Transportation Management Corp. Commonwealth Coach, Inc.; Security Transportation, Inc.

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Transportation Management Corporation Common- wealth Coach, Inc.; Security Transportation, Inc. and General Teamsters, Chauffeurs, Ware- housemen and Helpers, Building Material, Heavy and Highway Construction Employees Local Union 404, a/w International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Drivers, Chauf- feurs, Warehousemen and Helpers Local Union No. 829, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Betty Johnson and Rose Mary Bassett and Jean C. Cahill and Jean M. Nelson. Cases 1-CA-15846, 1-CA- 15902, 1-CA-17394, 1-CA-16026, 1-CA- 16322(1), 1-CA-16322(2), and 1-CA-17534 15 November 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 20 May 1981 the National Labor Relations Board issued its Decision and Order' in Case 1- CA-15846 in which it directed, inter alia, that Re- spondent Transportation Management Corporation make whole an employee for losses resulting from the Respondent's unfair labor practices violating Section 8(a)(3) of the National Labor Relations Act. On 15 August 1983 the United States Court of Appeals for the First Circuit, at the direction of the United States Supreme Court, entered its judgment enforcing the backpay provisions of the Board's Order.2 On 2 August 1984 the Regional Director for Region 1 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 notified the Re- spondent that it must comply with the National Labor Relations Board Rules and Regulations. On 31 August 1984 the Respondent filed an answer to the backpay specification admitting the backpay period and generally denying the allegations of the remaining paragraphs without explaining the basis therefor. The General Counsel thereupon tele- phonically advised the Respondent that its answer was not in conformity with applicable Board Rules and Regulations. On 14 August 1981 the National Labor Relations Board issued a Decision and Order3 in Cases I- 1256 NLRB 101 (1981) 2 462 U S 393 (1983) 3 257 NLRB 760 (1981) CA-17394 and 1-CA-17534 in which it directed, inter alia, that the Respondent make whole certain employees for losses resulting from the Respond- ent's unfair labor practices violating Section 8(a)(1) and (3) of the Act. On 13 August 1982 the United States Court of Appeals for the First Circuit grant- ed enforcement of the Board's Order.4 On 28 February 1985 the Acting Regional Direc- tor 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. On 15 March 1985 the Respondent filed an answer to the backpay specifi- cation generally denying the allegations contained therein. On 29 September 1981 the National Labor Rela- tions Board issued a Decision and Order in Cases 1-CA-15902, 1-CA-16026, and 1-CA-16322(1-2)5 in which it directed, inter alia, that the Respondent make whole certain employees for losses resulting from the Respondent's unfair labor practices violat- ing Section 8(a)(1), (3), and (4) of the National Labor Relations Act. On 16 September 1982 the United States Court of Appeals for the First Cir- cuit granted enforcement of the Board's Order.6 On 30 August 1984 the Regional Director issued a backpay specification and notice of hearing alleg- ing, inter alia, that a controversy had arisen over the amount of backpay due under the terms of the Board's Order. On 11 September 1984 the Re- spondent filed an answer to the backpay specifica- tion generally denying the Region's pleadings, for- mulas, and figures relating to gross backpay calcu- lations. On 10 April 1985 the compliance officer for Region 1 sent the Respondent a letter which cited Section 102.54(b) and (c) of the Board's Rules and Regulations. The letter stated that the Respond- ent's answers to the gross backpay portions in all three of the backpay specifications were deficient and gave the Respondent until 19 April 1985 to file amended answers which conformed to the Board's Rules and Regulations. The letter further stated that if the amended answers were not received, the General Counsel would file a Motion for Partial Summary Judgment.' To date, no amended an- swers have been received. 4 686 F 2d 63 (1st Cir. 1982) 5 258 NLRB 363 (1981) 6 Mem. 692 F.2d 746 (lst Cir. 1982) 7 On 16 April 1985 the Respondent's attorney telephoned the Region's compliance officer and told him that he had received the letter and would be checking with the Respondent to ascertain whether it wanted to file amended answers The Respondent's attorney further informed the Region's compliance officer that he would not be able to file any amend- ed answers by the 19 April 1985 deadline in the letter. The Respondent's attorney did not, however, request an extension of time for filing amend- ed answers 277 NLRB No. 46 TRANSPORTATION MANAGEMENT CORP. 475 On 23 April 1985 the Regional Director issued an order consolidating cases with regard to the three backpay specifications. On 26 April 1985 the General Counsel filed di- rectly with the Board a Motion for Summary Judg- ment in Part with exhibits attached. The General Counsel submits that the Respondent's answers to the gross backpay portions of all three of the back- pay specifications failed to comply with the re- quirements of Section 102.54(b) and (c) of the Board's Rules and Regulations in that the Respond- ent failed to provide any alternative formula or to furnish appropriate supporting figures for comput- ing the amounts owed, even though the Respond- ent was notified that its answers were deficient and was given an additional extension of time to file amended answers. Subsequently, on 1 May 1985, 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 Summary Judg- ment in Part should not be granted. The Respond- ent failed to file a response to the Notice to Show Cause. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in this proceeding, the Board makes the following Ruling on the Motion for Summary Judgment in Part Section 102.54(b) and (c) of the National Labor Relations Board Rules and Regulations 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 specification, unless the respond- ent is without knowledge, in which case the respondent shall so state, such statement oper- ating as a denial. Denials shall fairly meet the substance of the allegations of the specification denied. When a respondent intends 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 respondent, in- cluding 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 added.] (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 the be true and enter such order as may be appropriate. If the repsondent files an answer to the specifica- tion but fails to deny any allegation of the specification in the manner required by subsec- tion (b) of this section, and the failure so to deny is not adequately explained , such allega- tion 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 in- troducing any evidence controverting said al- legation. Each of the backpay specifications duly served on Respondent states that, pursuant to Section 102.54 of the Board's Rules and Regulations, "Respondent shall, within fifteen (15) days from the service of this specification, file with the undersigned Region- al Director,8 acting in this matter as agent of the National Labor Relations Board, an original and four (4) copies of an answer to this specification. The backpay specifications state further that `to the extent that such answer fails to deny allegations of the 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 true, and Respondent shall be precluded from introducing any evidence con- troverting them."' We agree with the General Counsel that the Re- spondent's answers to the three backpay specifica- tions do not conform to the above requirements as to those matters within its knowledge . The answers do not specifically dispute the accuracy of the gross backpay figures contained in the specifica- tions or provide any specific alternative formula for computing the amounts of gross backpay due. The answers merely deny the allegations of the backpay specifications or state that the Respondent lacks sufficient knowledge to either admit or deny 8 The backpay specification for Cases 1-CA-17394 and 1-CA-17534 states that the Respondent "shall file with the Acting Regional Director 11 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the allegations . These matters are clearly within the knowledge of the Respondent and its failure to deny the specifications in the manner required by Section 102.54(b) or to explain adequately its- fail- ure to do so requires that such allegations be deemed admitted to be true in accord with Section 102.54(c). Accordingly, we find the alleged amounts of gross backpay to be true. However, the General Counsel does not claim that the Respondent's answers with respect to the amounts of interim earnings and single employer issues contained in the specifications are inadequate or seek summary judgment with respect thereto. Therefore, we shall ,remand this proceeding to the Regional Director for Region 1 for the purpose of arranging a hearing on the remaining issues appro- priately raised by the pleadings. ORDER It is ordered that the General Counsel's Motion for Summary Judgment in part is granted. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region I for the purpose of arranging a hearing before an administrative law judge on the remaining issues appropriately raised by the pleadings and that the Regional Director 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 shall apply.