Basis Metal & Salvage Co.

330 NLRB No. 1 1 NOTICE: This opinion is subject to formal revision before publication in the Board 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. Basic Metal and Salvage Co., Inc. and Local 958, Waste Material Sorters, Trimmers and Han- dlers Union, AFL–CIO and Mark A. Holder. Cases 29–CA–19324 and 29–CA–19597 November 16, 1999 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN On November 8, 1996, the National Labor Relations Board issued a Decision and Order,1 inter alia, directing Basic Metal and Salvage Co., Inc., the Respondent, to offer Mark A Holder immediate and full reinstatement, and make him whole for any loss of earnings or other benefits that he may have suffered as a result of the Re- spondent’s discrimination against him in violation of the National Labor Relations Act. On September 23, 1997, the United States Court of Appeals for the Second Cir- cuit entered its judgment enforcing in full the Board’s Order. A controversy having arisen over the amount of back- pay due the discriminatee, on August 25, 1999, the Re- gional Director for Region 29 issued a compliance speci- fication and notice of hearing alleging the amount due under the Board’s Order through 1997, and notifying the Respondent that it should file a timely answer complying with the Board’s Rules and Regulations. Although prop- erly served with a copy of the compliance specification, the Respondent failed to file an answer.2 By letter dated September 21, 1999, counsel for the General Counsel advised the Respondent that no answer to the compliance specification had been received and that unless an appropriate answer was filed by September 28, 1999, summary judgment would be sought. The Re- spondent filed no answer. On October 6, 1999, the General Counsel filed with the Board a Motion for Summary Judgment, with exhib- its attached. On October 8, 1999, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be granted. The Respondent again filed no response. The allegations in the motion and in the compliance specifi- cation are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 322 NLRB 462 (1996). 2 The Respondent did submit a statement that it has ceased doing business as of June 30, 1999. This clearly does not purport to be an answer to the compliance specification. We note also that this letter did not reflect service on any of the parties to the case. 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(c) of the Board’s Rules and Regu- lations states: If the respondent fails to file any answer to the specifi- cation 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 with- out further notice to the respondent, find the specifica- tion to be true and enter such order as may be appropri- ate. According to the uncontroverted allegations of the Motion for Summary Judgment, the Respondent, despite having been advised of the filing requirements, has failed to file an answer to the compliance specification. In the absence of good cause for the Respondent’s failure to file an answer, we deem the allegations in the compliance specification to be admitted as true, and grant the Gen- eral Counsel’s Motion for Summary Judgment.3 Ac- cordingly, we conclude that the net backpay due the dis- criminatee for the period set forth in the compliance specification is as set forth therein and we will order payment by the Respondent of the amount to the dis- criminatee, plus interest accrued on the amount to the date of payment. ORDER The National Labor Relations Board orders that the Respondent, Basic Metal and Salvage Co., Inc., Brook- lyn, New York, its officers, agents, successors, and as- signs, shall make whole Mark A. Holder, by paying him $18,381.15, plus interest accrued to the date of payment and minus tax withholdings required by Federal and state laws. Dated, Washington, D.C. November 16, 1999 John C. Truesdale, Chairman Sarah M. Fox, Member Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 The compliance specification reserved, and we grant, the Regional Director the right to claim wage increases for the claimant at the same rate as those granted to similarly situated employees during 1995. Fur- ther, we note that in the absence of a valid offer of reinstatement, the backpay period has not terminated and that the compliance specifica- tion claimed no backpay at this time after the fourth quarter of 1997.