Galpin Motors, Inc.

330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Galpin Motors, Inc. and International Association of Machinists, District Lodge 94, and its affiliated Local Lodge 2327. Cases 31-CA-1264-1, 31-CA-1264-2, and 31-CA-1264-3 November 16, 1972 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 16, 1970, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding,' finding, inter alia, that Respon- dent had engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging Alexander Ross and Sol S. Steelman and ordering, inter alia, that Respondent make them whole for any losses they may have suffered as a result of the discrimination against them. On April 6, 1972, the United States Court of Appeals for the Ninth Circuit2 entered its judgment enforcing, in full, the Board's Decision and Order. On May 10, 1972, the Regional Director for Region 31 issued and served on the parties a backpay specification and notice of hearing, alleging the backpay due to Ross and Steelman under the Board's Order, and setting the hearing for June 15, 1972. On May 31, 1972, the Regional Director issued and served on the parties an amended backpay specification and notice of hearing, which did not, however, change the date set for the hearing. Pursuant to said notices, a hearing was held on June 15, 1972, before Administrative Law Judge3 George H. O'Brien. Respondent made no appear- ance, was not represented at the hearing, and offered no explanation for its absence. In addition, Respon- dent had not filed any answer to either the original or the amended backpay specification, and had not requested an extension of time for such filing. In these circumstances, the General Counsel moved, at the outset of the hearing, that the allegations of the 1 183 NLRB No. 58. 2 N.L.R.B. v. Galvin Motors, Inc., No. 71-1069, order granting Board's motion for summary judgment. 3 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 4 Pursuant to Sec. 102.54(a) of the Board's Rules and Regulations, Series 8, as amended , Respondent was required within 15 days from the service of the amended specification to file an answer thereto. Sec. 102.54(c) provides: "If the respondent fails to file any answer to the specification within the time prescribed . . . 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 . . . in the manner required . . . and the failure to deny is not adequately explained , such allegation shall be deemed to be admitted to be true . . . and the respondent shall be precluded from amended specification be deemed to have been admitted and that an appropriate judgment based thereon be entered against Respondent, in accord- ance with the provisions of Section 102.54(c) of the Board's Rules and Regulations, Series 8, as amend- ed.4 The Administrative Law Judge deferred final ruling on the motion until 5 p.m. when Respondent's time for filing an answer to the amended specifica- tion expired.5 In the interim, the hearing continued and the General Counsel presented evidence in support of the amended backpay specification. Thereafter, when no answer had been filed within the time allowed, no request for an extension of time had been made, and no explanation for Respondent's inaction had been offered, the Administrative Law Judge granted the General Counsel's motion. On July 10, 1972, the Administrative Law Judge issued the attached Supplemental Decision, finding that Ross and Steelman are entitled to backpay in the amounts specified and ordering that Respondent pay said amounts, with interest at 6 percent per annum. Thereafter, the General Counsel filed limited exceptions to the Administrative Law Judge's Sup-. plemental Decision and a brief in support thereof. On August 26, 1972, Respondent filed timely exceptions, pursuant to extensions of time granted, to the Administrative Law Judge's Supplemental Deci- sion. Respondent's exceptions were accompanied by a motion for permission to file answer to the amended backpay specification and that the hearing on the backpay specification be reopened, an answer to the amended backpay specification, and a brief in support thereof. Thereafter, the General Counsel filed a brief in opposition to Respondent's motion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Administrative Law Judge's Supplemental Decision in light of the exceptions and briefs, Respondent's motion,6 and the General Counsel's statement of opposition thereto, and has decided to affirm the introducing any evidence controverting said allegation." 5 Sec. 102.114(b) provides that a document, to be timely filed, must be received by the Board before the close of business on the day on which it is due. 6 We find no merit in Respondent's exceptions to the Administrative Law Judge's Decision. In support of its exceptions and motion , Respondent asserts that its counsel failed to appear at the hearing despite assurances to Respondent's vice president that he would do so . We deny Respondent's motion as unsupported by valid considerations. Inaction by its counsel, whether willful or by negligence, does not excuse inaction by Respondent. Mission Oil Company, 88 NLRB 743, 744-745; Hyos de Ricardo Vela, Inc., 194 NLRB No. 62. Furthermore, Respondent received ample notice, in addition to service on counsel , of this proceeding and the consequences of its failure to answer to specification . In addition, Respondent's brief admits that, on the day of the hearing, its vice president received a telephone call from the General Counsel advising that Respondent's counsel was not 200 NLRB No. 52 GALPIN MOTORS Administrative Law Judge's rulings, findings, and conclusions and to adopt his recommended supple- mental Order, as modified.? SUPPLEMENTAL ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and on the basis of the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, Galpin Motors, Inc., Sepulveda, California, its officers, agents, successors, and assigns, shall make Alexander Ross and Sol S. Steelman whole by paying to each of them the respective amounts set forth in the Administrative Law Judge's Supplemental Deci- sion plus interest at 6 percent per annum, less tax withholding required by law, for the backpay period commencing November 20, 1968, and ending June 3, 1970. present at the hearing. Despite the foregoing, Respondent requested neither postponement of the hearing nor offered to explain its own or its counsel's failure to file an answer or to appear at the hearing . We note, in this connection, that Respondent's counsel also failed to file a brief in the enforcement proceeding initiated by the Board in the Court of Appeals for the Ninth Circuit, and that Respondent nevertheless did not seek new counsel until 42 days after the hearing, 17 days after the attached Supplemental Decision issued, and 31 days after civil contempt proceedings had been initiated against it in the court of appeals. Respondent's proposed answer to amended backpay specification, which accompanied its motion, was received 72 days after the due date. Based on the above, we are unable to find that Respondent has made any bona fide attempts to comply with the Board's Rules and Regulations so as to warrant a lenient application of such rules. Rather, it is clear that Respondent has demonstrated a complete and flagrant disregard for the Board's Rules and Regulations which cannot be condoned or excused in the circumstances here. Edward G. Partin, Business Agent, General Truck Drivers, Chauffeurs, Warehousemen and Helpers of America, Local No. 5, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Ind, 171 NLRB 727, Security Plating Company, Inc., 165 NLRB 735; cf B B.S.A., Inc d/bla Burger Boy Food-O-Rama, 164 NLRB 975, 976, fn. 2 7 In its exceptions, the General Counsel correctly points out that the Administrative Law Judge , apparently by inadvertence, imposed interest from the date of Respondent's offers of reinstatement rather than from the date when the unfair labor practices were committed. Accordingly, we shall modify the recommended supplemental order to conform with our Order in 183 NLRB No. 58. Isis Plumbing & Heating Co , 138 NLRB 716. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Trial Examiner: This supplemental proceeding under Sections 102.52 through 102.59 of the Rules and Regulations of the National Labor Relations Board was heard before me in Los Angeles , California, on June 15, 1972. The purpose of the supplemental proceeding is to determine the precise sums of money due and owing from Galpin Motors, Inc., herein called Respondent, to two individuals under the terms of a decree of the United States Court of Appeals for the Ninth Circuit. Upon the entire record in this proceeding, including the Decision and Order reported as 183 NLRB No. 58, of which I take official notice, I make the following: FINDINGS OF FACT A. Procedure 331 On June 16, 1970, the Board handed down an order, 183 NLRB No. 58, requiring Respondent to make whole, inter alia, Sol S. Steelman and Alexander Ross "for any pay losses which they may have suffered by reason of the discrimination practiced against them." On April 6, 1972, the United States Court of Appeals for the Ninth Circuit entered its judgment and decree enforcing the order of the Board. On May 10, 1972, the Regional Director for Region 31, pursuant to the authority conferred upon him by Section 102.52 and 102.53 of the Board's Rules, issued and caused to be served a backpay specification and notice of hearing, setting the hearing in the instant matter for June 15, 1972 at 10 a.m. On May 31, 1972 the Regional Director issued an amended backpay specification , correcting certain numerical errors in the May 10 specification. Copies of the amended specification were received by Respondent and by its counsel on May 31, 1972. No answer was filed by Respondent either to the original or to the amended specification. Respondent was not represented at the hearing in Los Angeles on June 15, 1972. I was informed on the record by Mr. Byron B . Kohn, Counsel for the General Counsel of the Board, that he had communicated that morning with Mr. Carl Boeckmann, an officer of Respondent, and verified the fact that Respondent was still represented in this matter by H. Burdette Fredricks, Attorney at Law. Mr. Kohn further reported: While we were in recess , I had a telephone conversation with Mr. Fredricks, the attorney for the Respondent in this case. Mr. Fredricks informed me that he was presently engaged in trial in Pasadena . He further advised me that he had discussed the original backpay specification with his client and as a result of those consultations he had decided there was no issue litigable before the Board that , therefore, he was not going to file an answer and he was not going to appear in this proceeding and he advised me that we should proceed without him and do whatever we had to do in his absence. Counsel for the General Counsel then moved pursuant to Section 102.54(c) of the Board's Rules that the allegations of the amended backpay specification "be deemed to be admitted to be true." This motion was granted subject to a condition subsequent. Under the provisions of Section 102.54 and 102. 114 of the Board's Rules, Respondent could not be held in default for failure to file an answer until 5 p.m. on the day of the hearing, June 15, 1972. I therefore stated that if Respondent's counsel should file an answer before 5 p.m. on that date, I would reopen the hearing and hear the testimony. The General Counsel accepted this condition. No answer was filed and, at 5 o'clock p.m. on Thursday, June 15, 1972, my ruling became absolute. B. Conclusions I have carefully examined the amended backpay specifi- 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation and find that it complies fully with the technical and substantive requirements of Sections 102.52 and 102.53 of the Board's Rules. I further find that the formula adopted in the amended backpay specification is reasonably designed to obtain as close an approximation as possible of the amount of backpay which should be awarded to Sol S. Steelman and Alexander Ross, and that the method selected is not, in the circumstances involved, either arbitrary or unreasonable. Since Respondent has not complied with the require- ments of Section 102.54 of the Board's Rules, nor tendered any evidence controverting either the figures in the amended backpay specification or the premises upon which they are based, I find that the amended backpay specification correctly states the amounts of backpay which Respondent is required to pay to Sol S. Steelman and Alexander Ross. I therefore conclude that Respondent's obligation to make whole Ross and Steelman under the terms of the Board Order will be discharged by payment to Alexander Ross of the sum of $14,275.55 and by payment to Sol S. Steelman of the sum of $24,050.87, together with interest at 6 percent per annum, minus tax withholding required by law, for the backpay period commencing November 20, 1968 and ending June 3, 1970. Upon the basis of the foregoing findings and conclu- sions, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, I hereby issue the following recommended supplemental: I ORDER Respondent, Galpin Motors, Inc., its officers, agents, successors, and assigns shall pay to Alexander Ross the sum of $14,275.55 plus interest at 6 percent per annum from and after June 3, 1970, minus tax withholding required by law and shall pay to Sol S. Steelman the sum of $24,050.87 plus interest at 6 percent per annum from and after June 3, 1970, minus tax withholding required by law. 1 In the event no exceptions are filed as provided by Sec 102.46 of the adopted by the Board and become its findings, conclusions, and order, and Board's rules, the findings, conclusions, and recommended Supplemental all objections thereto shall be deemed waived for all purposes. Order herein shall, as provided in Sec. 102.48 of the Board's rules, be