Covington Furniture Mfg. Corp.

('O\IN(;I()N It RNII R \MI( ('()Rl'. Covington Furniture Mfg. Corp. ad local 282. Ulnited Furniture Workers of America, FI.-(O1(). ('ase 2 (A 4821) March 27, 1979 SEl(ONI) SIPPLE tMF NITAl [)DE(ISI()N ANI) ORI) LR B ( X IRM\N I \\NIN( ANI) MI-M1iRS .JI:NKISS AN) PT N:I I I) On Septenmber 31) 1977. the Board, in 232 NRB 837 issued a. Supplemental I)ecision arid ()rder in this proceedinIg in hilch it grIIanted the (ieneral C('ounsel's 'lotion tor Sumniary .ludgnment alleging that Respondent had tiled to tile n answer to a backpa specitication as required h Section 102.54(a) of the National I.abor Relations Bo;rd Rules and Regulations and Statements of Procedurre Series 8. as amended. Ihe HBomd therelt're Iund that the allegations of the specification ere deemied to he true and ordered Resplondent to p certain disernimi- natces listed tfreilln the alountsl of1 h;ckpal staled in the compultation of( the specification.' Subsequentl , the Board, ha\ ing filed n applica- tion for enorcemllent of its Order with the U[llnted Statcs Court of Appea s tor the Sixth (ircuilt. decided, 41V .ollcih', tC recoInsid er its decision. ()l . l nr 12, 1979, the court graiantcd the Board's motion for lease to withdraw. without prleiudicc the application tor enflrcemcnt of its Order. Pursuant to the provisiolis of Section 3(hi) of the National l.abor Relations Act, as mended, the Na- tional abor Relations Board Ihs deleated ts au- thority in this proceeding to a three-neleber panlel. pon reconsideration of the entire record in this proceeding, the Board makes the following findings: In his Motion for Summar> Juidgmlent. the (;eneral Counsel alleges ( I ) that Respondent's answer wvas un- timely. since it was mailed. not received. on the Ilast daLi of the I 5-day period and il ) lthl the anisvwer also did not comport with Section 102.54(b) of the Board's Rules and Regulations in that it genlerall denied the speciticattions allegations and lthereftore lacked the specificit 3 required. Ilhe General ('ouInsel also mno\es to strike Respondent's amended answer. filed on JulI 11. 1977. s likewise failing to nieet the requiremlents of Section 102.54(h). [ S 10) 24 ,I thCe ti,rd's Rule mlid Rcgui.laIi s proide,. n peCien piart, a, tll i a) I h responl Tntl ha.lil, ithin 15 Li,s trii the er,ic ot the speclifiti.in. It 11. tile M ils er thereo ]C1 11 the respodent .lse to tilt' a, anwe r to thecl- it dlll wilhin the Illie prc kll eid hb thi, sctioll. th 1,Bo r i, . either itih ,l without tking esidnce si uppit t 'hc illegaltlons t the peific.llI and willtll ntlc toi eic rCspoI rt, lin ti he pecl llc Clti.l. I hCe riC and enter tic h icr lh .r ISll. hbe :l.lpp; rl.tc I hie Ibacki , speciticatio n issued on LMa 19. 1977. and vwas served. mail, on Reslpon dent. It specifi- calls states that Respondent shall, within 15 das of the date of the specification, tile in a insLer to the ,,peiticatli in in thile manlner required hb the Board's Rules aiid Regulatlions. Section 12. 114(hb) ,of the Boarld's Rules and Regu- lations pro ides, in pertinent part. that: When the Act or any of these rules require the tiling of( a milotion. hrief, exception or other part in a;n proceeding such documeent Mlust hbe re- ceitlcd h hc th Boardl or the officer or aeCInt LICsig- na;ted tio rcccix:c such matter heft're the close of' business of' tile I;st das\ of tile time limit, it' all. for such filini or extension of tie tiat 1llant h1ive been ranted. lowever. Seetion 102.1 14(a) pros ides. inl ertilnlt \Whenet\ cr a part ... is rcqulrled to do sIolle a;ct r take somie pr occedilgs within a prescrihbed pe- Ilo.l etter serlice of a noltice or other paper oil hill and the notice or papiler is served on hili hb mnlil . . . 3 das shill he added ito thle prescribed period .... Respondeint's counsil certifies that its answer to the speciicatlion was mailed at 5:3) p il. nil June 3. 1977. the last dli ot thile I 5-da period pro\ itled therein, in thie S:iinl cit\ as the Regional Office. ilovwe\:er it was not received bhn h it office until Junle 10. 1977. 3 das ater tilhe (enler;al ('ounlscl's tin Olo Sumllar r .l1udgillcTt w;as served h\ deposit in the imail. ('o ntr-ar\ to our earlier decisioln. we indl that Re- spondcnlt's ains-er to lthe specitication as tilelL. Ilnder Section 1()02114(a) of the Board's Rules and Regulations, aIn additional 3 days should be adtled to the I 5-da period for receipt of tile answer, anld there- fore it \;as not in flt due until Julle 6, 1977. Since Respondlcnt's counsel certifies that the answer was de- positedl il the mail, in the same cit\ as the Regional Office, 3 daI s bel'ore thlt date.i its ctions were rela- sonablx calculated t etlfect a timltli tiling. :lurthcr il-i its original ains\terc is timlely so too is Respondent's aeIllelded iilsN\er. We also linld that Respondent's amnenied answer to the Cxtent that it disputes the acclurac) of the back- pa\ colmputations a matter ithil Respondent's knowledge, lacks the specificit\ required by Section 102.54 of' the Board's Rules and Regulations and is therefore striken. lowever, t the extent that the iamelnlded ans\\cr disputes tile amount of net interim earnilng. it raises sIuhst.ltill and material questions ft' 1'ct concernl interi il carrungs Iwhich can lot be resolvied williout i1 hearilig \Accordingl\, we shall deln\ te (;Geilneral (' oun 's Motio 1tfor Sllililrrx 241 NI.RB No. 60 47S DECISIONS OF NATIONAL LABOR RELATIONS BOARD Judgment, as well as his motion to strike Respon- dent's amended answer, and shall order a hearing limited to a determination of interim earnings. ORDER It is hereby ordered that the General Counsel's Motion for Summary Judgment and his motion to strike respondent's amended answer be, and they hereby are, denied, except as otherwise indicated. IT IS HIEREBY ORDERED that the Board's Decision and Order in 232 NLRB 837 be, and it hereby is, vacated. I- IS FIURIIIER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Director for Region 26, for the purpose of arranging a hearing before an Administrative Law Judge, limiting such proceeding to a determination of interim earnings, and that the Regional Director be, and he hereby is, authorized to issue notice thereof. 476