Physicians Answering Service

National Labor Relations Board - Board Decisions

Jan 28, 1992

306 N.L.R.B. 199 (N.L.R.B. 1992)

199
306 NLRB No. 36
PHYSICIANS ANSWERING SERVICE
1 No. 90–1242 (unpublished).
2 The amended specification notified the Respondent that:
[P]ursuant to Section 102.56 of the Board’s Rules and Regula-
tions . . . the Respondent shall, within twenty-one (21) days
from the date of the Amended Specification, file with the under-
signed, acting in this matter as an agent of the National Labor
Relations Board, an original and four (4) copies of an answer
to the Specification. To the extent that such answer fails to deny
allegations of the amended 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 controverting them.
3 Other than to assert that it does not understand the papers it has
been sent.
4 In the letter, the Respondent alleges that LaPlante and another
employee stole proprietary information, lied under oath, and con-
spired against the Respondent. The Respondent also disparages
LaPlante as an employee, and protests its innocence in the matters
before the Board. These matters were, or should have been, raised
in the underlying unfair labor practice proceeding; they will not be
revisited in this backpay action.
Physicians Answering Service, Inc. and Jean M.
LaPlante. Case 1–CA–25737
January 28, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 18, 1989, an administrative law judge
of the National Labor Relations Board issued his deci-
sion in this case, ordering the Respondent, Physicians
Answering Service, Inc., its officers, agents, succes-
sors, and assigns to offer to reinstate Jean M. LaPlante
and to make her whole for any loss of earnings she
may have suffered because of the Respondent’s unfair
labor practices. In the absence of exceptions, the Board
on October 25, 1989, issued an unpublished Order
adopting the judge’s decision. On April 11, 1990, the
United States Court of Appeals for the First Circuit en-
tered a judgment enforcing the Board’s Order.1 A con-
troversy having arisen over the amount of backpay due
under the Board’s Order as enforced, the Regional Di-
rector for Region 1 issued an amended backpay speci-
fication on September 30, 1991, alleging the amount of
backpay due and notifying the Respondent that it must
file a timely answer complying with the Board’s Rules
and Regulations.2 The amended specification was
served on the Respondent in person on October 9,
1991.
On November 25, 1991, the General Counsel filed
with the Board a Motion to Transfer Proceeding to the
Board and for Summary Judgment, with exhibits at-
tached. In the motion, the General Counsel alleges that
(1) the Respondent failed to file an answer to the
amended specification within 21 days after the
issuance of the specification; (2) the Respondent was
informed, by letter dated October 23, 1991, that if an
answer was not received by November 6, 1991, the
General Counsel would seek summary judgment from
the Board; and (3) although the Regional Director, on
November 5, 1991, granted the Respondent an exten-
sion of time until November 20, 1991, to file an an-
swer, the Respondent still did not file an answer. The
General Counsel further avers that the Respondent has
failed to comply with Section 102.56 of the Board’s
Rules and Regulations by failing either to file an an-
swer to the amended specification or to request a fur-
ther extension of time to do so. Accordingly, the Gen-
eral Counsel asserts that the allegations in the amended
specification should be deemed to be true, and that
backpay should be awarded as claimed in the amended
specification.
On December 5, 1991, the Board issued an order
transferring this proceeding to the Board and Notice to
Show Cause why the General Counsel’s motion should
not be granted. On December 19, the Respondent, act-
ing pro se, filed a handwritten letter with the Regional
Director, apparently in answer to the Notice to Show
Cause. In the letter, however, the Respondent does not
address in any way the allegations in the amended
specification or in the Motion for Summary Judgment,
nor does it offer any explanation for its failure to file
an answer3 or to request an extension of time to do
so.4
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this case, the Board makes
the following
Ruling on Motion for Summary Judgment
Section 102.56 of the Board’s Rules and Regulations
states:
(b) Contents of answer to specification.—The
answer shall specifically admit, deny, or explain
each and every allegation of the specification, un-
less the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. Denials shall fair-
ly meet the substance of the allegations of the
specification at issue. When a respondent intends
to deny only a part of an allegation, the respond-
ent shall specify so much of it as is true and shall
deny only the remainder. As to all matters within
the knowledge of the respondent, including but
not limited to the various factors entering into the
computation of gross backpay, a general denial
shall not suffice. As to such matters, if the re-
spondent disputes either the accuracy of the fig-
ures in the specification or the premises on which
they are based, the answer shall specifically state
the basis for such disagreement, setting forth in
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
detail the respondent’s position as to the applica-
ble premises and furnishing the appropriate sup-
porting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to backpay allegations of
specification.—If the respondent fails to file any
answer to the specification within the time pre-
scribed by this section, the Board may, either with
or without taking evidence in support of the alle-
gations of the specification and without further
notice to the respondent, find the specification to
be true and enter such order as may be appro-
priate. If the respondent files an answer to the
specification but fails to deny any allegation of
the specification in the manner required by para-
graph (b) of this section, and the failure so to
deny is not adequately explained, such allegation
shall be deemed to be admitted to be true, and
may be so found by the Board without the taking
of evidence supporting such allegation, and the re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
Although the Respondent has been served with a
copy of the amended specification and informed of the
necessity of filing an answer, it has failed, without
adequate explanation, to file an answer even though it
was granted an extension of time to do so. Accord-
ingly, we find the allegations of the backpay specifica-
tion to be admitted to be true as provided in Section
102.56(c), and we find that they are correct. We there-
fore grant the General Counsel’s Motion for Summary
Judgment.
ORDER
It is ordered that the General Counsel’s Motion for
Summary Judgment is granted, and that the Respond-
ent, Physicians Answering Service, Inc., Boston, Mas-
sachusetts, its officers, agents, successors, and assigns,
shall make Jean M. LaPlante whole for her losses
caused by its discrimination against her by paying her
$49,113.59 in net backpay, plus interest accrued to the
date of payment, minus tax withholdings required by
Federal and state laws.