Galpin Motors, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1972

200 N.L.R.B. 330 (N.L.R.B. 1972)

330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Galpin Motors, Inc. and International Association of
Machinists, District Lodge 94, and its affiliated
Local Lodge 2327. Cases 31-CA-1264-1,
31-CA-1264-2, and 31-CA-1264-3
November 16, 1972
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On June 16, 1970, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding,' finding, inter alia, that Respon-
dent had engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act by
discharging Alexander Ross and Sol S. Steelman and
ordering, inter alia, that Respondent make them
whole for any losses they may have suffered as a
result of the discrimination against them. On April 6,
1972, the United States Court of Appeals for the
Ninth Circuit2 entered its judgment enforcing, in
full, the Board's Decision and Order.
On May 10, 1972, the Regional Director for Region
31 issued and served on the parties a backpay
specification and notice of hearing, alleging the
backpay due to Ross and Steelman under the
Board's Order, and setting the hearing for June 15,
1972. On May 31, 1972, the Regional Director issued
and served on the parties an amended backpay
specification and notice of hearing, which did not,
however, change the date set for the hearing.
Pursuant to said notices, a hearing was held on
June 15, 1972, before Administrative Law Judge3
George H. O'Brien. Respondent made no appear-
ance, was not represented at the hearing, and offered
no explanation for its absence. In addition, Respon-
dent had not filed any answer to either the original or
the amended backpay specification, and had not
requested an extension of time for such filing. In
these circumstances, the General Counsel moved, at
the outset of the hearing, that the allegations of the
1 183 NLRB No. 58.
2 N.L.R.B. v. Galvin Motors, Inc., No. 71-1069, order granting Board's
motion for summary judgment.
3 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
4 Pursuant to Sec . 102.54(a) of the Board's Rules and Regulations, Series
8, as amended , Respondent was required within 15 days from the service of
the amended specification to file an answer thereto . Sec. 102.54(c) provides:
"If the respondent fails to file any answer to the specification within the
time prescribed . . . the Board may, either with or without taking evidence
in support of the allegations of the specification and without notice to the
respondent, find the specification to be true and enter such order as may be
appropriate . If the respondent files an answer to the specification but fails
to deny any allegation . . . in the manner required . . . and the failure to
deny is not adequately explained , such allegation shall be deemed to be
admitted to be true . . . and the respondent shall be precluded from
amended specification be deemed to have been
admitted and that an appropriate judgment based
thereon be entered against Respondent, in accord-
ance with the provisions of Section 102.54(c) of the
Board's Rules and Regulations, Series 8 , as amend-
ed.4 The Administrative Law Judge deferred final
ruling on the motion until 5 p.m. when Respondent's
time for filing an answer to the amended specifica-
tion expired.5 In the interim, the hearing continued
and the General Counsel presented evidence in
support of the amended backpay specification.
Thereafter, when no answer had been filed within the
time allowed, no request for an extension of time had
been made, and no explanation for Respondent's
inaction had been offered, the Administrative Law
Judge granted the General Counsel's motion.
On July 10, 1972, the Administrative Law Judge
issued the attached Supplemental Decision, finding
that Ross and Steelman are entitled to backpay in
the amounts specified and ordering that Respondent
pay said amounts, with interest at 6 percent per
annum. Thereafter, the General Counsel filed limited
exceptions to the Administrative Law Judge's Sup-.
plemental Decision and a brief in support thereof.
On August 26, 1972, Respondent filed timely
exceptions, pursuant to extensions of time granted, to
the Administrative Law Judge's Supplemental Deci-
sion. Respondent's exceptions were accompanied by
a motion for permission to file answer to the
amended backpay specification and that the hearing
on the backpay specification be reopened, an answer
to the amended backpay specification, and a brief in
support thereof. Thereafter, the General Counsel
filed a brief in opposition to Respondent's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Administrative Law Judge's Supplemental Decision
in light of the exceptions and briefs, Respondent's
motion,6 and the General Counsel's statement of
opposition thereto, and has decided to affirm the
introducing any evidence controverting said allegation."
5 Sec . 102.114(b) provides that a document , to be timely filed, must be
received by the Board before the close of business on the day on which it is
due.
6 We find no merit in Respondent's exceptions to the Administrative
Law Judge's Decision. In support of its exceptions and motion , Respondent
asserts that its counsel failed to appear at the hearing despite assurances to
Respondent 's vice president that he would do so . We deny Respondent's
motion as unsupported by valid considerations. Inaction by its counsel,
whether willful or by negligence , does not excuse inaction by Respondent.
Mission Oil Company, 88 NLRB 743, 744-745; Hyos de Ricardo Vela, Inc.,
194 NLRB No. 62. Furthermore , Respondent received ample notice, in
addition to service on counsel , of this proceeding and the consequences of
its failure to answer to specification . In addition , Respondent's brief admits
that, on the day of the hearing , its vice president received a telephone call
from the General Counsel advising that Respondent's counsel was not
200 NLRB No. 52
GALPIN MOTORS
Administrative Law Judge's rulings, findings, and
conclusions and to adopt his recommended supple-
mental Order, as modified.?
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, and on the basis of the
entire record in this case, the National Labor
Relations Board hereby orders that the Respondent,
Galpin Motors, Inc., Sepulveda, California, its
officers , agents, successors , and assigns , shall make
Alexander Ross and Sol S. Steelman whole by paying
to each of them the respective amounts set forth in
the Administrative Law Judge's Supplemental Deci-
sion plus interest at 6 percent per annum, less tax
withholding required by law, for the backpay period
commencing November 20, 1968, and ending June 3,
1970.
present at the hearing. Despite the foregoing , Respondent requested neither
postponement of the hearing nor offered to explain its own or its counsel's
failure to file an answer or to appear at the hearing . We note, in this
connection , that Respondent's counsel also failed to file a brief in the
enforcement proceeding initiated by the Board in the Court of Appeals for
the Ninth Circuit , and that Respondent nevertheless did not seek new
counsel until 42 days after the hearing , 17 days after the attached
Supplemental Decision issued, and 31 days after civil contempt proceedings
had been initiated against it in the court of appeals . Respondent 's proposed
answer to amended backpay specification , which accompanied its motion,
was received 72 days after the due date. Based on the above , we are unable
to find that Respondent has made any bona fide attempts to comply with
the Board's Rules and Regulations so as to warrant a lenient application of
such rules . Rather, it is clear that Respondent has demonstrated a complete
and flagrant disregard for the Board's Rules and Regulations which cannot
be condoned or excused in the circumstances here. Edward G. Partin,
Business Agent, General Truck Drivers, Chauffeurs, Warehousemen and
Helpers of America, Local No. 5, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Ind, 171
NLRB 727, Security Plating Company, Inc., 165 NLRB 735; cf B B.S.A.,
Inc d/bla Burger Boy Food-O-Rama, 164 NLRB 975, 976, fn. 2
7 In its exceptions, the General Counsel correctly points out that the
Administrative Law Judge , apparently by inadvertence, imposed interest
from the date of Respondent's offers of reinstatement rather than from the
date when the unfair labor practices were committed . Accordingly , we shall
modify the recommended supplemental order to conform with our Order in
183 NLRB No . 58. Isis Plumbing & Heating Co , 138 NLRB 716.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Trial Examiner: This supplemental
proceeding under Sections 102.52 through 102.59 of the
Rules and Regulations of the National Labor Relations
Board was heard before me in Los Angeles , California, on
June 15, 1972. The purpose of the supplemental proceeding
is to determine the precise sums of money due and owing
from Galpin Motors, Inc., herein called Respondent, to
two individuals under the terms of a decree of the United
States Court of Appeals for the Ninth Circuit.
Upon the entire record in this proceeding, including the
Decision and Order reported as 183 NLRB No. 58, of
which I take official notice, I make the following:
FINDINGS OF FACT
A. Procedure
331
On June 16, 1970 , the Board handed down an order, 183
NLRB No. 58, requiring Respondent to make whole, inter
alia, Sol S. Steelman and Alexander Ross "for any pay
losses which they may have suffered by reason of the
discrimination practiced against them ." On April 6, 1972,
the United States Court of Appeals for the Ninth Circuit
entered its judgment and decree enforcing the order of the
Board.
On May 10, 1972, the Regional Director for Region 31,
pursuant to the authority conferred upon him by Section
102.52 and 102 .53 of the Board's Rules, issued and caused
to be served a backpay specification and notice of hearing,
setting the hearing in the instant matter for June 15, 1972
at 10 a.m . On May 31, 1972 the Regional Director issued
an amended backpay specification , correcting certain
numerical errors in the May 10 specification . Copies of the
amended specification were received by Respondent and
by its counsel on May 31, 1972.
No answer was filed by Respondent either to the original
or to the amended specification.
Respondent was not represented at the hearing in Los
Angeles on June 15 , 1972. I was informed on the record by
Mr. Byron B . Kohn, Counsel for the General Counsel of
the Board , that he had communicated that morning with
Mr. Carl Boeckmann , an officer of Respondent, and
verified the fact that Respondent was still represented in
this matter by H. Burdette Fredricks , Attorney at Law. Mr.
Kohn further reported:
While we were in recess , I had a telephone conversation
with Mr . Fredricks , the attorney for the Respondent in
this case . Mr. Fredricks informed me that he was
presently engaged in trial in Pasadena . He further
advised me that he had discussed the original backpay
specification with his client and as a result of those
consultations he had decided there was no issue
litigable before the Board that , therefore, he was not
going to file an answer and he was not going to appear
in this proceeding and he advised me that we should
proceed without him and do whatever we had to do in
his absence.
Counsel for the General Counsel then moved pursuant to
Section 102.54(c) of the Board 's Rules that the allegations
of the amended backpay specification "be deemed to be
admitted to be true." This motion was granted subject to a
condition subsequent . Under the provisions of Section
102.54 and 102 . 114 of the Board's Rules, Respondent
could not be held in default for failure to file an answer
until 5 p.m. on the day of the hearing, June 15, 1972. I
therefore stated that if Respondent 's counsel should file an
answer before 5 p .m. on that date , I would reopen the
hearing and hear the testimony. The General Counsel
accepted this condition. No answer was filed and, at 5
o'clock p.m. on Thursday, June 15, 1972 , my ruling became
absolute.
B. Conclusions
I have carefully examined the amended backpay specifi-
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation and find that it complies fully with the technical and
substantive requirements of Sections 102.52 and 102.53 of
the Board's Rules.
I further find that the formula adopted in the amended
backpay specification is reasonably designed to obtain as
close an approximation as possible of the amount of
backpay which should be awarded to Sol S. Steelman and
Alexander Ross, and that the method selected is not, in the
circumstances involved, either arbitrary or unreasonable.
Since Respondent has not complied with the require-
ments of Section 102.54 of the Board's Rules, nor tendered
any evidence controverting either the figures in the
amended backpay specification or the premises upon
which they are based, I find that the amended backpay
specification correctly states the amounts of backpay
which Respondent is required to pay to Sol S. Steelman
and Alexander Ross.
I therefore conclude that Respondent's obligation to
make whole Ross and Steelman under the terms of the
Board Order will be discharged by payment to Alexander
Ross of the sum of $14,275.55 and by payment to Sol S.
Steelman of the sum of $24,050.87, together with interest at
6 percent per annum, minus tax withholding required by
law, for the backpay period commencing November 20,
1968 and ending June 3, 1970.
Upon the basis of the foregoing findings and conclu-
sions, and the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, I hereby issue the
following recommended supplemental: I
ORDER
Respondent, Galpin Motors, Inc., its officers, agents,
successors, and assigns shall pay to Alexander Ross the
sum of $14,275.55 plus interest at 6 percent per annum
from and after June 3, 1970, minus tax withholding
required by law and shall pay to Sol S. Steelman the sum of
$24,050.87 plus interest at 6 percent per annum from and
after June 3, 1970, minus tax withholding required by law.
1 In the event no exceptions are filed as provided by Sec 102.46 of the adopted by the Board and become its findings, conclusions, and order, and
Board's rules, the findings, conclusions, and recommended Supplemental all objections thereto shall be deemed waived for all purposes.
Order herein shall, as provided in Sec. 102.48 of the Board's rules, be