The Embers of Jacksonville, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1968

170 N.L.R.B. 641 (N.L.R.B. 1968)

THE EMBERS OF JACKSONVILLE, INC. 641
The Embers of Jacksonville , Inc. and Hotel & SUPPLEMENTAL ORDER
Restaurant Employees & Bartenders International
Union, AFL-CIO. Case 12-CA-3142
March 22, 1968
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 11, 1966, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled case,' finding inter alia, that the
Respondent shall make whole Lawrence Baker,
John W. Dorn, Jr., Robert Lee Jones, Lynn Davis,
and Nolan Wilkerson, for certain losses of pay they
suffered by reason of the Respondent's discrimina-
tion against them. Thereafter, the Board's Decision
and Order was enforced by the United States Court
of Appeals for the Fifth Circuit.
On November 16, 1967, the Board's Regional
Director for Region 12 issued a backpay specifica-
tion and notice of hearing. On December 15, 1967,
counsel for the General Counsel filed a motion for
judgment on the pleadings on the ground that the
Respondent had failed to file an answer to the
aforesaid specification. On December 19, 1967,
Trial Examiner Sidney Lindner issued an order,
returnable January 8, 1968, notifying all parties to
show cause, if they had any, as to whether or not
the motion for judgment on the pleadings should be
granted. In response, by letter dated January 5,
1968, the Respondent notified Trial Examiner
Lindner that it had no contest or other cause why
the motion should not be granted. On January 30,
1968, Trial Examiner Lindner issued his Supple-
mental Decision attached hereto, in which he found
that the aforementioned discriminatees were enti-
tled to the amounts of backpay therein set forth.
Thereafter, the General Counsel filed an exception.
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
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Supplemental Decision, the exception, and the en-
tire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner,' as modified herein.
170 NLRB No. 103
On the basis of the Trial Examiner 's Supplemen-
tal Decision , as modified , and the entire record in
the case, the National Labor Relations Board
hereby orders that the Respondent , The Embers of
Jacksonville , Inc., Jacksonville , Florida, its officers,
agents, successors , and assigns , shall pay to
Lawrence Baker, Lynn Davis , John W . Dorn, Jr.,
Robert Lee Jones, and Nolan Wilkerson, the
amounts determined to be due them by the Trial
Examiner in his attached Supplemental Decision,
plus interest thereon at the rate of 6 percent per
annum computed in accordance with the formula
prescribed by the Board in Isis Plumbing & Heating
Co., 138 NLRB 716, less any withholding required
bylaw.
The Embers of Jacksonville, Inc, 157 NLRB 627
The General Counsel excepted to the Trial Examiner's inadvertent
placement of the phrase "less any withholding required by law . " in the
Recommended Order prior to the requirement that 6 percent interest be
paid upon the sums of money due we find merit in this exception and will
so modify the Recommended Order
SUPPLEMENTAL TRIAL EXAMINER'S
DECISION
On March 11, 1966, the National Labor Rela-
tions Board issued its Decision and Order' requir-
ing, inter alia, that the Respondent shall make
whole Lawrence Baker, John W. Dorn, Jr., Robert
Lee Jones, Lynn Davis, and Nolan Wilkerson, the
discriminatees, for certain losses of pay they suf-
fered by reason of Respondent's discrimination
against them. On April 17, 1967, the United States
Court of Appeals for the Fifth Circuit entered its
decree enforcing the Board's Order.
Controversy having arisen over the amount of
backpay due to the discriminatees pursuant to the
Board Order and court decree, the Regional
Director in accordance with Section, 102.52 of the
Board's Rules and Regulations, Series 8, as
amended, issued a backpay specification on
November 16, 1967. The specification contained a
formula for the ascertainment of backpay, and also
computations, based on the formula, as to the
amounts of backpay alleged to be due the dis-
criminatees.
Thereafter, under date of December 15, 1967,
counsel for the General Counsel filed a motion for
summary judgment on the ground that the Respon-
dent has filed no answer to the specification, as
required. On December 19, 1967, Trial Examiner
Sidney Lindner issued an order returnable January
8, 1968, notifying all parties to show cause, if they
had any, as to whether the motion for summary
' 157 NLRB 627
350-999 0 - 71 - 42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
judgment should be granted. In response, Respon-
dent wrote the following letter:
January 5, 1968
Honorable Sidney- Lindner
Trial Examiner
National Labor Relations Board
1717 Pennsylvania Avenue, N.W.
Washington, D. C. 20570
FURTHER FINDINGS
I. THE BACKPAY REMEDY
The backpay remedy formulated by the Trial Ex-
aminer in the Decision and adopted by the Board in
its Decision and Order requires that Respondent
make the discriminatees whole.
II. SUMMARY
In re: NLRB Case No. 12-CA-3142
Dear Sir:
In response to your December 19, 1967
Order to Show Cause on General Counsel's
Motion for Judgment on the Pleadings, please
be advised that our client, The Embers of
Jacksonville, Inc., has no contest or other cause
why the motion should not be granted.
Consequently, I assume that the motion will
be granted forthwith and that the hearing
presently scheduled for January 16, 1968 will
be cancelled.
Yours very truly,
/s/ Joseph M. Glickstein, Jr.
On January 9, 1968, I issued a telegraphic notice to
the parties advising that the General Counsel's -no-
tion for judgment on the pleadings was granted, and
that a Trial Examiner's Decision and Recom-
mended Order would issue in due course.
The Board's Rules provide that an answer to a
backpay specification shall be filed within 15 days
after service of the specification, and that if no
answer is filed, or if allegations of the specification
are not denied, the specification may be taken to be
true and an appropriate order entered.'
The Respondent's answer of January 5, 1-968,
does not contest the General Counsel's motion for
judgment on the pleadings. No cause to the contra-
ry being shown, the allegations of the backpay
specification are to be deemed admitted to be true.
It is so found.
Upon the basis of the record before me, I hereby
make the following further findings based on the
backpay specification:
2 Thus, Section 102.54( a) of the rules states, in part
(a) Filing and service of answer to specification -The respondent
shall, within 15 days from the service of the specification, if any, file an
answer thereto
Section 102 54(b) of the Board's Rules states, in part
(b) Contents of the answer to specification - the respondent
shall specifically admit, deny, or explain each and every allegation of
the specification , unless the respondent is without knowledge, in
which case the respondent shall so state , such statement operating as a
denial
Section 102 54(c) of the Board's Rules states, in part
(c) Effect of failure to answer or to plead specifically and in detail to
the specification - 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 allega-
Summarizing the facts the computations set forth
in the backpay specifications issued under date of
November 16, 1967, the obligation of the Respon-
dent to make whole the discriminatees pursuant to
the Order and decree, will be discharged by pay-
ment to the discriminatees of the -amounts set forth
below opposite their respective names, plus interest
accrued to the date of such payment:
Lawrence Baker $382.83
Lynn L. Davis 3,168.87
John W. Dorn, Jr. 838.00
Robert Lee Jones 3,463.58
Nolan Wilkerson 488.33
On the basis of the foregoing findings and con-
clusions, I recommend that the Board issue the fol-
lowing:
RECOMMENDED ORDER
(a) The Respondent , The Embers Of Jackson-
ville, Inc., shall pay to Lawrence Baker, Lynn L.
Davis, John W . Dorn, Jr., Robert Lee Jones, and
Nolan Wilkerson the following sums of money, less
any withholding required by law, plus interest
thereon at the rate of 6 percent per annum com-
puted in accordance with the formula prescribed by
the Board in Isis Plumbing & Heating Co., 138
NLRB 716, 720-721:
Lawrence Baker $382.83
Lynn L. Davis 3,168.87
John W.' Dorn, Jr. 838.00
Robert Lee Jones 3.463.58
Nolan Wilkerson 48-8.33
(b) The Respondent shall notify the Regional
Director for Region 12, in writing, within 20 days
from the date of this Supplemental Trial Examiner's
Decision, what steps the Respondent has taken to
comply herewith.'
tions of the specification and without notice to the respondent, find
the specification to be true and enter such order 'as may be ap-
propriate If the respondent files an answer to the specification but
fails to deny any allegation of the specification in the manner required
by subsection (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 respondent shall be
precluded from introducing any evidence controverting said allega-
tion
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "