Capital Bakery, Inc.

330 NLRB No. 18 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Capital Bakery, Inc. and Local 3, Bakery, Confec- tionery & Tobacco Workers International Union of America. Case 3–CA–17723 November 18, 1999 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN On April 25, 1996, the National Labor Relations Board issued a Decision and Order,1 inter alia, ordering Capital Bakery, Inc., to pay all delinquent welfare and pension fund contributions, to make whole certain of its unit em- ployees for loss of earnings, other benefits, and any ex- penses resulting from its failure to honor the terms of the 1990-1993 collective-bargaining agreement with the Union, “including Schedule D (pension and welfare) and article XII (paid birthday)” in violation of the National Labor Relations Act. On January 28, 1997, the United States Court of Appeals for the Second Circuit issued a judgment enforcing in full the affirmative provisions of the Board’s order. A controversy having arisen over the amount of back- pay and reimbursement due the unit employees and the contributions owed the funds, on May 26, 1998, the Re- gional Director for Region 3 issued a compliance specifi- cation and notice of hearing alleging the amounts due under the Board’s Order, and notifying the Respondent that it should file a timely answer complying with the Board’s Rules and Regulations. Although properly served with a copy of the compliance specification, the Respondent failed to file an answer within the 21-day period set forth in Section 102.56(a) of the Board’s Rules and Regulations. By letter dated August 25, 1999, the Board agent ad- vised the Respondent that no answer to the compliance specification had been received and that unless an appro- priate answer was filed by October 8, 1999, summary judgment would be sought. On September 1, 1999, the Region received by fax a letter in which the Respon- dent’s president, Irving Freeman, stated in relevant part as follows: In response to your letter of August 25, 1999, this is to advise you that I am not in a position to deny the allegations of the compliance specification. I have provided extensive documents to the [B]oard concerning our dire financial condition. I would be happy to arrange a meeting with the [B]oard and our accountant and provide whatever 1 321 NLRB No. 10 (not reported in Board volumes). additional information and records that you would desire. On September 16, 1999, the General Counsel filed with the Board a Motion for Summary Judgment, with exhibits attached. On September 17, 1999, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The alle- gations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on the Motion for Summary Judgment Section 102.56(a) of the Board’s Rules and Regula- tions provides that the Respondent shall file an answer within 21 days from service of a compliance specifica- tion. Section 102.56(b) of the Board’s rules state: The answer shall specifically admit, deny, or explain each and every allegation of the specification, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. Assuming arguendo that the September 1, 1999 letter from the Respondent’s president satisfies the require- ments of Section 102.56(b), we find that it does not raise an issue warranting a hearing. By stating that the Re- spondent is “not in a position to deny the allegations of the compliance specification,” the letter, in effect, admits the allegations of the specification. Further, to the extent the letter can be construed as alleging that the Respon- dent lacks sufficient assets to satisfy the claims made in the specification, such an allegation is irrelevant to this proceeding. It is well settled that the issue in a compli- ance proceeding is the amount due, not whether the Re- spondent is able to pay. Pallazola Electric, 312 NLRB 569, 570 (1993). Therefore, in the absence of any mate- rial issues warranting a hearing, we grant the General Counsel’s Motion for Summary Judgment. Accordingly, we conclude that the amounts due the discriminatees and the funds are as stated in the compliance specification and we will order payment by the Respondent of the amounts, plus interest accrued on the amounts to the date of payment. ORDER The National Labor Relations Board orders that the Respondent, Capital Bakery, Inc., Long Island City, New York, its officers, agents, successors, and assigns, shall make whole the following individuals and funds, by paying them the amounts set forth below, with interest on the backpay owed the individuals as prescribed in the manner set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987), and any additional amounts accruing on the fund contributions as prescribed in Merryweather Optical Co., 240 NLRB 1213 (1979), minus tax with- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 holdings on the backpay due the individuals required by Federal and state laws: Anson, William $300 Bayless, Maureen 300 Beem, Cynthia 100 Boughton, Ken 400 Brown, Shani 200 Cashdollar, Walter 200 Colon, Michael 200 Cuatt, Victoria 200 Curtis, Linda 260 Davis/Grant, Tonia 400 Decker, Lucretta 100 DeJesus/Quintero, Liliana 300 Ennist, Robert, 7,220 Fogg, Peter Jr. 400 Fogg, Peter Sr. 300 Giuliano, Joseph 42 Hamilton, Melborne 300 Huetter, John 100 Jackson, Deborah 400 Jackson, Jane 400 Jennings, Ephriem 200 Johnson, Elliot 460 Jones, Joseph 400 Kearney, Robert 322 Larca, Fred T. 100 LeBlanc, Charles 200 Lopez, Mariniano R. 100 McKenzie, Carlton 400 Meling, Donald 400 Miller, Milton 400 Nesheiwat, Diane 400 Nesheiwat, Evone 400 Notice, Herbert 200 Robinson, David 100 Saunders, Emily 100 Shell, Curtis 100 Sullivan, John P. 100 Taliaferro, Brigita 100 Velasco, Efrain 400 Walker, Clifford 270 Wardell, Angelina 200 Wardell, Christina 100 West, Everton 100 TOTAL $17,674 Welfare Fund $216,507.83 Pension Fund 113,747.91 GRAND TOTAL $347,929.74 Dated, Washington, D.C. November 18, 1999 John C. Truesdale, Chairman Sarah M. Fox, Member Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD