La Andaluza, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1973

203 N.L.R.B. 259 (N.L.R.B. 1973)

LA ANDALUZA, INC. 259
La Andaluza, Inc. and Gremio Puertorriqueno de Tra-
bajadores de Production Servicio y Ventas. Case
24-CA-3098
April 27, 1973
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On April 7, 1972, the National Labor Relations
Board issued a Decision and Order in the above-cap-
tioned proceeding' in which it granted the General
Counsel's Motion for Summary Judgment and re-
quired, inter alia, that Respondent make whole seven
discriminatees for loss of earnings suffered by reason
of Respondent's discrimination against them. On Oc-
tober 4, 1972, the United States Court of Appeals for
the First Circuit entered its judgment enforcing in full
the said Board Order. A controversy having arisen
over the amount of backpay due under the terms of
the Board's Order, as enforced by the court, the Re-
gional Director for Region 24, on November 30, 1972,
issued a Backpay Specification and Notice of Hearing
setting forth certain allegations with respect to the
amount of backpay due said discriminatees. Respon-
dent did not file a proper answer to the specification,
but in a letter dated December 23, 1972, the Respon-
dent indicated it was insolvent and unable to pay
backpay.
On January 2, 1973, the General Counsel, by coun-
sel, filed directly with the Board in Washington, D.C.,
a Motion for Summary Judgment. The Board, on Jan-
uary 17, 1973, issued an Order Transferring Proceed-
ing to the Board and Notice to Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. 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 Motion for Summary Judgment
Section 102.554 of the Board's Rules and Regula-
tions provides, in pertinent part, as follows:
1 Reported at 196 NLRB 219
(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 no-
tice to the respondent, find the specification to be
true and enter such order as may be appropriate.
The Backpay Specification, issued and served on
the Respondent on November 30, 1972, 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
24 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 Respon-
dent shall be precluded from introducing any evi-
dence controverting them. According to the Motion
for Summary Judgment the Regional Director for Re-
gion 24, on December 18, 1972, noting that no answer
had been received, sua sponte extended the time for
filing an answer to the close of business on December
26, 1972, specifically directing Respondent's attention
to Section 102.54 of the Rules and Regulations as to
the effect of failure to answer or to plead specifically
and in detail to the specification, and warning that a
Motion for Summary Judgment would be made be-
fore the Board unless an answer were filed within the
aforesaid extension of time.
Respondent, by letter dated December 23, 1972,
advised the Regional Director, in substance, that its
only answer to the Backpay Specification and Notice
of Hearing is that it is unable to satisfy the backpay
at the present time because of its insolvent condition.
Respondent's letter contains merely a statement of its
inability to pay and does not specifically deny the
allegations of the specification as required by Section
102.54(b) of the Board's Rules and Regulations. The
failure to deny is not adequately explained. Since the
answer fails to comply with the provisions of Section
102.54(b) and (c) of the Board's Rules and Regula-
tions, pursuant to such provisions, the allegations of
the specification are deemed to be admitted and are
so found by the Board without taking evidence in
support of such allegations.
The Board, accordingly, finds on the basis of the
allegations of the specification, which are accepted as
true, the facts as set forth therein; concludes that the
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
net backpay due each of the discriminatees is as stated
in the computations of the specification; and orders
that payment thereof be made by the Respondent to
each discriminatee named below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, La
Andaluza, Inc., Caguas, Puerto Rico, its officers,
agents, successors, and assigns, shall make whole each
of the discriminatees named below by payment to
them of the amounts set forth adjacent to their names,
plus interest accrued at the rate of 6 percent per an-
num to be computed in the manner specified in Isis
Plumbing & Heating Co., 138 NLRB 716, until pay-
ment of all backpay due, less tax withholding required
by Federal and state laws:
Jose Luis Ambert $248.00
Juan Ayala 155.13
Efrain Carrasquillo 144.00
Bienvenido Diaz del Valle 264.00
Angel Luis Melendez 248.00
Librada Oquendo 372.00
Maria Luisa Rivera 180.00