Mash Transportation, Inc.

MASH TRANSPORTATION 49 Mash Transportation, Inc. and Mark S. Combs. Case 25-CA-17484 June 10, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On September 11, 1986, the National Labor Re- lations Board issued a Decision and Order in this proceeding,' in which the Board ordered the Re- spondent, inter alia, to make whole certain employ- ees for any loss of earnings suffered as the result of the Respondent's unfair labor practices. On August 4, 1987, the United States Court of Appeals for the Seventh Circuit entered a 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 Di- rector for Region 25 issued and duly served on the Respondent a backpay specification and notice of hearing alleging the amount of backpay due the discriminatees. About December 28, 1987, the Respondent filed a response and objection to the backpay specifica- tion, asserting that the discriminatees were ineligi- ble to work for the Respondent during the backpay period. The answer was not sworn to by the Re- spondent or its attorney, nor did it specifically re- spond to each allegation of the complaint. On March 15, 1988, the General Counsel filed with the Board a "Motion for Order Transferring Proceeding to the National Labor Relations Board: Motion to Strike Answer of Respondent to Back- pay Specification and Notice of Hearing, and Motion for Summary Judgment; or in the Alterna- tive, Motion for Partial Summary Judgment," with exhibits attached. The General Counsel alleges that the Respondent's answer failed to conform to the requirements of Section 102.54(b) and (c) of the Board's Rules and Regulations in that the answer, inter alia: (1) was not sworn to by the Respondent or by a duly authorized agent with appropriate power of attorney affixed; (2) failed to admit, deny, or explain each allegation of the specification, or state that the Respondent is without sufficient knowledge to answer each allegation; (3) failed to fairly respond to the substance of any of the allega- tions of the specification; and (4) failed to dispute the accuracy of any of the backpay figures or the premises upon which they are based. Accordingly, the General Counsel requested that the answer be ' 281 NLRB 444 2 Unpublished. stricken and that pursuant to Section 102.54(c) of the Board's Rules and Regulations all allegations of the backpay specification be deemed to be admitted as true and that summary judgment should be granted. In the alternative, the General Counsel re- quested that in the event the Respondent's answer is deemed to raise issues requiring a hearing, partial summary judgment should be granted finding that all allegations of the specification are true. On March 18, 1988, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted. On April 1, 1988, the Respondent filed a motion and amended re- sponse and objection to backpay specification which either admits or denies each allegation of the specification, and an affirmative defense which was similar to the Respondent's previous response and objections to the backpay specification. The motion, amended response and objection, and af- firmative defense were sworn to and signed by the Respondent's president. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in this proceeding, the Board makes the following 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 of the address respondent. The respondent shall spe- cifically admit, deny, or explain each and every allegation of the specification, unless the respondent is without knowledge, in which case the respondent shall so state, such state- ment operating as a denial. Denials shall fairly meet the substance of the allegations of the specification denied. When a respondent in- tends to deny only a 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 re- spondent, including but not limited to the vari- ous factors entering into the computation of gross backpay, a general denial shall not suf- fice. As to such matters, if the respondent dis- putes either the accuracy of the figures in the specification or the premises on which they 289 NLRB No. 8 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are based, he shall specifically state the basis for his disagreement, setting forth in detail his position as to the applicable premises and fur- nishing the appropriate supporting figures. (c) Effects 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. As indicated above, the General Counsel filed a motion to strike the Respondent's answer in its en- tirety and to grant summary judgment on the basis of alleged procedural and substantive deficiencies in the answer. It is clear that the answer filed about December 28, 1987, standing alone, is procedurally deficient in that it is not sworn to by the Respond- ent or by a duly authorized agent with power of attorney. The Respondent's amended response and affirmative defense, however, were sworn to by the Respondent's president. The Board, under similar circumstances, has viewed such an attempt to cure the procedural defects of an initial answer to a backpay specification as a timely amended answer.3 3 Scotch & Sirloin Restaurant, 287 NLRB 1318 (1988), Standard Materi- als, 252 NLRB 679 (1980) Accordingly, we deny the General Counsel's Motion to Strike and Summary Judgment on the basis of procedural defects. We further find that the answer is not substan- tively deficient. In addition to the general denial that is sufficient to place interim earnings into issue for both discriminatees, the Respondent denies gross backpay allegations to the extent that its af- firmative defense specifically alleges that discrimin- atee Authur Craig Scheid was ineligible to work for the Respondent during the backpay period inas- much as he was ineligible to work for the Postal Service and had misrepresented his driving record, and that discriminatee Mark S. Combs was also in- eligible to work for the Respondent during the backpay period because of his excessive number of moving traffic violations and his misrepresentation of his driving record. The Respondent's affirmative defense, therefore, raises substantial and material issues as to the discriminatees' gross backpay war- ranting a hearing. Accordingly, we shall deny the General Counsel's motions and we shall remand this proceeding for a hearing. ORDER It is ordered that the General Counsel's motion to strike answer of Respondent to backpay specifi- cation and notice of hearing is denied. IT IS FURTHER ORDERED that the General Coun- sel's Motion for Summary Judgment; or in the al- ternative, Motion for Partial Summary Judgment is denied. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 25 for the purpose of issuing a notice of hearing and scheduling a hearing before an administrative law judge to determine the backpay owed discrimina- tees Mark S. Combs and Arthur Craig Scheid.