Barry Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1973

202 N.L.R.B. 650 (N.L.R.B. 1973)

650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barry Industries , Incorporated and Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFI-CIO. Case 6-CA-4606
March 22, 1973
SUPPLEMENTAL DECISIOX AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On April 8, 1970, the National Labor Relations
Board issued its Decision and Order' in the above-
entitled proceeding in which it ordered, inter alia,
that the Respondent make whole Charles J. Taylor,
Fannie E. Miller, and John E. Homer for any loss of
pay they may have suffered as a result of the
Respondent's discrimination against them. Thereaf-
ter, on May 4, 1972, the United States Court of
Appeals for the Third Circuit entered its judgment
enforcing the Board's Order. A controversy having
arisen as to the amounts of backpay due under the
terms of the Board's Order, as enforced by the court,
the Regional Director for Region 6, on December 14,
1972, issued and duly served the Respondent by
registered mail a Backpay Specification and Notice
of Hearing alleging the amounts of backpay due the
discriminatees under the Board's Order and notifying
the Respondent that it shall file a timely answer
which must comply with the Board's Rules and
Regulations. The Respondent received the Backpay
Specification on December 27, 1972. Thereafter, on
January 15, 1973, Respondent filed its answer to the
specification in the form of a letter dated January 11,
1973, generally denying the allegations in the
Specification.
On January 19, 1973, counsel for the General
Counsel filed directly with the Board a Motion to
Strike Respondent's Answer to Backpay Specifica-
tion and Motion for Judgment on the Pleadings in
Accordance with the Specification, herein called
Motion for Summary Judgment.2 Subsequently, on
January 31, 1973, the Board issued an order
transferring the proceeding to the Board and a
Notice To Show Cause on or before February 13,
1973, why the General Counsel's Motion for Summa-
ry Judgment should not be granted. By letter dated
February 9, 1973, the Respondent requested an
extention of time to February 23, 1973, within which
to respond. This request was granted. Nevertheless
Respondent failed to file a response to Notice To
Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
1 181 NLRB 1003
2 Although a copy of the General Counsel's Motion for Summary
Judgment was sent by the Regional Director for Region 6 by certified mail
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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 . . . .
(b) . . . The respondent shall specifically
admit, deny, or explain each and every allegation
of the specification, unless the respondent is
without knowledge, in which case the respondent
shall so state, such statement operating 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 allegation of
the specification in the manner required by
subsection (b) of this section, and the failure 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 precluded from introducing
any evidence controverting said allegation.
The Backpay Specification duly issued, served, and
received by the Respondent states that an answer
shall be filed within 15 days after service of the
specification and that, to the extent that the answer
denies, without adequate explanations, the allega-
tions of the specification in the manner required by
the Board's Rules and Regulations, such allegations
shall be deemed to be admitted to be true and the
Respondent precluded from introducing any evidence
controverting them. According to the Motion for
Summary Judgment, on January 11, 1973, when no
answer had been filed, counsel for the General
Counsel, having been previously advised that Re-
spondent's counsel had withdrawn from the case,
telephoned the Respondent's president and called his
attention to the Respondent's obligation to file an
answer in conformity with Section 102.54(b) of the
Board's Rules and Regulations and to the effect of a
to the Respondent at its new address indicated on the letterhead of its
January 11, 1973, letter, it was returned by the Postal Service marked
"unclaimed "
202 NLRB No. 105
BARRY INDUSTRIES, INC. 651
failure to file an answer or to plead specifically and
in detail to the specification as provided in Section
102.54(c) of the Board's Rules and Regulations.
Thereafter, by letter dated January 11, 1973, received
in Region 6 on January 15, 1973, the Respondent
filed an answer stating that it "herewith denies any
and all of your Backpay Specifications dated 14th
December 1971 (sic)." Although the Board granted
the Respondent's request for an extension of time to
February 23, 1973, within which to file a response to
the Notice To Show Cause, it failed to file such a
response and therefore, the allegations of the Motion
for Summary Judgment stand uncontroverted.
The Respondent's answer merely contains a gener-
al denial of the allegations of the Backpay Specifica-
tion and does not specifically deny the allegations as
required by Section 102.54(b) of the Board's Rules
and Regulations. The failure so to deny is not
adequately explained. Accordingly, as the answer
fails to comply with the provisions of Section
102.54(b) and (c) of the Board's Rules and Regula-
tions, pursuant to such provisions, the allegations of
the specification are deemed to be admitted to be
true and are so found by the Board without taking
evidence in support of said allegations.
Accordingly, on the basis of the allegations of the
specification which are accepted as true, the Board
finds the facts as set forth therein , concludes the net
backpay due each of the discriminatees , Charles J.
Taylor, Sr., Fannie E. Miller , and John E . Homer, is
as stated in the computations of the specification,
and orders that payment thereof be made by the
Respondent to each discriminatee.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Barry Industries, Incorporated, Chambersburg,
Pennsylvania, its officers, agents, successors, and
assigns, shall make whole each of the discriminatees,
Charles J. Taylor, Sr., Fannie E. Miller, and John E.
Homer, the employees named below, by payment to
them of the amounts set forth adjacent to their
names, plus interest accrued at the rate of 6 percent
per annum to be computed in the manner specified
in Isis Plumbing & Heating Co., 138 NLRB 716, until
payment of all backpay due, less tax withholdings
required by Federal and State laws:
Charles J. Taylor, Sr. $6,444.75
Fannie E. Miller $633.19
John E. Homer $2,683.55