O. R. Cooper and Son

O. R. COOPER AND SON O. R. Cooper and Son and Donald D. Schaffer, Sr. Case 38-CA-2715 August 31, 1977 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On September 10, 1976, the National Labor Relations Board issued its Decision and Order' in the above-captioned proceeding in which it ordered, inter alia, that Respondent make whole Donald D. Schaffer, Sr., for any loss of earnings resulting from Respondent's unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended. A controversy having arisen as to the amount of backpay due under the terms of the Board's Order, the Officer-in-Charge for Subregion 38, on May 6, 1977, issued and duly served on the Respondent by registered mail a backpay specification and notice of hearing alleging the amount of backpay due Donald D. Schaffer, Sr., under the Board's Order and notified Respondent that it shall file a timely answer which must comply with the Board's Rules and Regulations, Series 8, as amended. Respondent failed to file an answer to the specification. The General Counsel, by counsel, on June 6, 1977, filed directly with the Board in Washington, D.C., a Motion for Summary Judgment. The Board on June 24. 1977, issued an order transferring proceeding to the Board and Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent failed 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 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 .... i 225 NL RB 125 (1976). ' In accordance with our decision in Florida Steel Corporation, 231 NI.RB 651 1977). we shall applk the current 7-percent rate for periods prior (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 May 6, 1977, and served on the Respondent on May 10, 1977, specifically states that the Respondent shall, within 15 days from the date of the specification, file an answer to the specification with the Officer-in- Charge for Subregion 38 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. As of June 2, 1977, the date of the Motion for Summary Judgment, Respondent had not filed an answer to the specification. Respondent also failed to file a response to the Notice To Show Cause. The allegations of the Motion for Summary Judgment are, therefore, uncontroverted. Since Respondent has not filed an answer to the specification and has not offered any explanation for its failure to do so, the allegations of the specification, in accordance with rules set forth above, are deemed to be admitted and are so found by the Board. 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 Donald D. Schaffer, Sr., is as stated in the computations of the specification. and herein- after orders the payment thereof by the Respondent. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, O. R. Cooper and Son, Urbana and Champaign, Illinois, its officers, agents, successors, and assigns, shall make whole Donald D. Schaffer, Sr., by paying to him the sum of $7,682, plus interest accrued at the rate of 7 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (1962), and Florida Steel Corporation,2 until all backpay due is paid, less the tax withholdings required by Federal and state laws. to August 25. 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 231 NLRB No. 153 941