John P Bell & Sons, Inc.

JOHN P BELL & SONS 33 John P. Bell & Sons, Inc. and Local Union No. 13, an affiliate of the United Association of Jour- neymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. Case 3-CA-10679 30 November 1984 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 16 February 1984 the United States Court of Appeals for the Second Circuit enforced an Order issued by the National Labor Relations Board on 8 April 1983 1 directing the Respondent, inter alia, to make whole discriminatee Darcy Farrell for any losses resulting from the Respondent's unfair labor practices. A controversy having arisen over the amount of backpay owed Farrell, the Regional Di- rector for Region 3, on 12 April 1984, issued and caused to be served on the parties a backpay speci- fication and notice of hearing alleging the amount of backpay due under the terms of the Board's Order. On 21 May 1984 the Regional Director issued and caused to be served on the parties an amendment to the backpay specification and notice of hearing. On 25 April and 1 June 1984 the Re- spondent filed an answer to the backpay specifica- tion and an answer to the amended specification, respectively. On 13 July 1984 the General Counsel filed with the Board a Motion to Strike Respondent's Answer as to Gross Backpay Computations; to Strike Cer- tain Affirmative Defenses; for Summary Judgment as to Computations of Gross Backpay. On 16 July 1984 the General Counsel filed an amended motion. On 19 July 1984 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted. Thereafter, the Re- spondent filed a statement in opposition to the General Counsel's motion. The Board has delegated its authority in this pro- ceeding to a three-member panel. - Ruling on the Motion for Summary Judgment Section 102.54(b) and (c) of the Board's Rules and Regulations provides as follows: (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- 266 NLRB 607 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 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. In the underlying unfair labor practice proceed- ing, the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire Darcy Farrell on 28 September 1981 because he was designated as union steward when he was referred by the ,Union in response to the Respond- ent's request for steamfitters. The backpay period alleged in the backpay specification is 28 Septem- ber 1981 through 7 January 1983, excluding the period between 2 June and 21 July 1982 during which time the Respondent employed no steamfit- ters because of an economic strike by the Union. 273 NLRB No. 5 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answer to the backpay specification, the Reg'pondent offered general denials to the allega- tions concerning the formula used to compute gross backpay, the method of computing net back- pay, the computation of gross backpay for Farrell, interim earnings, and the fringe 'benefit funds pay- ments due on behalf of Farrell under the collective- bargaining agreement. In addition, the Respondent contended that Farrell is not entitled to any back- pay for the period after the conclusion of the strike on 21 July 1982 because he would not have been rehired when work resumed in view of his prior unsatisfactory work record and the Respondent's practice of seeking referrals from the Union only as a last resort when it could not hire sufficient num- bers of .steamfitters through its own recruitment. The Respondent claimed that, in fact, it did not obtain referrals from the Union , after the strike. The General Counsel asserts that the Respond- ent's general denials regarding certain allegations of the backpay specification do not comply with the specificity requirements' of Section 102.54(b) and (e). As' to the Respondent's affirmative defense that Farrell would not have been rehired after the strike, the General Counsel contends that this alle- gation raises issues which were litigated and adju- dicated by the Board and reviewed by the Second Circuit in the underlying unfair labor practice pro- ceeding. Further, the General Counsel argues that if there is uncertainty regarding the backpay period, the claimant should receive the benefit of any doubt, not the Respondent. Accordingly, the General Counsel asserts that the allegations of the backpay specification relating to gross backpay should be deemed admitted as true and that the Board should grant summary judgment as to the computation of gross backpay. We agree with the General Counsel's conten- tions, except we' will not at this time order the Re- spondent to make payments into the industry ad- vancement program because the Board has general- ly found that such programs are nonmandatory subjects of bargaining. 2 Inasmuch as the data at issue covering the period between the unlawful re- fusal to hire Farrell and the commencement of the June 1982 strike is within the Respondent's knowl- edge- and control, its failure to set forth fully its po- sition regarding the applicable premises or to fur- nish appropriate supporting figures is contrary to the specificity requirements of Section 102.54(b). We also find that the Respondent's answer fails to raise a genuine issue of material fact concerning 2 Finger Lakes Plumbing Go, 254 NLRB 1399 (1981), Fox Painting Go, 263 NLRB 437 (1982) The General Counsel may demonstrate at the hearing that this particular program was a mandatory subject of bargain- ing whether Farrell is entitled to backpay for the period after the cessation of the Union's strike, i.e., between 21 July 1982 and 7 January 1983. As men- tioned above, the Respondent contends that Farrell would not have been recalled after the strike .be- cause of his prior unsatisfactory work record and the Respondent's practice of seeking referrals from the Union only as a last resort. We agree with the General Counsel that the Respondent cannot rely on Farrell's alleged unsatisfactory work record in this backpay proceeding since that allegation was litigated and rejected in the unfair labor practice proceeding. Specifically, , he Board found pretex- tual the Respondent's contention that Farrell was not hired on 28 September 1981 'because he was not a dependable worker. Inasmuch as Farrell was not employed by the Respondent subsequent to that date, -the Respondent's claim that Farrell was an unsatisfactory worker fails to raise a new issue warranting a hearing in this compliance proceed- ing. The Respondent's contention that Farrell is not entitled to poststrike backpay because it did not obtain referrals from the Union after the strike also fails to raise any litigable issue. There is no evi- dence or contention that the Respondent offered to hire Farrell before the strike. Thus, the Respondent has not yet complied with the Board's order that it offer him immediate employment in a job he would have received had it not unlawfully discriminated against him in September 1981. Further, it is -un- controverted that the Respondent employed steam- fitters after the strike. Accordingly, even accepting as true the Respondent's asserted referral practices as to new poststrike hires, those practices have no relevance to the Respondent's continuing obliga- tion to offer Farrell the job he should have held before and after the strike, nor could they operate to toll the Respondent's backpay obligation prior to such an offer of employment. Thus, we shall grant the General Counsel's motion to strike the Respondent's answer as to gross backpay computations and to strike certain affirmative defenses, and we shall grant the Gener- al Counsel's Motion for Summary Judgment as to computations of gross backpay, except insofar as they relate to payments into the industry advance- ment program. We find, however, that the Re- spondent's general denial is sufficient to place inter- im earnings into issue because that information is generally not within the knowledge of the Re- spondent. 3 Accordingly, we shall order a hearing to determine Farrell's interim earnings, including the availability to him of interim employment and 3 Dews Construction Corp, 246 NLRB 945 (1979) JOHN P BELL & SONS 35 his failure to seek and/or retain such interim em- ployment. ORDER It is ordered that the General Counsel's motion to strike the Respondent's answer is granted in part. IT IS FURTHER ORDERED that the General Coun- sel's Motion for Summary Judgment as to compu- tations of gross backpay and fringe benefit funds payments, excluding industry advancement pro- gram payments, is granted. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 3 for the purpose of arranging and giving notice of a hearing before an administrative law judge, at which hearing the interim earnings of Darcy Far- rell shall be determined.4 4 At this hearing, the General Counsel may also adduce evidence dem- onstrating that the Industry advancement program constituted a mandato- ry subject of bargaining See fn 2, supra