Irv's Market

National Labor Relations Board - Board Decisions

Sep 8, 1976

225 N.L.R.B. 1215 (N.L.R.B. 1976)

IRV'S MARKET 1215
Irving N. Rothkin, d/b/a Irv 's Market ; Richard M.
Rothkin, d/b/a Irv 's Market ; Irv's Market, Inc.;
Irv's Market, Inc., d/b/a Dick 's Beverages ; Richard
M. Rothkin , d/b/a Dick's Beverages and Retail
Clerks International Association , Local No. 698,
AFL-CIO. Case 8-CA-5802
September 8, 1976
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On January 30, 1971, the National Labor Rela-
tions Board issued its Decision and Order' in the
above-entitled proceeding in which it ordered, inter
alia, Irving N. Rothkin, d/b/a Irv's Market, herein
called Respondent, to reinstate Joan Graham to her
former or substantially equivalent position of em-
ployment and to make her whole for any loss suf-
fered as a result of the Respondent's discrimination
against her. Thereafter, on June 16, 1971, the United
States Court of Appeals for the Sixth Circuit entered
its judgment enforcing the Board's Order. A contro-
versy having arisen as to the amount of backpay due
under the terms of the Board's Order, as enforced by
the court, the Regional Director for Region 8, on
April 11, 1972, issued a Backpay Specification and
Notice of Hearing alleging the amount of backpay
due the discriminatee under the Board's Order for
the period beginning December 17, 1969, and ending
April 11, 1972. After a backpay hearing before an
Administrative Law Judge, the Board, on October
30, 1972, issued its Supplemental Decision and Or-
der 2 in which it fixed the discriminatee's backpay up
to April 11, 1972, at $869.50, plus interest of 6 per-
cent per annum and further ordered Respondent to
pay an additional amount from the period commenc-
ing April 12, 1972, until such time as Joan Graham
was reinstated as ordered. On March 12, 1973, the
court enforced the Board's Order.
Thereafter, on May 7, 1974, the court rescinded its
enforcing Orders of June 16, 1971, and March 12,
1973, and ordered and adjudged that the Board Or-
ders of January 30, 1971, and October 30, 1972, be
enforced effective May 7, 1974. A controversy hav-
ing arisen over the amount of backpay due under the
terms of the Board's Orders as enforced by the court,
the Regional Director for Region 8 on March 30,
1976, issued and served on Respondent a Supple-
' 188 NLRB 271
2 199 NLRB 1176
mental Backpay Specification and Notice of Hearing
alleging the amount of backpay due the discrimina-
tee for the period from April 11, 1972, to March 30,
1976, and notifying Respondent that it shall file a
timely answer which must comply with Section
102.54 of the Board's Rules and Regulations. The
Respondent has failed to file an answer to the sup-
plemental backpay specification.
Thereafter, on June 1, 1976, the General Counsel,
by counsel, filed with the Board in Washington,
D.C., a Motion for Summary Judgment, with exhib-
its attached, and for the issuance of an appropriate
Decision and Order. On June 15, 1976, the Board
issued an order transferring the proceeding before it
and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. The 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 Na-
tional Labor Relations Board has delegated its au-
thority 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:
(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 an-
swer to the specification within the time pre-
scribed 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 appro-
priate.
The supplemental backpay specification issued
and served on Respondent on March 30, 1976, by
registered mail, specifically states that Respondent,
within 15 days from the service of the specification,
shall file an answer thereto with the Regional Direc-
tor and that, if the answer fails to deny the allega-
tions thereof in the manner required under the
Board's Rules and Regulations 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
225 NLRB No. 176
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
controverting them. According to the allegations of
the Motion for Summary Judgment which stand un-
controverted, counsel for the General Counsel tele-
phoned the office of Respondent's counsel on May
19, 1976, advising that Respondent has failed to file
its answer to the supplemental backpay specification,
and further advising that unless an answer were filed
with the Regional Office by the close of business
May 20, 1976, a Motion for Summary Judgment
would be filed with the Board. On May 24, 1976,
counsel for the General Counsel sent a letter to the
office of Respondent's counsel confirming the tele-
phone conversation of May 19, 1976, and stating
that, in the absence of a return telephone call indicat-
ing that an answer would be filed and in the absence
of the filing of an answer, a Motion for Summary
Judgment was being filed that day. No request for an
extension of time to answer was made. Respondent
has failed to file not only an answer to the supple-
mental backpay specification but also to the Notice
To Show Cause.
Since Respondent has not filed an answer to the
specification and has not offered an explanation for
its failure to do so, in accordance with the rules set
forth above, the allegations of the specification are
deemed admitted and are found to be true by the
Board without taking evidence in support of said
allegations.
Accordingly, on the basis of the allegations of the
specification herein found to be true, the Board finds
the facts as set forth therein and concludes that the
net backpay due the discriminatee, Joan Graham, is
as stated in the computations of the specification,
and orders the payments thereof by Respondent to
the discriminatee.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Irving N. Rothkin, d/b/a Irv's Market, Akron, Ohio,
his officers, agents, successors, and assigns, shall
make whole Joan Graham, by payment to her of
$8,191, plus interest accrued at the rate of 6 percent
per annum to be computed in the manner set forth in
Isis Plumbing & Heating, Co., 138 NLRB 716 (1962),
until payment of all backpay due, less the tax with-
holdings required by Federal and state laws.