Fox-Art Theatres, Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1988

290 N.L.R.B. 885 (N.L.R.B. 1988)

FOX-ART THEATRES 885
Fox-Art Theatres, Inc. and Philadelphia Moving
Picture Machine Operators Union Local No. 37
a/w International Alliance of Theatrical Stage
Employees of the U .S. and Canada. Cases 4-
CA-14631, 4-CA-14631-2, and 4-CA-14735
August 22, 1988
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 28, 1986, the National Labor Rela-
tions Board issued a Decision and Order 1 ordering
the Respondent, inter alia, to make employee Irwin
Kamner whole for any loss of earnings and benefits
resulting from the Respondent's unfair labor prac-
tices, which violated Section 8(a)(3) and (1) of the
National Labor Relations Act, and to make whole
its unit employees for their losses and make pay-
ments on their behalf to the Union Pension Plan
and Welfare and Insurance Fund for losses result-
ing from the Respondent's unfair labor practices in
violation of Section 8(a)(1) and (5) of the Act, and
its failure to comply with the provisions of Section
8(d).
On August 29, 1986, the United States Court of
Appeals for the Third Circuit entered its consent
judgment enforcing the Board 's Decision and
Order.
On February 29, 1988 , the Regional Director for
Region 4 issued a backpay specification and notice
of hearing. The Respondent filed a timely answer
to the backpay specification . In its answer, the Re-
spondent admitted each allegation in the specifica-
tion.
On July 1 , 1988 , the General Counsel filed with
the Board a Motion for Summary Judgment. In her
motion, the General Counsel contends that the Re-
spondent has raised no question of fact or law re-
garding the Respondent 's obligation under the
Board 's Order, as enforced, and that the Respond-
ent's obligations total $42,662 .70, plus interest, as
calculated and set forth in the backpay specifica-
tion.
On July 6, 1988 , the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the General Counsel's motion
should not be granted . On July 20, 1988, the Re-
spondent filed a response.
Ruling on Motion for Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions provides in pertinent part as follows:
(a) ... The respondent shall, within 21 days
from the service of the specification , if any,
file an answer thereto... .
(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 . . . . As to all matters within the
knowledge of the respondent, including but
not limited to the various factors entering into
the computation of gross backpay, a general
denial shall not suffice.
(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 (d) 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.
In its response to the Notice to Show Cause ("Re-
spondent's answer to General Counsel 's Motion for
Summary Judgment"), the Respondent admits that
its obligations under the Board's Order total
$42,662.70, plus interest , as calculated and set forth
in the backpay specification, but states that "[i]t is
denied that the Respondent has raised no questions
of fact or law requiring a hearing or any further
litigation as to its make whole obligations under the
Board's Order, as enforced, insofar as the averment
is a conclusion of law to which no response is re-
quired and the same is therefore denied ." The re-
sponse to the Notice to Show Cause fails to state
specifically the basis for disagreement with the
backpay specification or the question of fact or law
that the Respondent has raised.
Accordingly, as the Respondent's answer has ad-
mitted each of the allegations of the backpay speci-
fication and the Respondent has not specifically
denied the allegations of the backpay specification
in its response to the Notice to Show Cause, nor
adequately explained its failure to do so, we will
grant the General Counsel 's Motion for Summary
Judgment and deem the allegations of the backpay
specification to be admitted as true pursuant to
Section 102 .54(c).
1279 NLRB 812 (1986).
290 NLRB No. 100
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
It is ordered that the General Counsel's Motion
for Summary Judgment is granted.
IT IS FURTHER ORDERED that the Respondent,
Fox-Art Theatres, Inc., Narberth, Pennsylvania, its
officers, agents, successors, and assigns, shall make
whole Irwin Kamner and each of the unit employ-
ees listed in the backpay specification by paying
them the amounts stated in the specification, with
interest to be computed in the manner prescribed in
New Horizons for the Retarded,2 and by paying on
employees ' behalf to the Union 's Pension Plan and
Welfare and Insurance Fund amounts set forth in
the backpay specification , with interest.
2 283 NLRB 1173 (1987). Interest will be computed at the "short-term
Federal rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.