Schnabel Associates, Inc.

630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schnabel Associates, Inc. and United Brotherhood of Carpenters and Joiners of America, Tri-State Council of Carpenters, AFL-CIO-CLC. Case 9-CA-17145 30 September 1987 SUPPLEMENTAL DECISION AND ORDER REMANDING BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 2 November 1984 the National Labor Rela- tions Board issued its Decision and Order' in this proceeding that ordered that the Respondent, inter alia, make whole certain employees for losses re- sulting from the Respondent's violation of Section 8(a)(3) of the Act. On 1 May 1986 the United States Court of Appeals for the Fourth Circuit en- tered its judgment enforcing in full the Board's Order, including its backpay provisions.2 A contro- versy having arisen over the amount of backpay due under the Board's Order, the Regional Direc- tor for Region 9 on 12 June 1987 issued a backpay specification and notice of hearing alleging the amounts of backpay due and notifying the Re- spondent that it should file a timely answer. On 15 July 1987 the Respondent filed an answer that con- tained general denials of the allegations in the enu- merated paragraphs of the backpay specification without explaining the basis for its disagreement with the General Counsel's figures and without of- fering an alternative method of calculation. On 10 August 1987 the General Counsel filed di- rectly with the Board a Motion for Partial Summa- ry Judgment. Subsequently, on 14 August 1987, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Partial Summary Judgment should not be granted. On 28 August 1987 the Respondent filed 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, the Board makes the fol- lowing Ruling on the Motion for Partial 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 272 NLRB 1022 ( 1984). z No 85-1926 (unpublished). 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 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 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 served on the Re- spondent states that, pursuant to Section 102.54 of the Board's Rules and Regulations, "the Respond- ent shall, within 21 days from the date of this spec- ification, file with the undersigned Regional Direc- tor, an original and four (4) copies of an answer to the specification." The backpay specification states further that "[t]o the extent that such answer fails to deny allegations of the specification in the manner required under the Board 's Rules and Reg- 286 NLRB No. 53 SCHNABEL ASSOCIATES 631 ulations 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 contro- verting them." In her Motion for Partial Summary Judgment, the General Counsel submits that the Respondent has failed to state the basis for its disagreement with the figures used to compute gross backpay or the premises on which they are based and fails to provide any alternative formula or figures for com- puting the amount of backpay owed. The General Counsel contends that the Respondent's answer claims that the General Counsel failed to properly calculate the backpay period for the employees but fails to explain the basis for its disagreement, al- though the information necessary to determine the backpay period is peculiarly within the Respond- ent's knowledge. The Respondent denies that the General Counsel used the proper wage rate for each employee but fails to explain why it is incor- rect or to provide the proper image rate based on its own records. With respect to each employee, the Respondent claims that the General Counsel in- correctly calculated the number of hours worked but fails to provide the correct figure based on its records. The General Counsel contends that except about the issue of interim earnings and net back- pay, the Respondent's answer fails to comply with the Board's Rules and Regulations. She therefore moves that paragraph 1 and paragraphs 2 through 21 of the backpay specification, insofar as they set forth the backpay period, wage rate, and gross backpay of the discriminatees, should be deemed to be true and be so found. A copy of the answer filed by the Respondent on 15 July 1987 is attached to the Motion for Partial Summary Judgment. We agree with the General Counsel that the Re- spondent's 15 July 1987 answer constitutes a gener- al denial which fails to comply with the require- ments of Section 102.54(b) and (c) as to those com- pliance matters within its knowledge. The answer does not provide any alternative formula for com- puting the amounts of gross backpay owed. Cer- tainly, the hours worked by its employees and their rates of pay are normally within the knowledge of an employer. In response to the Notice to Show Cause, the Respondent asserts that it no longer pos- sesses any knowledge of these matters, as it previ- ously gave all its payroll records and employee personnel files to the General Counsel during the litigation of this matter. The Respondent argues that therefore it was unable to more fully dispute the accuracy of the backpay figures or give alter- native formulas for computing the amounts of gross backpay. Section 102.54(b) requires that, if an employer is without knowledge regarding any allegation of the backpay specification, his answer "shall so state, such statement operating as a denial." The Re- spondent's answer does not state that it is without knowledge about the wages and hours of its dis- charged employees, nor does the answer contain any explanation for the failure to deny specifically the backpay allegations, as required by Section 102.54(c). The Respondent submits that pursuant to Section 102.57, the Board should consider its re- sponse to the General Counsel's Motion for Partial Summary Judgment to be an amended answer to the backpay specification, which specifically amends the answer to plead that the Respondent is without sufficient knowledge to answer the back- pay specification about the backpay period, the proper wage rate, the number of hours worked, and the expenses indicated for each employee. Although the Respondent may no longer possess the original payroll records allegedly in the Gener- al Counsel's possession, it clearly has access to other sources of information from which to con- firm the gross backpay figures alleged in the back- pay specification that it apparently has not attempt- ed to pursue. The Respondent has not indicated that it ever requested access to or copies of the payroll records allegedly in the General Counsel's possession before filing its response to the Notice to Show Cause. See Frenchy's K & I, 264 NLRB 412 (1982). Thus, we do not find the Respondent's belated assertion that it lacks knowledge to be an adequate explanation for the failure to comply with the requirements of Section 102.54 in its original answer. Because the Respondent has failed to deny spe- cifically the gross backpay allegations or to explain adequately its failure to do so, Section 102.54(c) re- quires that these allegations be deemed to be admit- ted to be true. Accordingly, we find them to be correct, and we shall grant the General Counsel's Motion for Partial Summary Judgment. However, inasmuch as the General Counsel does not seek summary judgment with respect to the amounts of interim earnings and net backpay alleged in the backpay specification, and as we have held that a general denial of the allegations concerning interim earnings in a backpay specification is sufficient under Section 102.54 to raise an issue warranting a hearing,3 we shall order a hearing limited to the determination of the interim earnings and net back- pay of the discriminatees. As stated above, we deem the Respondent to have admitted all other al- legations in the backpay specification to be true. 3 Dews Construction Corp, 246 NLRB 945 (1979) 632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER It is ordered that the General Counsel's Motion for Partial Summary Judgment concerning all alle- gations in the backpay specification except those relating to the amounts of interim earnings and net backpay be granted. IT IS FURTHER ORDERED that this proceeding be remanded to the Regional Director for Region 9 for the purpose of issuing a notice of hearing and scheduling a hearing before an administrative law judge, which hearing shall be limited to taking evi- dence concerning the amounts of the interim earn- ings and net backpay of the discriminatees in- volved. 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 provision of Section 102.46 of the Board's Rules and Regula- tions shall apply.