Bighorn Beverage

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bighorn Beverage and Teamsters Local No. 45, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. Case 19-CA-9223 January 14, 1981 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 7, 1978, 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 offer reinstatement to Barry Mortensen and make him whole for any loss of earnings suffered by reason of the Respondent's discrimination against him. On March 24, 1980, the United States Court of Appeals for the Ninth Cir- cuit entered 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 Regional Director for Region 19, on August 26, 1980, issued and duly served on the Respondent a backpay specification and notice of hearing, alleging the amount of back- pay due the discriminatee 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 failed to file such an answer. Thereafter, on October 23, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, a Supporting Affi- davit, and Certification of Nonfiling of Answer. Subsequently, on November 3, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's motion should not be granted. The 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 Na- tional Labor Relations Board has delegated its au- thority 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, Series 8, as amended, provides, in pertinent part, as follows: i 236 NLRB 736 (1978) 254 NLRB No. 81 (a) . . . The respondent shall, within 15 days from the service of the specification, if any, file an answer thereto .... a * a * * (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 August 26, 1980, spe- cifically states that the Respondent shall, within 15 days from the date of the specification, file with the Regional Director for Region 19 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. By letter dated September 17, 1980, Respondent was informed of its default in failing to submit an answer to the backpay specification and advised that an answer should be filed as soon as possible. Thereafter, by letter dated September 30, 1980, Re- spondent was further warned that further action would be taken unless Respondent's answer was re- ceived by the close of business on October 10, 1980. On October 6 and 14, 1980, respectively, Re- spondent's counsel telephonically advised the Gen- eral Counsel that Respondent would not file any answer to the backpay specification. On October 23, 1980, the date of the Motion for Summary Judgment, Respondent had filed no answer and to date has not indicated that it intends to file an answer. The Respondent also failed to file a re- sponse to the Notice To Show Cause and, there- fore, the allegations of the Motion for Summary Judgment stand uncontroverted. As the Respond- ent has not filed an answer to the specification and has not offered any explanation for its failure to do so, in accordance with the rules set forth above, the allegations of the specification are deemed to be true and are so found by the Board without the taking of evidence in support of the said allega- tions. Accordingly, we grant the General Counsel's Motion for Summary Judgment, conclude that the 662 BIGHORN BEVERAGE net backpay due the discriminatee, Barry M. Mor- tensen, is as stated in the computations of the speci- fication, and order the payment thereof by the Re- spondent to the discriminatee. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, 2 See, generally, Isis Plumbing Heating Co, 138 NLRB 716 (1962) Bighorn Beverage, Helena, Montana, its officers, agents, successors, and assigns, shall make whole Barry M. Mortensen by the payment to him the amount of $9,547.14, plus interest thereon, comput- ed in the manner prescribed in Florida Steel Corpo- ration, 231 NLRB 651 (1977),2 until payment of all backpay due is made as provided for in F. W. Woolworth Company, 90 NLRB 289 (1950), less tax withholding required by Federal and state laws. 663