D.A. Fiori Construction Co.

333 NLRB No. 27 1 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. D.A. Fiori Construction Company and International Union of Operating Engineers, Local Union No. 66, 66A, B, C, D, O, & R, AFL–CIO. Case 6– CA–30331 January 31, 2001 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN AND WALSH On July 12, 1999, the National Labor Relations Board issued a Decision and Order,1 inter alia, directing the Respondent, D.A. Fiori Construction Company, to make whole certain of its employees for loss of earnings and other benefits resulting from the Respondent’s unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. On May 18, 2000, the United States Court of Appeals for the Third Circuit entered its judgment en- forcing in full the Board’s Order. A controversy having arisen over the amount of back- pay due the discriminatees, on November 9, 2000, the Regional Director for Region 6 issued a compliance specification and notice of hearing alleging the amount due under the Board’s Order, and notifying the Respon- dent 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. By letter dated December 4, 2000, the Regional Attor- ney advised the Respondent that no answer to the com- pliance specification had been received and that unless an appropriate answer was filed by the close of business on the third day following the receipt of the letter, sum- mary judgment would be sought. The Respondent filed no answer. On January 2, 2001, the General Counsel filed with the Board a Motion for Summary Judgment, with exhibits attached. On January 4, 2001, 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 again filed no response. The allegations in 1 328 NLRB No. 136 (1999). the motion and in the compliance specification are there- fore 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(c) of the Board’s Rules and Regula- tions 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 Mo- tion 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 Ge n- eral Counsel’s Motion for Summary Judgment.2 Accord- ingly, we conclude that the net backpay due the discrimi- natees is as stated in the compliance specification and we will order payment by the Respondent of the amounts to the discriminatees, plus interest accrued on the amounts to the date of payment.3 2 The General Counsel’s compliance specification requests that the Board order the Respondent to make “payment to each of the discrimi- natees of the amount of any excess federal and state income taxes they may incur as an increased tax liability as a result of receiving a lump sum backpay distribution in one tax year that represents a backpay award for a multi-year backpay period that would have encompassed several tax years.” The General Counsel’s proposed order would repre- sent a change in Board law. See, e.g., Hendrickson Bros., 272 NLRB 438, 440 (1985), enfd. 762 F.2d 990 (2d Cir. 1985). We believe that the question raised by the General Counsel should be resolved after a full briefing by the affected parties. See Kloepfers Floor Covering, 330 NLRB No. 126 fn. 1 (2000). Because there has been no such briefing in this no-answer case, we decline to include this additional relief in the Order. 3 The compliance specification sets forth the backpay owing to the discriminatees through September 30, 2000, and alleges that their backpay periods continue to run until the Respondent makes valid offers of reinstatement to them. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ORDER The National Labor Relations Board orders that the Respondent, D.A. Fiori Construction Company, Pitts- burgh, Pennsylvania, its officers, agents, successors, and assigns, shall make whole the individuals named below, by paying them the amounts following their names, plus interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987), and minus tax withholdings required by Federal and state laws: Sean Puz $17,245.00 Jeff Whitico 3,678.00 TOTAL: $20,923.00 Dated, Washington, D.C. January 31, 2001 John C. Truesdale, Chairman Peter J. Hurtgen, Member Dennis P. Walsh, Member (SEAL) NATIONAL LABOR RELATIONS BOARD