Unico Replacement Parts, Inc.

738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Unico Replacement Parts, Inc. and International As- sociation of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190, Local Lodge 1492. Case 20-CA-16849 21 October 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 8 September 1986 the National Labor Rela- tions Board issued a Decision and Order in this proceeding' ordering the Respondent, inter alia, to offer immediate and full reinstatement to employ- ees and to make them whole for any loss of earn- ings and benefits resulting from the Respondent's unfair labor practices which violated Section 8(a)(3) and (1) of the National Labor Relations Act. On 6 January 1987 the Respondent and the General Counsel entered into a stipulation whereby the Respondent agreed not to contest the findings and conclusions of the Board's Decision and Order. On 30 January 1987 the Regional Director for Region 20 issued a backpay specification and notice of hearing; on 6 May 1987, an amended backpay specification and notice of hearing; and on 17 June 1987, an amendment to the amended backpay spec- ification alleging, inter alia, that a controversy had arisen over the amount of backpay due under the terms of the Board's Order and notifying the Re- spondent that it must file a timely answer which must comply with the National Labor Relations Board Rules and Regulations. The Respondent filed timely answers to the backpay specifications. On 15 July 1987 counsel for the General Counsel filed with the Board a "Motion to Strike Portions of Respondent's Answer to the Amended Backpay Specification and Notice of Hearing, and Answer to Amendment to Amended Backpay Specification, and Motion for Partial Summary Judgment." Counsel for the General Counsel contends that the Respondent's answers to the amended backpay specification and to the amendment to the amended backpay specification fail to meet the requirements of Section 102.54(b) and (c) of the Board's Rules and Regulations with respect to the issues of gross backpay, holiday and vacation pay, IRA pension contributions, and vested shares in an employee stock ownership plan (ESOP) and as to the formu- la used to determine medical or dental benefits and expenses. Counsel for the General Counsel requests that partial summary judgment be granted and that all the allegations pertaining to the above-men- 1 281 NLRB 309 (1986) tioned items in the amended backpay specification and the amendment to the amended backpay speci- fication be found true. The motion also requests that the Respondent be precluded from presenting any evidence controverting those allegations that are deemed admitted as true and that the hearing be limited solely to issues relating to the amounts of interim earnings, related quarterly expenses, net backpay as it relates to net interim earnings, and the unreimbursed medical or dental expenses of the named claimants. On 22 July 1987 the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted. On 17 August 1987 the Re- spondent filed an opposition to the General Coun- sel's motion. 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 286 NLRB No. 70 UNICO REPLACEMENT PARTS 739 the specification and without notice to the re- spondent, find the specificat ion to be true and enter such order as may be appropriate. If the respondent files an answer to the specification 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 amended backpay specification duly served on the Respondent states that, pursuant to Section 102.54 of the Board's Rules and Regulations: Respondent shall, within 21 days from the date of this Amended Backpay Specification, file with the undersigned, acting in this matter as an agent of the National Labor Relations Board, an original and four (4) copies of an answer to the Amended Backpay Specifica- tion. To the extent that such an answer fails to deny allegations to the Amended Backpay Specification in the manner required under the Board's Rules and Regulations and the failure to do so is not adequately explained , such alle- gations shall be deemed admitted to be true and Respondent shall be precluded from intro- ducing any evidence controverting them. We agree with the General Counsel that the Re- spondent's answers to the backpay specifications do not conform with the above requirements as to the compliance matters within the Respondent's knowl- edge. The answer to paragraph 1 of the amended backpay specification denies that the claimants, had they continued in the Respondent's employ, would have been employed in the respective classifica- tions of "helper" and "mechanic; B"; the answer to paragraph 2 denies the backpay period of the claimants as set forth in the specification; and the answer to paragraph 3 denies that hired replace- ments performed work which would have been performed by the claimants . All of these allegations denied by the Respondent pertain to subjects clear- ly within the Respondent's knowledge and the Re- spondent's failure to state the basis for the denials contravenes the requirements of the Board's rules. As to paragraph 3, footnote 3, the Respondent denies that it is appropriate to use employees in either the "helper" or "mechanic B" category as replacement employees for purposes of determining the backpay of the claimants . We find, however, that the Respondent's interchangeable use of these categories in work assignments was an issue re- solved before the administrative law judge.2 The Respondent's answer to this allegation is an inap- propriate pleading inasmuch as it attempts to raise matters now precluded from further litigation by the doctrine of res judicata. Normike Contractors, 267 NLRB 836, 838 (1983); Schorr Stern Food Corp., 248 NLRB 292, 295 (1980); American Medi- cal Insurance Co., 235 NLRB 1417, 1418-1419 (1978). In any event the Respondent in its answer failed to present any justification in support of this contention. In its response to the Notice to Show Cause the Respondent avers that the General Counsel failed to distinguish between the job classi- fications of employees hired after the termination of the claimants and that the distinction between the classifications was explained on numerous occa- sions to Board investigators. The Respondent, however, again fails to set forth the nature of the alleged distinctions. In these circumstances, we find that the Respondent's answer to this particular alle- gation is inadequate and does not warrant a hearing on this issue. The Respondent's general denials to the allega- tions of paragraph 3, including footnote 4 (assigna- tion of replacement employee hours between the discriminatees), and footnote 5 (distribution of hours to the claimants of hours worked by replace- ment employees) are insufficient to controvert the allegations inasmuch as the alleged matters pertain to the gross backpay of the claimants and to issues clearly within the Respondent's knowledge. Simi- larly, the Respondent responds by way of general denials to paragraphs 4 and 5 (wage rates); 6 through 10 (vacation pay); 11 (holiday pay); 12 and 13 (gross backpay); 19 and 20 (medical and dental insurance coverage); and 22 through 24 (IRA pen- sion plan and ESOP contributions) as well as to paragraph 25 of the amendment to the amended backpay specification . The Respondent's answers to the above allegations fail to specifically state the basis for the disagreement or to set forth the Re- spondent's position with supporting figures and thus fail to comport with the specifications of Rule 102.54. For the same reasons as stated above, the Re- spondent's general denial of paragraphs 15, 16, and 21 alleging its obligation to pay for the quarterly expenses incurred by the claimants in seeking and holding interim employment , as well as for the medical or dental expenses, does not suffice. How- ever, the Respondent's general denial is sufficient, as counsel for the General Counsel concedes, to 2 Umco Replacement Parts, 281 NLRB 309, 312-313 For those same reasons the Respondent's general denial in par 1, fn 2, of the inter- changeability of the "helper" and "mechanic B" positions is inappropn- ate 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD raise a factual issue as to the amount of quarterly expenses and the medical or dental expenses owed by the Respondent. Finally, to the extent that the Respondent by denying the status of the claimants as discriminatees attempts to raise issues fully liti- gated and resolved, the Respondent's answers must be dismissed. Brown & Root, Inc., 132 NLRB 486, 496 (1961), enfd. as modified 311 F.2d 447 (8th Cir. 1963). In its response to the Notice to Show Cause the Respondent submits that it filed timely answers to the backpay specification, the amended specifica- tion, and the amendment to the amended specifica- tions. This argument is without merit since a timely answer, without more, does not relieve the Re- spondent of the substantive requirements of Section 102.54(b) and (c). The Respondent further argues that the stipulation it entered into on 6 January did not limit the Respondent's right to contest at a hearing the amount and method of backpay due. As the Respondent itself acknowledges, the stipula- tion was limited to an agreement not to contest the Board's findings pertaining to the unfair labor prac- tices. The Respondent's argument has no merit as nothing in the stipulation relieves it of the obliga- tion to comply with the Board's Rules and Regula- tions. Accordingly, we shall grant the General Coun- sel's Motion for Partial Summary Judgment and the allegations pertaining to gross backpay, vaca- tion and holiday benefits, IRA pension contribu- tions, the vested shares in the ESOP, and the for- mula used to determine medical or dental benefits and expenses shall be deemed true and that the Re- spondent be precluded from introducing any evi- dence controverting these allegations which we have found to be true. ORDER It is ordered that the General Counsel's motion to strike portions of the Respondent's answer to the amended backpay specification and for partial summary judgment is granted. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 20 for the purpose of arranging a hearing before an administrative law judge, limiting such proceeding to a determination of interim earnings, related mat- ters of quarterly expenses, net backpay, and amounts of unreimbursed medical or dental ex- penses of the named claimants.