J. J. Cook Construction Co., Inc.

J. J. COOK CONSTRUCTION COMPANY 671 J. J. Cook Construction Company, Inc. and Empire Building Corporation and International Union of Operating Engineers, Local 627, AFL-CIO. Case 16-CA-4733 February 21, 1975 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On April 20, 1973, the National Labor Relations Board issued a Decision and Order in the above- captioned proceeding 1 adopting the recommended Order of the Administrative Law Judge after consid- ering the record and the exceptions and briefs of the Respondent. The Order directed the Respondent, inter alia, to make Stafford Winn and Wilmer W. Glover whole for any loss of pay they may have suffered by reason of the discrimination against them. On March 27, 1974, the Court of Appeals for the Tenth Circuit entered its judgment enforcing in full the Board Order.2 A controversy having arisen over the amount of backpay due under the Board's Order, as enforced by the court, the Regional Director for Region 16, on October 31, 1974, issued and duly served on the Respondent a backpay specification and notice of hearing, alleging the amount of backpay due under the Board's Order and notifying the Respondent that it shall file a timely answer pursuant to Section 102.54 of the Board's Rules and Regulations. The Respondent failed to file an answer. Thereafter, on November 22, 1974, counsel for the Regional Director filed directly with the Board a motion to find the backpay specification true based on the failure of Respondent to file an answer. Subsequently, on December 3, 1974, the Board issued an order transferring proceeding to the Board and Notice To Show Cause why counsel for the Regional Director's motion should not be granted. On December 6, 1974, the Respondent filed a request for postponement of the hearing and its answer to the backpay specification. Thereafter, on December 17, 1974, Respondent filed a response to the Notice To Show Cause and amendment to answer to backpay specification. On December 20, 1974, counsel for the General Counsel filed a reply to Respondent's response to Notice To Show Cause. 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. 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 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 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 may be appropriate... . The backpay specification, issued on October 31, 1974, and served on the Respondent by registered mail, 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 16 and that, if the "answer fails to deny the allegations of the specification in the manner required 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 introducing any evidence controvert- ing them." According to the counsel for the General Counsel's reply opposing Respondent' s late filing,3 the Region- al Office had made several efforts to communicate with Respondent prior to issuance of the backpay specification. In an effort to make issuance of a backpay specification unnecessary a letter was sent to Respondent on September 20, 1974, in which the Regional Director set forth the amounts of backpay due each discriminatee and requested a response by October 11, 1974. Respondent did not respond to that letter. Counsel for the Regional Director then telephoned Respondent's attorney on October 11, 1974, in an effort to determine an acceptable hearing date. Although Respondent's attorney requested that the backpay specification not issue and advised that he would send a written explanation, no such writing was received. As a result, the backpay specification and notice of hearing was issued on October 31, 1974, to which no answer was filed. As a result, counsel for the Regional Director on November 22, 1974, filed the motion to find the backpay specifica- tion true. ' Reported at 203 NLRB 41(1973). 2 Unpublished. 216 NLRB No. 116 3 The Respondent has not denied the truth of the General Counsel's assertions in his reply. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was not until December 6 and 17, 1974, respectively, that the Respondent filed its request for postponement of the hearing and answer, and its response to the Notice To Show Cause and amended answer. In these submissions Respondent's attorney asserts, as an explanation for the lateness of the answer, an absence in December which precluded his attention to this case and participation in several other labor matters which he could not delay. It appears that Respondent had been offered ample time in which to answer timely the allegations of the backpay specification but failed to do so. It is noted that there is no allegation of a request for an extension of time to file an answer under Section 102.55 of the Board's Rules and Regulations. The answer filed on December 6, 1974, and its amendment on December 17, 1974, fail to comply with the timely filing provisions of Section 102.54(a) of the Board's Rules and Regulations, and Respond- ent has failed to show sufficient cause justifying late filing of its answer. Therefore, the motion to find the backpay specification true is granted and the allegations of the backpay specification are deemed to be admitted and are so found by the Board without taking evidence in support of such allega- tions pursuant to Section 102.54(c) of the Board's Rules and Regulations. Accordingly, the Board finds, on the basis of the allegations of the backpay specification, the facts as set forth therein ; concludes that the net backpay due each of the discriminatees and on their behalf to the jointly administered health and welfare fund and pension fund as set forth in the appropriate contract between Respondent and Local 627 , A & B Interna- tional Union of Operating Engineers , is as stated in the computations of the specification ; and orders that payment thereof be made by the Respondent to and on behalf of each discriminatee named below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, J. J. Cook Construction and Empire Building Corporation, Oklahoma City, Oklahoma, its officers, agents, successors, and assigns, shall make whole each of the discriminatees named below by payment to each of them and on their behalf to the aforementioned jointly administered health and welfare fund and pension fund of the amounts set forth adjacent to their names, plus interest accrued at the rate of 6 percent per annum to be computed in the manner specified in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), until payment of all backpay due, less tax withholding required by Federal and state laws: Wilmer W. Glover-$ 11,561.15; Health and Welfare Fund-$1,642.27 ; Pension Fund- $1,202.42 Stafford Winn-$24,494.67; Health and Wel- fare Fund-$1,634.26; Pension Fund-$ 1,196.55