East Belden Corporation

DECISIONS OF NATIONAL LABOR RELATIONS BOARD 262 East Belden Corporation and Bartenders and Culi- nary Workers Union, Local 126, Hotel and Res- taurant Employees and Bartenders International Union, AFL-CIO. Case 20-CA-13585 23 August 1983 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JENKINS AND HUNTER On 12 December 1978 the National Labor Rela- tions Board issued a Decision and Order in this proceeding' which ordered Respondent, inter alia, to offer immediate and full reinstatement to em- ployees and to make them whole for any loss of earnings and benefits resulting from Respondent's unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. On 24 November 1980 the United States Court of Appeals for the Ninth Cir- cuit granted enforcement of the Board's Order.2 On 24 November 1982 the Acting Regional Di- rector for Region 20 issued a backpay specification and notice of hearing alleging, inter alia, that a controversy had arisen over the amount of backpay due under the terms of the Board's Order and noti- fying Respondent that it must file a timely answer which must comply with the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended. On 9 December 1982 Respondent filed an answer to the backpay specification admitting certain paragraphs, generally denying certain para- graphs, and denying certain other paragraphs by means of a general denial which disputes the accu- racy of the formula and the figures used in the computation of gross backpay, but fails to provide any specific alternative formula and/or figures for computing the amounts of gross backpay owed. On 7 March 1983 counsel for the General Coun- sel filed directly with the Board a Motion for Par- tial Summary Judgment with exhibits attached. He alleges that, except as to the issue of interim earn- ings, Respondent's answer failed to comply with the requirements of Section 102.54(b) and (c) of the Board's Rules and Regulations in that it failed to provide any alternative formula or to furnish ap- propriate supporting figures for computing the amounts owed. Subsequently, on 10 March 1983, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Partial 239 NLRB 776. Chairman Dotson and Member Hunter note that they were not on the Board at the time the initial Decision and Order issued and that their participation at this stage of the proceedings is for institutional reasons. 2 634 F 2d 635. Summary Judgment should not be granted. On 11 April 1983 Respondent filed a response to the Motion for Partial Summary Judgment wherein it asserts that its answer complies with the Board's Rules. Respondent specifically contends that, since its answer denied that the 8-week period chosen by the General Counsel to compute gross backpay is appropriate because it is during Respondent's busy season and inflated earnings would be derived therefrom, it is, therefore, implied in its answer that any other 8-week period that is not during its busy season would be appropriate and that all other mat- ters flow from that determination. It moves that partial summary judgment should be denied. 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 for Partial 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 specif- ically admit, deny, or explain each and every allegation of the specification, unless the re- spondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. Denials shall fairly meet the substance of the allegations of the specifi- cation denied. 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 mat- ters within the knowledge of the respondent, including but not limited to the various factors entering into the computation of gross back- pay, a general denial shall not suffice. As to such matters, if the respondent disputes 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 dis- agreement, setting forth in detail his position as to the applicable premises and furnishing the ap- propriate supporting figures. (Emphasis sup- plied.) 267 NLRB No. 46 EAST BELDEN CORP. (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 states that, pursuant to Section 102.54 of the Board's Rules and Regulations, "Respondent shall file with the undersigned Regional Director, acting in this matter as agent of the National Labor Relations Board, an original and four (4) copies of an answer to the said Backpay Specification within fifteen (15) days from the date of this Specifica- tion." The backpay specification states further that "[t]o the extent that such answer fails to deny alle- gations of the Backpay Specification in the manner required under the Board's Rules and Regulations, and the failure to do so is not adequately explained, such allegations shall be deemed to be admitted to be true, and Respondent shall be precluded from introducing any evidence controverting them." We agree with the General Counsel that Re- spondent's answer to the backpay specification does not conform to the above requirements as to those compliance matters within its knowledge. We reject Respondent's contention that its denial that the 8-week period chosen by the General Counsel is appropriate implies which alternative period it would use; it clearly does not. Thus, the answer as- serts that certain allegations of the backpay specifi- cation concerning gross backpay are not correct while failing to set forth an alternative formula or to furnish appropriate supporting figures for com- puting the amounts owed. Nor does Respondent provide an alternative formula or supporting fig- ures in its response to the Notice To Show Cause. Certainly these matters are within the knowledge of Respondent and its failure to deny the specifica- tion in the manner required by Section 102.54(b) or to explain adequately its failure to do so requires that such allegations be deemed admitted to be true in accord with Section 102.54(c). However, the General Counsel does not seek summary judgment with respect to the amounts of interim earnings contained in the specification, and we have held that a general denial of the allega- tions concerning interim earnings in a backpay specification is sufficient under Section 102.54 to raise an issue warranting a hearing.2 Therefore, we shall order a hearing limited to the determination of the net interim earnings of the discriminatees. As stated above, we deem Respondent to have admit- ted all other allegations in the backpay specifica- tion to be true. ORDER It is hereby ordered that the General Counsel's Motion for Partial Summary Judgment as to all al- legations in the backpay specification except the amounts of interim earnings contained therein be, and it hereby is, granted. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Direc- tor for Region 20 for the purpose of arranging a hearing before an administrative law judge, limiting such proceeding to the determination of the amounts of interim earnings of the employees in- volved herein, and that the Regional Director be, and hereby is, authorized to issue notice thereof. 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. s Dews Construction Corp., 246 NLRB 945 (1979). 263