Sac's Construction Co.

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 124 (N.L.R.B. 1993)

124
313 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 305 NLRB No. 171 (not published in bound volume).
2 The Respondent’s failure or refusal to claim certified mail cannot
serve to defeat the purposes of the Act. Furthermore, the failure of
the Postal Service to return documents sent by regular mail indicates
actual receipt of the those documents by the Respondent. Julco Fire-
proofing Co., 309 NLRB No. 86 (Nov. 25, 1992) (not published in
bound volume).
Sac’s Construction Company, Inc. d/b/a Sac’s Con-
struction Co., Inc. and Massachusetts Labor-
ers’ Benefit Funds. Case 1–CA–28264
November 23, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 10, 1992, the National Labor Relations
Board issued a Decision and Order1 in this proceeding
in which it ordered the Respondent to make whole the
employees in the appropriate bargaining unit by mak-
ing all contractual fringe benefit fund payments that
the Respondent has unlawfully failed to make pursuant
to the terms of a collective-bargaining agreement with
Massachusetts Laborers District Council and a repay-
ment agreement with Massachusetts Laborers’ Benefits
Funds. On September 17, 1992, the United States
Court of Appeals for the First Circuit, in an unpub-
lished decision, enforced the Board’s Order.
A controversy having arisen over the amount of con-
tractual benefit fund contributions due and the amount
of money due employees under the terms of the
Board’s Order, the Regional Director for Region 1
issued a compliance specification and notice of hearing
on January 28, 1993, alleging the amount of money
due. On February 18, 1993, the Respondent filed an
answer. It claimed that it was without sufficient infor-
mation either to admit or to deny the allegations con-
tained in each paragraph of the compliance specifica-
tion, but it generally denied the allegations to the ex-
tent that an answer was required.
By certified mail dated March 2, 1993, the Region
informed the Respondent that its answer was insuffi-
cient because its denials of the allegations of the com-
pliance specification did not meet the requirements of
Section 102.56 of the Board’s Rules and Regulations.
The Respondent was also advised that, if no amended
answer was received by the close of business on
March 23, 1993, a Motion for Summary Judgment
would be filed. The Respondent failed to claim this
letter, which was returned to the Regional Office. On
March 31, 1993, the Region informed the Respondent
by regular mail that its answer was insufficient and
that, if an amended answer was not received by close
of business on April 21, 1993, a Motion for Summary
Judgment would be filed. The letter was not returned
to the Regional Office.2
Ruling on the Motion for Summary Judgment
Section 102.56(b) and (c) of the National Labor Re-
lations 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
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.
The Respondent’s answer to the compliance speci-
fication fails to meet the requirements of Section
102.56(b) and (c) of the Board’s Rules and Regula-
tions. The Respondent’s answer fails to specifically
deny or explain any of the allegations in the compli-
ance specification. Although the Respondent contended
that it lacked sufficient information, the provisions of
the collective-bargaining agreement with the Union,
the repayment agreement with the Benefits Funds, the
payroll records of unit employees, and the amounts re-
mitted to the Benefit Funds are clearly within the Re-
125SAC’S CONSTRUCTION CO.
3 The compliance specification requests that the amount due in-
clude ‘‘interest computed . . . in accordance with current Board pol-
icy.’’ Because the provisions of employee benefit fund agreements
are variable and complex, we leave to further compliance proceed-
ings the question of whether the Respondent must pay any additional
amounts into the benefit funds to satisfy our make-whole remedy.
These additional amounts may be determined, depending on the cir-
cumstances of each case, by reference to the provisions in the docu-
ments governing the funds at issue and, when there are no governing
provisions, to evidence of any loss directly attributed to the unlawful
withholding, which might include the loss of return on investment
of the portion of funds withheld, additional administrative costs, etc.,
but not collateral losses. See Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).
spondent’s knowledge. In view of the Respondent’s
failure to state the specific basis for its disagreement
with the compliance specification’s allegations and to
set forth in detail, with supporting figures, any alter-
natives to those allegations, we accept all allegations
in the compliance specification as true. Accordingly,
we grant the General Counsel’s Motion for Summary
Judgment. We conclude that the amount of benefit
fund contributions due is as stated in the compliance
specification, and we shall order the Respondent pay
this amount, subject to the appropriate credit for pay-
ments already made.3
ORDER
The National Labor Relations Board orders that the
Respondent, Sac’s Construction Company, Inc. d/b/a
Sac’s Construction Co., Inc., Westboro, Massachusetts,
its officers, agents, successors, and assigns, shall pay
into the contractual fringe benefit funds the amounts
stated in the compliance specification, subject to ap-
propriate credit for payments already made.