Dependable Tile Co.

1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jack E. Hartman, a Sole Proprietorship, d/b/a De- pendable Tile Company and Tile Layers Local Union No. 19, Bricklayers and Allied Craftsmen of America, AFL-CIO. Case 20-CA-16909 February 10, 1989 SECOND SUPPLEMENTAL DECISION AND ORDER GRANTING MOTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 28, 1988, the National Labor Relations Board issued a Supplemental Decision and Order in this proceeding.' On May 25, 1988, the General Counsel filed with the Board a motion for reconsideration. The motion was unopposed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The General Counsel, in her motion for recon- sideration, avers that the Board, in its supplemental decision, misconstrued the General Counsel's back- pay specification as alleging that the Respondent owed employees and the trust funds for amounts due only to August 14, 1986. Rather, this date was used because that was the most recent backpay in- formation available as of the opening of the back- pay hearing. We grant the motion. We agree that liability continues to accrue in the manner specified in the amended backpay specification. Our decision is based on the Board's underlying Decision and Order in the unfair labor practice case that found 1 288 NLRB 710. that the Union's relationship to the Respondent and its employees was that of a 9(a) representative. The Respondent was ordered to bargain, on request, with the Union and to make the trust funds and employees whole. This Decision and Order was en- forced with minor modification by the Ninth Cir- cuit.2 The Board lacks authority to modify an order that a court has enforced.3 In our Supplemental Decision and Order, we de- clined to pass on the issue of the Respondent's li- ability for, or the effect of the Board's decision in John Deklewa & Sons4 on, periods subsequent to the erroneously assumed cutoff date of August 14, 1986. On further consideration, and in finding that the Respondent's liability continues to accrue, we view the principles of Deklewa as inapplicable here. Under the pre-Deklewa order enforced by the court, the Respondent has contractual liability based on a 9(a) relationship with the Union. Pay- ments for that liability must be offered before the case can be closed on compliance. We do not, however, pass on the issue of the effect of Deklewa on periods subsequent to the Respondent's compli- ance with the Board's Order. Based on the forego- ing, the Board will grant the General Counsel's motion. ORDER It is ordered that the Board's Decision and Order dated April 28, 1988, is modified to find that the backpay period ran from April 1, 1981, to present, in the manner specified in the amended backpay specification. 2 774 F.2d 1376 (9th Cir. 1985). 2 See, e.g., Royal Typewriter Co., 239 NLRB 1, 2 (1978). 4 282 NLRB 1375 (1987). 292 NLRB No. 116