Star Grocery Company

National Labor Relations Board - Board Decisions

Sep 24, 1979

245 N.L.R.B. 196 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barbara Clark and Benjamin L. Clark, d/b/a Star
Grocery Company and d/b/a Star Super Duper and
United Food and Commercial Workers Interna-
tional Union, AFL-CIO.' Cases 8-CA 9269 and 8
CA 9277
September 24, 1979
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY. AND TRUESI)ALE
On July 24, 1978, the National Labor Relations
Board issued its Decision and Order in the above-
captioned proceeding 2 in which it granted the Gen-
eral Counsel's Motion for Summary Judgment and
required, inter alia, that Respondents make whole
unit employees for their losses resulting from Respon-
dents' unfair labor practices.
On October 17, 1978, and November 1, 1978, Re-
spondents' counsel and the General Counsel, respec-
tively, entered into a stipulation wherein it was stated.
inter alia, that Respondents have no objection to the
Board's Order of July 24, 1978, but that Respondents
have not been able to reach agreement with the Gen-
eral Counsel as to the amount of backpay due em-
ployees under the terms of said Order. Respondents
also stipulated that in the event judicial proceedings
become necessary to enforce or review the Board's
backpay determination, the only issue before the
court will be the validity of the backpay computation,
since Respondents concede that the Board's Order of
July 24, 1978, is valid and proper in all respects.
Thereafter, on January 30, 1979, the Regional Di-
rector for Region 8 issued a backpay specification
and notice of hearing setting forth certain allegations
with respect to the amount of backpay due to the
employees. According to the affidavit of service filed
by the Regional Office, the backpay specification and
notice of hearing were served on the parties and their
respective counsel on or about January 30, 1979. At
the request of counsel for Respondents, additional
copies of the backpay specification were sent to him
on May 31, 1979, and received on June 1, 1979. Ac-
cording to the affidavit of service filed by the Re-
gional Office, copies were also sent by registered mail
to Respondents' last known business address and last
known home address. Respondents failed to submit
an answer or respond in any way to the backpay
specification.
I The name of the Charging Party is amended to reflect the new name of
the union resulting from the merging of Retail Clerks International Union
and Amalgamated Meatcutters and Butcher Workmen of North America on
June 7, 1979.
2 Reported at 237 NLRB 70.
On June 11, 1979, counsel for the General Counsel
filed directly with the Board in Washington, D.C., a
Motion for Summary Judgment and brief in support
thereof, with exhibits attached. Subsequently, on
June 26, 1979. the Board issued an order transferring
proceeding to the Board and Notice To Show Cause
why the General Counsel's Motion fr Summary
Judgment should not be granted. Respondents there-
after 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:
Ruling on 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 ....
* *
(c) . . . If the respondent fails to file any an-
swer to the specification within the time pre-
scribed by this section, the Board may, either
with or without taking evidence in support of the
allegations of the specification and without no-
tice to the respondent, find the specification to be
true and enter such order as may be appropriate.
The backpay specification, issued and served on
Respondents and their counsel on January 30, 1979,
specifically states that Respondents shall, within 15
days from the date of the specification, file an answer
to the specification with the Regional Director for
Region 8 and that if the answer fails to deny the alle-
gations of the specification in the manner required
under the Board's Rules and Regulations and the fail-
ure to do so is not adequately explained, such allega-
tions shall be deemed to be admitted to be true, and
Respondents shall be precluded from introducing any
evidence controverting them. According to the Mo-
tion for Summary Judgment, the Regional Director
for Region 8, on May 31, 1979, noting that no answer
had been received, sua sponte extended the time for
filing an answer to the close of business on June 11,
1979. Respondents' counsel was specifically warned
that a Motion for Summary Judgment would be
made before the Board unless an answer was filed
within the aforesaid extension of time.
Respondents did not file an answer to the backpay
specification within the required time period, and the
General C('ounsel accordingly moved for Summary
245 NLRB No. 19
196
STAR GROCERY COMPANY
Judgment. In its order transferring proceeding to the
Board and Notice To Show Cause, issued June 26,
1979, the Board specified that Respondents' written
reply be filed with the Board in Washington, D.C.
Respondents' reply, received on July 13, 1979, does
not respond to any part of the backpay specification
but raises, instead, certain independent issues.
Respondents contend that their previous attorney
had negotiated a settlement with the attorney for the
Union wherein Respondents were liable to employees
for only $10,000 of accrued vacation pay. However,
no evidence of such an agreement has been adduced.
and we find such an unsupported allegation to be nei-
ther a valid response to the backpay specification nor
an adequate explanation of Respondents' failure to
file a timely answer to same.
Respondents also contend that they never agreed
to the stipulation that the Board's Order of July 24,
1978, was valid and proper. We find no merit to this
contention, since Respondents' attorney, acting as
their representative, executed a written stipulation on
October 17, 1978, specifically stating that the Board's
Order was valid and proper.
Respondents further allege that they have not re-
ceived any Board communications addressed to them
at any Newark, Ohio, address. We find, however, that
Respondents have had adequate notice, since a copy
of the backpay specification was served on their attor-
ney, Michael J. Norris, by regular mail on January
30, 1979, and by registered mail on June , 1979. Re-
spondents admit in their response to the Notice To
Show Cause that Michael Norris is their attorney. We
also note that, in their reply to the Notice To Show
Cause, Respondents admit to having had actual no-
tice when they state that they were aware of hearings
scheduled by the Board, they were prepared to attend
and give evidence, and they had notice that the hear-
ings were canceled.
Finally, Respondents' bare assertion that they are
unable to satisfy the backpay order because their
business is defunct and without assets is an invalid
defense in a backpay proceeding where the issue is
the amount due and not whether Respondents are
able to pay. Neither is it an adequate explanation of
their failure to file a timely answer to the backpay
specification, and we so find.
Respondents' reply to the Board's Notice To Show
Cause 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, nor does it adequately explain Re-
spondents' failure to file a timely answer. The allega-
tions of the backpay specification are therefore
deemed to be admitted 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 Respondents to each
employee named below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondents, Barbara
Clark and Benjamin L. Clark, d/b/a Star Grocery
Company and d/b/a Star Super Duper, Newark,
Ohio, their agents, successors, and assigns, shall make
whole each of the employees named below by pay-
ment to them of the amounts set forth adjacent to
their names, plus interest computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977), and accrued to the date of payment, mi-
nus the tax withholdings required by Federal and
state laws:
Suzanne Campbell
Leland Cocanour
Michael Dunlap
Cynthia Friend
Robert Hall
Earnest Harris
Timothy Howe
Dana Kendall
Edward Maidel
Vera Porter
Dale Price
Shirley Ramsey
Lorna Riffle
Ronald Smith
Alice Spring
Des Van Horn
Roberta Wade
James White
John White
Sheila Wright
$5,045.60
4,992.20
1,515.00
2,461.60
720.00
5,215.20
2,518.00
1,551.60
564.00
4,881.60
1,036.85
3,513.60
3,686.40
3,679.20
3,692.40
616.00
3,542.40
4,001.60
4,775.20
3,209.60
197