Florida Steel Corp.

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Florida Steel Corporation and United Steelworkers of America, AFL-CIO. Case 11-CA-6166 January 26, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on June 30, 1975, by United Steelworkers of America, AFL-CIO, herein called the Union, and duly served on Florida Steel Corpo- ration, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 11, issued a complaint and notice of hearing on August 21, 1975, alleging that the Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. Subsequently, the Respondent filed an answer ad- mitting in part and denying in part the allegations of the complaint. Thereafter, on September 18, 1975, the General Counsel, by counsel, filed with the Board in Washington, D.C., a Motion for Summary Judgment and memorandum in support, with exhib- its attached. The General Counsel requested the Board to take administrative notice of Cases 11-CA-5776, 11-CA-5943, and 11-CA-5946, which have since been decided by the Board.' With respect to the unfair labor practices, the com- plaint alleges in substance that on or about May 1, 1975, and continuing to date, Respondent denied and withheld from certain of its employees a quarter annual wage review because those employees had se- lected the Union as their collective-bargaining repre- sentative, in violation of Section 8(a)(1) and (3) of the Act. General Counsel's memorandum in support of its Motion for Summary Judgment, filed September 18, 1975, contends that through its answer Respon- dent had admitted facts sufficient for a Board deter- mination finding the alleged violations of the Act. Respondent's denials that its admitted withholding of the wage review constituted unfair labor practices were argued to be identical to the issues raised and considered in the above-submitted cases before Ad- ' The General Counsel's cases concern the question of law in this pro- ceeding The board decisions appear at 221 NLRB No. 112 (1975), for Cases 11-CA-5943 and 11-CA-5946, and 220 NLRB No 57 ( 1975), for Case 11-CA-5776. ministrative Law Judges Wilson and Constantine, ex- cept that Respondent has now changed from an an- nual wage review schedule to a quarterly wage review schedule. On September 30, 1975, 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 October 8, 1975, Respondent filed an amended answer by which it seeks to withdraw its admission of the alleged unlawful conduct and enter instead a de- nial of such conduct. Thereafter on October 23, 1975, Respondent filed its Response to the Notice To Show Cause, stating, inter alia, that the Motion for Summary Judgment should not be granted because its amended answer had once again raised factual issues resolvable only through a hearing before an Administrative Law Judge and because the cases submitted by the General Counsel purporting to have dealt with the instant issues are not dispositive of the case. A motion to strike Respondent's amended answer in its entirety was filed by the General Counsel on October 14, 1975, charging that, in the absence of a satisfactory explanation for the change, the amend- ment should not be accepted once the case has been ordered transferred to the Board and a Notice To Show Cause has issued, despite Section 102.23 of the Board's Rules and Regulations, Series 8, as amended. Respondent subsequently filed a response to the mo- tion to strike. 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 to Strike Amended Answer Section 102.23 of the Board's Rules and Regula- tions, Series 8, as amended provides as follows: The respondent may amend his answer at any time prior to the hearing. During the hearing or subsequent thereto, he may amend his answer in any case where the complaint has been amend- ed, within such period as may be fixed by the Administrative Law Judge or the Board. Wheth- er or not the complaint has been amended, the answer may, in the discretion of the Administra- tive Law Judge or the Board, upon motion, be amended upon such terms and within such peri- ods as may be fixed by the Administrative Law Judge or the Board. 222 NLRB No. 99 FLORIDA STEEL CORP. 587 Though the Notice To Show Cause here preceded the Respondent's amendment, the right to amend an answer prior to hearing is not conditioned upon the discretion of -the Administrative Law Judge or the Board. Thus, the Respondent's amended answer is hereby accepted. Accordingly, we shall deny the mo- tion to strike the amended answer. Ruling on the Motion for Summary Judgment Respondent's amended answer having been ac- cepted, denial by it of the commission of the alleged unlawful acts raises a question of fact and law requir- ing resolution through a hearing before an Adminis- trative Law Judge. We shall therefore deny the Gen- eral Counsel's Motion for Summary Judgment.' ORDER It is hereby ordered that the General Counsel's 2 In the event the General Counsel can demonstrate that Respondent's denials as set forth in its amended answer are frivolous, the Board will consider a new Motion for Summary Judgment motion to strike Respondent's amended answer be, and it hereby is, denied. IT IS FURTHER ORDERED that the General Counsel's Motion for Summary Judgment be, and it hereby is, denied. IT IS FURTHER ORDERED that a hearing be scheduled before an Administrative Law Judge as designated by the Chief Administrative Law Judge for the pur- pose of receiving evidence on the issues raised by the allegations of the complaint. IT IS FURTHER ORDERED that the above-entitled pro- ceeding be, and it hereby is, remanded to the Region- al Director for Region 11 for the purpose of arrang- ing such hearing, and that the said Regional Director be, and he hereby is, authorized to issue such notice thereof. IT IS FURTHER ORDERED that, upon the conclusion of the hearing, the Administrative Law Judge shall prepare and serve on the parties a Decision contain- ing findings of fact, conclusions of law, and recom- mendations based upon the evidence received and that, following service of such Decision on the par- ties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable.