Standard Materials, Inc.

STANDARD MATERIALS. INC. Standard Materials, Inc. and United Steelworkers of America, AFL-CIO. Case 15-CA-6567 September 30, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MI:MBERS JENKINS ANI) PENII..O On August 25, 1978, the National Labor Rela- tions Board issued a Decision and Order' against the Respondent, in which the Board ordered the Respondent, inter alia, to make whole B. B. Allen, Ellis L. Beard, Jessie Lee Brown, Theodore Charles, Charles Cousin, Jr., Levy Crawford, Irvin J. Edwards, Clyd Favre, Harold Hart, Talley Hinton, Claude Ray Jenkins, James Jenkins, John Leonard, Robert Orange, Alt Owens, Oliver Owens, Titus Owens, Alexander Paige, Albert Panks, Albert Panks, Jr., Edgar Peters, Ervin Pope, James W. Square, Edward Wise, and Roose- velt Wise, for any loss of pay they may have suf- fered as the result of the Respondent's unfair labor practices against them in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. Subsequently, the United States Court of Appeals for the Fifth Circuit entered its judgment enforcing the Board's Order. 2 A contro- versy having arisen over the amount of backpay owed the discriminatees, the Regional Director for Region 15, on May 22, 1980, issued and caused to be served on the parties a backpay specification and notice of hearing alleging the amount of back- pay due the individual discriminatees. Subsequent- ly, on June 6, 1980, the Respondent filed an answer, admitting in part and denying in part, the allegations of the backpay specification. On June 30, 1980, the General Counsel filed with the Board a "Motion to Strike Respondent's Answer to Backpay Specification and for Summary Judgment." Thereafter, on July 7, 1980, the Board issued an order transferring the proceeding to the Board and Notice To Show Cause why the Gener- al Counsel's Motion for Summary Judgment should not be granted. 3 On July 11, the Respondent filed a response to the Notice To Show Cause and the General Counsel, on July 12, 1980, filed an opposi- tion to the Respondent's response. Upon the entire record in this proceeding, the Board makes the fol- lowing: m 237 NIRBH 1 130 z 6014 F 2d 449 (197'9) " The Board alu ordcrcd the hearing h poslponcd indefimlic 252 NLRB No. 94 Ruling on the Motion for Summary Judgment Section 102.54(b) of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended, provides as follows: (b) Contents of the answer to specifieation.- 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 spe- cifically admit, deny, or explain each and every allegation of the specification, unless the respondent is without knowledge, in which case the respondent shall so state, such state- ment operating as a denial. Denials shall fairly meet the substance of the allegations of the specification denied. When a respondent in- tends to deny only a part of an allegation, the respondent shall specify so much of it as is true and shall deny only the remainder. As to all matters within the knowledge of the re- spondent, including but not limited to the var- ious factors entering into the computation of gross backpay, a general denial shall not suf- fice. As to such matters, if the respondent dis- putes 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 disagreement, setting forth his position as to the applicable premises and furnishing the appropriate supporting figures. "Motion To Strike Respondent's Answer to Backpay Specification and for Summary Judg- ment" alleges that the Respondent's answer to the backpay specification was not sworn to by the Re- spondent or by a duly authorized agent with ap- propriate power of attorney affixed, and does not contain the post office address of the Respondent as required by Section 102.54(b) of the Board's Rules and Regulations. The General Counsel's motion also avers that the Respondent's answer generally denies certain portions of the backpay specifications but fails to state with specificity the basis for its disagreement. The General Counsel further asserts that the Respondent failed to furnish the appropriate supporting data as required under Section 102.54(b) of the Board's Rules and Regula- tions, and that therefore the Respondent's answer should be stricken in its entirety, that the allega- tions in the backpay specification should be deemed as admitted as true, and that summary judgment should be granted. In the alternative, the General Counsel maintains that those portions of the backpay specification that were not specifically DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied by the Respondent should be deemed ad- mitted as true and that a hearing be held only on the allegations properly raised by the Respondent's answer. While the Respondent's answer to the backpay specification was neither sworn to by the Respond- ent nor by duly a authorized agent of the Respond- ent, and did not contain the Respondent's address, its response, which it seeks to have the Board con- sider as an amended answer, was sworn to and did contain the Respondent's address. The General Counsel, in his opposition to the response, asserts that under Section 102.57 of the Board's Rules and Regulations, an answer to a backpay specification may be amended prior to a hearing only where the specification has been amended first, and since that is not the case here the Respondent's amended answer should be stricken. However, Section 102.57 merely states that a backpay specification may be amended prior to the hearing and that the affected respondent may amend its answer. Thus, the rules contain no specific prohibition against amending the answer to a backpay specification in the absence of an amendment to the specification, and we, therefore, consider the Respondent's re- sponse to be an amended answer. Accordingly, and inasmuch as Section 102.121 provides that the Board's Rules and Regulations shall be liberally construed, we shall neither strike the Respondent's answer in its entirety nor grant the General Coun- sel's Motion for Summary Judgment for the failure of the answer to be sworn to and to contain the Respondent's address. The General Counsel both in his "Motion To Strike Repondent's Answer to Backpay Specifica- tion and for Summary Judgment" and in his oppo- sition to the Respondent's response thereto avers that the Respondent generally denied various alle- gations of the specification, without setting forth alternative formulas or figures for any of the back- pay computations and thus the denials were not sufficient under Section 102.54(b) to raise any issues warranting hearing. The Respondent in its answer and amended answer generally denied var- ious of the allegations of the backpay computa- tions, including, inter alia, vacation pay, overtime, backpay periods, the rates of pay the discriminatees received at the time they were unlawfully dis- charged, the rates of pay each of them would have received during the backpay period, and the gross backpay due each discriminatee. Since this data is within the Respondent's knowledge, its failure to set forth fully its position as to the applicable prem- ises or to furnish appropriate supporting figures is contrary to the specificity requirements of Section 102.54(b) of the Board's Rules and Regulations. Accordingly, we strike the Respondent's answer and amended answer to those allegations of the backpay specification and, accordingly, deem such allegations to be admitted as true. However, the Respondent alleges that discrimin- atees John Leonard and Levy Crawford quit their interim jobs and that all the discriminatees either failed to seek or failed to accept the numerous jobs that were available in the relevant geographic area. The Board has held that a general denial is suffi- cient to place interim earnings into issue as that in- formation is generally not within the knowledge of the Respondent. 4 Inasmuch as the availability of in- terim jobs in the area, the discriminatees' failure to seek and accept or retain such employment, and the quitting of interim jobs are factors that are an aspect of the general aspect of interim earnings and are outside the general knowledge of the Respond- ent, we find the Respondent's general assertion of the discriminatees' failure to seek and retain availa- ble interim employment to be sufficient under the Board's Rules and Regulations to put into issue the general question of interim earnings. Therefore, we shall deny the General Counsel's "Motion To Strike Respondent's Answer to Backpay Specifica- tion and for Summary Judgment" with respect to the allegations of the specification pertaining to in- terim employment issues. Accordingly, we shall order a hearing limited to the determination of the discriminatees' interim earnings including the availability to discriminatees of interim employment, and the discriminatees' fail- ure to seek and/or retain such interim employment. ORDER It is hereby ordered that the General Counsel's Motion To Strike Respondent's Answer to Back- pay Specification is granted, except with regard to those allegations concerning the discriminatees' in- terim earnings. IT IS FURTHER ORDERED that the General Coun- sel's Motion for Summary Judgment be, and it hereby is, denied. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Direc- tor for Region 15 for the purpose of arranging a hearing before an administrative law judge limiting such proceeding to the determination of the avail- ability of interim employment, the discriminatees' failure to seek or retain interim employment, and the interim earnings of the discriminatees listed below, and that the Regional Director be, and he hereby is, authorized to issue notice thereof. 4 Dehw Construcion Corp., ubsidiary of The .4spin Group. Inc., 246 NLRB No. 156 (1979). 680 STANDARD MATERIAI.S. INC B. B. Allen Ellis L. Beard Jessie Lee Brown Theodore Charles Charles Cousin, Jr. Levy Crawford Robert Orange Alt Owens Oliver Lee Owens Titus Owens Alexander Paige Albert Panks Irvin J. Edwards Clyde Favre Harold Hart Tally Hinton Claude Ray Jenkins James Jenkins John Leonard Albert Panks, Jr. Edgar Peters Ervin Pope James W. Square Edward Wise Roosevelt Wise 681