Emsing'S Supermarket, Inc., Rocky'S Supermarket, Inc., A Single Employer

EMSING'S SUPERMARKET 569 Emsing's Supermarket, Inc„ Rocky's Supermarket, Inc., a Single Employer and United Food and Commercial Workers Union, Local 1460, AFL- CIO, CLC. Case 13-CA-24609 August 27, 1990 SUPPLEMENTAL DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On June 18, 1987, the National Labor Relations Board issued a Decision and Order' against the Respondents, Emsmg's Supermarket, Inc and Rocky's Supermarket, Inc, m which the Board, inter aim, ordered the Respondents to make -whole unit employees of Erasing's Supermarket, Inc for any loss of pay they might have suffered as a result of Respondent Emsmg's violations of Section 8(a)(5) and (1) of the Act The Respondents were also ordered to pay all unit employees entitled to vacations in 1984 the payments due them, and to pay all delinquent contributions to the pension trust fund and health and welfare trust fund On April 17, 1989, the Court of Appeals for the Seventh Cir- cuit entered a judgment enforcmg the Board's Order 2 A controversy having arisen over the amount of backpay due under the Board's Decision and Order, the Regional Director for Region 13 issued a backpay specification and notice of hearing alleging the amount of backpay due the employees and the trust funds and notifying the Respondents that they must file a timely answer complying with the Board's Rules and Regulations An extension of time to file an answer was granted until August 21, 1989 The Respondents' answer, filed August 23, 1989, is not alleged to be untimely The Respondents' answer denies that the backpay period was to begin August 11, 1984, and denies that the backpay period was to encompass 17 6 weeks 3 The Re- spondents specifically aver that the backpay period was not to exceed 2 weeks The Respondents also generally deny the following the backpay formula, figures relating to quarterly gross backpay calcula- tions and net backpay calculations, mtenm earn- ' 284 NLRB 302 2 872 F 2d 1279 (1989) 3 To measure the backpay period, the backpay specification calculates backpay using a beginning date of June 23, 1987, which is 5 days after the date of the Board's Order, and an ending date of October 22, 1987, when a bona fide impasse in bargaining was alleged to have been reached, a 17 6-week penod The specification then starts the actual back- pay period on August 11, 1984, the date Emsing's Supermarket, Inc closed and the employees were terminated The answer generally denies that the backpay period begins on August Ii, 1984, and asserts that this date is factually and legally incorrect, but does not supply an alternative date for the beginning of the backpay period mgs, and liability for liquidated damages On August 29, 1989, the Regional Director issued and caused to be served on the parties an erratum to the backpay specification The Respondents have failed to file an amended answer or other response to the erratum to the backpay specification On October 20, 1989, the General Counsel filed with the Board a Motion to Strike Portions of Re- spondents' Answer to Backpay Specification and for Partial Summary Judgment, with exhibits at- tached The General Counsel alleged that portions of the Respondents' answer failed to comply with Section 102 54 of the Board's Rules and Regula- tions The General Counsel moved that the Board stnke portions of the Respondents' answer to the backpay specification, deem those portions not spe- cifically denied to be admitted as true, and limit the hearmg to the issue of interim earnings On October 26, 1989, the Board issued an order transferring the proceeding to the Board and Notice to Show Cause why the General Counsel's Motion to Strike and for Partial Summary Judg- ment should not be granted On November 29, 1989, the Respondents filed a response to the Gen- eral Counsel's motion 4 On December 14, 1989, counsel for the General Counsel filed an opposition to the Respondents' response to Order to Show Cause 5 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 Rulmg on the Motion to Strike and for Partial Summary Judgment Section 102 56(b) and (c) 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- 4 The Respondents alleged that the General Counsel's motion to strike was defective because It erroneously relied on Sec 102 54 of the Board's Rules and Regulations In fact, Sec 102 54 of the current Rules and Reg- ulations concerns "Initiation of formal compliance proceedings, Issuance of compliance specification and notice of hearing" The Board amended the Rules effective November 13, 1988 The substance of former Sec 102 54 has been Incorporated into Sec 102 56 as revised Thus, although counsel for the General Counsel relied on a section of the Rules that has been revised under a new section number, the substance of the Rule re- mains unchanged and we will accept the General Counsel's motion 5 Counsel for the General Counsel alleges, Inter alia, that the response is actually an untimely attempt to amend the Respondents' answer to properly dispute the accuracy of the period of time in which backpay to be calculated 299 NLRB No 81 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mals 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 vanous 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- propnate 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 to deny is not adequately 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 backpay specification duly served on the Respondents states that pursuant to Section 102 54 of the Board's Rules and Regulations, Respondent shall, within 21 days from the date of the Specifica- tion, file with the undersigned Regional Direc- tor, acting in this matter as an agent of the Na- tional Labor Relations Board, an original and four (4) copies of an Answer to the Specifica- tion 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 Re- spondent shall be precluded from introducing any evidence controverting them The General Counsel submits in his motion that the answer filed by the Respondents to the back- pay specification is deficient in that it merely states a general denial of specification paragraphs I, IV, and VII Paragraph I sets forth the formula for cal- culating the backpay period, based on the Board's Decision and Order Paragraph IV states that the backpay period is to begin on August 11, 1984, for each "discnmmatee " Paragraph VII sets forth a formula for determining gross backpay The Gen- eral Counsel urges that a general denial is not suffi- cient to raise any litigable issue regarding these paragraphs, rather, the General Counsel contends that to raise issues warranting a heanng, the Re- spondents must set forth in detail the basis for dis- agreement and/or must assert an alternative formu- la for determining the backpay period, an alterna- tive date for beginning the backpay period, and an alternative formula for determining gross backpay We agree The matters denied concern the vari- ous factors entenng into the computation of gross backpay As to these matters, the rules require more than a general denial The Respondents must specifically state the basis for disagreement, setting forth in detail their position as to the applicable premises and furnishing the appropnate supporting figures This they have not done Without stating what the correct date should be, the answers to paragraphs I and IV generally deny that backpay to run from August 11, 1984, and claim that the Board's Decision and Order and the subsequent court enforcement did not provide for this result Likewise, in regard to the formula for calculating the discnmmatees' backpay, the Respondents' answer to paragraph VII disputes the appropriate- ness of treating the pay periods from March 11 through August 12, 1984, as comprising the repre- sentative penod for developing the gross backpay calculations to be used in determining amounts due the discnmmatees during the actual backpay period that begins on June 23, 1987 The answer does not offer any alternative representative period The Re- spondents' failure to deny paragraphs I, IV, and VII of the specification as prescribed by Section 102 56(b), or explain adequately their failure to do so, requires that those allegations of the specifica- tion be deemed admitted under Section 102 56(c) and the Respondents are precluded from introduc- ing any evidence controverting them The General Counsel also moves to strike those answers by Rocky's to paragraphs II, IX through XVI, subparagraph (b), XVIII through XXII, and XXIV, in which Emsmg's admits, and Rocky's denies, these paragraphs (Rocky's allegedly lacking sufficient information to admit or deny the allega- tions) The General Counsel asserts that the Re- EMSING'S SUPERMARKET 571 spondents, by their answer, are trying to raise issues concerning the single-employer status of Emsmg's and Rocky's The Respondents' status as a single employer was fully litigated in the underlying unfair labor practice proceeding The Seventh Circuit enforced the Board's finding that Rocky's is jointly and sev- erally liable for remedying the unfair labor prac- tices committed by Emsing's The Respondents are barred from raising such a defense at the compli- ance stage of the case Ihysota Fuel Go, 287 NLRB 1 (1987) Under the particular circumstances of this case, Rocky's actual knowledge concerning the al- legations in the backpay specification is irrelevant Rocky's imputed knowledge is sufficient to charge Rocky's with liability for those answers that Ems- mg's admits Accordingly, we shall grant the Gen- eral Counsel's motion to strike Rocky's answers to these paragraphs The General Counsel further moves to strike the Respondents' answer to paragraph XVII, asserting that the Respondents are trying again to raise the single-employer issue Paragraph XVII of the back- pay specification states that "[t]he total net back- pay due each discrimmatee is the sum of the calen- dar quarter amounts of net backpay due" The Re- spondents make only a general demal with respect to this paragraph Although the General Counsel erroneously stated the basis for stnkmg this answer (i e, the Respondents' answer to par XVII does not raise the single-employer issue), we find that under Section 102 56(b) of the Board's Rules and Regulations, a general denial is insufficient to raise any litigable issue regarding this paragraph Ac- cordingly, we shall grant the General Counsel's motion regarding paragraph XVII The General Counsel further avers in paragraph III(b) of the specification that an impasse was reached m effects bargaining on October 22, 1987 Emsing's denies and affirmatively asserts that im- passe was actually reached in February 1984 The date of impasse is one of the conditions that tolls the backpay period The General Counsel moves to strike this assertion as without merit because the Board found in the underlying proceeding that Emsmg's did not even decide to close its store until August 1984 and could not, therefore, have bar- gained over the effects of the closing pnor to malung the decision We find ment in the General Counsel's position on this issue and grant the motion to strike the answer to paragraph III(b) to the extent that Emsmg's is asserting a February 1984 impasse date To hold otherwise would be contrary to the court-enforced finding that Re- spondent unlawfully failed to bargain over the ef- fects in August The General Counsel asserts in paragraph III(c) that the length of the backpay period is from June 23, 1987, 5 days after the date of the Board's Order, to October 22, 1987, the date a bona fide impasse in bargaining was reached, or 17 6 weeks, except for those employees who secured equivalent employment within a shorter period of time Ems- mg's denies that the Union requested bargaining within 5 days of the Board's Order and that the Union commenced bargaining within 5 days of Emsmg's' offer to bargain Making a request to bar- gain within 5 days 6 of the Board's Decision and Order is a condition that begins the period of liabil- ity for backpay If this precondition is not timely met, backpay liability may have to be established by resorting to the alternative 2-week liability pro- vided for in the Board's remedy Likewise, a fail- ure on the Union's part to request bargaining within 5 days of Emsmg's' offer to bargain may de- crease the period of backpay liability We find that a general denial that either of these preconditions was met is sufficient to require a hearing on these issues Emsmg's further demes that the Union met and negotiated in good faith from the outset of bargain- ing Emsmg's asserts that the Union thereby unlaw- fully forestalled the reaching of an impasse To the extent that Emsing's asserts that impasse was reached sometime prior to October 22, 1987, be- cause of bad-faith bargammg by the Union after the Board's Decision and Order (i e, after June 18, 1987, but before October 22, 1987), we find that a hearing is warranted The Respondents each deny paragraph V(a), which ends the backpay period for Blanche Harsh- barger, Bertha Enks, Jackie Jansen, John Hadjuch, Cathy Encks, and Mary Smith on December 12, 1984, based on the length of the backpay period as computed in paragraph III(c) As we are ordering a hearing on the issues raised in paragraph III(c), we shall include in the hearing the issue raised in paragraph V(a) as well 7 The General Counsel has moved that the allega- tions in paragraph V(b) be deemed admitted as true Paragraph V(b) of the specification calls for the minimum 2 weeks' backpay for certain discn- mmatees as set forth in paragraph I of the specifi- cation The Respondents have denied these allega- tions but have failed to state alternative dates for 8 By making reference to the 5-day notice prerequisite, we do not pass on whether the 5 days begin to run from the date of Issuance of the Board's Order or from the date of receipt by the Union or its counsel 7 See, e g, Papenvorkers Local 1575 (Scott Paper), 291 NLRB 72 (1988) We emphasize, however, that at the hearing the burden is on the Re- spondents to establish facts that would warrant altering the backpay period advanced by the General Counsel See, e g, Workroom for Design- ers, 289 NLRB 1437 (1988) 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD determining backpay for the discnmmatees in- volved Inasmuch as the contested backpay penod of paragraph III(c) is not implicated here, we shall grant the General Counsel's motion and deem as admitted paragraph V(b) The Respondents also deny subparagraph (a) of paragraphs IX through XVI Each subparagraph computes the average weekly hours worked by each "discnmmatee" based on the formula ad- vanced in paragraph VII The answer states that "Respondent Emsmg's denies subparagraph (a) for the reaosns [sic] described in its answer to Para- graph VII" Because the Respondents' general denial of paragraph VII was insufficient to require a hearing on whether the pay periods from March 11 through August 12, 1984, constitute the appro- priate measure on which to predicate gross back- pay calculations, any subsequent answer that relies on that general demal will not be sufficient to re- quire a hearing on the actual calculations derived from that formula Accordingly, under Section 102 56(c) of the Board's Rules and Regulations, we shall deem to be admitted as true subparagraph (a) of paragraphs IX through XVI of the backpay specification because the Respondents have not of- fered an alternative premise for calculating the gross backpay period Emsing's admits subparagraph (b) of paragraphs IX through XVI and we have previously found Rocky's demal to be ineffective in raising any liti- gable issue The Respondents also deny subparagraphs (c) and (e) of paragraphs IX through XVI These para- graphs respectively concern the calculation of quarterly gross backpay and quarterly net backpay for each "discnmmatee" Emsmg's admits was em- ployed by Emsmg's in August 1984 The calcula- tion of quarterly gross and net backpay necessarily relies on the contested backpay period in comput- ing the backpay due each employee To the extent that we have allowed a hearing on the issue of the length of the backpay period, the affirmative amount of gross and net backpay is not capable of determination at this time and will be the subject of further inquiry at the hearing In addition, the Respondents have generally denied subparagraph (d) of paragraphs IX through XVI in which the General Counsel has alleged that there are no interim earnings for any of the em- ployees The Board has held that a general denial is sufficient to place interim earnings into issue be- cause that information is generally not within the knowledge of the respondent Dews Construction Corp. 246 NLRB 945 (1979) Accordingly, we find the Respondents' general denials concerning inter- im earnings are sufficient to require a hearing on that issue as well Fmally, the Respondents generally deny para- graphs XXIII and XXV, which concern the al- leged applicability of the liquidated damages provi- sions of the trust agreements for the health and welfare and pension plans, respectively The Re- spondents assert that the trust agreements were not admitted into evidence in the underlying proceed- ing and the Board made no reference to liquidated damages in its Decision and Order The Board's Order conformed to the administrative law judge's remedy (284 NLRB at 316), which left "to the compliance stage the question of whether the re- spondent must pay any additional amounts into the benefit funds in order to satisfy the 'make-whole' remedy Howard Barthelmass Painting Co, 269 NLRB 346 fn 2 (1984), Merryweather Optical Co, 240 NLRB 1213 (1979) " On review of the trust documents, the General Counsel has determined that liquidated damages are required by the benefit funds and must be paid However, we consider the Respondents' general denial regarding the liquidat- ed damages sufficient to require the General Coun- sel to prove the matter in issue ORDER It is ordered that the General Counsel's Motion to Strike Portions of Respondents' Answer to Backpay Specification and for Partial Summary Judgment is granted with respect to all allegations in the backpay specification, except as to the length of the backpay period, the amount of gross and net backpay e, only to the extent that they are af- fected by the length of the backpay period), inter- im earnings, and the amount of liquidated damages, if any IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 13 for the purposes of issuing a notice of hearing and scheduling the hearing before an administrative law judge, which shall be limited to taking evidence concerning the length of the backpay penod, inter- im earnings, gross and net backpay, and liquidated damages if any owed to the trust funds and health and welfare funds 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 56 of the Board's Rules shall be applicable