United States Service Industries

485 325 NLRB No. 78 UNITED STATES SERVICE INDUSTRIES 1 315 NLRB 285. 2 In considering the sufficiency of the Respondent’s denials, we shall examine its response to the Notice to Show Cause as well as its answer. A respondent may cure defects in its answer before a hearing either by an amended answer or by a response to a Notice to Show Cause. See Ellis Electric, 321 NLRB 1205, 1206 (1996), and cases cited there. United States Service Industries and Service Em- ployees International Union, Local 525, AFL– CIO. Cases 5–CA–21399 and 5–CA–21691 March 20, 1998 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND LIEBMAN On September 30, 1994, the National Labor Rela- tions Board issued a Decision and Order in this pro- ceeding,1 in which it ordered the Respondent, inter alia, to offer reinstatement to certain economic strikers who had unconditionally offered to return to work and to make them whole for any loss of earnings suffered by reason of the Respondent’s discrimination against them. On November 21, 1995, the United States Court of Appeals for the District of Columbia entered a judg- ment enforcing the Board’s Order. A controversy hav- ing arisen over the amounts of backpay due under the terms of the Board’s Order, the Regional Director for Region 5 issued a compliance specification and notice of hearing, identifying certain individuals as the discriminatees who are entitled to backpay, alleging the amounts of backpay due, and notifying the Re- spondent that it must file a timely answer complying with the Board’s Rules and Regulations. The Respond- ent subsequently filed an answer to the compliance specification. By letter dated November 27, 1996, the Region noti- fied the Respondent that its answer was inadequate and that if it failed to correct the deficiencies by December 9, 1996, the Region would move for summary judg- ment. By letter dated December 2, 1996, the Respond- ent, by its counsel, responded to the November 27, 1996 letter, requested the Region to advise it precisely which denials of the Respondent’s answer were inad- equate and asserted that the Respondent believes it made specific denials and stated its position in detail. On August 18, 1997, the General Counsel filed with the Board a Motion to Transfer and Continue Case be- fore the Board, Motion for Partial Summary Judgment and to Strike Part of Respondent’s Answer to Compli- ance Specification. On August 20, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel’s mo- tion should not be granted. On September 2, the Re- spondent filed a memorandum in opposition to the General Counsel’s motion. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. On the entire record, the Board makes the following Ruling on Motion to Strike Part of Respondent’s Answer and for Partial Summary Judgment Section 102.56(b) and (c) of the National Labor Re- lations Board’s Rules and Regulations states, in perti- nent part: (b) Contents of answer to specification.—The answer shall specifically admit, deny, or explain each and every allegation of the specification, un- less the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. Denials shall fair- ly meet the substance of the allegations of the specification at issue. . . . 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 de- nial shall not suffice. As to such matters, if the respondent disputes either the accuracy of the fig- ures in the specification or the premises on which they are based, the answer shall specifically state the basis for such disagreement, setting forth in detail the respondent’s position as to the applica- ble premises and furnishing the appropriate sup- porting figures. (c) Effect of failure to answer or to plead spe- cifically and in detail to backpay allegations of specification. . . . If the respondent files an an- swer to the specification but fails to deny any al- legation of the specification in the manner re- quired by paragraph (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 with- out the taking of evidence supporting such allega- tion, and the respondent shall be precluded from introducing any evidence controverting the allega- tion. 1. In its answer and its response to the Notice to Show Cause2 the Respondent has offered general deni- als to the General Counsel’s allegations concerning the backpay period and the amount of backpay due each of the discriminatees, arguing that it had made offers of reinstatement to all discriminatees and further argu- ing that the backpay computation is inaccurate because it does not take into account interim earnings and miti- gation of damages. The Respondent also disputes the VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00485 Fmt 0610 Sfmt 0610 D:\NLRB\325.056 APPS10 PsN: APPS10 486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 The Respondent states that the General Counsel ‘‘had everyone’s wage rate. . . . In the 10 months he took to prepare his motion, he could have ascertained the correct wage rate.’’ 4 As requested in the General Counsel’s motion we correct the fol- lowing typographical errors in the compliance specification: Exh. A, p. 22, the correct amount of gross backpay for the third quarter of 1994 for Bernice Noble should be $1365, and the total gross back- pay should be $30,326. In Exh. A, p. 24, the correct amount of gross backpay for Merida Lee Ramirez is $31,979. In par. 4(d) of the compliance specification the appropriate time frame for the alleged wage rate should be August 3, 1990, to September 30, 1993. In par. 4(e) of the compliance specification the appropriate time frame for the alleged wage rate should be August 3, 1990, to September 30, 1993. 5 The record does not contain a copy of a letter to Gonzalez. 6 Because the record contains no purported reinstatement letter to Gonzalez, we grant the General Counsel’s Motion for Summary Judgment as to Gonzalez. wage rates used by the General Counsel, but supplies no alternative figures.3 The General Counsel contends that the general deni- als do not comply with the requirements of Section 102.56(b) and (c). Thus, the General Counsel argues that the Respondent has failed to specify what posi- tions were offered to the discriminatees, the terms of the offers or any details about the offers other than the purported date and whether some were rejected. Fur- ther, the Respondent failed to furnish supporting alter- native figures to calculate gross backpay. We agree with the General Counsel that the Re- spondent’s answer to the compliance specification and its response to the Notice to Show Cause are sub- stantively deficient, except as specifically set forth below. A general denial is not sufficient to refute alle- gations pertaining to the backpay period and the gross backpay calculations. Inasmuch as the data at issue is within the Respondent’s knowledge and control, its failure to set forth fully its position as to the applicable premises or to furnish appropriate supporting figures is contrary to the specificity requirements of Section 102.56(b) and (c). DeMuth Electric., 319 NLRB 942 (1995); Ornamental Iron Work Co., 307 NLRB 20 (1992). Thus, we shall grant the General Counsel’s Motion for Summary Judgment as to the backpay pe- riod and the amount of gross backpay due the follow- ing discriminatees for whose claims the Respondent asserted only a general denial: Howard Adams, Atricia Armstead, Sheila Bell, Willie Bell, Doris Brown, Dye Carr, Melita Christmas, Dave Cousley, Andres Gon- zalez, Sherwin Jackson, Randolph James, Bertram Madden, Kelly Marshall, Melinda Moore, Howard Murray, Bernice Noble, Merida Lee Ramirez, Phillip Scott, Robert Taylor, Andrew Terry, Angela Williams, and James Wilson.4 2. By contrast, we find that the Respondent has raised an issue warranting a hearing concerning the length of the backpay period for Mary Burrell, Gisela Sawyer, and Ade Thomas. The Respondent contends that Mary Burrell, Gisela Sawyer, and Andres Gon- zalez were each offered reinstatement twice and that the second set of reinstatement letters was provided to the General Counsel. The General Counsel contends that the Respondent’s answer constitutes a general de- nial because it fails to specify the circumstances sur- rounding the purported offers of employment. How- ever, unlike the 22 discriminatees discussed above, the record in the underlying unfair labor practice proceed- ing contains letters to Mary Burrell, Gisela Sawyer, and Ade Thomas which purportedly constitute offers of reinstatement.5 We find these letters sufficient to warrant a denial of summary judgment as to the length of the backpay period for these employees. The issue of whether or not the letters to Burrell, Sawyer, and Thomas constitute valid offers of reinstatement suffi- cient to toll the backpay period for these employees shall be determined at the hearing. Accordingly, we deny the General Counsel’s Motion for Summary Judgment as to the backpay period for Burrell, Sawyer, and Thomas and remand for hearing the issue of the sufficiency of the offers of reinstatement.6 3. The compliance specification identifies Marvin Beeman and Rosa Lee Bunn as two of the discriminatees entitled to backpay. The Respondent al- leges that Beeman and Bunn never ceased working for USSI. Thus, the Respondent claims that because they did not lose any work, they are not entitled to backpay. We reject the Respondent’s contention. In the underly- ing unfair labor practice proceeding, the Board af- firmed the judge’s findings that Beeman and Bunn were part of the group of employees who engaged in an economic strike on July 26, 1990, who uncondition- ally offered to return to work on August 3, 1990, and whom the Respondent failed and refused to reinstate or place on a preferential hiring list. It is well settled that ‘‘[i]ssues litigated and decided in an unfair labor prac- tice proceeding may not be relitigated in the ensuing backpay proceeding.’’ Transport Service Co., 314 NLRB 458, 459 (1994). See also Hobbs & Oberg Min- ing Co., 316 NLRB 542 (1995); Baumgardner Co., 298 NLRB 26, 27–28 (1990), enfd. 972 F.2d 1332 (3d Cir. 1992). Accordingly, we shall grant the General Counsel’s motion to strike this portion of the Respond- ent’s answer and grant the General Counsel’s Motion for Summary Judgment as to Beeman and Bunn. 4. The Respondent states that employee Evelyn Barnett moved to North Carolina and employee Albert Williamson moved to South Carolina prior to their re- spective retirement dates alleged in the compliance specification as the ending date for backpay. The Re- spondent offers no information as to when either em- ployee moved, but argues in its opposition to the Gen- eral Counsel’s motion that ‘‘[a]s with death, moving relates to interim earnings for which a general denial is adequate.’’ We disagree. The fact that an employee VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00486 Fmt 0610 Sfmt 0610 D:\NLRB\325.056 APPS10 PsN: APPS10 487 UNITED STATES SERVICE INDUSTRIES 7 The Respondent also argued that David Cousley never worked 40 hours per week but did not provide the number of hours that the Re- spondent contends Cousley worked or any supporting figures. We find that the Respondent’s answer as to Cousley is a general denial and is insufficient to warrant a hearing. 8 The Respondent admitted the allegations of pars. 2(a), 4(b), and 4(f) of the compliance specification. had moved and was living in another state during the backpay period is not conclusive that he was unavail- able for work. The Respondent has not demonstrated that these employees had removed themselves from the labor market and that they would not have returned to their former positions upon a valid offer of reinstate- ment. Mohawk Steel Fabricators, 289 NLRB 1193 fn. 9 (1988); Preterm, Inc., 273 NLRB 683, 698 (1984), enfd. 784 F.2d 426 (1st Cir. 1986). Because moving does not per se toll backpay, we grant summary judg- ment as to the backpay period and gross backpay due discriminatees Evelyn Barnett and Albert Williamson. However, to the extent that the Respondent is able to demonstrate that the employees, by moving, removed themselves from the labor market and thereby incurred a willful loss of earnings, that issue can be litigated at the hearing along with other issues of mitigation of damages. 5. The compliance specification identifies Douglas Spencer as one of the discriminatees entitled to back- pay. The Respondent has attached to its opposition to the Motion for Summary Judgment a copy of a Doug- las Spencer’s death certificate showing that he died November 9, 1990. The Board has stated on various occasions that backpay is based not on a private right but rather on a public right established to vindicate the policies of the Act. Lauderdale Lakes General Hos- pital, 239 NLRB 895 (1978). The death of a discriminatee does not obviate the need for backpay that is intended to reestablish the situation as it would have existed absent the unfair labor practices. St. Regis Paper Co., 285 NLRB 293, 295 (1987). The backpay period for a deceased discriminatee is limited to the period from the date of the discrimination until the date of death. Id. A determination shall be made at the hearing in this proceeding whether or not the death certificate is authentic for this employee. Assuming that the Douglas Spencer who is a discriminatee in this proceeding is deceased, the backpay due him shall be paid to the legal administrator of the estate or to any person authorized to receive such payment under appli- cable state law. ABC Automotive Products Corp., 319 NLRB 874, 878 fn. 8 (1995). We deny the Motion for Summary Judgment as to Douglas Spencer for the lim- ited purpose of determining at a hearing whether this discriminatee is deceased, and, if so, to adjust the backpay period accordingly. 6. In the Respondent’s answer to paragraph 4(c) of the compliance specification and in its response to the Motion for Summary Judgment, the Respondent spe- cifically argued: that Rosa Berrios worked only 4 hours per night, 5 nights per week; that Donald Mon- roe earned $4.75 per hour, not $5 per hour, and that he only worked 4 hours per night, 5 nights per week; and that Ketzi Ortiz worked 4 hours per night, not 8 hours. These replies provide alternative figures and are specific enough to warrant a hearing. Therefore, we grant the General Counsel’s Motion for Summary Judgment as to the backpay period for discriminatees Berrios, Monroe, and Ortiz, but deny as to the hours of these employees, as well as the wage rate of Mon- roe, and remand these issues for a hearing.7 7. The Respondent’s general denial is sufficient to place interim earnings and expenses into issue for all the discriminatees because that information is not gen- erally within the knowledge of the Respondent. DeMuth Electric, supra at 943. Accordingly, we shall order a hearing for determination of the discriminatees’ interim earnings and expenses, including the availabil- ity to discriminatees of interim employment and the discriminatees’ failure to seek and/or retain such in- terim employment. Tiffany Handbags, 271 NLRB 621, 622 (1984). ORDER It is ordered that the General Counsel’s Motion to Strike Part of Respondent’s Answer to Compliance Specification is granted as to paragraphs 1(a) except as to Douglas Spencer, 1(b), 1(c), and 1(d); 2(b) as to Andres Gonzalez; 3; 4(a) and 4(c) except as to Rosa Berrios, Donald Monroe, and Ketzi Ortiz, 4(d), 4(e), 4(g), and 4(h) except as to Donald Monroe, 4(i) and 4(j).8 IT IS FURTHER ORDERED that the General Counsel’s Motion for Partial Summary Judgment concerning all allegations in the backpay specification is granted ex- cept as to the amount of interim earnings and expenses of each of the discriminatees and any issues concern- ing mitigation of damages and willful loss of earnings; a determination of whether discriminatee Douglas Spencer is deceased and, if so, the date of his death; the hours of Rosa Berrios, Donald Monroe, and Ketzi Ortiz; the wage rate of Donald Monroe; and a deter- mination of whether the letters to Mary Burrell, Gisela Sawyer, and Ade Thomas which are in the record con- stituted valid offers of reinstatement sufficient to toll backpay. IT IS FURTHER ORDERED that this proceeding is re- manded to the Regional Director for Region 5 for the purpose of arranging a hearing before an administra- tive law judge limited to the issues of interim earnings and expenses and mitigation of damages; a determina- tion of whether Douglas Spencer is deceased and, if so, the date of his death; the hours of Rosa Berrios, Donald Monroe, and Ketzi Ortiz; the wage rate of Donald Monroe; and consideration of whether the let- VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00487 Fmt 0610 Sfmt 0610 D:\NLRB\325.056 APPS10 PsN: APPS10 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ters to Mary Burrell, Gisela Sawyer, and Ade Thomas constituted valid offers of reinstatement sufficient to toll backpay. The administrative law judge shall pre- pare and serve on the parties a decision containing findings of fact, conclusions of law, and recommenda- tions based on all the record evidence. Following serv- ice of the administrative law judge’s decision on the parties, the provisions of Section 102.46 of the Board’s Rules shall be applicable. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00488 Fmt 0610 Sfmt 0610 D:\NLRB\325.056 APPS10 PsN: APPS10