O. R. Cooper and Son

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 941 (N.L.R.B. 1977)

O. R. COOPER AND SON
O. R. Cooper and Son and Donald D. Schaffer, Sr.
Case 38-CA-2715
August 31, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On September 10, 1976, the National Labor
Relations Board issued its Decision and Order' in
the above-captioned proceeding in which it ordered,
inter alia, that Respondent make whole Donald D.
Schaffer, Sr., for any loss of earnings resulting from
Respondent's unfair labor practices in violation of
Section 8(a)(1), (3), and (4) of the National Labor
Relations Act, as amended. A controversy having
arisen as to the amount of backpay due under the
terms of the Board's Order, the Officer-in-Charge for
Subregion 38, on May 6, 1977, issued and duly
served on the Respondent by registered mail a
backpay specification and notice of hearing alleging
the amount of backpay due Donald D. Schaffer, Sr.,
under the Board's Order and notified Respondent
that it shall file a timely answer which must comply
with the Board's Rules and Regulations, Series 8, as
amended. Respondent failed to file an answer to the
specification.
The General Counsel, by counsel, on June 6, 1977,
filed directly with the Board in Washington, D.C., a
Motion for Summary Judgment. The Board on June
24. 1977, issued an order transferring proceeding 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
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 ....
i 225 NL RB 125 (1976).
' In accordance with our decision in Florida Steel Corporation, 231
NI.RB 651 1977). we shall applk the current 7-percent rate for periods prior
(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 May 6, 1977,
and served on the Respondent on May 10, 1977,
specifically states that the Respondent shall, within
15 days from the date of the specification, file an
answer to the specification with the Officer-in-
Charge for Subregion 38 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. As of June 2, 1977, the date of the Motion
for Summary Judgment, Respondent had not filed an
answer to the specification. Respondent also failed to
file a response to the Notice To Show Cause. The
allegations of the Motion for Summary Judgment
are, therefore, uncontroverted. Since Respondent has
not filed an answer to the specification and has not
offered any explanation for its failure to do so, the
allegations of the specification, in accordance with
rules set forth above, are deemed to be admitted and
are so found by the Board.
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 Donald D. Schaffer, Sr., is as stated
in the computations of the specification. and herein-
after orders the payment thereof by the Respondent.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
O. R. Cooper and Son, Urbana and Champaign,
Illinois, its officers, agents, successors, and assigns,
shall make whole Donald D. Schaffer, Sr., by paying
to him the sum of $7,682, plus interest accrued at the
rate of 7 percent per annum as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716. (1962), and
Florida Steel Corporation,2 until all backpay due is
paid, less the tax withholdings required by Federal
and state laws.
to August 25. 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
231 NLRB No. 153
941