James K Sterrett, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1240 (N.L.R.B. 1976)

1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James K Sterrett , Inc and Concrete Haulers , Inc and (a) The respondent shall, within 15 days
Allen Finch , Albert Qmck, Sr, Frank K Ruhnke , from the service of the specification, if any, file
Thomas F Monteverde , Jr , Robert Quick, Edward an answer thereto,
Jordan , Jr , and Paul D Overbaugh Cases 3-CA-
5580-1, -2, -3, -4, -5, -6, and -7 * * * * *
June 18, 1976
SUPPLEMENTAL DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On December 16, 1974, the National Labor Rela-
tions Board issued a Decision and Order I adopting
the Decision of an Administrative Law Judge direct-
ing the Respondents, inter alga, to make whole Allen
Finch,' Albert Quick, Sr, Frank K Ruhnke, Thomas
F Monteverde, Jr, Robert Quick, Edward Jordan,
Jr, and Paul D Overbaugh for any loss of earnings
suffered by reason of the Respondent's discrimina-
tion against them On October 17, 1975, the United
States Court of Appeals for the Second Circuit en-
tered its Judgment enforcing in full the Board's Or-
der herein A controversy having arisen over the
amount of backpay due under the terms of the
Board's Order, as enforced by the court, the Acting
Regional Director for Region 3, on February 23,
1976, issued a backpay specification and notice of
hearing setting forth certain allegations with respect
to the amounts of backpay due the discriminatees
Each Respondent failed to file an answer to the spec-
ification
On April 5, 1976, counsel for the General Counsel
filed a Motion for Summary Judgment directly with
the Board The Board, on April 4, 1976, 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 grant-
ed Each Respondent failed to file 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, as follows
1215 NLRB 769 (1974)
2 Allen Finch was inadvertently referred to as Alfred Finch in the Admin
istrative Law Judge s recommended Order which the Board adopted
(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 backpay specification, issued on February 26,
1976, and served on Respondents by registered mail,
states that the Respondents shall, within 15 days
from the date of the specification, file an answer to
the specification with the Acting Regional Director
for Region 3, and that, to the extent the answer fails
to deny the allegations of the specification in the
manner required under the Board's Rules and Regu-
lations and the failure to do so is not adequately ex-
plained, such allegations shall be deemed to be ad-
mitted to be true and the Respondents shall be
precluded from introducing any evidence controvert-
ing them
According to the uncontroverted Motion for Sum-
mary Judgment, as evidenced by a letter from Re-
spondents' counsel to the Regional Director, at-
tached thereto as Exhibit E, Respondents have failed
to file answers to the specification because a final
decision has been made to file a bankruptcy petition
on behalf of each Respondent corporation and Re-
spondents do not desire to run up additional legal
bills By letters dated March 10 and 19, 1976, at-
tached to the Motion for Summary Judgment as Ex-
hibits F and G, respectively, the General Counsel ad-
vised the Respondents that the bankruptcy petition
does not excuse the failure to file an answer and that
unless an answer to the specification was filed, a mo-
tion for summary judgment would be filed directly
with the Board in Washington, D C The Motion for
Summary Judgment also alleges that, on March 24,
1976, Respondents by telephone again declined to
file answers herein Each Respondent has failed to
file an answer to the specification and the time with-
in which to file an answer has long since expired
Further, as noted above, Respondents have failed to
file responses to the Notice To Show Cause As the
Respondents have not filed an answer, or offered a
satisfactory explanation for their failure to do so, the
allegations of the specification are, in accordance
with the rules set forth above, found to be true by the
Board
224 NLRB No 169
JAMES K STERRITT, INC
Accordingly, on the basis of the allegations of the
specification which are accepted as true, the Board
finds the facts as set forth therein, concludes that the
net backpay due each discriminatee is as stated in the
computations of the specification, and hereinafter or-
ders that payment thereof be made by Respondents
to each discriminatee named below
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondents,
James K Sterritt, Inc and Concrete Haulers, Inc,
West Coxsackie, New York, their officers, agents,
successors, and assigns, shall make whole each of the
discriminatees named below by payment to each of
them in the amount set forth adjacent to his name,
plus interest accrued at the rate of 6 percent per an-
num in the manner prescribed in Isis Plumbing &
Heating Co, 138 NLRB 716 (1962), until all backpay
1241
is paid, less the tax withholding required by Federal
and state laws
Robert Quick $10,028
Thomas Monteverde, Jr 19,419
Edward Jordan, Jr 11,842
Allen Finch 13,758
Paul D Overbaugh 7,067
Albert Quick, Sr 7,7170
Frank K Ruhnke 9,509
In addition, Respondents are hereby ordered to
pay, on behalf of Robert Quick, Thomas Monteverde
Jr, Edward Jordan, Jr, Allen Finch, Paul D Over-
baugh, Albert Quick, Sr, and Frank K Ruhnke, the
amounts hereafter set opposite their names to the
Teamsters pension fund
Robert Quick $1,104
Thomas Monteverde, Jr 1,151
Edward Jordan, Jr 1,000
Allen Finch 1,030
Paul D Overbaugh 912
Albert Quick, Sr 709
Frank K Ruhnke 713