Structural Finishing, Inc

180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Structural Finishing, Inc and General Teamsters, Chauffeurs, Warehousemen & Helpers Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica, AFL-CIO and Tammy L Castrop Consolidated Marketing Network, Inc, and Struc- tural Finishing, Inc and General Teamsters, Chauffeurs, Warehousemen & Helpers Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer ica, AFL-CIO Cases 31-CA-12094, 31-CA- 12180, and 31-CA-13075 March 14, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 16, 1987, the National Labor Relations Board issued its Decision and Order in this case di recting Structural Finishing, Inc (the Respondent) to reinstate employees Richard (Rick) Ryder and Tammy Castrop (Higgins) and to make them whole for any loss of earnings they may have incurred as a result of the Respondent's unfair labor practices 1 On April 29, 1988, the United States Court of Ap- peals, for the Ninth Circuit, entered its judgment enforcing the Board's Order 2 On June 10, 1988, the Regional Director for Region 31 issued a back- pay specification and notice of hearing that set forth specifically and in detail the backpay compu tations for the net backpay due to the above-named employees On September 15, 1988, the Respondent filed an answer admitting in part and denying in part the backpay specification On December 12, 1988, the General Counsel filed with the Board a Motion for Summary Judg- ment with Respect to the Computation of Gross Backpay, with exhibits attached The General Counsel's motion alleged that the Respondent's answer failed to satisfy the requirements of Section 102 54 of the Board's Rules and Regulations which requires, inter alia, that any denial to the gross backpay formula set forth an applicable theory or supporting figures for its denial On December 15, 1988, the Board issued a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted The Respondent failed to file a response to the Notice to Show Cause 1284 NLRB 981 On November 20 1987 the Board issued an Order correcting its July 1987 Order to add the inadvertently omitted name of the Respondent Consolidated Marketing Network Inc which had been found to be an alter ego of Structural Finishing Inc Thus the two Re spondents herein are collectively referred to as the Respondent 2 The court s judgment was not published 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 56(b) and (c) of the Board's Rules and Regulations, 3 states (b) Contents of the answer to specification - The answer shall specifically admit , deny, or explain each and every allegation of the speci- fication, unless the respondent 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 specification at issue When a respondent intends 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 knowl- edge of the respondent, including but not lim- ited to the various factors entering into the computation of gross backpay, a general denial shall not suffice As to such matters, if the re- spondent disputes either the accuracy of the figures in the specification or the premises on which they are based, the answer shall specifi- cally state the basis for such disagreement, set- ting forth in detail the respondent's 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 backpay allegations of specification -If the respondent fails to file any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in sup- port of the allegations of specification and without further notice to the respondent, 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 specification in the manner required by paragraph (b) of this sec- tion, and the failure so to deny is not adequate- ly 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 a Formerly Sec 102 54 The Board amended its rules governing pro ceedings concerning compliance with Agency orders effective November 13 1988 The substance of former Secs 102 54 and 102 55 has been incor porated into Sec 102 56 as revised and former Sec 102 56 with some modification has become the new Sec 102 57 while the substance of former Sec 102 57 has become par (c) of the new Sec 102 55 in the revised rules 293 NLRB No 28 STRUCTURAL FINISHING 181 supporting such allegation, and the respondent shall be precluded from introducing any evi- dence controverting the allegation The Motion for Summary Judgment submits that the Respondent has failed to comply with the Board's Rules in that its answer is unclear as to whether it is denying the gross backpay computa- tion for the entire period or for only certain quar- ters, that the Respondent's general denial of para- graphs 2 and 3 in the specification concerning the total gross backpay owed did not "fairly meet the substance of the allegations denied ",' and that the Respondent did not properly dispute "either the accuracy of the figures in the specification or the premises on which they are based " The Motion also contends that the Respondent did not specifi- cally state the basis for its disagreement with the backpay specification or set forth in detail its posi- tion as to the applicable premises and furnish the appropriate supporting figures We agree with the General Counsel that the Re- spondent's answer to the gross backpay allegations does not conform to the Board's rules as to matters within the Respondent's knowledge The answer to paragraph 2 of the backpay specification essentially disputes the hourly formula used by the General Counsel by denying the number of hours worked by the discrimmatees during the periods immediate- ly preceding their discharges It does not elaborate further and proffers no hourly figures worked by the discrimmatees during those periods Neither does it submit reasons why the hours set forth in that paragraph of the specification are not repre- sentative of the hours the discriminatees would have worked during the backpay period, nor what it believes the hours for them should have been calculated to be and the basis for that calculation 5 * Par 2 alleges the amount of pay each discnmmatee would have earned during the backpay period based on the number of hours worked during the period just prior to the discharge and the rate of pay in effect during the backpay period Par 3 alleges the gross backpay for each dis cnmmatee for each quarter of the backpay period and the computational method used to arrive at those totals 5 The remainder of the Respondents answer to par 2 of the specifica tion is also vague and confusing and therefore insufficient to place gross backpay in issue The answer gives purported figures of pay for Castrop during what presumably were her last two pay periods before her dis charge There is no explanation how these figures were reached nor is it clear from the figures themselves what they actually represent In any event they do not contradict the General Counsels gross backpay corn putations as to Castrop Similarly the answer s denial of the applicable pay rate for Ryder through the expiration of Respondent Structural Fin ishing s contract appears to have little if any relevance Ryder s backpay The answer to paragraph 3 just denies the quarter- ly gross backpay of the discnminatees as set forth in the specification All of these allegations denied by the Respondent pertain to subjects clearly 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 Moreover, the Respondent has not filed any re- sponse to the Notice to Show Cause or offered any explanation for its failure to deny the allegations in the manner required by Section 102 56(b) and (c) As the Respondent has failed to deny the allega tions in the manner prescribed in Section 102 56 (b) and (c) or to explain adequately its failure to do so, Section 102 56 (c) requires that such allegations be deemed admitted to be true Accordingly, we find the alleged amounts of gross backpay to be true Further, we shall grant the General Counsel's Motion for Summary Judgment as it pertains to the gross backpay allegations of the backpay specifica- tion and the Respondent is precluded from intro- ducing any evidence controverting them ORDER It is ordered that the General Counsel's Motion for Summary Judgment is granted with respect to the gross backpay of Richard (Rick) Ryder and Tammy Castrop (Higgins) as set forth in the back pay specification IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 31 for the purpose of issuing a notice of hearing and scheduling the hearing before an administrative law judge, which shall be limited to taking evidence concerning the interim earnings of Richard (Rick) Ryder and Tammy Castrop (Higgins) IT IS FURTHER ORDERED that the administrative law judge shall prepare and serve on the parties a supplemental decision containing findings of fact, conclusions of law, and recommendations based on all the record evidence Following service of the administrative law judge's decision on the parties, the provisions of Section 102 46 of the Board's Rules shall be applicable period did not begin until April 29 1983 the day before the contract ex peed Further the pay rate for Ryder as set forth in the specification for the backpay period is the same rate the Respondent acknowledges was paid by Respondent Consolidated Marketing Respondent Structural Fin ishing s alter ego In these circumstances the Respondent s answer does not raise any discernible issue with respect to Ryder s gross backpay