Mexican Radio Corp.

372 NLRB No. 77 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Mexican Radio Corp. and Mexican Radio Hudson, LLC, Mexican Radio Schenectady, LLC, and Bread and Roses, LLC, a single-integrated enter- prise and/or single employer and Rachel Nicotra. Case 02–CA–168989 April 14, 2023 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY On April 20, 2018, the National Labor Relations Board issued a Decision and Order in this proceeding,1 in which it found, in relevant part, that Respondent Mexican Radio Corporation (“MRC”) violated Section 8(a)(1) of the Na- tional Labor Relations Act by reprimanding and discharg- ing four employees for engaging in protected concerted activities. The Board ordered Respondent MRC, its offic- ers, agents, successors, and assigns, to reinstate and make whole employees Tangni Fagoth, Stephanie Garcia, Nadgie Santana, and Juliana Palomino, in addition to com- pensating those employees for any adverse tax conse- quences of receiving lump-sum backpay awards and ful- filling certain other remedial obligations. The Board’s Or- der included reinstatement and make-whole remedies for the discharged employees. On May 20, 2019, the United States Court of Appeals for the Second Circuit issued a judgment enforcing the Board’s order in full.2 1 366 NLRB No. 65 (2018). The initial charge was filed against Re- spondent MRC and litigated in Region 2. On February 8, 2019, then General Counsel Peter B. Robb transferred the case from Region 2 to Region 20. 2 Mexican Radio Corp. v. NLRB, 789 Fed.Appx. 261 (2d Cir. 2019). 3 All subsequent dates refer to 2022 unless otherwise indicated. 4 The compliance specification alleges that MRC, Mexican Radio Hudson (MRH), Mexican Radio Schenectady (“MRS”), and Bread and Roses (B&R) (collectively “the Respondents”), constitute a single-inte- grated enterprise and/or a single employer jointly and severally liable for remedying the unfair labor practices of Respondent MRC. The Board has held that the General Counsel may choose to litigate questions of derivative liability at the compliance stage rather than in the underlying unfair labor practice proceeding. See, e.g., Rogan Bros. Sanitation, Inc., 369 NLRB No. 53, slip op. at 5 fn. 6 (2020); 2 Sisters Food Group, Inc., 361 NLRB 1380, 1380 (2014). Although the Respondents dispute that they are a single-integrated enterprise and/or single employer, the Gen- eral Counsel does not move for summary judgment on that issue so the Respondents will have the opportunity to litigate derivative liability at the compliance hearing. With respect to the General Counsel’s Motion for Partial Summary Judgment against Respondents MRH, MRS, and B&R, we need not de- cide the question of the adequacy of their answer and amended answer to the gross backpay allegations of the amended compliance On July 14, 2022,3 a controversy having arisen over the validity of the reinstatement offers and the amount of backpay owed under the Board’s Order, the Regional Di- rector for Region 20 issued a compliance specification and notice of hearing.4 On August 4, the Respondents each filed individual answers to the specification (each styled as a “Response to Compliance Specification and Notice of Hearing”) admitting in part and denying in part the allega- tions in the specification.5 On August 18, the regional attorney for Region 20 in- formed the Respondents that their answers did not satisfy the standards set forth in Section 102.56(b) of the Board’s Rules and Regulations. The letter advised that if the Re- spondents did not file an amended answer by August 25, the General Counsel would file a motion to strike and for summary judgment, in whole or in part. The Respondents failed to file an amended answer. On September 21, the General Counsel filed the instant Motion to Strike and for Partial Summary Judgment, with exhibits attached. On October 6, the Respondents jointly filed an opposition to the motion, and on October 7, the General Counsel filed a reply to the Respondents’ opposi- tion.6 The General Counsel amended the compliance specification on November 22.7 On December 5, the Board issued an Order Transferring Proceeding to the Board and Notice to Show Cause why the motion should not be granted. On December 9, the Respondents jointly filed an answer to the amendment to the compliance specification (styled as a “Response to Amendment to Compliance Specification”). On Decem- ber 23, the Respondents filed a response in opposition to the General Counsel’s Motion to Strike and for Partial specification. Resolution of the derivative-liability issue on remand will necessarily resolve that question as well. If Respondents MRH, MRS, and B&R are not found to constitute a single employer together with MRC, then those three entities will not be liable for any backpay. If, on the other hand, the General Counsel proves that such a relationship ex- ists, then Respondents MRH, MRS, and B&R will be bound by the fail- ure of Respondent MRC to file an adequate answer here. Kolin Plumb- ing, 337 NLRB 234, 236 (2001); Carib Inn Tennis Club & Casino, 320 NLRB 1113, 1114 fn. 4 (1996), enfd. 114 F.3d 1169 (1st Cir. 1997). Similarly, we do not decide whether the motion to strike should be granted against Respondents MRH, MRS, and B&R, but if they are found to constitute a single employer with Respondent MRC, the order to strike the answers of Respondent MRC will be applied to their answers as well. Accordingly, all references to “the Respondent” from this point forward refer only to Respondent MRC. 5 The answers are identical except for the introductory sentences that identify the Respondent on whose behalf the answer was filed. 6 The General Counsel mistakenly filed this motion with the Division of Judges despite the requirement of Sec. 102.24(a) of the Board’s Rules and Regulations that all pre-hearing motions for summary judgment must be filed with the Board. The case was transferred to the Board on October 31. 7 The amendment did not affect any of the paragraphs on which the General Counsel seeks summary judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 summary Judgment. On December 28, the General Coun- sel filed a reply to the Respondents’ opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. On the entire record, the Board makes the following Ruling on Motion for Partial Summary Judgment Section 102.56(b) and (c) of the Board’s Rules and Reg- ulations provide as follows: (b) Form and contents of answer. The answer to the specification must be in writing, signed and sworn to by the Respondent or by a duly authorized agent with ap- propriate power of attorney affixed, and contain the ad- dress of the Respondent. The answer must specifically admit, deny, or explain each allegation of the specifica- tion, unless the Respondent is without knowledge, in which case the Respondent must so state, such statement operating as a denial. Denials must fairly meet the sub- stance of the allegations of the specification at issue. When a Respondent intends to deny only a part of an allegation, the Respondent must specify so much of it as is true and deny only the remainder. As to all matters within the knowledge of the Respondent, including but not limited to the various factors entering into the com- putation of gross backpay, a general denial will not suf- fice. As to such matters, if the Respondent disputes ei- ther the accuracy of the figures in the specification or the premises on which they are based, the answer must spe- cifically state the basis for such disagreement, setting forth in detail the Respondent’s position and furnishing the appropriate supporting figures. (c) Failure to answer or to plead specifically and in detail to backpay allegations of specification. If the Respond- ent 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 support of the allega- tions of the specification and without further notice to the Respondent, find the specification to be true and en- ter 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 section, and the failure to deny is not adequately explained, such allegation will be 8 Specifically, the Respondent generally denies allegations contained in the compliance specification pars. 2 (backpay period), 3 (a)-(g) (de- scribing the formula, figures and computations related to gross backpay, including a chart containing the totals), 4(b)-(d) (formula for net back- pay, interim earnings, and calculation of average hours worked prior to discharge), 8(a), 8(c)-(f), 8(h), 8(j), and 8(l)-(o) (methods for calculating adverse tax liability). While portions of pars. 8(d)-(f), 8(j) and 8(l)-(n) also allege figures and computations for excess tax liability, the General deemed admitted as true, and may be so found by the Board without the taking of evidence supporting such al- legation, and the Respondent will be precluded from in- troducing any evidence controverting the allegation. We find merit in the General Counsel’s contention that the Respondent’s responses to the compliance specifica- tions do not meet these criteria with respect to various al- legations pertaining to the backpay period, gross backpay, the method of calculating interim earnings and net back- pay, and the method of calculating adverse tax conse- quences. Rather, for these allegations, we find the re- sponses simply amount to insufficient general denials.8 As the Board has recognized, [i]t is well settled that a respondent’s general denial of the backpay computations contained in a compliance specification will be deemed insufficient if the answer fails to specify the basis for the disagreement with the backpay computations contained in the specification, fails to offer any alternative formula for computing backpay, fails to furnish appropriate supporting figures for amounts owed, or fails adequately to explain any fail- ure to do so. Michael Cetta, Inc. d/b/a Sparks Restaurant, 370 NLRB No. 46, slip op. at 2–3 (2020), enfd. 805 Fed.Appx. 2 (D.C. Cir. 2019) (quoting Mining Specialists, Inc., 330 NLRB 99, 101 (1999)); accord Flaum Appetizing Corp., 357 NLRB 2006, 2007 (2011) (“A general denial is not sufficient to refute al- legations pertaining to gross backpay calculations.”) (citing South Coast Refuse Corp., 337 NLRB 841 (2002); U.S. Ser- vice Industries, 325 NLRB 485, 486 (1998)); Robincrest Landscaping & Construction, 303 NLRB 377 (1991). The Respondent has failed to support its general denials with specific alternative formulas, supporting figures, or calculations as to the compliance specification allegations contained in the paragraphs listed in footnote 8, all of which pertain to matters within the Respondent’s knowledge. Nor has the Respondent adequately explained its failure to do so.9 Because the Respondent has failed to deny the allegations in the specific paragraphs of the com- pliance specification enumerated above as prescribed in Section 102.56(b) of the Board’s Rules, and its failure to do so has not been adequately explained, we deem those Counsel does not seek summary judgment on those portions of the alle- gations. 9 In its opposition brief, the Respondent argues in sum that: (1) the General Counsel’s allegations are legal conclusions that do not require a response; (2) the Respondent “lack[s] knowledge and sufficient infor- mation to form a belief” about the backpay period, interim earnings, and other tax formulas; and (3) the General Counsel failed to establish that the individual Respondents have knowledge of the other Respondents’ business operations. MEXICAN RADIO CORP. AND MEXICO RADIO HUDSON, LLC MEXICAN RADIO SCHENECTADY, LLC AND BREAD & ROSES, LLC 3 allegations to be admitted as true under Section 102.56(c). Accordingly, as to these allegations, we grant the motion for partial summary judgment as to Respondent MRC. See Sparks Restaurant, supra, slip op. at 2–3; Flaum Ap- petizing Corp., 357 NLRB at 2007; Ybarra Construction Co., 347 NLRB 856, 857 (2006); Paolicelli, 335 NLRB 881, 883 (2001); see also Baumgardner Co., 298 NLRB 26, 27 (1990) (finding partial summary judgment appro- priate where respondent’s answer to compliance specifi- cation failed to set forth an alternative number of applica- ble hours), enfd. mem. 972 F.2d 1332 (3d Cir. 1992). Motion to Strike Portions of Respondent MRC’s Answer The General Counsel moves to strike the portions of the Respondent’s answer that address compliance specifica- tion paragraph 6 and parts of paragraphs 8(a) and 9(b). The General Counsel asserts that the Respondent is at- tempting to relitigate settled issues decided in the under- lying unfair labor practice proceeding or issues not in dis- pute. These allegations in the compliance specification merely summarize the Respondent’s obligations under well-settled precedent, which the Board, in the underlying Decision and Order, held applicable to the calculation of the backpay remedy.10 “It is well settled that a respondent may not relitigate matters in the compliance stage that were decided in an underlying unfair labor practice pro- ceeding.” Somerset Valley Rehabilitation & Nursing Cen- ter, 371 NLRB No. 86, slip op. 1–2 (2022) (quoting M. D. Miller Trucking & Topsoil, Inc., 363 NLRB 446, 447 (2015)). Accordingly, we find merit in the General Coun- sel’s position as to paragraphs 6, portions of 8(a) and por- tions of 9(b) and strike those portions of the Respondent’s answer.11 See Alaris Health, 371 NLRB No. 62, slip op. at 5 (2022) (striking answer that contradicts Board’s Or- der); Rogan Bros. Sanitation, Inc., 369 NLRB No. 53, slip op. at 2–4 (2020) (striking answers that attempt to reliti- gate issues decided in the underlying unfair labor practice proceeding). 10 Specifically, compliance specification par. 6 alleges, “[f]ollowing the payment of back wages to unit employees, Respondent is required to file a report with the Regional Director of Region 20 allocating the back- pay awards to the appropriate calendar years.” Similarly, the relevant portion of par. 8(a) alleges that employees are to be compensated for any adverse tax consequences of receiving backpay as a lump sum, in accord- ance with the Board’s decision in AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). Finally, the relevant portion of par. 9(b) states that interest will accrue until payment is made, consistent with New Horizons, 283 NLRB 1173, 1174 (1987). The Respondent denies sufficient knowledge and information to form a belief as to par. 6. It asserted that pars. 8(a) and 9(b) are legal conclusions not requiring a response, and, to the extent a response is required, denied sufficient knowledge and infor- mation to form a belief. 11 The Respondents argue that the Board’s order was originally di- rected solely at Respondent MRC, and not the other Respondents who ORDER IT IS ORDERED that the General Counsel’s Motion for Partial Summary Judgment is granted with respect to Re- spondent MRC as to the following paragraphs of the com- pliance specification: 2, 3 (a)-(g), 4(b)-(d), the portions of 8(a), 8(c)-(f), 8(h), 8(j), 8(l)-(o) described above in this supplemental decision, and the portions of the appendices incorporated therein. IT IS FURTHER ORDERED that the General Counsel’s Mo- tion to Strike is granted with respect to Respondent MRC as to the following paragraphs of the compliance specifi- cation: 6, and the portions of 8(a) and 9(b) described above in this supplemental decision. IT IS FURTHER ORDERED that this proceeding is re- manded to the Regional Director for Region 20 for the purpose of arranging a hearing before an administrative law judge limited to taking evidence concerning the para- graphs of the compliance specification as to which sum- mary judgment was not granted.12 Dated, Washington, D.C. April 14, 2023 ______________________________________ Lauren McFerran, Chairman _____________________________________ Marvin E. Kaplan, Member _____________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD were added to the compliance specification. As stated above in footnote 4, supra, the Respondents will have the opportunity to litigate the issue of derivative liability at the remedial hearing. 12 The General Counsel does not seek summary judgment with respect to pars. 4(a) (calendar quarter interim earnings); 5 (interim expenses); 7 (no payment made by the Respondent to satisfy obligations of enforced Board Order); 8(b) (appendices reflecting the adverse tax consequence payments due each discriminatee); 8(g) (taxes owed for 2015–2017 if backpay had been paid when earned); 8(h) (total amount of the lump- sum award subject to excess tax); 8(i) (lump-sum amounts based on back pay calculations); 8(k) (amount of taxes owed on taxes on lump-sum amounts); 9(a) and (c); and the portions of 8(d)-(f), 8(j) and 8(l)-(n) that allege figures and computations for excess tax liability. As noted above, the General Counsel also does not seek summary judgment on the issue of the joint and several liability of Respondents MRH, MRS, and B&R (par. 1).