Advanced Installations

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Advanced Installations, Inc. and Ventura County District Council of Carpenters. Cases 31-CA- 8965, 31-CA-8972, 31-CA-9340, and 31-CA- 9536 26 January 1984 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 20 August 1981 the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding in which the Board, inter alia, ordered the Respondent to make whole certain em- ployees for any losses in pay and benefits that would have accrued to them but for the Respond- ent's unlawful changes and modifications in the contractual terms and to make whole certain em- ployees for any loss of pay they may have suffered as a result of the Respondent's discrimination against them. On 12 November 1982 the United States Court of Appeals for the Ninth Circuit en- tered its Judgment enforcing the Board's Order. A controversy having arisen over the amount of backpay due under the Board's Order, as enforced by the court, the Acting Regional Director for Region 31 on 31 May 1983 issued a backpay speci- fication and notice of hearing, alleging the amounts due to employees, the discriminatees, and various trust funds under the Board's Order, and notifying the Respondent that it should file a timely answer complying with the Board's Rules and Regulations. The Respondent, by its attorney Robert F. Rubin, acknowledged receipt of the backpay specification and notice of hearing in a letter to the Regional Director dated 7 June 1983, but stated that it would not oppose the claims or file an answer. Thereafter, on 25 July 1983, counsel for General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. Subse- quently, on 29 July 1983, the Board issued an order transferring the proceedings to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted. The Respondent, by its attorney Robert F. Rubin, acknowledged receipt of the order transferring the proceedings to the Board and Notice to Show Cause in a letter to the Board's Executive Secretary dated 11 August 1983, but indicated that it would not oppose the claims or file an answer. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. A 257 NLRB 845. On 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 sup- port 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 and served on the Respondent on or about 31 May 1983, specifi- cally states that the Respondent shall, within 15 days from the date of the specification, file with the Regional Director for Region 31 an answer to the specification and that, if the answer fails to deny the allegations of the specification in the manner required under the Board's Rules and Reg- ulations 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 contro- verting them. As the Respondent has not filed an answer to the specification, has not offered an ade- quate explanation for its failure to do so, and has also failed to file a response to the Notice to Show Cause, the allegations of the specification and of the Motion for Summary Judgment stand uncon- troverted. Therefore, in accordance with the rules set forth above, the allegations of the specification are deemed to be admitted as true and are so found by the Board without the taking of evidence in support of said allegations. Accordingly, the Board concludes that the net backpay due to the employees and the discrimina- tees and the payments due to various trust funds are as alleged in the specification, and orders the payment thereof by the Respondent to the employ- ees, discriminatees, and various trust funds.2 i The specification alleges an amount due the Carpenter Industry Ad- vancement Fund of Southern California. The cessation of payments into such funds does not violate Sec. 8(a)(5) of the Act and a Board order requiring payments into such funds is improper. See Urban Excavating Ca, 264 NLRB No. 41 (1982), and Fox Painting Co., 263 NLRB 437 (1982), and cases cited therein. Accordingly, we have not included a pay- ment to that fund in our Order. Additionally, as noted below, our Order reflects the correction of cer- tain computational errors in the backpay specification. 268 NLRB No. 93 640 ADVANCED INSTALLATIONS ORDER The National Labor Relations Board orders that the Respondent, Advanced Installations, Inc., Ven- tura, California, its officers, agents, successors, and assigns, shall 1. Make whole the employees and discriminatees named below by payment to them of the amounts following their names, plus interest thereon to be computed in the manner described in Florida Steel Corp., 231 NLRB 651 (1977),3 until payment of all backpay due is made, less tax withholdings re- quired by Federal and state laws: Ramond Bailey Dennis Baker Eric Beck Keith Beck Steve Bruton Todd Bublitz Robert Burlingame Luis Calderon Paul Campos Mike Cherney Jim Crosswhite Craig Cumberland Patrick Donlan Clyde Dudley Alfred Estralla John Frazier Dave Gallant Phil Garcia James D. Gibson Brian Grigsby Leonard Guidi Billy G. Holladay David Thompson Robert Hudson Emory Killian David Kipp $ 2,701.21 41,132.92 525,144.16 34.48 2,325.60 209.52 17.24 433.89 115.88 98.64 70.07 58.18 3,842.22 61,221.06 58.18 7,807.42 98.64 48.16 72,625.31 98.64 803.56 27.75 4,094.08 34.48 50.28 272.62 3 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 4 The specification figure of $1,165.80 has been changed to correct an error in calculating gross travel stock hours for the second quarter of 1982. ' The backpay totals from Appendices A and B have been added to- gether to arrive at this figure. The backpay total from Appendix B has been changed from $22,348.34 to $22,348.79 to correct an error in calcu- lating calendar quarter gross backpay for the fourth quarter of 1979. 6 The specification figure of $1,250 40 has been changed to correct an error in calculating gross travel stock hours for the third quarter of 1980. 7 The specification figure of $2,742 41 has been changed to correct an error in calculating gross travel stock hours for the fourth quarter of 1978. s The specification figure of $1,295.56 has been changed to correct an error in calculating net backpay per quarter for the first quarter of 1979 and in calculating the gross travel stock hours for the second quarter of 1979. 9 The specification figure of S23.71 has been changed to correct an error in calculating net travel stock hours for the second quarter of 1979. 'O The backpay totals from Appendices A and B have been added to- gether to arrive at this figure. The backpay total from Appendix A has been changed from S243.26 to $259.14 to correct an error in calculating net travel stock hours for the third quarter of 1979. Robert F. Liening, Jr. Stephen Lindberg Pat Mergen David Mills Daryl Musser Myron Nicholson Kim W. Nix Mark O'Leary Mel Oliver Frank Orona Frank Pagano Mark Pagano Frank Parks Larry Quintal Reggie Reel Joe Rodriquez Gary Simmons Darwin Skelly Sam Smalley Dave Spoll Howard Stachey Ken Stevens Pat Stransky Mike Tuel Tom Voeltner Donald Webb Paul Wood Earl Wyatt Carlos Lopez 2. Make its employees trust funds listed below their names:" i4,9i2.11 99.13 579.98 81,219.28 238.50 928.02 84.05 16,776.33 129.47 46.30 5,700.15 5,485.09 112.06 12.93 263.68 976.90 77.58 3,531.88 147.96 64.82 166.50 29.62 1,117.92 867.33 98.64 380.34 101,049.46 43.99 17.24 whole by paying to the the amounts following Carpenters Pension Trust Fund for Southern California Carpenters Health and Welfare Trust for Southern California $19,628.38 1211,385.51 " Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlaw- fully withheld fund payments. We leave to the compliance stage the question of whether the Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy. These additional amounts may be determined, depending upon the cir- cumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provi- sions, to evidence of any loss directly attributable to the unlawfully with- holding action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc., but not collateral losses. Merryweather Optical Co., 240 NLRB 1213 (1979). 12 The specification figure of $11,380.62 has been changed to correct an error in calculating health and welfare payments for the second quar- ter of 1982. 641 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenter Joint Apprenticeship and for Southern California Training Committee fund 603.91