Fox-Art Theatres, Inc.

FOX-ART THEATRES 885 Fox-Art Theatres, Inc. and Philadelphia Moving Picture Machine Operators Union Local No. 37 a/w International Alliance of Theatrical Stage Employees of the U.S. and Canada. Cases 4- CA-14631, 4-CA-14631-2, and 4-CA-14735 August 22, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 28, 1986, the National Labor Rela- tions Board issued a Decision and Order 1 ordering the Respondent, inter alia, to make employee Irwin Kamner whole for any loss of earnings and benefits resulting from the Respondent's unfair labor prac- tices, which violated Section 8(a)(3) and (1) of the National Labor Relations Act, and to make whole its unit employees for their losses and make pay- ments on their behalf to the Union Pension Plan and Welfare and Insurance Fund for losses result- ing from the Respondent's unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, and its failure to comply with the provisions of Section 8(d). On August 29, 1986, the United States Court of Appeals for the Third Circuit entered its consent judgment enforcing the Board's Decision and Order. On February 29, 1988, the Regional Director for Region 4 issued a backpay specification and notice of hearing. The Respondent filed a timely answer to the backpay specification. In its answer, the Re- spondent admitted each allegation in the specifica- tion. On July 1 , 1988, the General Counsel filed with the Board a Motion for Summary Judgment. In her motion, the General Counsel contends that the Re- spondent has raised no question of fact or law re- garding the Respondent's obligation under the Board's Order, as enforced, and that the Respond- ent's obligations total $42,662.70, plus interest, as calculated and set forth in the backpay specifica- tion. On July 6, 1988, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted . On July 20, 1988, the Re- spondent filed a response. Ruling on 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 21 days from the service of the specification, if any, file an answer thereto... . (b) ... The respondent shall specifically admit, deny, or explain each and every allega- tion of the specification, unless the respondent is without knowledge, in which case the re- spondent shall so state, such statement operat- ing as a denial. Denials shall fairly meet the substance of the allegations of the specification denied. . . . As to all matters within the knowledge of the respondent, including but not limited to the various factors entering into the computation of gross backpay, a general denial shall not suffice. (c) ... If the respondent files an answer to the specification but fails to deny any allega- tion of the specification in the manner required by subsection (d) of this section, and the fail- ure so to deny is not adequately explained, such allegation shall be deemed to be admitted to be true, and may be so found by the Board without the taking of evidence supporting such allegation, and the respondent shall be pre- cluded from introducing any evidence contro- verting said allegation. In its response to the Notice to Show Cause ("Re- spondent's answer to General Counsel's Motion for Summary Judgment"), the Respondent admits that its obligations under the Board's Order total $42,662.70, plus interest, as calculated and set forth in the backpay specification, but states that "[i]t is denied that the Respondent has raised no questions of fact or law requiring a hearing or any further litigation as to its make whole obligations under the Board's Order, as enforced, insofar as the averment is a conclusion of law to which no response is re- quired and the same is therefore denied." The re- sponse to the Notice to Show Cause fails to state specifically the basis for disagreement with the backpay specification or the question of fact or law that the Respondent has raised. Accordingly, as the Respondent's answer has ad- mitted each of the allegations of the backpay speci- fication and the Respondent has not specifically denied the allegations of the backpay specification in its response to the Notice to Show Cause, nor adequately explained its failure to do so, we will grant the General Counsel's Motion for Summary Judgment and deem the allegations of the backpay specification to be admitted as true pursuant to Section 102.54(c). 1279 NLRB 812 (1986). 290 NLRB No. 100 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER It is ordered that the General Counsel's Motion for Summary Judgment is granted. IT IS FURTHER ORDERED that the Respondent, Fox-Art Theatres, Inc., Narberth, Pennsylvania, its officers, agents, successors, and assigns, shall make whole Irwin Kamner and each of the unit employ- ees listed in the backpay specification by paying them the amounts stated in the specification, with interest to be computed in the manner prescribed in New Horizons for the Retarded,2 and by paying on employees' behalf to the Union 's Pension Plan and Welfare and Insurance Fund amounts set forth in the backpay specification, with interest. 2 283 NLRB 1173 (1987). Interest will be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C. § 6621.