Otten Truck Line; United Star Express, Inc.

OTTEN TRUCK LINE 875 Otten Truck Line; United Star Express, Inc.; and Claude Hayes, an Individual and Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 833, AFL-CIO.' Cases 17-CA- 12053-1,2,3 June 28, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 22, 1986, the National Labor Rela- tions Board issued its Decision and Order2 in this case directing Otten Truck Line; United Star Ex- press, Inc.; and Claude Hayes, an Individual (the Respondent) to make whole employees who in- curred losses since December 12, 1983, because of its failure to abide by certain terms and conditions of its collective-bargaining agreement with Team- sters, Chauffeurs, Warehousemen and Helpers, Local Union No. 833, AFL-CIO (the Union). In- cluded in that Order were requirements that the Respondent pay contractually agreed-on health and welfare and pension trust contributions it had failed to make since December 12, 1983 . The Order also required the Respondent to pay the union dues it had failed to remit since December 12, 1983, for employees who had authorized dues deductions. On December 9, 1987, the United States Court of Appeals for the Eighth Circuit entered its judg- ment enforcing the Board's Order. 3 Because a controversy had arisen over the amount of union membership dues and fringe bene- fit payments the Respondent owed, the Regional Director for Region 17, on January 5, 1989, issued a backpay specification4 and notice of hearing that specified in detail the payments due from the Re- spondent to the pension fund , the health and wel- fare fund, and for union dues for the period be- tween December 12, 1983, and March 8, 1985. On February 15, 1989, the Respondent submitted a purported answer, which consisted of a copy of certain pages from the specification and accompa- nying appendix, with handwritten notations added. That answer, however, was neither signed nor sworn to, did not contain the Respondent 's mailing address, and failed to respond specifically to each allegation in the specification. On March 6, 1989, the General Counsel filed with the Board a motion to strike the Respondent's purported answer and to transfer proceeding to the Board and for summary judgment, with exhibits at- tached. The General Counsel's motion alleges that the Respondent's answer fails to satisfy the require- ments of Section 102.54(b) of the Board's Rules and Regulations because of the defects previously described. On March 10, 1989, the Board issued a Notice to Show Cause why the General Counsel's motion should not be granted. The Respondent failed to file a response. 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 to Strike Respondent's Answer and for Summary Judgment Section 102.56(a), (b), and (c) of the Board's Rules and Regulations6 states: (a) Filing and service of answer; form. Each respondent alleged in the specification to have compliance obligations shall, within 21 days from the service of the specification, file an original and four copies of an answer thereto with the Regional Director issuing the specifi- cation, and shall immediately serve a copy thereof on the other parties. 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 affixed, and shall contain the mailing address of the respondent. (b) Contents of answer to specification. The answer shall specifically admit, deny, or ex- plain each and every allegation of the specifi- cation, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. De- nials shall fairly meet the substance of the alle- gation of the specification at issue. When a re- spondent intends to deny only a part of an al- legation, the respondent shall specify so much of it as is true and shall deny only the remain- ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change. 2 282 NLRB 494. The court's judgment was not published. Under Sec. 102.54 of the Board's Rules, and Regulations that became effective November 13, 1988, the term "backpay specification" has been changed to "compliance specification" to reflect more accurately the range of issues that may be covered in the supplemental portion of an unfair labor practice proceeding. 5 The substance of the section to which the General Counsel referred was incorporated into Sec 102 .56, effective November 13, 1988. 6 Formerly Sec. 102.54. The Board amended its rules governing pro- ceedings concerning compliance with Agency orders effective November 13, 1988. In the revised rules, the substance of former Secs . 102.54 and 102.55 has been incorporated into Sec . 102.56, former Sec. 102 56, with some modification, has become Sec. 102 57, while the substance of former Sec. 102.57 has become par. (c) of the new Sec. 102 55. 295 NLRB No. 84 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD der. As to all matters within the knowledge of the respondent, including but not limited to the various factors entering into the computa- tion of gross backpay, a general denial shall not suffice. As to such matters, if the respond- ent disputes either the accuracy of the figures in the specification or the premises on which they are based, the answer shall specifically state the basis for such disagreement, setting forth in detail the respondent's position as to the applicable premises and furnishing the ap- propriate 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 the 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 supporting such allegation, and the respondent shall be precluded from introducing any evi- dence controverting the allegation. The General Counsel's motion to strike the Re- spondent's answer and for summary judgment sub- mits that the Respondent has failed to comply with the Board's Rules. We agree with the General Counsel that the Respondent's answer is deficient because it is neither signed nor sworn to, fails to contain the Respondent's mailing address, and does not respond specifically to each allegation in the specification.' 9 See Scotch & Sirloin Restaurant, 287 NLRB 1318 (1988). In view of our determination that the Respondent's answer is substantively inad- 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. Under these circumstances, Section 102.56(c) re- quires that the allegations be deemed admitted to be true. Accordingly, we conclude the amounts due the pension fund, the health and welfare fund, and the Union for dues are as stated in the backpay specification and we will order payment by the Re- spondent. ORDER The National Labor Relations Board grants the General Counsel's motion to strike Respondent's purported answer and to transfer proceeding to the Board and for summary judgment. Accordingly, the Board orders the Respondent, Otten Truck Line; United Star Express, Inc.; and Claude Hayes, an Individual; Eldon, Missouri, its officers, agents, successors, and assigns, to pay the health and wel- fare and the pension trust funds the amounts listed below: Health and Welfare Fund $14,924 Pension Plan 18,040 Additional amounts applicable to the above pay- ments are to be computed in accordance with the Board's decision in Merryweather Optical Co., 240 NLRB 1213 (1979). The Respondent shall also remit to the Union dues amounting to $644, plus in- terest accrued to the date of payment to be com- puted in accordance with New Horizons for the Re- tarded, 283 NLRB 1173 (1987). equate, we find it unnecessary to pass on the General Counsel's allegation that the answer was not timely filed. We note, however , that the backpay specification incorrectly notified the Respondent that it had only 14 days to respond pursuant to Secs . 102 20 and 102 21 of the Board's Rules and Regulations. The period allowed for responding pursuant to Sec. 102.56(a), the section applicable to the filing and service of an answer to a compliance specification , is 21 days. The error was harmless because Respondent was notified of the opportunity to file an answer "immediate- ly" more than 30 days after it received the specification.