLRB v
Evans Plumbing Co., 639 F.2d 291 (5th Cir 1981); M & M Transportation
Co., 239 NLRB 73 (1978).
270 NLRB No. 85
Ruling on the Motion for Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions, Series 8, as amended, provides in pertinent
part:
(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 sup-
port of the allegations of the specification and
without notice to the respondent, find the
specification to be true and enter such orders
as may be appropriate.
The backpay specification, issued and served on
the Respondent on or about 10 January 1984, spe-
cifically states that the Respondent shall, within 15
days from the date of the specification, file with
the Regional Director for Region 13 an answer to
the specification and that, if the answer fails to
deny the allegations of the specification in the
manner required under the Board's Rules and Reg-
ulations and the failure to do so is not adequately
explained, such allegations shall be deemed to be
admitted to be true and the Respondent shall be
precluded from introducing any evidence contro-
verting them. In his Motion for Summary Judg-
ment, the General Counsel states that, on 27 Janu-
ary 1984, an agent of the Regional Director mailed
a certified letter to the Respondent informing the
Respondent that it had not yet filed an answer to
the backpay specification and notice of hearing,
and that failure to do so by close of business 6 Feb-
ruary 1984 would result in a recommendation that
a Motion for Summary Judgment be filed with the
Board. The Respondent did not file an answer. As
the Respondent has not filed an answer to the spec-
ification, has not offered any explanation for its
failure to do so, and has also failed to file a re-
sponse to the Notice to Show Cause, the allega-
tions of the specification and of the Motion for
Summary Judgment stand uncontroverted. There-
fore, 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
without the taking of evidence in support of the al-
legations.
Accordingly, the Board concludes that the net
backpay due discriminatees Joseph M. Pantoja and
Clarence Meitner, and the payments due to the ap-
propriate trust funds are as stated in the computa-
tions of the specification, and orders the payment
464
EAZOR EXPRESS
thereof by the Respondent to the discriminatees
and the trust funds.
ORDER
The National Labor Relations Board hereby
orders that the Respondent, Eazor Express, Inc.,
Forest View, Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Make whole the discriminatees named below,
by payment to them of the amounts following their
names, plus interest thereon to be computed in the
manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977),3 until payment of all backpay is
made, less tax withholdings required by Federal
and state laws:
3 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
Joseph M.
Pantoja $12,004.62
Clarence Meitner $ 5,563.63
2. Make the discriminatees whole by paying to
the trust funds listed below the amounts plus inter-
est, if any, following their names.4
Teamsters Local 705 Pension Fund:
Joseph M.
Pantoja $820.83
Clarence Meitner $429.46
Teamsters Local 705 Health & Welfare Fund:
Joseph M.
Pantoja $754.76
Clarence Meitner $370.51
See generally Merryweather Optical Ca, 240 NLRB 1213 (1979).
465