Fowler's Barber Shops

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cicero Fowler t/a Fowler's Barber Shops and Journey- men Barbers, Hair Dressers, Cosmetologists and Proprietors' International Union of America, AFL- CIO, Local 844. Case I l-CA-4198 December 17, 1976 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 5, 1972, and February 22, 1974, the National Labor Relations Board issued a Decision and Orders and Supplemental Decision and Order2 directing, inter alia, Cicero Fowler t/a Fowler's Barber Shops, herein called the Respondent, to take certain remedial action and make whole certain employees for any loss of earnings suffered after May 28, 1970, as a result of the Respondent's unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. On September 16, 1975, the United States Court of Appeals for the Fourth Circuit entered its judg- ment enforcing in full the backpay orders of the Board. A controversy having arisen as to the amount of backpay due under the Board's Orders, the Board's Regional Director for Region 11, on July 30, 1976, issued and duly served on the Respondent a backpay specification and notice of hearing setting forth the amount due the discnminatees and notifying the Respondent that it must file a timely answer pursuant to Section 102.54 of the Board's Rules and Regula- tions.3 The Respondent failed to file an answer to the specification. On September 20, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment with attachments, and on Sep- tember 23, 1976, an amendment thereto with at- tached exhibits. Subsequently, on October 12, 1976, 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. Respondent did not file a response to Notice To Show Cause and therefore the allegations of the General Counsel's Motion for Summary Judgment stand uncontroverted. 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. i Spruce Up Corporation, 194 NLRB 841 2 Spruce Up Corporation, 209 NLRB 194. 3 By order dated September 16, 1976, the Acting Regional Director severed the instant Case 11-CA-4198 from Cases I l-CA-3949-1, -2, and -3, involving the other respondent , Spruce Up Corporation, which had filed an answer to the specification ' As more detailed in the motion , ( I) in telephone and personal 227 NLRB No. 71 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, Series 8, as amended, 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 respon- dent, find the specification to be true and enter such order as may be appropriate. The specification, issued on July 30, 1976, and duly served on the Respondent, specifically states that, pursuant to Section 102.54 of the Board's Rules and Regulations, the Respondent shall, within 15 days from the date of the specification, file an answer to the specification in the manner required by the Board's Rules and Regulations and, if the failure to do so is not adequately explained, the allegations of the specification shall be deemed to be admitted to be true and the Respondent shall be precluded from introducing any evidence controverting them. The uncontroverted allegations of the General Counsel's motion show in specific detail that counsel for the General Counsel has communicated repeatedly with counsel for the Respondent, by telephone, letter, and telegram, in each instance requesting that an answer be filed, but no answer had been filed as of Septem- ber 16, 1976, the date of the General Counsel's motion.4 As the Respondent has neither filed an answer to the specification nor offered any explanation for its failure to do so, the General Counsel's motion is granted and, in accordance with that section of the Board's Rules set forth above, the allegations of the specification are deemed to be admitted as true and are so found by the Board. Accordingly, on the basis of the allegations of the specification which are accepted as true, the Board conversations with Regional Office personnel between August 20 and September 10, 1976, the Respondent's counsel promised to file an answer within a few days but failed to do so, and (2) he failed to take delivery of a certified letter or to respond to a telegram, each requesting the filing of an answer A copy of the certified letter was sent also to the Respondent by ordinary mail, but was not returned to the Regional Office and presumably was received but not answered FOWLER'S BARBER SHOPS 413 finds the facts as set forth therein, concludes that the net backpay of the discriminatees is as stated in the computations of the specification, and hereinafter orders the payment be made by the Respondent to each of the discriminatees listed in the Order herein. ORDER Pursuant to Section I0(c) of the -National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cicero Fowler t/a Fowler's Barber Shops, Fayette- ville, North Carolina, his agents, successors, and assigns, shall make whole- each of the discriminatees named below by payment to each of them of the amount set forth adjacent to his name, plus interest accrued at the rate of 6 percent per annum, to be computed in the manner spgcified in Isis Plumbing dt Heating Co., 138 NLRB 716-(1962), until payment of all backpay due, less tax withholding required by Federal and state laws-: 5 Christopher C. Allen, Jr. $ 5,553 James A. Bailey 5,248 Earl Bilvrey 10,228 David Brown 1,902 E. C. Cale 1,739 William E. Green 6,071 Joe P. Hall 7,284 Eugene Hargrove 8,222 Thomas F. Hooper 5,932 Joseph Lee 33,733 George McCormick 18,026 Willie Pridgen 7,272 James C. Smith 5,691 Merriel Williams 4,111 Jesse Womble 1,161 5 Discnminatees David Ballew, Thaddeus Butler, James Hudson, and Howard Sinclair each obtained substantially equivalent employment prior to May 28, 1970, and admittedly suffered no loss of earnings throughout the backpay period and therefore each is not entitled to any backpay . Hector Hunt was not an employee at the time of the March 3, 1970, strike since the Admrmstrative Law Judge and the Board had found that he had not been discriminatorily discharged, but had been erroneously included in the notice as a striker entitled- to reinstatement by the Respondent on May 28, 1970. Accordingly, hers not entitled to any backpay. -