The Lobster Trap & Casa Sirena Hotel

National Labor Relations Board - Board Decisions

Feb 29, 1988

287 N.L.R.B. 1322 (N.L.R.B. 1988)

1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Channel Island Development Corp ., d/b/a The Lob-
ster Trap & Casa Sirena Marina Hotel and
Princess Enterprises , d/b/a The Lobster Trap
& Casa Sirena Hotel and Warehouse , Process-
ing & Distribution Workers Union, Local 26,
International Longshoremen 's & Warehouse-
men's Union '
Channel Island Development Corp., d/b/a The Lob-
ster Trap & Casa Sirena Marina Hotel and
Princess Enterprises , d/b/a The Lobster Trap
& Casa Sirens Hotel and Cullinary Alliance &
Bartenders Union , Local 498 , Hotel & Restau-
rant Employees and Bartenders ' International,
AFL-CIO. Cases 31-CA-9050 and 31-CA-
9272
29 February 1988
SUPPLEMENTAL DECISION AND
ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On 14 June 1985 Administrative Law Judge
James M. Kennedy issued the attached supplemen-
tal decision. The Respondents filed exceptions and
a supporting brief, and the General Counsel filed
an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs' and has decided to affirm the judge's rul-
ings,2 findings, and conclusions only to the extent
consistent with this Supplemental Decision and
Order.
The judge found that the 8 March and 24 May
1985 letters to the Regional Director from Michael
K. Schmier, the attorney who represented Re-
spondent Channel Island Development Corp. in the
underlying unfair labor practice proceeding, do not
constitute sufficient answers, under Section
102.54(b)3 of the Board's Rules and Regulations, to
' The Respondents have requested oral argument The request is
denied as the record , exceptions , and briefs adequately present the issues
and the positions of the parties.
The Respondents have also petitioned the Board for a writ of (error)
coram nobis "to remedy the egregious errors committed in this proceed-
ing." We agree with the judge that by this writ the Respondents are at-
tempting to relitigate the underlying unfair labor practice proceeding
after the Board 's Decision and Order , reported at 259 NLRB 1197 ( 1982),
was enforced by the United States Court of Appeals for the Ninth Cir-
cuit (722 F .2d 746 (1983)) and certiorari was denied by the United States
Supreme Court ( 105 S Ct. 102 (1984)) Such an attempt to relitigate is un-
timely and unwarranted Accordingly , we deny the Respondents ' petition
for a writ of (error) coram nobis.
fi We find without merit the Respondents ' allegations of bias and preju-
dice on the part of the judge; nor do we perceive any evidence that the
judge prejudged the case, made prejudicial rulings, or demonstrated a
bias against the Respondents in his analysis or discussion of the evidence
a Sec. 102 54(b) states:
the amended backpay specification that issued on
24 January 1985. The judge therefore found that
the Respondents were in default and granted sum-
mary judgment. While we agree with the judge
that the Respondents' answers failed to satisfy the
requirements of Section 102.54(b), we find, under
the particular circumstances of this case, that the
striking of those answers in their entirety is unwar-
ranted.
On 14 February 1984 the Regional Director
issued a backpay specification and notice of hearing
against Respondent Channel Island Development
Corp. Thereafter, the Respondent filed an answer
and amended answers to the backpay specification.
On 4 May 1984 the General Counsel filed with the
Board a motion for summary judgment or, alterna-
tively, partial summary judgment, and to strike im-
proper answers and affirmative defenses. The Gen-
eral Counsel alleged, inter alia, that summary judg-
ment should be granted based on the fact that the
Respondent's answers were not sworn to, with ap-
propriate power of attorney affixed, and did not
contain the Respondent's post office address, all as
required by Section 102.54(b). On 16 May 1984 the
Board denied the General Counsel's motion, stating
that "Respondent's second amended answer and
the letter of 8 March 1982 appear sufficient under
Rule 102.54 and raise factual issues requiring a
hearing."4
On 25 June 1984 the General Counsel filed with
the Board a renewed motion for summary
judgment/partial summary judgment or, alterna-
tively, motion for clarification of ruling denying
prior motion for summary judgment/partial sum-
mary judgment, reiterating the contention that the
Respondent's answers were procedurally deficient
under Section 102.54(b). This motion was denied
by the Board on 9 July 1984 "for the reasons stated
in the Order of 16 May 1984."S
Contents of the answer to soectfrcation.-The answer to the specifica-
tion shall be in writing , the original being signed and sworn to by
the respondent or by a duly authorized agent with appropriate
power of attorney affixed, and shall contain the post office address
of the respondent . The respondent shall specifically admit, deny, or
explain each and every allegation of the specification, unless the re-
spondent is without knowledge , in which case the respondent shall
so state, such statement operating 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 an 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 re-
spondent , including but not limited to the various factors entering
into the computation of gross backpay . a general denial shall not suf-
fice As to such matters, if the respondent disputes either the accura-
cy of the figures in the specification or the premises on which they
are based , he shall specifically state the basis for his disagreement,
setting forth in detail his position as to the applicable premises and
furnishing the appropriate supporting figures
4 The Board 's Order is unpublished
5 The Board's Order is unpublished
287 NLRB No. 144
LOBSTER TRAP 1323
On 24 January 1985 the Regional Director issued
an amended backpay specification and notice of
hearing, alleging for the first time Respondent
Princess Enterprises as a successor employer of Re-
spondent Channel Island and alleging larger
amounts of backpay owed to the discriminatees. On
8 March 1985 attorney Schmier sent a letter to the
Regional Director entitled, inter alia, "Answer to
Amended Backpay Specification " In the letter
Schmier incorporated all previous answers and
generally denied all specification allegations, in-
cluding the successorship allegation. The letter was
signed by Schmier's secretary with a notation that
it was "[d]ictated but not read" by Schmier. It was
not sworn to by Schmier, nor did it contain a
power of attorney to the Respondents' address.
Prior to the hearing on 29 May 1985 Schmier
sent to the Regional Director another letter, dated
24 May 1985, as an amendment to his previous
answer. Schmier stated that any backpay liability
should be tolled because of offers of reinstatement
or the discriminatees' unavailability for employ-
ment or insufficient attempts at interim employ-
ment. This letter was signed and contained the Re-
spondents' postal address but was not sworn to and
did not contain a power of attorney.
Because of the failure of the 8 March and 24
May 1985 letters to satisfy the procedural require-
ments of Section 102.54(b), i.e., they were not
sworn to and did not contain a power of attorney,
the judge found that "no operable answer to the
amended backpay specification has ever been filed
by either Respondent Channel Island or Respond-
ent Princess Enterprises, both of whom were prop-
erly served .116
The Board has recently emphasized that a plead-
ing that substantially fails to conform to the
Board's procedural rules will normally be stricken
in its entirety. Scotch & Sirloin Restaurant, 287
NLRB No. 143 (Feb 29, 1988). Thus, under this
principle we would agree with the judge that the
Respondents' 8 March and 24 May 1985 answers
should be stricken because they were not sworn to
and did not contain a power of attorney as re-
quired by Section 102 54(b).7 There are circum-
stances present in this case, however, that lead us
to conclude that this principle should not be ap-
plied in this case.
First, the Board on two previous occasions
denied the General Counsel's motion to strike Re-
spondent Channel Island's previous answers be-
cause of their procedural deficiencies. Those an-
swers, like the 8 March and 24 May 1985 answers,
8 The judge also rejected the 24 May 1985 letter as untimely filed
7 In addition the 8 March 1985 answer was not signed by Schmier and
contained the notation that Schmier had not read it
were not sworn to and did not contain a power of
attorney. Thus, regardless of whether the Board
now would hold that those previous answers
should have been stricken," the fact remains that
the Board may have led the Respondents to believe
that these procedural deficiencies would not lead
to the striking of its answers. Accordingly, we re-
verse the judge's decision to strike the 8 March
and 24 May 1985 answers in their entirety.9
Notwithstanding our acceptance of these an-
swers, we find, with two exceptions explained
below, that they are substantively deficient insofar
as they contain general denials as to those compli-
ance matters within the Respondents' knowledge
The Respondents' answers contain only general de-
nials of the allegations in the backpay specification
Section 102 54(b) specifies that a respondent's
answer concerning all matters within its knowl-
edge, including the various factors entering into the
computation of gross backpay, be specifically
drawn and that a general denial about those mat-
ters will not suffice. Accordingly, as the Respond-
ents have neither specifically denied the allegations
pertaining to the computation of gross backpay,
nor adequately explained their failure to do so, we
strike the Respondents' answers to the extent that
they address those allegations of the backpay speci-
fication and deem those allegations of the amended
backpay specification to be admitted as true. Sec-
tion 102.54(c); William Minter Masonry Contractor,
260 NLRB 1121 (1982); Interstate Equipment Co.,
186 NLRB 121 (1970). It is well settled, however,
that general denials of allegations involving interim
earnings and successorship issues are sufficient to
warrant a hearing on those issues. Ricks Construc-
tion Co., 272 NLRB 424 (1984); Sheet Metal Work-
ers Local 13 (Sheet Metal Contractors), 266 NLRB
59 (1983) Accordingly, we shall order a hearing
for the determination of the discriminatees' interim
earnings and the liability of Respondent Princess
Enterprises. 10
ORDER
It is ordered that the Respondent's answers are
stricken to the extent they address allegations of
the backpay specification pertaining to the compu-
8 No member of this panel was on the Board when those orders issued
9 Under the particular circumstances of this case , we also reverse the
judge's ruling that the 24 May 1985 answer was untimely
to In light of our decision , we reject the judge's recommendation that
Respondent Channel Island Development Corp be required to reimburse
the Board and the Charging Parties for their costs and expenses as set
forth in the Board's decision in Tudee Products, 194 NLRB 1234, 1236-
1237 (1972)
The Respondents in their 8 March 1985 answer raised various motions
to the Regional Director We do not consider these motions to be before
the Board and do not rule on them except to the extent that we have
denied , supra , the Respondents ' writ of (error) coram nobis
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tation of gross backpay and that those allegations
of the amended backpay specification be deemed
admitted as true.
IT IS FURTHER ORDERED that this proceeding is
remanded to Judge James M. Kennedy, who shall
arrange a hearing for the purpose of taking evi-
dence concerning the discriminatees ' interim earn-
ings and the liability of Respondent Princess Enter-
prises . The judge shall prepare and serve on the
parties a decision containing findings of fact, con-
clusions of law, and recommendations based on all
the record evidence. Following service of the
judge's decision on the parties, the provisions of
Section 102 .46 of the Board 's Rules and Regula-
tions shall be applicable.
Rina E. Wallack, for the General Counsel.
Fritz G. Conle, of Salinas, California, Special Representa-
tive for the Culinary Alliance, Local 498.
Michael K. Schmier (Schmier & Schmier), for Channel
Island Development Corp.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. On
January 24, 1985, the Regional Director for Region 31 of
the National Labor Relations Board issued an amended
backpay specification and notice of hearing .' I heard the
matter in Ventura, California, on May 29, 1985. The
amended backpay specification significantly changed the
original specification in two respects : First, it added a
second respondent , Princes Enterprises , a purchaser, as a
successor; second , it increased the backpay claim.
On March 8, 1985, Attorney Michael K. Schmier's
office filed a three-page letter purporting to be a combi-
nation answer to the amended backpay specification,
motion to strike, motion to revoke subpoenas, and
motion for continuance and situs change . The letter was
not signed by him , but in his name by a clerical employ-
ee. Next to the "signature" it contained the notation
"Dictated but not read." It, of course , was not verified
and did not include any power of attorney demonstrating
Schmier's authority to act for either the original or the
new respondent , although it purports to be an answer for
both.
Moreover it contained only general denials with re-
spect to the backpay formulae and calculations. It did
not suggest any alternative formula or point to any cal-
culation errors.
Much of the letter is devoted to a request that I or the
Board de novo review the merits of the by then fully
closed unfair labor practice case. Indeed , much of the
hearing was devoted to listening to that request , styled as
some sort of coram nobis petition . This was, of course,
nothing more than an attempt to obtain a collateral
1 The underlying unfair labor practice case is reported at 259 NLRB
1197 (1982). The Board's Order was enforced by the Ninth Circuit Court
of Appeals on February 7, 1984 (722 F.2d 746), and Respondent's petition
for writ of certiorari was denied on October 1, 1984
review of a case that has long since ended. The request
was denied.
Recognizing that the purported answer was insuffi-
cient in certain respects , Schmier attempted to file an-
other letter answer shortly before the hearing. Dated
May 24, 1985, it was not received by the Regional Office
in Los Angeles until 4:30 p.m., May 28, the night before
the hearing , well after Board counsel had left for Ven-
tura . Schmier proferred copies at the hearing , signing an-
other copy. It vaguely refers to economic conditions,
speaks of missing witnesses , and fails even to make gen-
eral denials , although it does add a mailing address for
"Respondents"' (sic). As before , it is unverified and un-
supported by a power of attorney.
I advised the parties during the hearing that I intended
to grant all the General Counsel's motion for partial
summary judgment and summary judgment, for in my
view the purported answers utterly fail to conform to
Board Rules , Sections 102.54(b) and 102.57.
1. DISCUSSION
Rule 102 . 54(b) quoted in footnote 2 below2 imposes
several formal requirements on a respondent subject to a
backpay order . The answer must be written, it must be
signed , it must be sworn (verified), and a power of attor-
ney must be affixed thereto if the answer is filed on a re-
spondent 's behalf. It takes no great amount of thought to
see the wisdom of this portion of the rule.
First , once a respondent has been adjudged obligated
to make whole an illegally discharged employee it is the
Board's obligation to guarantee a swift, fair liquidation of
the amount and to effect prompt payment . That policy is
one made by Congress . See Section 10(m) of the Act
giving Section 8(a)(3) cases statutory priority mandating
to their prompt resolution.3
Thus, the Regional Office issues a backpay specifica-
tion with the single purpose of liquidating in a fair
manner the amount due. Because there is a presumption
of money owing the discharged employee, yet some like-
lihood that the respondent may have better knowledge
a Sec. 102.54(b).
Contents of the answer to specification .-The answer to the specifi-
cation shall be in writing, the original being signed and sworn to by
the respondent or by a duly authorized agent with appropriate
power of attorney affixed, and shall contain the post office address
of the respondent . The respondent shall specifically admit, deny, or
explain each and every allegation of the specification, unless the re-
spondent is without knowledge , in which case the respondent shall
so state , such statement operating 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 an 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 re-
spondent , including but not limited to the various factors entering
into the computation of gross backpay , a general denial shall not suf-
fice. As to such matters, if the respondent disputes either the accura-
cy of the figures in the specification or the premises on which they
are based , he shall specifically state the basis for his disagreement,
setting forth in detail his position as to the applicable premises and
furnishing the appropriate supporting figures
a Cf. NLRB v. J. H Rutter-Rex Mfg. Co., 396 US 258 , 264 (1969):
"Wronged employees are at least as much injured by the Board 's delay in
collecting their backpay as is the wrongdoing employer " (Marshall, J.)
Clearly, delay is to be avoided
LOBSTER TRAP 1325
of the gross amount, the burden of disproving the Re-
gional Office's calculation has been on the respondent.'
Moreover, there is always the possibility that a re-
spondent will attempt to evade liability altogether In
order to guarantee that any dispute over the amount due
is a legitimate one, and not simply a device to delay or
evade, the Board has wisely determined that the answer
be signed and verified by oath In fact it has taken even
more care than that It is concerned that respondents
themselves, not simply their attorneys or representatives,
demonstrate to the Board awareness of their duty to pay
and of the fact that the calculation is fair Thus, when a
respondent files its answer, its own signature acknowl-
edges that it understands the calculation, that Respond-
ent has thought about it with care, and that it can pro-
vide a fair response to the specification. The oath guar-
antees the sincerity of that response.-5
With respect to the power of attorney requirement,
this case amply demonstrates the need for the rule. If a
second respondent is added at the backpay stage, as a
successor under the Perma-Vinyl/Golden State rule,6
there is the instantaneous possibility of a conflict of inter-
est between the two respondents, both of whom, under
that rule, may become jointly and severally liable for the
entire backpay amount Again, fairness to both parties is
the Board's by-word. The Board must be assured that
the newly joined party is aware of actions taken purport-
edly on its behalf, in order to ensure that the original re-
spondent is not engaging in a "disappearing act" in an at-
tempt to evade its responsibilities
In this case Schmier's March 8 letter purported to be
new Respondent Princess Enterprises' answer, as well as
that of the original Respondent, Channel Island Develop-
ment Corp Unless it is demonstrable that Princess Enter-
prises has authorized Schmier to act for it, by filing a
power of attorney, the possibility of a conflict between
the two is quite likely. After all Schmier has represented
Channel Island throughout the litigation. Assuming that
Princess Enterprises has a complete defense to the allega-
tion that it is a successor, is Channel Island going to ad-
vance it? Is it not Channel Island's best interest to saddle
the new party with its liability?
From the Board's point of view a power of attorney
would avoid both the doubts about the answer's validity
as well as the tangle of litigation that might occur later
when the successor realizes its predicament and attempts
to extricate itself Such disputes may well delay payment,
thereby defeating prompt resolution of the matter and
undermining the mandate of Section 10(m)
I therefore hold that the March 8 letter, unsigned by
either of the Respondents, by Schmier, or anyone with
authority, and unsworn by anyone at all, fails to comply
° The Regional Office usually has access to the respondent's payroll
records under an order previously issued in the unfair labor practice case
That was true here
5 The purpose of this rule is therefore somewhat different from court
rules In court filings, counsel's signature is his certificate of good faith
Here Respondent's verification is its certificate of good faith Even so,
one may wonder about Attorney Schmier's unwillingness to sign the
March 8 letter
6 Perma Vinyl Corp, 164 NLRB 968 (1967), enfd sub nom United
States Pipe & Foundry v NLRB, 398 F 2d 544 (5th Cir 1968), Golden
State Bottling Co v NLRB, 414 U S 168 (1973)
with Rule 102.54(b) It does not demonstrate that this
dispute is offered in good faith Indeed, the statement
that it was "dictated but not read" suggests a less-than-
genuine approach to the entire matter
The accuracy of my observation appears to be under-
scored by Schmier's unrelenting effort to obtain a rever-
sal of the Board and court decisions finding Channel
Island to have violated the Act It failed to persuade the
Board's administrative law judge, the Board, and the
court of appeals (save a dissenting judge) of the merits of
its defenses-basically factual Even a petition for writ of
certiorari to the Supreme Court was denied After all
that, Schmier now asks me to undertake a de novo
review in the hope that I would recommend reversal To
persuade me to do this, Schmier has filed the unsigned,
unsworn March 8 letter asking me to treat it as a petition
for an extraordinary writ a writ of coram nobis.
Setting aside the obvious conclusion that the matter is
immaterial to a backpay specification, it is absolutely
clear that the doctrine of res judicata bars such a review
Brown & Root, Inc, 132 NLRB 486, 492 (1961), Master
Slack, 269 NLRB 106, 112 (1984); Laredo Packing Co,
271 NLRB 553 (1984) See also NLRB v. US. Air Condi-
tioning Corp., 336 F 2d 275 (6th Cir 1964).
Second, even if such review was not barred, a petition
for an extraordinary writ such as this would need to be
supported by a statement of the fact necessary to an un-
derstanding of the issues, a statement of the issues and of
the relief sought, a statement of the reasons why the writ
should issue and copies of the parts of the order or
record essential to an understanding of the matters set
forth It is generally iequired that such petitions be veri-
fied. (See, e.g., 28 U S C § 2242 requiring verification
on a petition for writ of habeas corpus.) Most of the
foregoing requirements have not been properly mar-
shaled in one place and the document was not even
signed, much less verified Finally, Schmier was so un-
concerned with the clarity of the March 8 letter that he
beclouded it with other issues, usually seen as separate
motions: subpoena revocation, motion to strike, and
motion for continuance and situs change.
Rule 102 54(b) also prohibits denials and requires a re-
spondent affirmatively to challenge the Regional Office's
backpay formula and calculations by offering specific al-
ternatives or demonstrating an error. The Board has held
that general denials as to such matters do not raise factu-
al issues requiring a hearing Interstate Equipment Co.,
186 NLRB 121 (1970) Accordingly, summary judgment
is appropriate in the circumstances Thus, even assuming
that Schmier's March 8 letter had been properly signed
and verified, it was nonetheless vulnerable to the Gener-
al Counsel's motions for partial summary judgment with
respect to those matters.
Of course, the granting of a motion for partial summa-
ry judgment relating to the backpay formula and calcula-
tions leaves for resolution by hearing the question of in-
terim earnings as well as unlitigated collateral matters
such as successorship liability Is this the case here? I
conclude not.
Schmier's attempt to amend his March 8 letter by the
May 24 letter could, of course, be considered an attempt
('
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to cure the deficiencies of March 8 . That document , II. ADDITIONAL RECOMMENDATION
unlike the March 8 letter, was signed by Schmier at a
hearing, if not before . Even so it is unverified , lacks the
required power of attorney , and only vaguely seems to
be a general denial . At the hearing he moved its receipt
as a formal document . The General Counsel opposed. I
physically received it but demanded , consistent with
Rule 102 . 57, a showing of good cause before taking it as
an operable document . Schmier's response was that he
was entitled as a matter of right to amend his answer. He
claimed to have been misled regarding the proper proce-
dure by earlier rulings of the Board with respect to mo-
tions for summary judgment relating to his answer(s) to
the original backpay specification . After considering his
argument I conclude that he had failed to demonstrate
good cause for a late filing and I denied its receipt as an
operable instrument . First, it was still formally defective;
second , it was substantively no better (perhaps even
worse) than the March 8 letter ; third , his argument that
it can be amended "as a matter of right" is legally incor-
rect; and fourth , even the March 8 letter was untimely
by more than a month, as that answer was due 15 days
after service of the January 24, 1985 amended specifica-
tion (about February 8).7 Fifth, the May 24 purported
unverified answer "cured" none of the formal defects.
Compare Standard Materials, 252 NLRB 679 ( 1980), and
Teamsters Local 17 (Universal Studios), 258 NLRB 753
(1981), in which the responses to the show cause orders
were verified , curing earlier unverified answers . Sixth,
Schmier's claim to having been misled by the Board is
disingenuous . Rule 102 . 54(b) has been unchanged since at
least 1962. It is simple and straightforward . Even if his
earlier pleadings survived a challenge on similar grounds,
the published interpretations have been for many years
consistently contrary to his position . Until the Board ac-
tually overrules these decisions or modifies Rule
102.54(b), I am not at liberty to interpret it differently;
neither can it credibly be argued that he has been misled.
Thus, I conclude that no operable answer to the
amended backpay specification has ever been filed by
either Respondent Channel Island or Respondent Prin-
cess Enterprises , both of whom were -properly served.
As no answers have been filed, both are in default and
full summary judgment is appropriate with respect to the
entire pleading . See Rule 102 .54(c) quoted below.8
' Schmier asserted at the hearing that he had not been served, al-
though his client had been , and he answered as he did because he was
then involved in a lengthy hearing . (That service failure appears to have
been caused in part by a change of Schmier 's address.) Even so , the first
answer to the original backpay specification had been filed by an associ-
ate in his law firm , Attorney Gail Green. Presumably , the assistance of an
associate was still available even if Schmier was otherwise engaged.
Sec. 102 54(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 specifi-
cation within the time prescribed by this section , the Board may,
either with or without taking evidence in support of the allegations
of the specification and without notice to the respondent , find the
specification to be true and enter such order as may be appropriate
If the respondent files an answer to the specification but fails to deny
any allegation of the specification in the manner required by subsec-
tion (b) of this section , and the failure to so deny is not adequately
As can be seen from the above discussion , I am less
than enamoured of the filings and arguments Schmier has
made here . Indeed, I am of the view that the entire back-
pay proceeding has been treated frivolously. Schmier has
never offered good-faith alternatives to the Regional Of-
fice's formula and calculations , has refused even to sign
an important pleading, much less verify it or any other
pleading, and has sought to persuade me to decide anew
the court-enforced unfair labor practice case . He has, by
these actions , demonstrated an attitude toward these pro-
ceedings that is simultaneously both cavalier and arro-
gant. It cannot be said that he came to these proceedings
seeking to resolve a genuine dispute.
The Board has said, in similar circumstances:9
[F]rivolous litigation such as this is clearly unwar-
ranted and should be kept from the nation's already
crowded court dockets, as well as our own. While
we do not seek to foreclose access to the Board and
courts for meritorious cases, we likewise do not
want to encourage frivolous proceedings. The
policy of the Act to insure industrial peace through
collective bargaining can only be effectuated when
speedy access to uncrowded Board and court dock-
ets is available . Accordingly, in order to discourage
future frivolous litigation , to effectuate the policies
of the Act, and to serve the public interest we find
that it would be just as proper to order Respondent
to reimburse the Board and the Union for their ex-
penses incurred in the investigation , preparation,
presentation, and conduct of these cases, including
the following costs and expenses incurred in both
the Board and court proceedings : reasonable coun-
sel fees , salaries, witness fees, transcript and record
cost, printing costs, travel expenses and per diem,
and other reasonable costs and expenses . Accord-
ingly, we shall order Respondent to pay to the
Board and the Union the above-mentioned litigation
costs and expenses.
The conduct seen here is not only frivolous but designed
to delay speedy payment to the illegally discharged em-
ployees . Accordingly, in addition to an order determin-
ing the amount of backpay due the employees , an order
requiring reimbursement to the Board and the Charging
Parties for their Tiidee expenses is warranted.10
[Recommended Order omitted from publication.]
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 allegation.
Tiidee Products, 192 NLRB 1234, 1236-1237 (1972) See also Koval
Press, 241 NLRB 1261, 1263-1264 (1979); cf. Super Save, 273 NLRB 20
fn. 1 (1984), reaffg Tiidee doctrine but finding it inapplicable to the facts
presented
10 The Tiidee order shall run against only Respondent Channel Island
and not against Respondent Princess Enterprises who is simply in default
and for whom it cannot be said that Schmier was even representing.