McClure Associates, Inc.

McCLURE ASSOCIATES, INC. McClure Associates, Inc. and International Brother- hood of Electrical Workers, Local Union No. 776. Case 11-CA-6117 June 15, 1978 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 31, 1976, 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 Ronald Alex, Rob- ert Bailey, Richard Bell, John Lee, Harold Mahaffey, William Smith, Robert Stanley, and Michael Taylor for their losses resulting from the Respondent's un- fair labor practices in violation of Section 8(a)(3) of the Act. Thereafter, on June 13, 1977, the United States Court of Appeals for the Fourth Circuit en- tered its judgment enforcing the Board's Order.2 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 11, on August 12, 1977, issued and duly served on the Respondent a Backpay Specification and Notice of Hearing alleging the amounts of back- pay due the employees 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, Series 8, as amended. The Respon- dent did not file a timely answer and on August 31, 1977, counsel for General Counsel sent the Respon- dent a letter which requested that the Respondent file an answer and extended the time for filing such answer until September 7, 1977. By letter dated Sep- tember 7, 1977, Respondent replied to the General Counsel's letter of August 31, 1977, and denied in general terms the allegations in the specification. On September 15, 1977, counsel for General Counsel sent another letter to the Respondent which advised the Respondent that its response of September 7, 1977, was not considered an answer, provided the Respondent with a copy of Section 102.54 of the Board's Rules and Regulations, and again extended the time for filing an answer to September 22, 1977. By letter dated September 22, 1977, in reply to coun- sel for General Counsel's letter of September 15. 1977, the Respondent claimed Richard Bell had been offered reinstatement and therefore was not entitled to backpay for the period specified but set forth no 223 NLRB 580. 2 N I RB v. Mc(4lre Associates, In.., 556 F.2d 725 objections to the backpay computations for the re- maining discriminatees. The Respondent disclaimed all liability for backpay, however, on the ground that its cost-plus-fixed-fee agreement made Ranger Con- struction Company responsible for all labor costs. On October 7, 1977, counsel for General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 20, 1977, 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. On November 4, 1977, the Respondent filed a response to the Notice To Show Cause entitled, "Affidavit in Opposition to Motion for Summary Judgment." Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summar)y Judgment Section 102.54 of the Board's Rules and Regula- tions, Series 8, as amended, provides in pertinent part as follows: (b) . . . The answer to the specification shall be in writing, the original being signed and sworn to by the respondent or by a duly author- ized agent with appropriate power of attorney affixed, and shall contain the post office address of the respondent. The respondent shall specifi- cally admit, deny, or explain each and every allegation of the specification, unless the respon- dent is without knowledge, in which case the re- spondent shall so state, such statement operating as a denial. Denials shall fairly meet the sub- stance of the allegations of the specifications de- nied. When a respondent intends to deny only a part of an allegation. the respondent shall spec- ify so much of it as is true and shall deny only the remainder. 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. As to such matters, if the re- spondent disputes either the accuracy of the fig- ures in the specification or the premises on which they are based, he shall specifically state the basis for his disagreement, setting forth in detail his position as to the applicable premises and furnishing the appropriate supporting fig- ures. (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 allega- 236 NLRB No. 114 965 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 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 in- troducing any evidence controverting said alle- gation. The backpay specification duly issued, served, and received by the Respondent states that, to the extent that the answer denies, without adequate explana- tions, the allegations of the specification in the man- ner required by the Board's Rules and Regulations, such allegations shall be deemed to be admitted to be true and the Respondent is precluded from introduc- ing any evidence controverting them. Thus, as the Respondent's answer contained only a general denial except as to Bell,3 the General Counsel moved for summary judgment. In its opposition to the Motion for Summary Judg- ment, the Respondent asserts that it has repeatedly requested that Ranger Construction Company and Travelers Insurance Company, its bonding company, be brought into this cause of action as third party defendants since Ranger Construction Company, un- der its contract with McClure Associates, Inc., is le- gally bound to pay all labor costs and related expen- ses and is, therefore, responsible for satisfaction of any judgment which may be entered against Mc- Clure Associates, Inc. We find no merit in the Re- spondent's position. We have found that the Respon- dent illegally discharged the eight employees and we ordered these employees reinstated with backpay. The United States Court of Appeals for the Fourth Circuit enforced our order against this Respondent. Whatever legal rights Respondent may have against Ranger Construction Company and Travelers Insur- ance Company is a matter not before us and does not relieve Respondent of responsibility under the Act. Since Respondent has not replied with the re- quired specificity to the backpay specification and since its response to the Notice To Show Cause why summary judgment should not be granted does not provide an adequate explanation for the failure of its answer to comply with the requirements of Section 102.54 of the Board's Rules and Regulations, the allegations of the backpay specification are deemed to be admitted as true 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 the net backpay due each of the employees, whose names are set forth in the attached Appendix, is as stated in the computations of the specification, and orders that payment thereof be made by the Respondent to each named employee. 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, McClure Associates, Inc., Charleston, South Caro- lina, its officers, agents, successors, and assigns, shall make whole each of the employees named in the at- tached Appendix by payment to them of the amounts set forth adjacent to their names, plus inter- est accrued at the rate of 6 percent per annum,4 less any lawful tax withholdings. 3The backpay specification shows Respondent's liability period for Rich- ard Bell to be May 8, 1975, to March 19, 1976. The Respondent claims that Bell's backpay should terminate on August 7, 1975, because by letter of that date he was offered reinstatement. An exhibit to the backpay specification shows, however, that Bell was not offered reinstatement to an equivalent job. Bell was earning $6.35 an hour when laid off, whereas the offer for reinstatement was at approximately $3.65 an hour. Accordingly, we find the backpay specification regarding Bell has not been sufficiently rebutted by the Respondent and its liability to Bell is as stated in the backpay specifica- tion. 4 Inasmuch as the court of appeals enforced the Board's Order providing for interest to be paid at the rate of 6 percent, that rate shall be used in computing the interest due on backpay. See Florida Steel Corporation, 234 NLRB 1089 (1978). APPENDIX Ronald Alex $1,263 Robert Bailey 1,989 Richard Bell 5,559 John Lee 484 Harold Mahaffey 1,202 William Smith 995 Robert Stanley 2,650 Michael Taylor 2,013 966