Mine Works Local 1575 (Peabody Coal Co.)

MINE WORKERS LOCAL 1575 (PEABODY COAL CO.) 873 United Mine Workers of America, Local 1575 (Pea- body Coal Company) and Richard L. Allard and Gerald C. Wolfe and Gregory A. Larson. Cases 19-CB-6134, 19-CB-6137, and 19-CB-6147 June 27, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On October 13, 1988 , the National Labor Rela- tions Board issued a Decision and Order in this proceeding' ordering the Respondent, inter alia, to make whole Richard Allard, Gregory Larson, Dale Miller, and Gerald Wolfe for any losses they may have suffered in defending themselves against the unlawful charges the Respondent preferred against them. Thereafter, on February 6, 1989 , the Re- spondent entered into a stipulation agreeing that it would not seek court review of the Board 's deci- sion and that the Regional Director could issue a backpay specification. On February 7, 1989, the Regional Director for Region 19 issued a backpay specification and notice of hearing alleging , inter alia, that a controversy had arisen over the amount of money due under the terms of the Board's Order and notifying the Respondent that it must file a timely answer which must comply with the Board's Rules and Regula- tions. On February 28, 1989 , the Respondent filed an answer generally denying the allegations con- tained in the backpay specification. On March 10, 1989, the General Counsel filed directly with the Board a Motion to Strike Answer of Respondent and for Summary Judgment . Subse- quently, on March 15 , 1989, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Coun- sel's Motion to Strike and for Summary Judgment should not be granted . On March 29, 1989, the Re- spondent filed a response to the Notice to Show Cause with attached affidavit. The General Coun- sel has not filed any reply to the Respondent's re- sponse. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in this case, the Board makes the following 1 291 NLRB 361 Ruling on Motion to Strike and for Summary Judgment Section 102.56(b) and (c)2 of the National Labor Relations Board Rules and Regulations states: (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 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 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. In the Motion to Strike and for Summary Judg- ment, the General Counsel alleges that the Re- spondent's answer fails to conform to the require- 2 Formerly Sec. 102 .54(b) and (c). The Board amended its rules gov- erning compliance proceedings effective November 13, 1988 The sub- stance of former Sec . 102.54 has been incorporated into Sec . 102.56 as revised. 295 NLRB No. 85 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ments of the Board's Rules and Regulations be- cause it fails specifically to admit , deny, or explain the allegations of the specification. Therefore, the General Counsel requests that the Board deem the allegations of the backpay specification to be ad- mitted to be true. A copy of the Respondent's answer is attached to the General Counsel's motion as an exhibit. This answer simply denies all the allegations contained in the backpay specification. In its response to the General Counsel's motion, the Respondent claims that both before and after the backpay specification issued it requested copies of any documentation the Regional Director pos- sessed which it could use to assess the accuracy of the amounts it allegedly owed under the terms of the Board's Order. The Respondent further claims that, in a telephone conversation with counsel for the General Counsel on February 17, 1989, its counsel stated she could not prepare an appropriate answer to the backpay specification without re- viewing the requested documentation and that, in another telephone conservation with counsel for the. General Counsel on February 28, 1989, its counsel stated she could only file an answer gener- ally denying the allegations of the backpay specifi- cation because she had not yet received the re- quested documentation she needed to assess the ac- curacy of the amounts listed in the backpay specifi- cation. The Respondent also claims that on March 8, 1989, almost 2 weeks after it had filed an answer generally denying the allegations of the backpay specification, it received the General Counsel's Motion to Strike and for Summary Judgment at about the same time as it received a letter from counsel for the General Counsel providing docu- mentation for fewer than half of the allegations in the backpay specification. The Respondent contends that it was unable to specifically deny the allegations of the backpay specification in its answer because, in the absence of the requested supporting documentation, it was without knowledge as to the accuracy of the amounts claimed for wages, mileage, lodging, meals, telephone calls, and attorneys' fees on behalf of the four named discriminatees . The Respondent also contends that, by reviewing the documentation it has now received and taking into account the ab- sence of any documentation to support various alle- gations, it would now be able to specifically deny all the allegations of the backpay specification as set forth in its response. Therefore , the Respondent requests that the Board deny the General Counsel's motion and allow it sufficient opportunity to amend its answer. We agree with the General Counsel that the Re- spondent's answer states merely a general denial of the allegations in the backpay specification. How- ever, a general denial is sufficient under Section 102.56 to defeat a motion for summary judgment as to those issues not within the knowledge of the re- spondent.3 The General Counsel has not alleged, nor does it appear likely, that any of the matters in this backpay specification are within the knowl- edge of the Respondent. Thus, the actual amounts of expenses incurred by an individual discriminatee for mileage, lodging, meals, telephone calls, and at- torney's fees would not normally be within the knowledge of a respondent. Further, the Respond- ent here is a union, not an employer, and there is no evidence in the record to indicate it is in any position to know the actual wages earned by the four named discriminatees in this case .4 Moreover, in its response to the General Counsel 's motion, the Respondent has stated that it was without knowl- edge as to the accuracy of the amounts claimed for wages, mileage, lodging, meals, telephone calls, and attorneys' fees on behalf of the four named discri- minatees until it received the supporting documen- tation it had requested from the General Counsel. The General Counsel does not dispute the Re- spondent's claim of lack of knowledge. Therefore, we find that the General Counsel has not shown that the Respondent's denial of the allegations of the backpay specification is insufficient to require a hearing. Accordingly, we shall deny the General Coun- sel's Motion to Strike and for Summary Judgment, and we shall order a hearing on the issues raised by the backpay specification. ORDER It is ordered that the General Counsel's Motion to Strike and for Summary Judgment is denied. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 19 for the purpose of arranging a hearing before an administrative law judge. IT IS FURTHER ORDERED that the administrative law judge shall prepare and serve on the parties a decision containing findings, conclusions, and rec- ommendations based on all the record evidence. Following the service of the administrative law judge's decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regula- tions shall apply. 9 See, e g., Dews Construction Corp., 246 NLRB 945 (1979), and Marine Machine Works, 256 NLRB 15,17 (1981) 4 For example, there is no evidence that the Respondent referred indi- viduals for employment through a union hiring hall or was otherwise aware of the actual wages earned by particular employees on specific days under its collective-bargaining agreement with their employer.