Fowler's Barber Shops

National Labor Relations Board - Board Decisions

Dec 17, 1976

227 N.L.R.B. 412 (N.L.R.B. 1976)

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cicero Fowler t/a Fowler's Barber Shops and Journey-
men Barbers, Hair Dressers, Cosmetologists and
Proprietors ' International Union of America, AFL-
CIO, Local 844 . Case I l-CA-4198
December 17, 1976
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On January 5, 1972, and February 22, 1974, the
National Labor Relations Board issued a Decision
and Orders and Supplemental Decision and Order2
directing, inter alia, Cicero Fowler t/a Fowler's
Barber Shops, herein called the Respondent, to take
certain remedial action and make whole certain
employees for any loss of earnings suffered after May
28, 1970, as a result of the Respondent's unfair labor
practices in violation of Section 8(a)(1) and (5) of the
Act. On September 16, 1975, the United States Court
of Appeals for the Fourth Circuit entered its judg-
ment enforcing in full the backpay orders of the
Board. A controversy having arisen as to the amount
of backpay due under the Board's Orders, the Board's
Regional Director for Region 11, on July 30, 1976,
issued and duly served on the Respondent a backpay
specification and notice of hearing setting forth the
amount due the discnminatees and notifying the
Respondent that it must file a timely answer pursuant
to Section 102.54 of the Board's Rules and Regula-
tions.3 The Respondent failed to file an answer to the
specification.
On September 20, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment with attachments, and on Sep-
tember 23, 1976, an amendment thereto with at-
tached exhibits. Subsequently, on October 12, 1976,
the Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent did not file a
response to Notice To Show Cause and therefore the
allegations of the General Counsel's Motion for
Summary Judgment stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
i Spruce Up Corporation, 194 NLRB 841
2 Spruce Up Corporation, 209 NLRB 194.
3 By order dated September 16, 1976, the Acting Regional Director
severed the instant Case 11-CA-4198 from Cases I l-CA-3949-1, -2, and -3,
involving the other respondent , Spruce Up Corporation, which had filed an
answer to the specification
' As more detailed in the motion , ( I) in telephone and personal
227 NLRB No. 71
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions, Series 8, as amended, provides, in pertinent
part, as follows:
(a) . . . The respondent shall, within 15 days
from the service of the specification, if any, file an
answer thereto ... .
(c) . . . If the respondent fails to file any answer
to the specification 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 without notice to the respon-
dent, find the specification to be true and enter
such order as may be appropriate.
The specification, issued on July 30, 1976, and duly
served on the Respondent, specifically states that,
pursuant to Section 102.54 of the Board's Rules and
Regulations, the Respondent shall, within 15 days
from the date of the specification, file an answer to
the specification in the manner required by the
Board's Rules and Regulations and, if the failure to
do so is not adequately explained, the allegations of
the specification shall be deemed to be admitted to be
true and the Respondent shall be precluded from
introducing any evidence controverting them. The
uncontroverted allegations of the General Counsel's
motion show in specific detail that counsel for the
General Counsel has communicated repeatedly with
counsel for the Respondent, by telephone, letter, and
telegram, in each instance requesting that an answer
be filed, but no answer had been filed as of Septem-
ber 16, 1976, the date of the General Counsel's
motion.4
As the Respondent has neither filed an answer to
the specification nor offered any explanation for its
failure to do so, the General Counsel's motion is
granted and, in accordance with that section of the
Board's Rules set forth above, the allegations of the
specification are deemed to be admitted as true and
are so found by the Board.
Accordingly, on the basis of the allegations of the
specification which are accepted as true , the Board
conversations with Regional Office personnel between August 20 and
September 10, 1976, the Respondent's counsel promised to file an answer
within a few days but failed to do so, and (2) he failed to take delivery of a
certified letter or to respond to a telegram , each requesting the filing of an
answer A copy of the certified letter was sent also to the Respondent by
ordinary mail, but was not returned to the Regional Office and presumably
was received but not answered
FOWLER'S BARBER SHOPS 413
finds the facts as set forth therein, concludes that the
net backpay of the discriminatees is as stated in the
computations of the specification, and hereinafter
orders the payment be made by the Respondent to
each of the discriminatees listed in the Order herein.
ORDER
Pursuant to Section I0(c) of the -National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Cicero Fowler t/a Fowler's Barber Shops, Fayette-
ville, North Carolina, his agents, successors, and
assigns , shall make whole- each of the discriminatees
named below by payment to each of them of the
amount set forth adjacent to his name, plus interest
accrued at the rate of 6 percent per annum, to be
computed in the manner spgcified in Isis Plumbing dt
Heating Co., 138 NLRB 716-(1962), until payment of
all backpay due, less tax withholding required by
Federal and state laws-: 5
Christopher C. Allen, Jr. $ 5,553
James A. Bailey 5,248
Earl Bilvrey 10,228
David Brown 1,902
E. C. Cale 1,739
William E. Green 6,071
Joe P. Hall 7,284
Eugene Hargrove 8,222
Thomas F. Hooper 5,932
Joseph Lee 33,733
George McCormick 18,026
Willie Pridgen 7,272
James C. Smith 5,691
Merriel Williams 4,111
Jesse Womble 1,161
5 Discnminatees David Ballew, Thaddeus Butler, James Hudson, and
Howard Sinclair each obtained substantially equivalent employment prior to
May 28, 1970 , and admittedly suffered no loss of earnings throughout the
backpay period and therefore each is not entitled to any backpay . Hector
Hunt was not an employee at the time of the March 3, 1970 , strike since the
Admrmstrative Law Judge and the Board had found that he had not been
discriminatorily discharged, but had been erroneously included in the notice
as a striker entitled- to reinstatement by the Respondent on May 28, 1970.
Accordingly , hers not entitled to any backpay. -