Postmasters/Same Day Plus

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1169 (N.L.R.B. 1989)

POSTMASTERS/SAME DAY PLUS 1169
Postmasters/Same Day Plus and Terry K. Roberts.
Case 11-CA-12583
July 31, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 14, 1988, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding' in which the Board, inter alia,
ordered the Respondent to make whole employee
Terry K. Roberts for any loss of earnings suffered
as a result of his unlawful discriminatory discharge
by the Respondent. On November 14, 1988, the
United States Court of Appeals for the Fourth Cir-
cuit entered its judgment enforcing the Board's
Order. A controversy having arisen over the
amount of backpay due under the Board's Order,
as enforced by the court, the Regional Director for
Region 11 on February 16, 1989, issued a backpay
specification and notice of hearing alleging the
amount of backpay due. On April 24, 1989, the Re-
spondent filed an answer admitting all the allega-
tions in the backpay specification but asserting that
the Respondent "has had no operating income
since August 1988. However, the Company is
keeping legal entity in an effort to resolve, in the
immediate months ahead, settlement with credi-
tors."
On May 25, 1989, counsel for the Acting Gener-
al Counsel filed directly with the Board a Motion
for Summary Judgment and Memorandum in Sup-
port, with exhibits attached. On May 26, 1989, the
Board issued an order transferring proceeding to
the Board and a Notice to Show Cause why the
General Counsel's motion should not be granted.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this proceeding, the
Board makes the following
Ruling on Motion for Summary Judgment
Because the Respondent has admitted all allega-
tions in the backpay specification, it is apparent
that there are no substantial and material issues that
warrant a hearing. The Respondent's answer
merely suggests a plea of inability to pay. Howev-
er, "the issue [in a backpay proceeding] is the
amount due and not whether [the Respondent is]
able to pay." Star Grocery Co., 245 NLRB 196, 197
(1979).2 Accordingly, we grant the Motion for
Summary Judgment, conclude that the net backpay
due discriminatee Terry K. Roberts is as set forth
in the backpay specification, and order that the Re-
spondent pay this amount , plus interest.
ORDER
The National Labor Relations Board orders that
the Respondent, Postmasters/Same Day Plus,
Charlotte and Asheville, North Carolina, its offi-
cers, agents, successors, and assigns , shall make
whole Terry K. Roberts by payment to him of
$3876 plus interest accrued on net backpay to the
date of payment , minus tax withholdings required
by Federal and state laws.
1 289 NLRB No. 115 (unpublished). 2 See also Columbia Engineers, 268 NLRB 337 (1983).
295 NLRB No. 141