Simmons, Ron, d/b/a Bell Construction Co., Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1982

265 N.L.R.B. 407 (N.L.R.B. 1982)

BELL CONSTRUCTION CO.
Ron Simmons, d/b/a Bell Construction Co., Inc. and
Operating Engineers Local Union No. 3. Case
20-CA-15694
November 12, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, and Section 102.48 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the National
Labor Relations Board issued an unpublished
Order in the above-entitled proceeding on Decem-
ber 16, 1981,' in which it adopted the findings and
conclusions of the Administrative Law Judge as
contained in his Decision of October 6, 1981. The
Administrative Law Judge's Decision, inter alia,
found that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Ernie Killinger for
engaging in activity on behalf of the Union and or-
dered Respondent to, inter alia, offer full reinstate-
ment to Ernie Killinger and make him whole for
any loss of earnings by payment to him of a sum of
money equal to the amount he normally would
have earned as wages from the date of his dis-
charge to the date of Respondent's offer of rein-
statement, less net interim earnings, plus interest
thereon, computed in accordance with Board
precedent. On May 3, 1982, the United States
Court of Appeals for the Ninth Circuit entered its
decree granting the Board's application for sum-
mary entry of a judgment enforcing in full the
Board's Order. The Regional Director for Region
20 thereafter duly issued and served on Respondent
and Respondent's attorney the backpay specifica-
tion herein which sets forth the amounts of back-
pay allegedly due Killinger. Respondent has failed
to timely file an answer to the backpay specifica-
tion, and its allegations, therefore, stand uncontro-
verted.
On September 7, 1982, counsel for the General
Counsel filed a Motion for Summary Judgment,
with appendixes attached. Subsequently, on Sep-
tember 10, 1982, the Board issued an Order Trans-
ferring 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 the
Notice To Show Cause and therefore the allega-
tions of the Motion for Summary Judgment stand
uncontroverted.
There were no exceptions filed to the Administrative Law Judge's
Decision and recommended Order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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(c) of the National Labor Rela-
tions Board Rules and Regulations, Series, 8, as
amended, provides in relevant part with respect to
a backpay specification:
(c) Effect of failure to answer or to plead spe-
cifically and in detail to the specification.-If the
respondent fails to file any answer to the speci-
fication within the time prescribed by this sec-
tion, the Board may, either with or without
. . . notice to the respondent, find the specifi-
cation to be true and enter such order as may
be appropriate.
The Regional Director's backpay specification
and notice of hearing, dated May 21, 1982, were
served on Respondent and by certified mail on Re-
spondent's attorney. Respondent's answer not
having been received, the Acting Regional Attor-
ney for Region 20 on July 1, 1982, sent by certified
mail additional copies of the backpay specification
to Respondent and Respondent's attorney, stating
by cover letter that if an answer was not received
within 7 days, a Motion for Summary Judgment
would be filed with the Board. No answer to the
backpay specification had been filed as of the date
of the filing of the Motion for Summary Judgment.
Respondent has not filed any response to the
Notice To Show Cause.
No good cause for failure to file an answer
having been shown, in accordance with the rule set
forth above, the Board deems Respondent to have
admitted all allegations of the backpay specification
to be true and thus there are no matters in issue re-
quiring a hearing. Accordingly, we grant the Gen-
eral Counsel's Motion for Summary Judgment.
On the basis of the backpay specification and the
entire record in this case, the Board makes the fol-
lowing findings of fact:
We find that Ernie Killinger is entitled to be
made whole under the Board's Order and the
court's decree by payment to him of the amount
summarized and calculated in the backpay specifi-
cation; namely, by payment of a sum of $1,637.06,
plus interest accrued to the date of payment, minus
the tax withholdings required by Federal and state
laws.
265 NLRB No. 49
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Ron Simmons, d/b/a Bell Construction Co., Inc.,
Chico, California, its officers, agents, successors,
and assigns, shall pay Ernie Killinger a sum of
S1,637.06. Interest thereon is to be computed in the
manner prescribed in Isis Plumbing A Heating Co.,
138 NLRB 716 (1962), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977), minus the tax with-
holdings required by Federal and state laws.
408