H. S. Brooks Electric, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1980

247 N.L.R.B. 619 (N.L.R.B. 1980)

H. S. BROOKS ELECTRIC, INC.
H. S. Brooks Electric, Inc., K & F Electric Co. Inc.,
and Waldemar Nikolai, their agent' and Interna-
tional Brotherhood of Electrical Workers, Local
Union No. 43, AFL-CIO. Case 3-CA-6908
January 28, 1980
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On December 2, 1977, the National Labor Rela-
tions Board issued its Decision and Order' in the
above-captioned proceeding in which it directed Re-
spondent, inter alia, to make whole Frank Formica,
Richard Hemings, Peter Van Zwehl, Anthony DiNiro,
and any other employees discriminated against for
their losses resulting from Respondent's unfair labor
practices.
On June 26, 1978, Respondent and the Union
entered into a stipulation approved by the Regional
Director for Region 3 in which Respondent stated it
had no objection to the Board's Order, supra. A
controversy having arisen over the amounts of back-
pay due, the Regional Director filed (a) a backpay
specification and notice of hearing to which Respon-
dent filed an answer; and (b) an amended backpay
specification and notice of hearing to which Respon-
dent filed an answer.
Thereafter, on September 17, 1979, the General
Counsel filed with the Board in Washington, D.C., a
motion to transfer the proceeding to the Board, to
strike Respondent's alleged affirmative defenses, and
for summary judgment and issuance of a decision and
order by the Board. Subsequently, on September 21,
1979, the Board issued an order transferring the
proceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent has not
filed a response to the Notice To Show Cause.
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.
Upon the entire record in this proceeding, the
Board makes the following:
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:
' The caption has been amended from that of the backpay specification for
the limited purpose of conforming it to that of the underlying Decision and
not to indicate that Waldemar Nikolai is individually liable for the backpay
and benefits ordered herein.
247 NLRB No. 82
(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 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.
The amended backpay specification, issued and served
on Respondent on May 9, 1979, specifically states that
Respondent shall, within 15 days from the date of the
specification, file an answer to the amended specifica-
tion with the Regional Director for Region 3 and that,
if the answer fails to deny the allegations of the
amended specification in the manner required under
the Board's Rules and P.egulations, and the failure to
do so is not adequately explained, such allegations
shall be deemed to be admitted to be true and
Respondent shall be precluded from introducing any
evidence controverting them.
In its answer to the amended backpay specification,
Respondent admitted all material allegations thereof
but raised as a first affirmative defense that Waldemar
Nikolai, president of Respondent Brooks, executed an
assignment transferring assets, which he had accrued
while working as an electrician and a member of the
Union, from the Union's annuity fund to the Union's
fringe benefit funds, and that although the assignment
has not been executed by the annuity fund Respondent
has tendered a bona fide offer in full satisfaction of its
obligation to pay contributions to the benefit funds on
behalf of the discriminatees; and as a second affirma-
tive defense Respondent claimed that it is unable to
pay the amounts due the discriminatees as Brooks and
K & F are no longer in business and the liabilities of
each exceeds its assets.
Neither affirmative defense is, however, a proper
answer to a backpay specification. The only purpose of
a backpay proceeding is to ascertain the total amount
owed by Respondent as a result of its unfair labor
practices; that is, to specify and determine the total
amount of backpay the discriminatees are to receive.
Thus, the first affirmative defense is not litigable at
this time but is something to be considered upon
compliance by Respondent with a backpay order. If
Respondent has made a partial satisfaction of total
backpay, that amount will be deducted from the net
backpay owing. The second affirmative defense-that
Respondent is defunct-is not an issue properly raised
'233 NLRB 889.
619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a backpay proceeding, is without legal significance,
and is not an issue for the Board to resolve. McLaugh-
lin Manufacturing Corporation, 219 NLRB 920
(1975). Accordingly, as Respondent's affirmative de-
fenses are legally insufficient to foreclose summary
judgment, the General Counsel's motion to strike the
defenses is denied.
Respondent has failed to respond to the Notice To
Show Cause, and, therefore, the allegations in the
amended specification, as amended by the General
Counsel's motion to transfer the proceeding to the
Board, stand uncontroverted and are deemed to be
admitted as true, and the Board so finds.' Therefore,
the General Counsel's Motion for Summary Judgment
is granted.
Accordingly, the Board concludes that the net
backpay of the discriminatees, Anthony DeNiro,
Frank Formica, Jack Heald, Richard Hemings, and
Peter Von Zwehl, is as stated in the computations of
the amended specification, as amended, and orders the
payment thereof by Respondent to the discriminatees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
H. S. Brooks Electric, Inc., and K & F Electric Co.,
Inc., Syracuse, New York, their officers, agents,
successors, and assigns, shall make whole the discrimi-
natees named below by payment to them of the
amount following their names, plus interest thereon to
be computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977),' until payment of
all backpay due is made, less tax withholdings
required by Federal and state law:
Anthony DeNiro
Frank Formica
Jack Heald
Richard Hemings
Peter Von Zwehl
$ 5,900.24
714.77
14,341.46
616.00
158.64
IT IS FURTHER ORDERED that Respondent pay,
with interest thereon as set forth above, on behalf of
each discriminatee contributions to the following
fringe benefit funds of International Brotherhood of
Electrical Workers, Local Union No. 43, AFL-CIO,
in the amounts set opposite their names:
Anthony DeNiro
Health & Welfare
$331.20
Pension
$172.05
Annuity
$333.64
Apprenticeship
and Training
$57.17
Frank Formica
Jack Heald
Richard Hemingp
Peter Von Zvehl
' In its motion, the General Counsel amended the amount of backpay due
Richard Hemings and in certain respects the amount of contributions
Respondent must pay on behalf of the discriminatees to the Union's fringe
benefit funds.
' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
$ 19.44
$880.60
$104.01
$ 10.10
$457.45
$ 54.03
$ 19.71
$628.99
- - -$ 10.24
$11.86
$57.17
$ 6.75
$ 1.28
620