Birch Run Welding And Fabricating, Inc.

908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Birch Run Welding and Fabricating, Inc. and Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, UAW. Case 7-CA-21755 30 January 1987 SUPPLEMENTAL DECISION AND ORDER AND ORDER REMANDING BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 30 March 1984 the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding in which it ordered the Re- spondent to make whole William Humes, Timothy Schmidt, John Clark, Patrick Reittenbach, Donald Yaldin, Daniel Oberg, Anthony Sparck, Alan Za- barcki, Timothy Altman, Chris Van Ness, Kenneth Parlberg, Jose Aguirre, and Jeffery Benham for any loss of earnings resulting from their layoff by the Respondent in violation of Section 8(a)(3) and (1) of the Act. On 4 June 1985 the United States Court of Appeals for the Sixth Circuit entered its judgment enforcing the Board's Order.2 Because a controversy arose over the amount of backpay due under the terms of the Board's Order, the Regional Director for Region 7 on 24 June 1986 issued and caused to be served on the parties a backpay speci- fication and notice of hearing alleging the amounts of backpay due the individual discriminatees. The Respondent on 21 July filed an unsworn document entitled "Employer's Response to the Backpay Specification and Notice of Hearing," which pur- ported to be the Respondent's answer to the speci- fication. On 18 August the General Counsel filed with the Board a Motion to Strike Answer or Certain Re- sponses of Answer to Backpay Specification and a Motion for Summary Judgment, with attachments. On 20 August the Board issued an Order transfer- ring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motions should not be granted. On 29 August the Respond- ent filed with the Board an amended response to the Regional Director's backpay specification of 24 June. The General Counsel has not moved to strike the amended response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 1 269 NLRB 756. 2 761 F 2d 1175 Ruling on Motion for Summary Judgment Section 102.54(b) and (c) of the Board's 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 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. The backpay specification duly served on the Respondent states: [P]ursuant to Section 102.54 of the Board's Rules and Regulations, Series 8, as amended, 282 NLRB No. 129 BIRCH RUN WELDING , 909 the Respondent shall, within, fifteen days, from the date listed below, file with the Regional Director, acting in this matter as an agent of the National Labor Relations Board, an- origi- nal and four (4) copies of the Answer to this Specification. Said Section 102.54 provides 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 failure to do so is not ade- quately explained, such allegation shall be deemed to be admitted to be true and the Re- spondent shall be precluded from introducing any evidence controverting them. Immediately upon the filing of its Answer, Respondent shall serve a copy thereof on each of the other par- ties. Form NLRB 4668, Summary of Standard Procedures in ` Formal Hearings Held Before the National ,Labor Relations Board in Unfair Labor Practices is attached hereto. The General Counsel moves to strike the pur- ported answer in its entirety because it fails to meet the requirements of Section 102.54(b) of the Rules and Regulations because ii is not sworn to by the Respondent or a , duly authorized agent with power of attorney and does not contain a post office ad- dress of the Respondent. The General Counsel fur- ther submits alternatively that certain paragraphs be struck as defective because they constitute mere general denials of matters within the knowledge of the Respondent without providing any specific al- ternative formula for computing -backpay. Still other paragraphs are allegedly specious as they urge that the amount of unemployment compensa- tion received by each discriminatee should be de- ducted from the backpay award. In response to the order transferring the pro- ceeding to the Board and the Notice to Show Cause, on 29 August the Respondent filed an "Amended Response to , the Backpay Specifica- tion." The amended response, although not proper- ly captioned as an amended answer to the backpay specification, nevertheless constitutes an answer within the meaning of the Board's Rules and is ac- cepted as such. The amended answer was properly to, 'ontained the address of the Respond- ent's agent, and gave modified responses to the backpay specification . The General Counsel has not moved to strike this amended answer. The Rules contain no specific prohibition against amending the answer to a backpay specification, despite the absence of an amendment to the specifi- cation, and the Board has viewed attempts to cure the technical defects of an initial answer to a back- pay specification as a timely amended answer.3 Ac- cordingly, we 'view the Respondent's 29 August amended answer as curing the 18 July answer and we deny the General Counsel's motion to strike this document entirely from the record. Inasmuch as the objectionable paragraphs in the original answer were modified in the amended answer suffi- cient to raise litigable issues concerning the amount of expenses and duty to mitigate damages4 on the part of some discriminatees, we deny the motion to strike paragraphs 3, 4, 5, and 6. Accordingly, we shall order a hearing limited to the determination of those backpay issues disputed by the amended answer. ORDER It is ordered that the General Counsel's Motion to Strike Answer or Certain Responses - of Answer to Backpay Specification and Motion for Summary Judgment is denied. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 7 for the purpose of arranging a hearing before an administrative law judge, limited to the determina- tion of the backpay period for Donald Yaklin and Kenneth Parlberg, the amounts of necessary and related expenses for William Humes and Donald Oberg, the interim earnings of Timothy Schmidt, and the duty to mitigate damages on the part of Alan Zabarcki and Anthony Sparck , and that the Regional Director is authorized to issue notice. 3 See, e g, Bentleys Lounge, 265 NLRB 632 (1982); Standard Materials, 252 NLRB 679, 680 (1980). 4 Portland Cement Co , 262 NLRB 365, 366 (1982).