Structural Finishing, Inc.

STRUCTURAL FINISHING 439 Structural Finishing, Inc. and General Teamsters, Chauffeurs, Warehousemen & Helpers of 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 of 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 August 31, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY 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.2 On April 29, 1988, the United States Court of Ap- peals for the Ninth Circuit entered its judgment en- forcing the Board's Order.3 On June 10, 1988, the Regional Director for Region 31 issued a backpay specification and notice of hearing that set forth specifically and in detail the backpay computations for the net backpay due the above-named employ- ees. 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. On April 19, ' 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. 2 284 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. 8 The court's judgment was not published 1989, the Respondent filed a response to a Supple- mental Notice to Show Cause.4 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, 5 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. (c) Effect offailure to answer or to plead spe- cifically and in detail to backpay allegations of specifications.-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- 4 On March 14, 1989, the Board issued a Supplemental Decision and Order (293 NLRB 120) based partly on the fact that it had not received a response to the Notice to Show Cause from the Respondent. However, by letter dated March 20, 1989, the Respondent advised the Board that although it had received a copy of the Board 's Supplemental Decision and Order, it had not received the original Motion for Summary Judg- ment or the Board's Order Transferring and Notice to Show Cause until January 14, 1989, and by that time the time for filing a response to the Notice to Show Cause had expired. Therefore, on March 28, 1989, based on the Respondent's above representations, the Board issued an Order va- cating its Supplemental Decision and Order of March 14, 1989, and issued a Supplemental Notice to Show Cause. 5 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 re- vised rules 296 NLRB No. 59 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 allegations 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 of supporting such allegation, and the respond- ent shall be precluded from introducing any evidence 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 ";6 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 mat- ters 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 discriminatees during the periods immediately preceding their discharges . It does not elaborate further and proffers no hourly figures worked by the discriminatees during those periods. Neither does it submit reasons why the hours set forth in that paragraph of the specification are not representative 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.7 The answer to paragraph 3 merely 6 Par. 2 alleges the amount of pay each discriminatee would have earned at the Respondent's 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 discriminatee for each quarter of the backpay period and the computational method used to arrive at those totals. The remainder of the Respondent 's answer to par. 2 of the specifica- tion is also vague and confusing and therefore insufficient to place gross denies the quarterly gross backpay of the discrimin- atees as set forth in the specification. All of these allegations denied by the Respondent pertain to subjects clearly within the Respondent's knowl- edge, and the Respondent's failure to state the basis for the denials does not comply with the require- ments of the Board's Rules. Moreover, we find that the Respondent's re- sponse to the Supplemental Notice to Show Cause is equally nonresponsive. In denying that it failed to satisfy the Board 's Rules, the Respondent relies on its claim that the General Counsel failed to pro- vide it with previously requested evidence neces- sary to adequately respond to the backpay specifi- cation. Our examination of that request by the Re- spondent, in a letter dated August 29, 1989, shows that it was concerned primarily with matters relat- ing to interim earnings that the Respondent would have access to during the hearing on the discrimin- atees' interim earnings. The issue of interim earn- ings is not before us at this time and the Respond- ent's lack of interim earnings data at this point should not have precluded it from filing an ade- quate answer regarding the discriminatees' alleged gross backpay. The Respondent also requested proof from the General Counsel that Castrop's name was legally changed to Higgins . This infor- mation is neither germane to the determination of Castrop's (Higgins') gross backpay nor information that the General Counsel is obligated to provide the Respondent . Finally, the Respondent questions the General Counsel's calculations regarding the number of hours each discriminatee would have worked per pay period for the Respondent. We note that the Respondent in its answer to the back- pay specification admitted to the calculation method and, as we have previously found, this is information ordinarily within the possession of the Respondent. Therefore, we find that the Respond- ent's response to the Supplemental Notice raises no issue of fact or law concerning the amounts of gross backpay involved for the two discriminatees in question. backpay in issue. The answer gives purported figures of pay for Castrop (Higgins) during what presumably were her last two pay periods before her discharge. 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 Counsel's gross backpay computations as to Castrop Similarly , the answer's denial of the applica- ble pay rate for Ryder through the expiration of Respondent Structural Finishing's contract appears to have little if any relevance Ryder 's back- pay period did not begin until April 29, 1983, the day before the contract expired. 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 Finishing's alter ego In these circumstances , the Respondent's answer does not raise any discernible issue with respect to Ryder's gross back- Pay. STRUCTURAL FINISHING 441 As the Respondent has failed to deny the gross backpay allegations 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 specification and the Respondent is pre- cluded from introducing any evidence controvert- ing 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.