Security Services, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1975

218 N.L.R.B. 200 (N.L.R.B. 1975)

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Security Services, Incorporated and Melvin E. Jones.
Case 7-CA-8852
June 3, 1975
SECOND SUPPLEMENTAL DECISION
AND ORDER
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On February 26, 1973, the National Labor Rela-
tions Board issued its Supplemental Decision and
Order, 201 NLRB 1010, in the above-captioned
proceeding in 'which it ordered, inter alia, that
Respondent make whole Melvin E. Jones for'any loss
of pay he may have suffered as a result of
Respondent's discrimination against him. Thereafter,
the United States Court of Appeals for the Sixth
Circuit, on December 11, 1973, entered a judgment
enforcing the Board's Order (487 F.2d 517). A
controversy having arisen as to the amount of
backpay due under the terms of the Board's Order, as
enforced by the court, the Regional Director for
Region '7, on September 12, 1974, issued and duly
served on the Respondent by registered mail a
backpay specification and notice of hearing setting
forth the amount of backpay due the discriminatee
under the Board's Order and notifying Respondent
that it must file a timely answer which must. comply
with the Board's Rules and Regulations. On Septem-
ber 20, 1974, Respondent filed an answer to the
backpay specification and on October 22, 1974,
Respondent filed an amended answer.
At the backpay hearing before an Administrative
Law. Judge on October 31, 1974, all parties entered
into a settlement of the issues which provided, inter
alia, for the payment of a specified" sum of backpay,
with interest, to the discriminatee within 15 days, the
withdrawal of Respondent's answer to the backpay
specification, and a motion to enter a formal order if
backpay were not paid within 15 days from the date
of settlement. The Administrative Law Judge ap-
proved the settlement and granted the motion to
withdraw the Respondent's answer. Respondent has
failed to pay the backpay provided for in the
settlement agreement. Absent any explanation for
the failure to pay, counsel for the General Counsel,
on December 23, 1974, 'filed a motion to enter a
formal order with the Administrative Law Judge
who, on February 5, 1975, declined to rule on the
motion in view of the withdrawal of the Respon-
dent's answer which made proper a motion for
summary judgment on its pleadings. Accordingly, he
referred the parties to the Board for an appropriate
order.
On February 13, 1975, counsel for the General
Counsel filed a motion for summary judgment based
upon the absence of an `answer to the, backpay
specification and notice of hearing required by
Section 102.54 of the Board's Rules and Regulations,
Series 8, as amended. The Board, on February 26,
1975, issued an order transferring the proceeding to
the Board and notice to show cause why the General
Counsel's motion for summary judgment should not
be granted. The Respondent did not file a response
to the notice to show cause.
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.
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 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
respondent, find the specification to be true and
enter such order as may be appropriate... .
The backpay specification, issued and served on
the Respondent on September 12, 1974, specifically
states that the Respondent shall; within 15 days from
the date of the specification, file, an answer to the
specification with the Regional Director, for Region 7
and that, if the answer fails to deny the allegations of
the specification in the manner required under the
Board's Rules and Regulations and the failure to do
so is not adequately- explained, such allegations shall
be deemed to be. admitted to be true and the
Respondent shall be precluded from introducing any
evidence controverting them. Although Respondent
filed a timely answer, it subsequently, in the course of
the hearing in the backpay proceeding, withdrew its
answer as part of a settlement thereby in effect
acquiescing in the issuance of a Board Order herein.
The withdrawal of an answer of necessity has the
same effect as a failure to file, and thus the
218 NLRB No. 36
SECURITY SERVICES, INC.
allegations of the complaint must be deemed admit-
ted as true as if no answer had ever been filed' and
the Board so finds.
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 that the
net backpay due Melvin E. Jones is as stated in the
computations of the specification, and hereinafter
orders the payment thereof to the discriminatee,
Melvin E. Jones.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
201
Relations Board hereby orders that Respondent,
Security Services , Incorporated , Farmington, Michi-
gan, its officers , agents, successors, and assigns, shall
make whole Melvin E . Jones by payment to him of
$4,477.81, the amount set forth in the backpay
specification and notice of hearing , plus interest
accrued at the rate of 6 percent per annum to be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), until payment of
all backpay due, less the tax withholdings required
by Federal and state laws.
1 Nickey Chevrolet Sales, Inc, 199 NLRB 411(1972).