J. J. Cook Construction Co., Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1975

216 N.L.R.B. 671 (N.L.R.B. 1975)

J. J. COOK CONSTRUCTION COMPANY 671
J. J. Cook Construction Company , Inc. and Empire
Building Corporation and International Union of
Operating Engineers, Local 627, AFL-CIO. Case
16-CA-4733
February 21, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On April 20, 1973, the National Labor Relations
Board issued a Decision and Order in the above-
captioned proceeding 1 adopting the recommended
Order of the Administrative Law Judge after consid-
ering the record and the exceptions and briefs of the
Respondent. The Order directed the Respondent,
inter alia, to make Stafford Winn and Wilmer W.
Glover whole for any loss of pay they may have
suffered by reason of the discrimination against
them . On March 27, 1974, the Court of Appeals for
the Tenth Circuit entered its judgment enforcing in
full the Board Order.2 A controversy having arisen
over the amount of backpay due under the Board's
Order, as enforced by the court, the Regional
Director for Region 16, on October 31, 1974, issued
and duly served on the Respondent a backpay
specification and notice of hearing, alleging the
amount of backpay due under the Board's Order and
notifying the Respondent that it shall file a timely
answer pursuant to Section 102.54 of the Board's
Rules and Regulations. The Respondent failed to file
an answer.
Thereafter, on November 22, 1974, counsel for the
Regional Director filed directly with the Board a
motion to find the backpay specification true based
on the failure of Respondent to file an answer.
Subsequently, on December 3, 1974, the Board
issued an order transferring proceeding to the Board
and Notice To Show Cause why counsel for the
Regional Director's motion should not be granted.
On December 6, 1974, the Respondent filed a request
for postponement of the hearing and its answer to the
backpay specification. Thereafter, on December 17,
1974, Respondent filed a response to the Notice To
Show Cause and amendment to answer to backpay
specification. On December 20, 1974, counsel for the
General Counsel filed a reply to Respondent's
response to 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 provides, in pertinent part, as follows:
(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 backpay specification, issued on October 31,
1974, and served on the Respondent by registered
mail, specifically, states that the Respondent shall,
within 15 days from the date of the specification, file
an answer to the specification with the Regional
Director for Region 16 and that, if the "answer fails
to deny the allegations of the specification 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 the Respondent shall be
precluded from introducing any evidence controvert-
ing them."
According to the counsel for the General Counsel's
reply opposing Respondent' s late filing,3 the Region-
al Office had made several efforts to communicate
with Respondent prior to issuance of the backpay
specification. In an effort to make issuance of a
backpay specification unnecessary a letter was sent
to Respondent on September 20, 1974, in which the
Regional Director set forth the amounts of backpay
due each discriminatee and requested a response by
October 11, 1974. Respondent did not respond to
that letter. Counsel for the Regional Director then
telephoned Respondent's attorney on October 11,
1974, in an effort to determine an acceptable hearing
date. Although Respondent's attorney requested that
the backpay specification not issue and advised that
he would send a written explanation, no such writing
was received. As a result, the backpay specification
and notice of hearing was issued on October 31,
1974, to which no answer was filed. As a result,
counsel for the Regional Director on November 22,
1974, filed the motion to find the backpay specifica-
tion true.
' Reported at 203 NLRB 41(1973).
2 Unpublished.
216 NLRB No. 116
3 The Respondent has not denied the truth of the General Counsel's
assertions in his reply.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was not until December 6 and 17, 1974,
respectively , that the Respondent filed its request for
postponement of the hearing and answer, and its
response to the Notice To Show Cause and amended
answer . In these submissions Respondent 's attorney
asserts, as an explanation for the lateness of the
answer , an absence in December which precluded his
attention to this case and participation in several
other labor matters which he could not delay. It
appears that Respondent had been offered ample
time in which to answer timely the allegations of the
backpay specification but failed to do so. It is noted
that there is no allegation of a request for an
extension of time to file an answer under Section
102.55 of the Board's Rules and Regulations.
The answer filed on December 6, 1974 , and its
amendment on December 17, 1974, fail to comply
with the timely filing provisions of Section 102.54(a)
of the Board's Rules and Regulations , and Respond-
ent has failed to show sufficient cause justifying late
filing of its answer . Therefore, the motion to find the
backpay specification true is granted and the
allegations of the backpay specification are deemed
to be admitted and are so found by the Board
without taking evidence in support of such allega-
tions pursuant to Section 102.54(c) of the Board's
Rules and Regulations.
Accordingly , the Board finds, on the basis of the
allegations of the backpay specification , the facts as
set forth therein ; concludes that the net backpay due
each of the discriminatees and on their behalf to the
jointly administered health and welfare fund and
pension fund as set forth in the appropriate contract
between Respondent and Local 627 , A & B Interna-
tional Union of Operating Engineers , is as stated in
the computations of the specification ; and orders
that payment thereof be made by the Respondent to
and on behalf of each discriminatee named below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
J. J. Cook Construction and Empire Building
Corporation , Oklahoma City , Oklahoma, its officers,
agents , successors, and assigns , shall make whole
each of the discriminatees named below by payment
to each of them and on their behalf to the
aforementioned jointly administered health and
welfare fund and pension fund of the amounts set
forth adjacent to their names, plus interest accrued at
the rate of 6 percent per annum to be computed in
the manner specified in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), until payment of all backpay
due, less tax withholding required by Federal and
state laws:
Wilmer W. Glover-$ 11,561.15; Health and
Welfare Fund-$1,642.27 ; Pension Fund-
$1,202.42
Stafford Winn-$24,494.67; Health and Wel-
fare Fund-$1,634.26; Pension Fund-$ 1,196.55