United Hydraulic Services, Inc.

UNITED HYDRAULIC SERVICES United Hydraulic Services, Inc. chidPerry W`Hi s and James O. Mills. Cases 9-CA-17643, 9- CA-17962, and 9-CA-19166 8 January 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 29 June 1984 the National Labor Relations Board issued a Decision and Order' in this pro- ceeding in which the Board, inter alia, ordered the Respondent to reinstate and to make whole the dis- criminatees for any loss of pay suffered by reason of the Respondent's discrimination against them. On 21 January 1986 the United States Court of Ap- peals for the Fourth Circuit entered its judgment enforcing the Board's Order. 2 A controversy having arisen over the amount of backpay due under the Board's Order, as enforced by the court, the Regional Director for Region 9 about 3 April 1986 issued a backpay specification and notice of hearing alleging the amounts of backpay due, the diiscriminatees under the Board's Order. Subse- quently, the Respondent filed an answer to the backpay specification. Thereafter, on 9 May 1986 the General Counsel filed with the Board in Washington, D.C., a motion to Strike Portions of Respondent's Answer and Motion for Summary Judgment. On 21 May 1986 the Board issued an Order Transferring Proceeding to the Board and Notice to Show Cause why the General Counsel's motion should not be granted. On about 2 June 1986 the Respondent filed a docu- ment with the Board and requested that the docu- ment be incorporated by reference into its answer. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in the proceeding, the Board makes the following Ruling on the Motion for Summary Judgment Section 102.54 of the Board's Rules and Regula- tions provides in pertinent part: (b)... The answer to the specification shall be in writing .... The respondent shall specifi- cally 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 1 271 NLRB 107. 2 755 F.2d 955. 645 the substance of the allegations of the specifi- cation denied. When a respondent intends to deny only 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.... (c)... If the respondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by subsection (b) of this section, and the failure so to deny is not adequately explained, such alle- gation shall be deemed to be admitted to be true, and may be so, found by the Board with- out the taking of evidence supporting such al- legation, and the respondent shall be precluded from introducing any evidence, controverting said allegation. The backpay specification, issued and served on the Respondent about 3 April 1986, specifically states that the Respondent shall, within 15 days from the date of the specification, file with the Re- gional Director for Region 9 an answer to the specification and that, if the answer fails to deny the 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 admitted to be true and the Respondent shall be precluded from introducing any evidence controverting them. In the instant case, the Respondent filed an answer to the backpay specification which admit- ted all of the backpay specification's allegations with respect to four of the six discriminatees.3 Ac- cordingly, we,, shall grant the General Counsel's Motion for Summary Judgment as to those four discriminatees. ,Regarding the other two discrimina- tees, the answer admitted certain allegations and denied others. Specifically, with respect to discri- minatee Perry Williams, the Respondent denied that the backpay period ended on the date alleged by the General Counsel because, according to the Respondent, Williams was offered reinstatement at least 2 weeks prior to the date he returned to work. The Respondent also disputed the General Counsel's computation'of gross backpay for a part of the backpay period, alleging that Williams "did not possess the skills, training, and experience nec- essary to perform the same work performed by those individuals utilized by the Board as `repre- 3 The backpay specification alleged that no backpay was due one of the four discriminatees, Ricky Tackett. 282 NLRB No. 95 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative replacement employees doing comparable work."' The Respondent further denied that Wil- liams would have received the overtime or the wage increase alleged by the General Counsel. In addition, the Respondent's answer disputed the General Counsel's. computation of Williams' interim earnings. With respect to discriminatee James Mills, the Respondent's answer denied the allegations con- tained in the backpay specification only with regard to Mills' interim earnings. Finally, the answer stated that the Respondent would not introduce evidence at the hearing then scheduled and concluded: [I]n support of its answer to the backpay speci- fication, United Hydraulic Services, Inc. re- spectfully requests that the Board consider all materials in its possession including, but not limited to, those documents provided to the Regional Director and Compliance Officer of Region 9 by counsel for the respondent which materials include documents which United Hy- draulic Services, Inc. believes support its con- tentions. As noted above, after the Board issued the Order Transferring Proceeding to the Board and Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted, the Respondent filed a document with the Board and requested that the document be incorporated by reference into the answer. We construe the docu- ment to be an amendment to the answer permissi- ble under Section 102.57 of the Board's Rules and Regulations. In addition to making various argu- ments and assertions regarding the interim earnings of Mills and Williams, the amended answer states that the Respondent "has instructed its counsel to aggressively defend any back-pay award." The General Counsel's motion to strike requests the Board to strike from the original answer the above-quoted sentence, which requested the Board to consider documents previously submitted to the compliance officer. We shall deny the motion to strike that portion of the answer, in' view of our finding that the aforementioned document is an amendment to the answer. Further, in light of the statement in the amended answer indicating that the Respondent intends to "aggressively defend" its position in this backpay proceeding, we find that the Respondent has changed its position with re- spect to whether it will appear at any hearing in this matter and that it will present its own evi- dence. With respect to the Motion for Summary Judg- ment, we agree with the General Counsel that there are no issues remaining with respect to the gross backpay of discriminatee Mills. Thus, the answer, as amended, does not deny any of the alle- gations contained in the backpay specification re- garding Mills' gross backpay. As for the gross backpay alleged in the backpay specification for discriminatee Williams, we fmd that the only alle- gation denied with the specificity required by Sec- tion 102.54(b) of the Board's Rules and Regulations is the date on which the backpay period ended. Accordingly, we will grant the General Counsel's Motion for Summary Judgment insofar as it con- cerns the gross backpay of Mills and all of the alle- gations regarding Williams' backpay except for the alleged date on which the backpay period ended. We deny the General Counsel's Motion for Sum- mary Judgment insofar as it concerns the interim earnings of Mills and Williams. It is well settled that although a general denial does not constitute a sufficient answer to the gross backpay allegations of a backpay specification, a general denial of the backpay specification's- allegations regarding inter- im earnings does suffice to place in issue all ques- tions concerning interim earnings. In view of ' the Respondent's amendment to the part of the original answer which stated that it would not appear at the hearing, we find that the Respondent should have an opportunity to present evidence regarding the interim earnings of Mills and Williams. ORDER The National Labor Relations Board orders that the Respondent, United Hydraulic Services, Inc., Micco, West Virginia, its officers, agents, succes- sors, and assigns, shall make whole Ricky Bradley, Melvin Lowe, and Charles Smith by paying them the amounts of backpay set forth in the backpay specification, plus interest at the appropriate rate minus tax withholdings required by Federal and state laws, subject to the accrual of additional in- terest until payment is effected. IT IS FURTHER ORDERED that the General Coun- sel's Motion for Summary Judgment is granted with respect to the gross backpay of James Mills as set forth in the backpay specification, and with re- spect to the gross backpay allegations regarding Perry Williams except for the alleged date on which his backpay period ended. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 9 for the purpose of issuing a notice of hearing and scheduling such hearing before an administrative law judge, which hearing shall be limited to taking evidence concerning the interim earnings of James Mills and Perry Williams, and the date on which Williams' backpay period ended. UNITED HYDRAULIC SERVICES 647 IT IS FURTHER ORDERED that ' he" admiiuistrafive the record `evidence . Following service of the law judge shall prepare and serve on the parties a administrative law judge's decision on the parties, supplemental decision containing findings of fact, the provisions of Section 102.46 of, the Board's conclusions of law, and recommendations based on Rules shall be applicable.