Howard R. Singer Legal Services

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard R. Singer and Michael E. Davis, a partner- ship and/or Howard R. Singer d/b/a Howard R. Singer Legal Services and/or David D. DeAngelis and Carol Ann Canovali. Case 6- CA-16246 7 March 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS' DENNIS AND JOHANSEN On 6 December 1983 the National Labor Rela- tions Board issued an order (not published in Board volumes) in this proceeding in which it ordered the Respondents, inter alia, to make whole Carol Ann Canovali for any loss of earnings resulting from her unlawful termination by Respondents, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act. On 16 April 1984 the United States Court of Appeals for the Third Circuit entered a Judgment enforcing in full the Board's Order." Because a controversy arose over the backpay owed the discriminatee, the Regional Director for Region 6, on 16 July 1985,2 issued and caused to be served on the parties a backpay specification and notice of hearing alleging the amount of back- pay due the discriminatee. The Respondents failed to answer the backpay specification by 5 August, the time period prescribed by Section 102.54(a) of the Board's Rules and Regulations. By' letter dated 12 August, the Respondents were notified by the General Counsel of their obligation to file an answer and informed that unless an answer was re- ceived "immediately," a Motion for Summary Judgment would be filed. On 21 August the Gener- al Counsel mailed to the Board and the parties a Motion for Summary Judgment based on ,the Re- spondents' failure to file an answer. On 22 August the Regional Director received answers from Re- spondents Howard Singer, Michael Davis, and David DeAngelis. On 29 August 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. On 30 August the General Counsel filed with the Board a motion to strike the Respondents' answers as being untimely and failing to comply with the filing re- quirements of Section 102.54(a) of the Board's Rules and Regulations and filed a Supplemental Motion for Summary Judgment. Thereafter, the Respondents filed with the Re- gional Director an answer to both the Notice to Show Cause and the General Counsel's motion to strike the Respondents' answers to the backpay i No. 84-3153 (3d Cir. 1984) 2 All dates are in 1985 unless otherwise designated specification. In addition, the Respondents filed amended answers to the backpay specification which purported to cure the defects in the initial answers. On 23 September the General Counsel filed with the Board a motion to strike the Re- spondents' amended answers to the backpay speci- fication and a Second Supplemental Motion for Summary Judgment, moving in the alternative to strike paragraphs 5, 6, and 7 of the amended an- swers. The National Labor Relations Board has delegat- ed its authority -in this proceeding to a three- member panel. Ruling on Motion to Strike Answers and Motion for Summary Judgment The backpay specification served ' on the Re- spondents ^ on 16 July states: [P]ursuant to Section 102.54 of the Board's Rules and Regulations, Respondents shall file with the undersigned Regional Director, acting in this matter as agent of the National Labor Relations Board, within fifteen (15) days after the service of the Specification, an original and four (4) copies of an Answer to the Specification and a copy thereof shall be immediately serviced on any other Respondent jointly liable. Immediately upon the filing of its Answer, Respondent shall serve a copy thereof on each of the other parties. To the extent that such Answer fails to deny allega- tions of the Specification in the manner re- quired under the Board's Rules and Regula- tions and the failure to do so is not adequately explained, such allegations shall be deemed to be admitted to be true and the Respondents shall be precluded from introducing any evi- dence controverting them. Pursuant to Section 102.54, the Respondents should have filed their answers by 5 August. Nev- ertheless, by letter dated 12 August, the General Counsel notified the Respondents of their obliga- tion to file an answer and informed them that unless an answer was received "immediately," a Motion for Summary Judgment would be filed. The General Counsel asserts that the original an- swers were -not timely filed on 22 August. The Re- spondents assert that inasmuch as "immediately" would be absurb if taken literally, it should be taken to mean "within a reasonable time." Accord- ing to the Respondents, since their answers were filed within 10 days of the 12 August letter, the filing time was reasonable and therefore timely. We find merit in the Respondents' position. Section 102.121 of the Board's Rules and Regulations states 278 NLRB No. 123 HOWARD R. SINGER LEGAL SERVICES that the Rules and Regulations "shall be liberally construed to effectuate the purposes and provisions of the Act." Although this does not mean that our deadlines can be disregarded, under the circum- stances of this case we cannot strictly enforce Sec- tion 102.54. The General Counsel's letter of 12 August waived the 5 August deadline and granted the Respondents time in which to file their an- swers. The letter was deficient in that it did not es- tablish a date certain by which answers were due. We find that the 22 August filing was within a rea- sonable time and, accordingly, was timely. The General Counsel also asserts that the origi- nal answers are deficient in that they did not meet the requirements set forth in the following section. Section 102.54(b) of the Board's Rules and Regu- lations 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 appropriate supporting figures. Specifically, the General Counsel points out that the answers were not sworn to as required by the above-cited section. They also allegedly contain what amounts to general denials of matters within the knowledge of the Respondents. In particular, the General Counsel claims that paragraphs 5, 6, and 7 appear to dispute the method of computation of gross backpay and net backpay, but do not set forth any alternative method of computation except to the extent that it is contended that "no provision 903 has been made for unemployment compensation," which purportedly affects the state tax charged to the Respondents. The General Counsel character- izes this objection as specious in light of the Su- preme Court's decision in NLRB v. Gullet Gin Co., 340 U.S. 361 (1951), which held that the Board need not deduct from backpay awards sums paid to discharged discriminatees as unemployment com- pensation. The General Counsel implicitly argues that, by the same token, the amount of unemploy- ment compensation tax the Respondents must pay as a result of the unemployment compensation re- ceived by the discriminatee cannot be taken into account when computing a backpay award. As previously discussed, the Respondents filed amended answers which purportedly superseded the initial answers and/or cured the technical de- fects of the initial answers. These amended answers were sworn to and contained a mailing address but they maintained the same position with respect to the unemployment compensation as the initial answer. In the past, the Board has viewed such an attempt to cure the technical defects of an initial answer to a backpay specification as a timely amended answer. See, e.g., Bentleys Lounge, 265 NLRB 632 (1982), and Standard Materials, 252 NLRB 679, 680 (1980). We note that here, as in Standard Materials, the Respondents' 30 August amended answers cure their 22 August answers in that they are properly sworn to and include the Respondents' mailing addresses. Accordingly, the Respondents' 22 August answers and 30 August amended answers are properly before us, and we deny the General Counsel's motion to strike these documents entirely from the record. We focus our attention now on whether para- graphs 5, 6, and 7 of the amended answers conform to the requirements of Section 102.54(b) of the Board's Rules and Regulations which require that Respondent "shall specifically state the basis for his disagreement, setting forth in detail his position as to the applicable premises and furnishing the ap- propriate supporting figures." Paragraphs 5, 6, and 7 of all three amended answers are identical. Para- graph 5 disputes the method of computation of quarterly gross backpay and states , "No provision has been made for unemployment compensation re- ceived by Carol Canovali which affects the tax chargeable to your Respondent where an allow- ance must be made for the increased taxation chargeable to Respondent up to an amount not ex- ceeding unemployment compensation actually re- ceived by Carol Canovali." Paragraphs 6 and 7 of the amended answers dispute the method of com- puting the quarterly net backpay and total net 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay for the same reason advanced in para- graph 5 of the amended answers. We agree with the General Counsel that para- graphs 5, 6, and 7 do not conform to the require- ments of Section 102.54(b) because the Respond- ents have not furnished the appropriate supporting figures for their alternative method of computation. Since this data is within the Respondents' knowl- edge, its failure to furnish the appropriate support- ing figures is contrary to the specificity require- ments of that section., Moreover, even if the Re- spondents had included such figures, they could not be used to offset the backpay calculations. The Board consistently, with Supreme Court approval, has not deducted unemployment compensation ben- efits from backpay awards. NLRB v. Gullet Gin Co., 340 U.S. 361 (1951). ,The Court found these benefits collateral, and not direct, benefits from the employer because "[p]ayments of unemployment compensation were not made to the employees by respondent but by the state out of state funds de- rived from taxation."3 The Court recognized that "these taxes were paid by employers, and thus to some extent respondent helped create the fund. However, the payments to the employees were not made to discharge any liability or obligation of re- spondent, but to carry out a policy of social better- ment for the benefit of the entire state."4 If the benefit itself is not treated as interim earnings off- setting gross backpay, the result would be anoma- lous if the taxes paid by the Respondents to estab- lish the benefit fund could offset gross backpay.5 Accordingly, we strike paragraphs 5, 6, and 7 of the Respondents' answers and amended answers. We therefore deem such allegations to be admitted as true pursuant to Section 102.54(c).6 Having dis- regarded the Respondents' denials as to the method of computing quarterly, calendar quarterly, and total net backpay due Carol Ann Canovali and deemed those allegations of the backpay specifica- tion pertaining to the method of calculating gross backpay to be true, we shall grant the General Counsel's Motion for Summary Judgment as to the method of calculating gross backpay. The Respondents' amended answers to all re- maining paragraphs of the backpay specification frame certain factual issues sufficient to require a hearing concerning the issues of successorship, when the backpay obligation was tolled, and the amount of backpay due the discriminatee . Accord- ingly, we shall deny the General Counsel's Motion for Summary Judgment as to all paragraphs of the backpay specification, with the exception of para- graphs 5, 6, and 7. ORDER It is ordered that the General Counsel's motion to strike paragraphs 5, 6, and 7 of the Respondents' answers and amended answers to the backpay spec- ification is granted.' IT IS FURTHER ORDERED that the General Coun- sel's Motion for Summary Judgment is granted only with respect to the method of computing the gross backpay for the discriminatee. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 6 for the purpose of issuing a notice of hearing and scheduling -a hearing before an administrative law judge for the purpose of taking evidence as to successorship to the partnership and to whom the liability for paying the backpay attaches; tolling of the backpay period; and how much backpay is due. ' Id. at 364. (Emphasis added.) 4 Id (footnotes omitted). 5 Chairman Dotson relies solely on the insufficiency of the answers. 6 Sec 102.54(c) provides in relevant part- If the respondent files an answer to the specification 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 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 introducing any evidence controverting said allegation ° Pars. 5, 6, and 7 of the amended answer submitted by Respondent David D DeAngelis are identical to the paragraphs contained in the an- swers submitted-by Respondents Davis and Singer. Although the General Counsel's motion to strike neglected to mention pars. 5, 6, and 7 of DeAngelis' amended answer, we view this omission as inadvertent and strike these paragraphs from DeAngelis' amended answer as well.