Schaffner Contruction Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 967 (N.L.R.B. 1980)

SCHAFFNER CONSTRUCTION CO.
Ralph Schaffner, an Individual d/b/a Schaffner Con-
struction Co. and David Owens. Case 14-CA-
11944
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On October 24, 1979, the National Labor Rela-
tions Board issued its Order' in the above-entitled
proceeding in which it adopted the findings and
conclusions of the Administrative Law Judge and
required, inter alia, that Respondent make whole
certain employees for their losses resulting from
Respondent's unfair labor practices in violation of
Section 8(a)(3) and (1) of the National Labor Rela-
tions Act, as amended. On April 22, 1980, the
United States Court of Appeals for the Tenth Cir-
cuit entered its judgment, 2 enforcing in full the
Board's Order, including its backpay provisions. A
controversy having arisen over the amount of
backpay due under the terms of the Order, as en-
forced by the court, the Regional Director for
Region 14, on May 15, 1980, issued a backpay
specification and notice of hearing, alleging the
amounts of backpay due under the Board's Order
and notifying Respondent that it should file a
timely answer complying with the National Labor
Relations Board Rules and Regulations, Series 8as
amended. To effect service on Respondent, the
backpay specification and notice of hearing were
sent by registered mail to the residence of Re-
spondent's wife and a copy of the same was sent
by regular mail to Respondent's business address.
Respondent failed to submit an answer or respond
in any way to the backpay specification.
On July 25, 1980, counsel for the General Coun-
sel filed directly with the Board in Washinton, D.
C., a Motion for Summary Judgment (Default) on
Backpay Specification for Failure to File an
Answer, with exhibits attached. Subsequently, on
July 31, 1980, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted. Re-
spondent thereafter filed 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:
' Not reported in olumres of Hoard DIecsiolns
2Docket No ()I 1405
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....
(b) . . . The respondent shall specifically
admit, deny or explain each and every allega-
tion of the specification, unless the respondent
is without knowledge, in which case the re-
spondent shall so state, such statement operat-
ing as a denial. Denials shall fairly meet the
substance of the allegations of the specification
denied. When a respondent intends to deny
only a part of the allegation, the respondent
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, in-
cluding but not limited to the various factors
entering into the computation of gross back-
pay, a general denial shall not suffice....
(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 sup-
port of the allegations of the specification
without notice to the respondent, find the
specification to be true and enter such order as
may be appropriate....
The backpay specification, issued and served on
Respondent on May 15, 1980, specifically states
that Respondent shall, within 15 days from the date
of the specification, file an answer to the specifica-
tion with the Regional Director for Region 14, 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 Re-
spondent shall be precluded from introducing any
evidence controverting them.
Respondent did not file an answer to the back-
pay specification within the required time period
and the General Counsel accordingly moved for
summary judgment. In its order transferring the
proceeding to the Board and the Notice To Show
Cause, issued July 31, 1980, the Board specified
that Respondent's written reply be filed with the
Board in Washington, D.C. Respondent's reply, re-
ceived in the Regional Office on August 7, 1980,
and with the Board in Washington, D.C., on Sep-
tember 11, 1980, does not respond to any part of
the backpay specification, but raises, instead, cer-
tain independent issues.
252 NLRB No. 136
967
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends that because he had filed a
petition for bankruptcy in which the Board and the
discriminatees herein are named as creditors, the
Board should temporarily stay proceedings in this
case pending the order of discharge from the Bank-
ruptcy Court. Respondent contends further that,
upon the entry of an order of discharge of Re-
spondent, we should permanently stay proceedings
in this case or enter decision in favor of Respond-
ent. We find Respondent's contention without
merit. Adjudication in bankruptcy of a respondent
in an unfair labor practice proceeding does not de-
prive the Board of jurisdiction or authority to en-
tertain and process the unfair labor practice case to
its final disposition. A restraining order issued by a
court of bankruptcy staying all judicial proceedings
against Respondent does not control our proceed-
ing. 3
Respondent's motion to stay our proceedings
does not specifically deny or respond in any way
to the allegations of the backpay specification as
required by Section 102.54(b) of the Board's Rules
and Regulations; it does not explain Respondent's
failure to file a timely answer. The allegations of
W. T Grant Regional Credit Center, 225 NLRB 881, fn. I (1976);
Decker Foundry Co., Inc., 237 NLRB 636, fn. 1 (1978).
the backpay specification are therefor deemed ad-
mitted as true and the Board so finds.
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 each of the employees is
as stated in the computations of the specification,
and orders that payment thereof be made by Re-
spondent to each employee named below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Ralph Schaffner, an Individual d/b/a Schaffner
Construction Co., St. Charles, Missouri, his agents,
successors, and assigns, shall make whole each of
the employees named below by payment to them
of the amounts set forth adjacent to their names,
plus interest, computed in the manner described in
Florida Steel Corporation, 231 NLRB 651 (1977)
(see, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962)), and accrued to the date of pay-
ment, minus the tax withholdings required by Fed-
eral and state laws:
David Owens
Robert Burns
$6,953.60
$6,953.60
968