United Paperworkers International Union, Local 1575 (Scott Paper Co)

72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Paperworkers International Union, Local 1575 (Scott Paper Co ) and Robert E Lathan Case 15-CB-2860 September 30 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 16 1987 the National Labor Relations Board issued a Decision and Order' in which the Board found that the Respondent violated Section 8(b)(1)(B) of the Act by refusing to give its consent to Robert Lathan s retention of seniority if he was again designated as a temporary supervisor by the Employer thereby causing the Employer to de cline to promote Lathan to the position of tempo rary supervisor The Board ordered the Respond ent, inter alia, to make whole Lathan for any losses that he may have suffered by reason of the Re spondent s unlawful conduct On October 21 1987 the Respondent through counsel entered into a stipulation approved by the Regional Director for Region 15 on November 3 1987 whereby the Re spondent waived its right under Section 10(e) and (f) of the Act to contest either the propriety of the Boards Order or the findings of fact or conclu sions of law underlying that Order A controversy having arisen over the amount of backpay due under the Board s Order the Regional Director for Region 15 issued and duly served on the Respond ent a backpay specification and notice of heanng alleging the amount of backpay due the discnmina tee Subsequently the Respondent filed an answer to the backpay specification denying the allega tions Thereafter on February 8 1988 the General Counsel filed with the Board a motion to strike Re spondent s answer to backpay specification and for judgment on the pleadings with exhibits attached The General Counsel essentially alleges that the Respondents answer does not comply with the substantive requirements of Section 102 54 of the Board s Rules and Regulations Accordingly the General Counsel moves that the answer be stricken pursuant to Section 102 54(c) of the Board s Rules and that all the allegations of the backpay specifi cation be deemed to be admitted to be true and be so found by the Board without the taking of evi dence supporting these allegations and that the Re spondent be precluded from introducing any evi dence controverting the allegations On February 12, 1988 the Board issued an order transferring the ' 284 NLRB 1019 proceeding to the Board and a Notice to Show Cause why the General Counsels motion should not be granted On February 19 1988 the Respondent filed a re sponse to the General Counsels motion In its re sponse the Respondent contends that it is only at tempting to have resolved the issue of whether the discnminatee is entitled to backpay for any period after June 30 1984 It argues in this regard that there is no evidence in the record that the Em ployer would have requested further letters of protection pursuant to which it would have tem. poranly promoted the discnminatee after June 30 1984 It further asserts that it can produce evidence at heanng to demonstrate that subsequent to this penod the practice of promoting unit employees to move up supervisor was discontinued On March 8 1988 the General Counsel filed a reply to the Respondents response contending that the back pay penod should end on August 24, 1987 the date the Respondent notified the Employer it had re scinded all unlawful action against Lathan The General Counsel argues that the Employers failure to request additional letters of protection for Lathan is not dispositive because the making of such requests would have been futile under the cir cumstances On the entire record in this proceeding the Board makes the following Ruling on Motion for Judgment on the Pleadings Section 102 54(b) and (c) of the Board s Rules and Regulations states (b) Contents of the answer to specification - The respondent shall specifically admit, deny or explain each and every allegation of the specification unless the respondent is with out 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 specification denied When the 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 the matters within the knowledge of the respondent including but not limited to the various factors entering into the computation of gross backpay a gen eral denial shall not suffice (c) Effects of failure to answer or plead specifi cally and in detail to the specification - If the respondent files an answer to the specifica tion but fails to deny any allegation of the specification in the manner required by subsec 291 NLRB No 12 PAPERWORKERS LOCAL 1575 (SCOTT PAPER) 73 tion (b) of this section and the failure so to deny is not adequately explained such allega tion 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 in troducing any evidence controverting said al legation As indicated above the General Counsel has filed a motion to strike the Respondents answer in its entirety on the basis of alleged substantive defi ciencies in the answer We agree with the General Counsel that with one exception, the answer to the backpay specification fails to deny the allegations of the specification in the manner required under Section 102 54(b) of the Board s Rules Further in its response to the General Counsels motion the Respondent expressly states that the only issue in dispute is the length of the backpay period By so stating the Respondent essentially amends its answer to admit the allegations of the specification insofar as they do not relate to the length of the backpay period used to compute the gross backpay due the discriminatee 2 Accordingly as there are no issues remaining except with respect to the length of the backpay period we will grant the General Counsels motion except insofar as it con cerns the length of the backpay period We there fore deem all the allegations in the backpay specifi cation insofar as they do not involve the length of the backpay period to be admitted as true and the Respondent is precluded from introducing any evi dence controverting them We find however that the Respondents answer as amended, raises a substantial and material issue 2 See United Hydraulic Services 282 NLRB 645 (1987) concerning the date on which the backpay period ended In this regard the Respondent argues that there is no evidence that the discnmmatee would have been made a temporary supervisor after June 30 1984 and further that it can produce evidence affirmatively establishing that the Employer had abandoned its practice of temporarily promoting unit employees after that date Accordingly we will deny the General Counsels motion and we will remand this proceeding for a hearing limited to the issue of whether the backpay period should end on June 30 1984 as contended by the Re spondent or on August 24 1987 as alleged in the backpay specification ORDER IT IS ORDERED that the General Counsel s motion is granted regarding all allegations of the backpay specification except insofar as they relate to the length of the backpay period IT IS FURTHER ORDERED that the General Coun sel s motion is denied regarding the allegations of the backpay specification insofar as they involve the backpay period used to compute the gross backpay due the discriminatee IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 15 for the purpose of arranging a hearing before an administrative law judge on the issue of the proper backpay period Thereafter the judge will prepare and serve on the parties a supplemental decision containing find ings of fact conclusions of law and recommenda tions based on all the record evidence Following service of the judge s decision on the parties the provisions of Section 102 46 of the Boards Rules and Regulations will be applicable L