Ricks Construction Co., Inc

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ricks Construction Company, Inc and General Teamsters & Food Processing Local Union No 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 31-CA-9922 28 September 1984 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 16 November 1981 the National Labor Rela- tions Board issued a Decision and Order in this proceeding' ordering the Respondent, inter aim., to offer immediate and full reinstatement to employ- ees and to make them whole for any loss of earn- ings and benefits resulting from the Respondent's unfair labor practices which violated Section 8(a)(3) and (1) of the National Labor Relations Act On 11 May 1982 the United States Court of Appeals for the Ninth Circuit granted enforcement of the Board's Order 2 On 17 April 1984 the Acting Regional Director for Region 31 issued a backpay specification and notice of hearing 3 alleging, inter aim, that a con- troversy had arisen over the amount of backpay due under the terms of the Board's Order and noti- fying the Respondent that it must file a timely answer which must comply with the National Labor Relations Board Rules and Regulations On 30 April 1984 the Respondent filed an answer to the backpay specification which, inter alia, disputes the accuracy of the formula and figures used in the computation of backpay, but fails to provide any specific alternative formula and/or figures for com- puting backpay The Respondent's answer also makes certain claims relating to the underlying unfair labor practice proceeding On 1 May 1984 counsel for the General Counsel informed the Respondent that its answer, while timely, did not conform to Section 102 54 of the Board's Rules and Regulations The Respondent was informed that, unless an amended answer was received by 14 May 1984, a Motion for Summary Judgment would be made On 14 May 1984 coun- sel for the General Counsel telephoned the Re- spondent's attorney and, because the attorney was not available, left a message that an amended answer had not yet been received The message further stated that summary judgment proceedings ' 259 NLRB 295 (1981) 2 Unpublished 3 The Respondent requested that the heanng date be changed from 30 May 1984 An order rescheduling the heanng to 12 June was subsequent- ly served on the Respondent would begin if the requested amended answer was not received by 16 May 1984 4 No amended answer was ever received from the Respondent On 25 May 1984 the General Counsel filed di- rectly with the Board a "Motion To Transfer Case to and Continue Proceedings before the Board, to Strike Respondent's Answer, and for Summary Judgment" He alleges that the Respondent's answer fails to conform to the requirements of Sec- tion 102 54(b) and (c) of the Board's Rules and Regulations in that it inter aim (1) fails specifically to admit, deny, or explain the allegations of the specification, (2) fails properly to dispute the accu- racy of the backpay figures in the specification or the premises on which they are based, and (3) fails specifically to provide any alternative formula for computing backpay Counsel for the General Counsel also claims that the Respondent's answer raises issues which were or should have been raised, litigated, and decided in the underlying unfair labor practice proceeding On 29 May 1984 the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted On 13 June 1984 the Re- spondent filed a motion to deny the General Coun- sel's motion The Respondent claims that it was never contacted regarding a date for the backpay hearing and that its first notice of the date came in the backpay specification and notice of hearing The Respondent's attorney claims he contacted the Board's office to advise that he would be in China from 27 April 1984 to 20 May 1984 and that he had a prior Board commitment in Region 5 the same day as the backpay hearing The Respond- ent's attorney claims he was in China on the dates in May when counsel for the General Counsel at- tempted to contact him by phone and letter The Respondent's attorney further claims that on learn- ing of counsel for the General Counsel's phone calls of 14 May 1984, he called counsel on 18 May 1984 and again on 21 May 1984 In its response to the Notice to Show Cause the Respondent also in- cludes an answer to the backpay specification claiming that there was not enough time to obtain appropriate records in order to file a detailed answer before the Respondent's attorney left for China The Respondent further asserts that its original answer covers the specification and that the Respondent "has admitted all sections except as set forth in their Answer that covers areas not spelled-out in detail by the Backpay Specification Notice" 4 A letter confirming the telephone message was sent 14 May 1984 272 NLRB No 71 RICKS CONSTRUCTION CO 425 On 14 June 1984 counsel for the General Coun- sel filed a response disputing the Respondent's at- torney's claim that he informed the Board's Re- gional Office that he would be unavailable and in China for the period of time claimed Counsel for the General Counsel also claims he did not receive the Respondent's attorney's phone call on 18 May 1984 Counsel for the General Counsel further claims that the Respondent's excuse for not filing a proper answer should be disregarded, noting that the Respondent could have, but did not, request an extension of time to file a proper answer 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 Summary Judgment Section 102 54(b) and (c) of the National Labor Relations Board Rules and Regulations states (b) Contents of the answer to specification — 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 af- fixed, and shall contain the post office address of the respondent The respondent shall specif- ically admit, deny, or explain each and every allegation of the specification, unless the re- spondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial Denials shall fairly meet the substance of the allegations of the specifi- cation denied When a respondent intends to deny only a part of an allegation, the respond- ent shall specify so much of it as is true and shall deny only the remainder As to all mat- ters within the knowledge of the respondent, including but not limited to the various factors entering into the computation of gross back- pay, a general denial shall not suffice As to such matters, if the respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, he shall specifically state the basis for his dis- agreement, setting forth in detail his 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 the specification —If the respondent fails to file any answer to the speci- fication within the time prescribed by this sec- tion, the Board may, either with or without taking evidence in support of the allegations of the specification and without notice to the re- spondent, find the specification to be true and enter such order as may be appropriate If the respondent files any answer to the specifica- tion but fails to deny any allegation of the specification in the manner required by subsec- tion (b) of this section, and the failure so to deny is not adequately explained, such allega- tion 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 in- troducing any evidence controverting said al- legation The backpay specification duly served on the Respondent states that, pursuant to Section 102 54 of the Board's Rules and Regulations, "Respondent shall file with the undersigned Acting Regional Di- rector, acting in this matter as agent of the Nation- al Labor Relations Board, an original and four copies of an answer to said Specification within 15 days from the service thereof To the extent that such answer fails to deny allegations of the Specifi- cation 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 Respond- ent shall be precluded from introducing any evi- dence controverting them" We agree with the General Counsel that the Re- spondent's answer to the backpay specification does not conform to the above requirements as to those compliance matters within its knowledge The answer does not specifically dispute the accu- racy of the gross backpay figures contained in the specification or provide any specific alternative for- mula for computing the amounts of gross backpay due The answer merely states 5 that the figures are incorrect because the Respondent would figure them in a different manner, which is not adequately explained or accompanied by supporting figures The Respondent's answer also states that it gave notice to employees that positions were available after the strike and that some employees returned to work while others did not However, these issues were the subject of the underlying unfair labor practice proceeding and were litigated and expressly determined in that proceeding 6 Accord- 5 The answer states "The measure to use would be the number of hours that were worked during the penods in questions by persons that took the place of striking employees and/or if anyone did take their place dunng the periods in question" The answer further states, "[T]tle totals in question are not correct as figured in a different manner as set forth above" 6 The Judge found that the Respondent unlawfully refused to reinstate approximately 20 strikers who returned to work after the Union's offer to return to work 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly, this paragraph of the Respondent's answer is an in appropriate pleading since it attempts to raise matters now precluded from further litigation 7 The Respondent's answer further claims that cer- tain employees who were involved in picket line violations were not allowed by the contractor to return to work 8 However, this is an issue which should have been raised and litigated in the unfair labor practice proceeding, and the Respondent may not raise it at this time As the Respondent has failed to deny specifically the gross backpay allegations or to explain ade- quately its failure to do so, Section 102 54(c) re- quires that these allegations be deemed to be admit- ted true 9 Accordingly, we find them to be correct The Respondent has pt t in issue the amount of interim earnings by stating in its answer that "cer- tain employees worked at other places during the times and such work is not listed" While this state- ment is not specific, we have held that even a gen- eral denial of the allegations concerning interim earnings is sufficient under Section 102 54 to raise an issue warranting a hearing 10 Therefore, we 7 Normike Contractors, 267 NLRB 836, 837-838 (1983) 8 The Respondent had a contract with another company to provide labor 9 In its answer to the backpay specification and again in its motion to deny the General Counsel's motion to strike, the Respondent asserts that it was not contacted regarding a hearing date and that it did not have ready access to certain records presumably needed to provide an ade quate answer We find the Respondent offers an Inadequate explanation for its failure to file an appropriate answer because, as counsel for the General Counsel notes, the Respondent could have requested an exten mon of time but failed to do so 10 Dews Construction Corp, 246 NLRB 945 (1979) shall order a hearing limited to the determination of the discriminatees' interim earnings ORDER It is ordered that the Respondent's motion to deny the General Counsel's motion to strike the Respondent's answer and for summary judgment is denied IT IS FURTHER ORDERED that the General Coun- sel's motion to strike the Respondent's answer is granted, except as to those allegations concerning the discriminatees' interim earnings IT IS FURTHER ORDERED that the General Coun- sel's Motion for Summary Judgment as to all alle- gations in the backpay specification except the amounts of interim earnings is granted IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 31 for the purpose of arranging a hearing before an administrative law judge, limiting such proceeding to a determination of the amounts of interim earn- ings of the employees involved herein, and that the Regional Director be, and hereby is, authorized to issue notice thereof 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