Honeycomb Plastics Corp., Honeyware Products, Inc. Laminray Corp. Hangerplast, Inc.

124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Honeycomb Plastics Corporation , Honeyware Prod- ucts, Inc., Laminray Corporation, Hangerplast, Inc. and Tony L. Sheng, Individually and Local 867, Warehousemen, Plastic Processing, Electri- cal Component, Production and Maintenance Employees a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 22-CA- 14455 August 17, 1989 SUPPLEMENTAL DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On April 8, 1988, the National Labor Relations Board issued a Decision and Order in this proceed- ing.' On November 10, 1988, the United States Court of Appeals for the Third Circuit entered its consent judgment enforcing in full the Board's Order. A controversy having arisen over the amount of backpay due the discriminatees under the Board's Order, the Regional Director for Region 22 on March 31 , 1989, issued a compliance specification and notice of hearing alleging the amount of backpay due. Subsequently, the Re- spondent timely filed an answer to the compliance specification. By letter dated April 19, 1989, the Regional Director informed counsel for the Re- spondent that the answer to the compliance specifi- cation was deficient under applicable sections of the NLRB Rules and Regulations. The letter fur- ther noted that if a proper answer to the compli- ance specification was not received by May 1, 1989, the Regional Office would file a Motion for Partial Summary Judgment. On April 26, 1989, the Respondent filed an amended answer to the com- pliance specification, together with a cover letter to the Regional Director. Thereafter, on May 11, 1989, the Acting General Counsel, by counsel, filed with the Board in Wash- ington, D.C., a Motion to the Board for Partial Summary Judgment and Memorandum in Support, with exhibits attached. The Acting General Coun- sel's motion contends that portions of the Respond- ent's answer and amended answer to the compli- ance specification are not in compliance with Sec- tion 102.54(b) and (c) of the Board's Rules and Regulations. On May 15 , 1989, the Board issued an order transferring proceeding to the Board and Notice to Show Cause why the Acting General Counsel's motion should not be granted. Although the Respondent was thereafter granted an extension 1288 NLRB 413 of time in which to file a response to the Notice to Show Cause, no timely response has been received. 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 Ruling on the Motion for Partial Summary Judgment2 Section 102.56(b) and (c)3 of the Board's 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 substance of the alle- gations 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- 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. 2 Counsel for the Acting General Counsel has riled a motion to expe- dite. In her motion, counsel notes the Respondent's failure to file a timely response to the Board's Notice to Show Cause in this matter, and re- quests expedited consideration in view of the Respondent 's president's al- leged assertions that the Respondent is experiencing financial problems, the continuing need for a hearing on the remaining allegations, and a po- tential for dissipation of assets Thereafter, the Respondent filed a "Re- sponse to Motion for Partial Summary Judgment and to Expedite and Cross-Motion to Compel Discriminatees to Execute Authorizations," to obtain earning information for the backpay period To the extent that the Respondent 's document responds to the Board's Notice to Show Cause, and the Acting General Counsel's earlier Motion for Partial Summary Judgment, it is rejected as untimely We note fur- ther that we would also reject the Respondent 's contentions regarding pars 2, 3(a), (b), and (c), and 5(a) and (b) of the specification on the merits, as the Respondent 's answers are not in compliance with the re- quirements for supporting figures set forth in the Board 's Rules and Reg- ulations. See fns . 4 and 5 and accompanying text , infra The substance of the Respondent 's cross-motion concerning aspects of interim earnings is premature, and may be raised in the hearing on that issue. a 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. 296 NLRB No. 17 HONEYCOMB PLASTICS CORP. 125 (c) Effect of failure to answer or to plead spe- The cover letter from Respondent's counsel to cifically and in detail to backpay allegations of the Regional Director accompanying the amended specification.-If the respondent fails to file any answer stated, inter alia: 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 specification duly served on the Respondent states that, pursuant to Section 102.54 of the Board's Rules and Regulations, the Respondent "shall within 21 days from the date of the Specifi- cation file . . . an Answer to this Specification" and that "[to] the extent that such Answer fails to deny allegations of the Specification in the manner required under the Board's Rules and Regulations, and the failure to do so is not adequately explained, such allegations shall be deemed to be admitted to be true and the Respondent shall be precluded from introducing any evidence controverting them." Following the Respondent's answer to the specification, the Regional Director wrote to the Respondent's counsel that the answer did not comply with the Board's Rules and Regulations re- garding an answer to a specification. That letter spelled out in some detail the insufficiencies, with particular emphasis on the need for providing spe- cific alternative formulas and computations , rather than general denials of matters within the Respond- ent's knowledge (e.g., any disputes concerning the appropriate formula for computing backpay, specif- ic dates of any offer of reinstatement, and alterna- tive figures regarding any dispute as to vacation pay). The Regional Director also enclosed a copy of the sections of the Rules and Regulations cited, as well as a citation to the Board's decision in Heck 's, Inc., 282 NLRB 263 (1986), in which the Board granted the General Counsel's Motion for Partial Summary Judgment in similar circum- stances. Further, the Regional Director provided Respondent's counsel an opportunity to file an amended answer, as well as notification that, in the absence of a proper answer, a Motion for Summary Judgment would be filed. With respect to your contention that we do not offer an alternative formula , I disagree. We contend that the appropriate measure of backpay is what those employees who did remain in the employ of the company earned, not the hypothetical calculation that you allege in your specification . As far as your contention that we are required to furnish porting figures, I do not read the Rules Regulations to require us to do that. sup- and With regard to the amount of backpay due the in- dividual discriminatees, the letter also stated: "However, you can be assured that our position is limited to the efforts of the discriminatees to obtain employment and the amount of their interim earn- ings." Counsel for the Acting General Counsel asserts that the Respondent's answer and its amended answer taken together leave only two issues to be litigated : ( 1) interim earnings, and (2) individual li- ability of Tony L. Sheng. Thus, counsel submits that "remaining paragraphs of the specification have either been admitted or have not been an- swered in accordance with the Board's rules and regulations." We agree with the Acting General Counsel that the Respondent's amended answer is insufficient as to those compliance matters within its knowledge . Thus, although the Respondent con- tends that a different measure of backpay should have been used, it has failed to set forth in detail supporting figures for an alternative computation. Contrary to the Respondent's view that the rules do not require it to furnish supporting figures, the Rules clearly and unambiguously do so provide.4 The Respondent's answer to paragraphs 3(a)-(c) (hours worked) and 5(a) and (b) (overtime hours) tracks the answer with regard to the backpay for- mula in paragraph 2 discussed above and is similar- ly deficient in its lack of supporting figures.5 The Respondent's answers to paragraphs 8, 10, 11, 12, and 13, either in the form of general denials, or by reference to its answers to previous paragraphs, are similarly insufficient. The Respondent has admitted all of paragraphs 4, 6, and 7 of the specification in their entirety. Finally, in its amended answer, the Respondent admits the backpay starting and ending 4 Challenge-Cook Bros. of Ohio, 295 NLRB 435 ( 1989). 5 The bare assertion in the Respondent 's answer, generally denying the allegations of par 3 concerning hours worked, and its contention that its records are no longer available to it are similarly deficient It is undenied that the figures used in the compliance specification were taken from the Respondent's own records 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dates as defined in paragraph 1, and listed in Ap- pendix A of the specification, but then asserts that all the discriminatees were offered reinstatement by the Respondent on May 3, 1986. We agree with counsel for the Acting General Counsel that that contention is contrary to the administrative law judge's credibility-based finding, adopted by the Board, that the Respondent hired 22 new employ- ees after the discriminatory layoffs of the employ- ees named in the compliance specification , without offering recall to the 22 discriminatees involved. Thus, it constitutes an attempt to relitigate a matter previously decided in the underlying unfair labor practice proceeding and is therefore an insufficient defense.6 In sum, we find in agreement with the Acting General Counsel, that the Respondent's answer and amended answer to the compliance specification do not comply with the Board's Rules and Regula- tions and that, except for the paragraphs concern- ing (1) interim earnings , and (2) the individual li- ability of Tony Sheng, the Respondent has either admitted the allegations of the specification, or has submitted deficient answers. Accordingly, we shall grant the Acting General Counsel's Motion for Partial Summary Judgment and shall direct a hearing limited to issues concern- ' Challenge-Cook Bros., supra at 438 and fn 9. ing interim earnings, and the individual liability of Tony L. Sheng. Because we have found that the Respondent's general denials as to other allegations in the specification are insufficient under Section 102.56(b) and (c) of the Board's Rules and Regula- tions, we deem the Respondent to have admitted those allegations, as well as the allegations it has specifically admitted to be true. ORDER It is ordered that the Acting General Counsel's Motion for Partial Summary Judgment concerning all allegations in the compliance specification except amounts of interim earnings and individual liability of Tony L. Sheng is granted. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 22 for the purpose of issuing a notice of hearing and scheduling a hearing before an administrative law judge for the purpose of taking evidence concern- ing interim earnings and the individual liability of Tony L. Sheng. The judge shall prepare and serve on the parties a decision containing findings of fact, conclusions of law, and recommendations based on all the record evidence . Following service of the judge's decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regula- tions shall be applicable.