Triton Construction Co.

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Triton Construction Company and James E. Crosby and Kenneth E. Ratts. Cases 12-CA-4728 and 12-CA-4942 December 6, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 4, 1970, the National Labor Rela- tions Board issued an Order adopting, in the absence of the exceptions, the Decision of the Trial Examiner in Case 12-CA-4728, directing the Respondent, its officers, agents, successors, and assigns, inter alia, to offer reinstatement to and to make whole James E. Crosby for loss of pay suffered by reason of the Respondent's discrimination against him. On July 6, 1971, the United States Court of Appeals for the Fifth Circuit entered a judgment summarily enforcing the Board's Order. On June 21, 1971, the National Labor Relations Board issued a Decision and Order' in Case 12-CA-4942 directing the Respondent, its officers, agents, successors, and assigns, inter alia, to offer reinstatement to and make whole Kenneth E. Ratts for his losses resulting from Respondent's unfair labor practices in violation of Section 8(a)(3) of the Act. A controversy having arisen over the amounts of backpay due the two discriminatees named above, the Regional Director for Region 12, on September 23, 1971, issued a Consolidated Backpay Specification and Notice of Hearing setting forth certain allegations with respect to the amounts of backpay due said discriminatees. The Respondent failed to file an answer to the Specification. On October 18, 1971, counsel for the General Counsel filed directly with the Board in Washington, D.C., a Motion for Summary Judgment. Subsequent- ly, on October 22, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. The Respondent failed also to file 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 1 191 NLRB No. 76. National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.54 of the Board's Rules and Regulations 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 answer to the specification 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 maybe appropriate... . The Consolidated Backpay Specification, issued and served on the Respondent on September 23, 1971, specifically states that the Respondent shall, within 15 days from the date of the Specification, file an answer to the Specification with the Regional Director for Region 12 and that, if the answer fails, to deny the allegations of the Specification in the manner re- quired under the Board's Rules and Regulations and the failure to do so is not adequately explained, such allegations shall be deemed to be admitted to be true and the Respondent shall be precluded from intro- ducing any evidence controverting them. According to the Motion for Summary Judgment, on October 12, 1971, the due date for filing an answer to the Specification counsel for the General Counsel tele- phoned the Respondent's president and its attorney notifying each of them that an answer was due on that date. As of October 18, 1971, the date of the Motion for Summary Judgment, the Respondent has not filed an answer to the Specification, nor has it requested an extension of time with which to file an answer, nor has the said time been extended. The Respondent failed also to file a response to the Notice To Show Cause and, therefore, the allegations of the Motion for Summary Judgment stand uncontroverted. As the Respondent has not filed an answer to the Specifica- tion and has not offered any explanation for its failure to do so, in accordance with the rules set forth above, the allegations of the Specification are deemed to be admitted as true and so found by the Board without the taking of evidence in support of the said allegations. 194 NLRB No. 72 TRITON CONSTRUCTION CO. 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 discriminatee, James E. Crosby and Kenneth E. Ratts, is as stated in the computations of the Specification, and hereinafter orders the payment thereof by the Respondent to each discrimi- natee. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 452A Relations Board hereby orders that the Respondent, Triton Construction Company, Brooksville, Florida, its officers, agents, successors, and assigns, shall make whole each of the discriminatees, James E. Crosby and Kenneth E. Ratts, the employees named below, by payment to them of the amount set forth adjacent to their names, plus interest accrued at the rate of 6 percent per annum to be computed in the matter specified in Isis Plumbing and Heating Co., 138 NLRB 716, until payment of all backpay due, less the tax withholdings required by the Federal and state laws: James E. Crosby $2,913.58 Kenneth E. Ratts 2,119.51