Watt Electric Co. And Its Alter Ego, Watt Plumbing, Air Conditioning & Electric, Inc.

WATT ELECTRIC CO Watt Electric Company and its alter ego, Watt Plumbing, Air Conditioning & Electric, Inc. and John O. Watt and International Brotherhood of Electrical Workers, Local No. 584, AFL-CIO- CLC. Case 16-CA-11434 9 May 1986 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 14 December 1984 the National Labor Rela- tions Board issued a Decision and Order in this proceeding 1 in which it ordered the Respondent, inter alia, to make whole Donald J. Andrews, Robert L. Silver, Johnny F. Taylor, and Jerry W. Wallace for any loss of earnings and other benefits resulting from their discharge in violation of Sec- tion 8(a)(3) and (1) of the Act and to make whole unit employees for any losses resulting from the Respondent's failure to maintain existing contrac- tual wages and benefits in violation of Section 8(a)(5) and (1) of the Act. On 1 July 1985 the United States Court of Appeals for the 10th Circuit granted enforcement of the Board's Order.2 On 27 August 1985 the Regional Director for Region 16 issued and caused to be served on the parties a backpay specification and notice of hear- ing alleging the amounts of backpay due under the terms of the Board's Order. On 6 September 1985 the Regional Director issued and served on the parties an amendment to the backpay specification and notice of hearing. On 10 September 1985 the Respondent filed an answer to the backpay specification. The answer asserts that the Respondent owes no backpay be- cause : it allegedly offered its former employees substantially equivalent employment on 24 August 1983; it would have ceased doing business from 23 August 1983 if the then-prevailing rates of pay and benefits had continued; the Union allegedly refused to bargain with Respondent; and the Board's Order is vague and ambiguous. The answer does not, however, dispute the accuracy of the formula or figures utilized by the Regional Director, or pro- vide any specific alternative formula and/or figures for computing backpay. On 27 September 1985 the Respondent filed a motion to reopen the record, citing the Union's alleged refusal to bargain with the Respondent or to negotiate future wage rates for reinstated employees. On 15 October 1985 the General Counsel filed with the Board a "Motion to Transfer to the Board ' 273 NLRB 655 2 No 85-1656 (10th Cir 1985) 915 and for Summary Judgment." The General Coun- sel alleges that the Respondent's answer fails to conform to the requirements of Section 102.54(b) and (c) of the Board's Rules and Regulations, in that it fails specifically to deny any allegation of the specification, or to explain this failure, and merely asserts defenses which are not entitled to further consideration. On 25 October 1985 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. The Board thereafter ex- tended the time for the Respondent to respond to the Notice to Show Cause from 8 November to 29 November 1985.3 On 26 November 1985 the Respondent filed with the Board an amended answer to the Regional Di- rector's amended backpay specification. The cover letter to the amended answer indicates that the Re- spondent had recently retained new counsel in this matter, and that the amended answer is intended also as a response to the Board's Notice to Show Cause. The amended answer contests the backpay and fund moneys due for the four discriminatees; the wage difference amounts due the four discri- minatees; the amounts due other employees of the Respondent; and the amount due to the Union as union dues. The amended answer explains that its calculation of backpay and fund moneys due for the discriminatees is based on the Respondent's own computation of the hours worked by the dis- criminatees. In all the above contested categories, other than fund moneys, the Respondent bases its calculation on a $12.11 wage rate, rather than the $16.15 wage rate utilized by the Regional Director. The General Counsel has filed no response to the Respondent's amended answer. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in this case, the Board makes the following Ruling on the Motion for Summary Judgment Section 102.54(b) and (c) of the National Labor Relations Board Rules and Regulations states: 2 On 12 November 1985 the General Counsel filed a Supplemental Motion for Summary Judgment and Response to Respondent's Answer and Motion for Continuance According to the Supplemental Motion, the Respondent filed an answer on 15 October which merely adopted the original answer The General Counsel further alleged, inter alia, that both answers were deficient under Sec 102 54(b) of the Board's Rules for fail- ure to be "signed and sworn to by the Respondent or by a duly author- ized agent with appropriate power of attorney affixed " We note, in this regard, that the purported 15 October answer was not appended to the General Counsel's motion, nor does it otherwise appear in the record before the Board 279 NLRB No. 129 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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. (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. Both the original backpay specification and its amendment duly served on the Respondent state that, pursuant to Section 102.54 of the Board's Rules and Regulations, "Respondent shall, within 15 days from the date of the Specification, file with the Regional Director for the Sixteenth Region, acting in this matter as agent of the National Labor Relations Board, an original and four (4) copies of an answer to the Specification. To the extent that such answer fails to deny allegations of the Specifi- cation in the manner required under the Board's Rules and Regulations, and the failure so to do is not adequately explained, such allegations shall be deemed to be admitted to be true and the Respond- ent shall be precluded from introducing any evi- dence controverting them." We agree with the General Counsel that the Re- spondent's 10 September answer fails to satisfy the requirements of Section 102.54(b) and (c). This answer does not specifically dispute the accuracy of the gross backpay figures contained in the speci- fication or provide any specific alternative formula for computing the amounts of gross backpay due. The answer only raises issues which were the sub- ject of the underlying unfair labor practice pro- ceeding and were litigated and expressly deter- mined in that proceeding. These issues are preclud- ed from further litigation.4 For these reasons, we conclude that the 10 September answer does not conform to the requirements of Section 102.54(b). Respondent's second answer of 26 November presents an initial procedural issue concerning its acceptability. When, as here, the Regional Director has amended the backpay specification, Section 102.57 of the Rules permits the respondent to amend its answer. Moreover, the Board has viewed attempts to cure technical defects in an original answer as timely. E.g., Victoria Medical Group, 274 NLRB 1006, 1007 (1985). Mindful of the admoni- tion in Section 102.121 that the Rules "shall be lib- erally construed to effectuate the purposes and pro- visions of the act," we deem timely Respondent's 26 November answer, and proceed to consideration of its merits as an answer to the amended backpay specification. The 26 November answer raises only two issues not raised by the initial 10 September answer. Its backpay calculations are based on a $12.11 hourly wage rate , rather than the $16.15 rate used by the General Counsel, and Respondent's figures for the number of hours worked by each discriminatee are substantially less than the figures in the backpay specification. In the underlying unfair labor prac- tice proceeding, the Board expressly found that Re- spondent negotiated this $12.11 rate directly with its unit employees during the term of the collec- tive-bargaining agreement, in violation of Section 8(a)(5) and (1) of the Act.5 The calculations de- 4 E.g, Ricks Construction Co, 272 NLRB 424 at 425 (1984) For this reason, the Respondent 's motion to reopen the record must be denied 6 The amended answer explicitly derives the $12 11 wage rate from the Jobs Target Program in an attached 3 June 1983 letter The same letter was introduced into evidence in the underlying case The Respondent's attempt to negotiate the Jobs Target Program at midterm directly with its unit employees in July 1983 violated Sec 8(a)(5) and (1) 273 NLRB 655, 656, 659 WATT ELECTRIC CO. 917 rived from this wage rate therefore are unaccept- able as a matter of law because they represent an attempt to relitigate an issue already decided.6 Re- spondent's bare recitation of an alternative compu- tation of the discriminatees' hours is likewise insuf- ficient. At no point does the Respondent expressly dispute the General Counsel's gross backpay for- mula used to compute the number of hours each discriminatee would have worked, nor does the Respondent adequately explain the basis for its dis- agreement with the General Counsel's figures. We have recently concluded that answers to backpay specifications deficient in the same respects as Re- spondent's answer failed to conform with the re- quirements of Section 102.54(b) and (c). Victoria Medical Group, supra; Ricks Construction Co., supra. On careful consideration, we conclude that Respondent's 26 November amended answer falls short of the above requirements. We therefore 6 Ricks Construction Ca, supra deem every allegation in the amended specification to be admitted as true, and grant the General Counsel's Motion for Summary Judgment.' ORDER The National Labor Relations Board orders that the Respondent, Watt Electric Company, and its alter ego, Watt Plumbing, Air Conditioning & Electric, Inc. and John O. Watt, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall pay the amounts set forth in the backpay specifica- tion, as amended, plus interest at the appropriate rate, minus tax withholdings required by Federal and state laws, subject to the accrual of additional interest until payment is effected. ' The Respondent does not contest the Regional Director 's calcula- tions of the discrimmatees' interim earnings Member Babson, in joining his colleagues in granting the General Counsel's Motion for Summary Judgment , additionally relies on the fact that neither the 10 September answer nor the 26 November amended answer were sworn to by the Respondent or its attorney as required by Sec 102 54(b) of the Board's Rules