Nephi Rubber Products Corp.

297 312 NLRB No. 42 NEPHI RUBBER PRODUCTS 1 303 NLRB 151 (1991). 2 976 F.2d 1361. Nephi Rubber Products Corp., a Cypher-Jones Company and Jerry D. Steele and Kim W. Hall and Keith Steele and Marlynn Buckley and Carl Calderwood. Cases 27–CA–9671–2, 27– CA–9671–3, 27–CA–9671–4, 27–CA–9671–5, and 27–CA–9671–6 September 22, 1993 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH On May 29, 1991, the National Labor Relations Board issued its Decision and Order in this case,1 or- dering the Respondent, Nephi Rubber Products Corp., inter alia, to make whole the Charging Parties for any loss of pay they may have suffered as a result of the Respondent’s unlawful denial of employment to them. On October 9, 1992, the United States Court of Ap- peals for the Tenth Circuit entered its judgment enforc- ing in full the backpay provisions of the Board’s Order.2 A controversy having arisen over the amount of backpay due the discriminatees under the terms of the Decision and Order issued by the Board, the Regional Director for Region 27 issued and duly served on the Respondent a compliance specification and notice of hearing on April 7, 1993, notifying the Respondent that it must file a timely answer complying with the Board’s Rules and Regulations. Subsequently, the Re- spondent filed an answer, admitting in part and deny- ing in part the allegations of the compliance specifica- tion. On May 10, 1993, counsel for the General Counsel filed with the Board a Motion to Strike Portions of Re- spondent’s Answer and for Partial Summary Judgment, with attachments. The General Counsel’s motion al- leges that the Respondent’s answer, except those por- tions relating to the discriminatees’ regular expenses, medical expenses, interim earnings, and the resulting net pay, failed to satisfy the requirements of Section 102.56 of the Board’s Rules and Regulations which re- quires, inter alia, that any denial as to matters within the Respondent’s knowledge must specifically state the basis for disagreement with the specification and set forth in detail the Respondent’s position as to applica- ble premises with supporting figures for its denial. On May 13, 1993, the Board issued an order trans- ferring the proceedings to the Board and a Notice to Show Cause why the motion should not be granted. On the entire record in this proceeding, the Board makes the following Ruling on the Motion to Strike Portions 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 state: (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. When a respondent intends to deny only a part of an allegation, the respond- ent shall specify 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, 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 fails to file any answer to the specification within the time pre- scribed by this section, the Board may, either with or without taking evidence in support of the alle- gations of the specification and without further notice to the respondent, find the specification to be true and enter such order as may be appro- priate. If the respondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by para- graph (b) of this section, and the failure so to deny is not adequately explained, such allegation shall be deemed to be admitted as true and may be so found by the Board without the taking of evidence supporting such allegation, and the re- spondent shall be precluded from introducing any evidence controverting the allegation. We agree with the General Counsel that the Re- spondent’s answer is substantively deficient insofar as it contains only general denials concerning those mat- ters within the Respondent’s knowledge. The compli- ance specification served on the Respondent indicates that the Respondent’s answer must comport with the requirements of Section 102.56 of the Board’s Rules and Regulations, and, to the extent it fails to do so without adequate explanation, the allegations in the 298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD specification shall be deemed to be admitted to be true. The Respondent’s answer denies for all five discriminatees the following allegation of the specifica- tion: (1) that the backpay period begins on May 2, 1986; (2) the formula for calculating backpay; (3) the quarterly gross backpay; and (4) the net backpay. The Respondent’s answer does not state the basis for its de- nials, does not assert an alternative formula for deter- mining gross or net backpay, and does not provide any supporting figures for its positions, as required by Sec- tion 102.56 (b) of the Board’s Rules and Regulations. All the above-enumerated allegations denied by the Respondent pertain to subjects clearly within the Re- spondent’s knowledge. Therefore, we agree with the General Counsel that the Respondent’s answer to the compliance specification is substantively deficient, ex- cept with regard to those portions dealing with the discriminatees’ regular expenses, medical expenses, in- terim earnings, and the resulting net backpay. Because we have found that the Respondent’s general denials as to the above-enumerated allegations are insufficient under Section 102.56(b) and (c) of the Board’s Rules and Regulations, we deem the Respondent to have ad- mitted these allegations to be true. Accordingly, we shall grant the General Counsel’s motion and shall order a hearing limited to determining the discriminatees’ regular expenses, medical expenses, in- terim earnings, and the resulting net backpay. ORDER It is ordered that the General Counsel’s Motion to Strike Portions of Respondent’s Answer and for Partial Summary Judgment is granted. IT IS FURTHER ORDERED that this proceeding is re- manded to the Regional Director for Region 27 for the purpose of issuing a notice of hearing and scheduling a hearing before an administrative law judge, which shall be limited to taking evidence concerning the reg- ular expenses, medical expenses, interim earnings, and the resulting net backpay of Jerry D. Steele, Kim W. Hall, Keith Steele, Marlynn Buckley, and Carl Calderwood. IT IS FURTHER ORDERED that the administrative law judge shall prepare and serve on the parties a decision containing findings, conclusions, and recommendations based on all the record evidence. Following the service of the administrative law judge’s decision on the par- ties, the provisions of Section 102.46 of the Board’s Rules and Regulations shall apply.