Star Grocery Company

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