Diablo Paving

790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Victor Wooten, d/b/a Diablo Paving; Wesley L. Mortimer and Operating Engineers Local Union No. 3 of the International Union of Op- erating Engineers, AFL-CIO. Case 20-CA- 19747 January 31, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 2, 1986, the National Labor Rela- tions Board issued an unpublished Order in the above-entitled proceeding,' directing Victor Wooten, d/b/a Diablo Paving (Respondent Wooten), inter alia, to reimburse the contractually agreed-upon trust funds for contributions that Re- spondent Wooten unlawfully failed to make on behalf of the unit employees. On March 5, 1987, the United States Court of Appeals for the Ninth Circuit enforced the Board's Order.2 A controver- sy having arisen over the amount of backpay due under the Board's Order, the Acting Regional Di- rector for Region 20 issued a backpay specification and notice of hearing on May 29, 1987. On July 2, 1987, the Regional Director issued an amendment to backpay specification. Respondent Wooten filed an answer to the amended specification. On July 15, 1988, the Regional Director issued a second amendment naming Wesley L. Mortimer as a Re- spondent in this case.3 Respondent Mortimer filed no answer. On September 20, 1988, the General Counsel filed a Motion for Summary Judgment. On Septem- ber 22, 1988, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On October 6, 1988, Respondent Wooten filed a letter with the Board opposing the motion insofar as the motion seeks to hold him liable for the make-whole remedy. Respondent Mortimer filed no response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. I Wesley L. Mortimer was added as a Respondent in the backpay stage of the proceeding. 8 No. 86-7737. ' The second amendment alleges that Respondent Mortimer was the responsible managing employee of Respondent Wooten when the unfair labor practices giving rise to the liability at issue were committed and had knowledge of the litigation concerning the unfair labor practices; that he acquired the assets and assumed the liabilities of Respondent Wooten on January 7, 1986; and that he is a successor to Respondent Wooten for the purpose of remedying the unfair labor practices, and is jointly and severally liable with Wooten for the backpay owed. Ruling on Motion for Summary Judgment Section 102.56 of the Board's Rules and Regula- tions4 provides that if an answer to the specifica- tion is not filed within 21 days from the date of service of the specification, the Board may find the specification to be true. Section 102.56 also pro- vides that when an answer fails to deny the specifi- cation's allegations in the manner required under the Board's Rules and Regulations, and the failure to do so is not adequately explained, the allegations shall be deemed to be true. In the absence of good cause being shown for Respondent Mortimer's failure to file a timely answer,5 and because Respondent Wooten' s answer fails to deny the factual allegations of the specifica- tion,6 we grant the General Counsel's Motion for Summary Judgment. Accordingly, the Board concludes that the net payments due to the trust funds on behalf of em- ployees and to employees in lieu of payments to the vacation and holiday pay plan are as stated in the computations of the backpay specification, and orders the Respondents to pay those amounts. ORDER The National Labor Relations Board orders that the Respondents, Victor Wooten, d/b/a Diablo Paving and Wesley L. Mortimer, their officers, agents, successors, and assigns, shall make whole 4 Formerly Sec. 102 . 54. The Board amended its rules governing pro- ceedings concerning compliance with Agency orders effective November 13, 1988. The substance of former Secs. 102.54 and 102.55 has been incor- porated into Sec. 102 .56 as revised ; and former Sec. 102. 56, with some modification, has become the new Sec. 102 .57, although the substance of former Sec. 102.57 has become par. (c) of the new Sec. 102.55, in the revised rules. 5 The undisputed allegations in the Motion for Summary Judgment dis- close that the second amendment to the backpay specification was re- ceived by Respondent Mortimer on July 22, 1988, and that on August 29, 1988, the acting Regional attorney for Region 20 sent Mortimer a letter advising him that the General Counsel would move for summary judg- ment if no answer was received within seven days of the date of the letter. Respondent Mortimer did not respond . Therefore, based on the amended specification 's allegations that are accepted as true, the Board finds that Respondent Mortimer is Respondent Wooten's successor for the purpose of remedying the unfair labor practices and is jointly and severally liable with Respondent Wooten for the backpay owed. 6 Respondent Wooten's answer to the amended specification admits the factual allegations and calculations , but denies that he owes the specified sums because he ceased to be a respondent on January 7, 1986, by dis- solving a partnership and assigning all rights and liabilities to Respondent Mortimer. Respondent Wooten's response to the Notice to Show Cause alleges that he did not have adequate counsel during the trial held De- cember 5, 1985 ; that the judge was mistaken in finding that he under- stood the consequences of entering into a valid collective -bargaining agreement; and that he does not have financial resources with which to satisfy the backpay specification. We find the allegations in the amended specification regarding Re- spondent Wooten to be true. The answer and response contain no denials that conform with the requirements of Sec. 102.56. The answer and re- sponse do not warrant a hearing because they constitute either assertions that, even if true, do not relieve a respondent of the obligation to remedy unfair labor practices or attempts to raise contentions that are no longer in issue. See Sneva's Rent-A-Car, 270 NLRB 1316 (1984). 292 NLRB No. 81 DIABLO PAVING 791 the trust funds and the employees by payment to to the date of payment, minus tax withholdings re- them of the amounts set forth in the backpay speci- quired by law from vacation and holiday principal fication, as amended, plus interest computed in the only manner described in the specification and accrued