Nick Robilotto, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1990

300 N.L.R.B. 990 (N.L.R.B. 1990)

990
300 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 292 NLRB 1279.
Nick Robilotto, Inc. and International Brotherhood
of Painters and Allied Trades, Local 201. Case
3–CA–14446
December 21, 1990
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On February 22, 1990, the National Labor Relations
Board issued its Decision and Order1 directing Nick
Robilotto, Inc. to file all fringe benefit contributions
reports due and to remit pension fund contributions as
provided in the collective-bargaining agreement with
International Brotherhood of Painters and Allied
Trades, Local 201, and to make whole its employees
for its failure to do so. The United States Court of Ap-
peals for the Second Circuit enforced the Board’s
Order on May 1, 1990. A controversy having arisen
over the amounts due the pension and fringe benefit
funds under the terms of the Board’s Order, the Re-
gional Director for Region 3, on July 31, 1990, issued
a compliance specification and notice of hearing alleg-
ing the amount of the contributions due.
In the specification, the Regional Director alleged
that during the compliance period, which is covered by
the terms of the collective-bargaining agreement in ef-
fect from May 1, 1988, through April 30, 1990, the
Respondent was obligated to remit payments to the
union fringe benefit funds at a specified rate and to
pay interest on any delinquent payments. He further al-
leged that the Respondent belatedly remitted these pay-
ments to the union funds and he therefore set forth the
amount of interest owing on these delinquent pay-
ments. Finally, he alleged that the collective-bargaining
agreement also provided for the payment of attorney’s
fees incurred by a signatory union against an employer
in the collection of delinquent fringe benefit contribu-
tions and he therefore set forth the amount owed under
this obligation.
On October 5, 1990, the General Counsel, by coun-
sel, filed a Motion to Transfer Case and to Continue
Proceeding Before the Board and for Summary Judg-
ment and Issuance of Decision and Order, with exhib-
its attached. The General Counsel submits that the Re-
spondent has failed to file an answer to the compliance
specification in accordance with Section 102.56 of the
Board’s Rules and Regulations and has provided no
satisfactory reason for this failure. On October 12,
1990, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent has
failed to file a response. The allegations set forth in
the motion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
Ruling on Motion for Summary Judgment
Section 102.56 of the Board’s Rules and Regulations
provides that if the Respondent fails to file an answer
to the specification or fails to file an answer in the
manner required by Section 102.56(b), the allegations
contained in the specification shall be deemed to be
admitted to be true and may be so found by the Board
without the taking of evidence supporting such allega-
tions, and the Respondent shall be precluded from in-
troducing evidence controverting the allegations. The
specification states that unless an answer is filed with-
in 21 days of service, ‘‘such allegations shall be
deemed to be admitted to be true and Respondent shall
be precluded from introducing any evidence contro-
verting them.’’ Further, the undisputed allegations in
the General Counsel’s memorandum in support of the
Motion for Summary Judgment disclose that counsel
for the General Counsel, by certified letter dated Sep-
tember 7, 1990, notified the Respondent that unless an
answer to the compliance specification was received
by September 24, 1990, a Motion for Summary Judg-
ment would be filed.
In his memorandum, the General Counsel also indi-
cated that the Respondent informed him, by letter
dated September 17, 1990, inter alia, that:
As previously stated, we have been late before
and Local 201 always got paid. They have re-
ceived their money and I feel that I would be
willing to pay some late charges, however, I am
not going to pay the union’s legal bills as legal
action was not warranted.
The General Counsel alleges that even assuming
arguendo that the Respondent’s letter was meant to be
in the nature of an answer, it is substantively deficient
for the reasons discussed in Solvay Iron Works, 298
NLRB 1016 (1990). He further contends that this com-
munication constitutes, in substantial part, an admis-
sion of the compliance specification allegations.
We agree with the General Counsel that the Sep-
tember 17, 1990 letter from the Respondent does not
constitute a proper answer to the compliance specifica-
tion. The letter fails to specifically admit, deny, or ex-
plain the allegations of the specification as required by
Section 102.56(b). Accordingly, in the absence of good
cause being shown for the failure to file a timely and
proper answer in accordance with Section 102.56 of
the Board’s Rules and Regulations, we grant the Gen-
eral Counsel’s Motion for Summary Judgment.
991NICK ROBILOTTO, INC.
ORDER
The National Labor Relations Board orders that the
Respondent, Nick Robilotto, Inc., Albany, New York,
its officers, agents, successors, and assigns, shall pay
to International Brotherhood of Painters and Allied
Trades, Local 201, $1065 in attorney’s fees and shall
pay to the fringe benefit funds $396.94 in interest
owing on delinquent fringe benefits contributions.