Marine Machine Works

MARINE MACHINE WORKS Is5 Marine Machine Works, Inc.; D & P Investment Company, Inc.; D & P Repair Service, Inc; and Blume Winch & Anchor Manufacturing Compa- ny and International Association of Machinists and Aerospace Workers, AFL-CIO and Galves- ton Area Repairs Council and Affiliated Compa- nies, Party to the Contract Marine Machine Works, Inc.; D & P Investment Company, Inc.; D & P Repair Service, Inc; and Blume Winch & Anchor Manufacturing Compa- ny and International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO, Local No. 132 and Gal- veston Area Repairs Council and Affiliated Companies, Party to the Contract. Case 23- CA-6974 and 23-CA-7371 April 14, 1981 SUPPLEMENTAL DECISION AND ORDER On August 6, 1979, the National Labor Relations Board issued a Decision and Order in Case 23- CA-69741 against Marine Machine Works, Inc., 2 which ordered Respondent Marine, inter alia, to execute the collective-bargaining agreement agreed upon by International Association of Machinists and Aerospace Workers, AFL-CIO, 3 and the Gal- veston Area Repairs Council and Affiliated Com- panies,4 which was effective March 10, 1978; to comply with the terms and conditions of that agreement both retroactively and for the balance of its term; to make such payments to the various benefit funds as may be prescribed in said agree- ment; and to make its employees whole for any loss of wages and benefits they may have suffered as a result of its failure to comply with the terms and conditions of said agreement, which failure was found to violate Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. On January 30, 1981, the United States Court of Ap- peals for the Fifth Circuit issued a decision enforc- ing the Board's Order in Case 23-CA-6974.5 On August 6, 1979, the National Labor Relations Board issued a Decision and Order in Case 23- CA-737 16 against Respondent Marine, which or- dered Respondent Marine, inter alia, to observe and abide by the terms and conditions of the col- lective-bargaining agreement negotiated between International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO, Local No. 132, 7 and the Council, i 243 NLRB 1098. 2 Herein called Respondent Marine. 3 Herein called the Machinists Union. Herein called the Council. s 106 LRRM 2656. 6 243 NLRB 1081. Herein called the Boilermakers Union. 256 NLRB No. 4 which was effective February 1, 1978; to make contributions to the various benefit funds as may be prescribed in said agreement; to make its employ- ees whole for any loss of wages and benefits they may have suffered as a result of its failure to comply with the terms and conditions of said agreement, which failure was found to violate Sec- tion 8(a)(5) and (1) of the National Labor Relations Act, as amended; to offer immediate and full rein- statement to Mark Thompson and Gilfred L. Spradlin, Jr.; and to make Mark Thompson and Gilfred Spradlin whole for any loss of earnings they may have suffered as a result of their dis- charges, which were found to be in violation of Section 8(a)(3) and (1) of the National Labor Rela- tions Act, as amended. On June 2, 1980, the United States Court of Appeals for the Fifth Circuit en- tered a summary judgment enforcing the Board's Order in Case 23-CA-7371.8 On January 13, 1981, the Regional Director for Region 23 issued a backpay specification and notice of hearing alleging, inter alia, that a controversy had arisen over the reinstatement of Thompson and Spradlin and over the amount of backpay and benefit fund contributions due under the terms of the Board Orders in Cases 23-CA-6974 and 23- CA-7371; that D & P Investment Company, Inc., D. P. Marine Repair Service, Inc., and Blume Winch & Anchor Manufacturing Company9 were successor employers to Respondent Marine; and that Respondents D & P were obligated as succes- sor employers to remedy the unfair labor practices which the Board and the court had found Re- spondent Marine to have committed. Respondents D & P filed an answer to the backpay specification on January 28, 1981, generally denying the allega- tions contained therein and raising certain affirma- tive defenses. After an extension of time to file an answer had benprovided, Respondent Marine filed an answer on February 11, 1981, generally denying the allegations contained in the backpay specifica- tion. On February 23, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment with exhibits attached. Subse- quently, on February 27, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. Neither Respondent Marine nor Respond- ents D & P filed a response to the Notice To Show Cause. s L.R.B. . Marine Machine Works, Inc., No. 80-1496 9 Herein collectively called Respondents D & P MARINE MACHINE WORKS 15 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.54(b) and (c) of the National Labor Relations Board Rules and Regulations, Series 8, as amended, states: (b) Contents of the answer to specification.- The answer to the specification shall be in writing, the original being signed and sworn to by the respondent or by a duly authorized agent with appropriate power of attorney af- fixed, and shall contain the post office address of the respondent. The respondent shall spe- cifically admit, deny, or explain each and every allegation of the specification, unless the respondent is without knowledge, in which case the respondent shall so state, such state- ment operating as a denial. Denial shall fairly meet the substance of the allegations of the specification denied. When a respondent in- tends to deny only a part of an allegation, the respondent shall specify so much of it as is true and shall deny only the remainder. As to all matters within the knowledge of the re- spondent, including but not limited to the var- ious factors entering into the computation of gross backpay, a general denial shall not suf- fice. As to such matters, if the respondent dis- putes either the accuracy of the figures 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 fur- nishing the appropriate supporting figures. (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 taking evidence in support of the allegations of the specification and without notice to the re- spondent, find the specification to be true and enter such order as may be appropriate. If the respondent files an answer to the specification but fails to deny any allegation of the specifi- cation in the manner required by subsection (b) of this section, and the failure so to deny is not adequately explained, such allegation 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 introduc- ing any evidence controverting said allegation. The backpay specification duly served on Re- spondent Marine and on Respondents D & P states that, pursuant to Section 102.54 of the Board's Rules and Regulations, Respondent Marine and Re- spondents D & P "shall, within 15 days from the date of the Specification, file with the Regional Di- rector, acting in this matter as agent of the Board, an original and four (4) copies of an Answer to the Specification." The backpay specification states further that "To the extent that any such answer fails to deny allegations of the Specification in the manner required under the Board's Rules and Reg- ulations and the failure to do so is not adequately explained, such allegations shall be deemed to be admitted to be true as to the Respondent who fails and that Respondent shall be precluded from intro- ducing any evidence controverting such allega- tions." The Motion for Summary Judgment submits that the answer filed by Respondent Marine states merely a general denial of all the allegations in the backpay specification, which does not specifically dispute either the accuracy of the figures used in the specification or the premises on which they are based. The Motion for Summary Judgment also submits that the answer filed by Respondents D & P similarly constitutes only a general denial of all the allegations in the backpay specification, which does not specifically dispute the facts alleged to es- tablish successorship, the accuracy of the figures used in the specification, or the premises on which the figures are based. Counsel for the General Counsel contends that these answers fail to comply with the requirements of Section 102.54(b) and (c) of the Board's Rules and Regulations as to specific- ity and that the Board should therefore deem the allegations of the backpay specification to be ad- mitted to be true. Copies of the answers filed by Respondent Marine and by Respondents D & P are attached to the Motion for Summary Judgment as exhibits. Re- spondent Marine's answer simply denies all of the allegations contained in the backpay specification. The answer filed by Respondents D & P merely states that Respondents D & P are not successors obligated to bargain with the Machinists Union and the Boilermakers Union or successors obligated to remedy any unfair labor practices committed by Respondent Marine and that Respondents D & P deny all of the allegations contained in the backpay specification. Neither Respondent Marine nor Re- spondents D & P have filed any response to the Notice To Show Cause or offered any explanation as to their failure to specifically deny the allega- tions in the backpay specification. MARINE MACHINE WORKS 17 We agree with counsel for the General Counsel that the answer of Respondent Marine constitutes a general denial, which fails to comply with the re- quirements of Section 102.54(b) and (c) as to those compliance matters within its knowledge. Thus, the answer does not dispute the accuracy of the figures contained in the backpay specification or provide any alternative formula for computing the amounts owed. Inasmuch as we presume that the hours worked by the employees and the contractual rates of pay for wages and benefits are within the knowledge of Respondent Marine and as it has not asserted any lack of knowledge about such matters, we find that its answer is insufficient to deny the allegations of the backpay specification concerning gross backpay and the amounts owed to the benefit funds. However, we have held that a general denial of the allegations concerning interim earnings in a backpay specification is sufficient under Section 102.54 to defeat a Motion for Summary Judgment on that issue, since we do not presume that the amount of any interim earnings is normally within the knowledge of a respondent.1 0 Therefore, we find that the general denials contained in the an- swers filed by Respondent Marine and Respondents D & P of those allegations in the backpay specifi- cation relating to the amount of net interim earn- ings for Mark Thompson and Gilfred L. Spradlin, Jr., are sufficient to require a hearing on that issue. Further, we shall order a hearing on the issue of whether Respondents D & P are successor employ- ers to Respondent Marine and are obligated to remedy Respondent Marine's unfair labor practices. It is well established that "one who acquires and operates a business of an employer found guilty of unfair labor practices in basically unchanged form under circumstances which charge him with notice of unfair labor practice charges against his prede- cessor should be held responsible for remedying his predecessor's unlawful conduct."" However, in Perma Vinyl, the Board specifically stated: Of course, no such adjudication of liability can be made without affording the bona fide pur- chaser a full opportunity at a hearing, after adequate notice, to present evidence on the question of whether it is a successor which is responsible for remedying a predecessor's unfair labor practices. The successor would I0 Dews Construction Corp.. a Subsidiary of The Aspin Group. Inc. 246 NLRB 945 (1979); Garrard Convalescent Home. Incorporated. 220 NLRB 450 (1975). i1 Perma Vinyl Corporation. et al., 164 NLRB 968, 969 (1967), enfd 398 F.2d 544 (5th Cir. 1968), approved by the Supreme Court in Golden State Bottling Inc., formerly Pepsi-Cola Bottling Co. of Sacramento, et al. N.LR.B.. 414 U.S. 168 (1973) also be entitled, of course, to be heard against the enforcement of any order issued against it. 1 2 Inasmuch as Respondents D & P were not made parties to the underlying unfair labor practice pro- ceedings herein and have thus never had the op- portunity to present evidence at a hearing as to their liability, we find that their general denials of the allegations in the backpay specification regard- ing their status as successors are sufficient to re- quire a hearing.'s Accordingly, we shall deny counsel for the Gen- eral Counsel's Motion for Summary Judgment, and we shall order a hearing limited to the determina- tion of the net interim earnings of Thompson and Spradlin and to the issue of whether Respondents D & P are successor employers responsible for remedying Respondent Marine's unfair labor prac- tices. However, since we have found that the gen- eral denial of Respondent Marine as to all other al- legations in the backpay specification is insufficient under Section 102.54(b) and (c) of the Board's Rules and Regulations and as no explanation or re- sponse to the Notice To Show Cause has been filed, we deem Respondent Marine to have ad- mitted all other allegations in the backpay specifi- cation to be true. ORDER It is hereby ordered that the General Counsel's Motion for Summary Judgment be, and it hereby is, denied. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Direc- tor for Region 23 for the purpose of issuing a notice of hearing and scheduling a hearing before an administrative law judge, which hearing shall be limited to taking evidence as to the amount of the net interim earnings of Mark Thompson and Gilfred L. Spradlin, Jr., and as to the liability of D & P Investment Company, Inc., D. P. Marine Repair Service, Inc., and Blume Winch & Anchor Manufacturing Company. IT IS FURTHER ORDERED that the administrative law judge shall prepare and serve on the parties a decision, containing findings, conclusions, and rec- ommendations based on all the record evidence. Following the service of the administrative law judge's decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regula- tions, Series 8, as amended, shall apply. 12 Perma inyl, supra at 969., quoted in Golden Sate, upra at 180. 3 See DI)ew Construction Corp., upra MARINE MACHINE WORKS 17