Mazda South

MAZDA SOUTH Seven Motors Ltd., d/b/a Mazda South; and South County Chrysler Plymouth, Inc., d/b/a Seven Motors; South County Motor Sales, Inc. (For- merly South County Chrysler Plymouth, Inc.), d/b/a Seven Motors; and South County Motor Sales, Inc., d/b/a Don Flier Motors, Jointly and District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 14-CA-10033 September 30, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELILO On December 13, 1977, the National Labor Rela- tions Board issued its Decision and Order in the above-entitled proceeding' in which it ordered, inter alia, that Respondent make whole certain of its employees for any losses they may have suffered as a result of Respondent's unlawful conduct. Sub- sequently, the Board, sua sponte, reconsidered and affirmed its original Decision and Order. 2 Thereaf- ter, on April 7, 1980, the United States Court of Appeals for the Eighth Circuit entered its judg- ment enforcing in full the Board's Order.3 A con- troversy having arisen over the amount of backpay due under the terms of the Board's Order, as en- forced by the court, the Regional Director for Region 14, on May 30, 1980, 4 issued and duly served on the parties a backpay specification and notice of hearing alleging the amounts of backpay due the employees under the Board's Order and notifying Respondent that it must file a timely answer which must comply with the National Labor Relations Board Rules and Regulations, Series 8, as amended. On June 24, Respondent filed an answer to the backpay specification in which it made a general denial of all allegations of the spec- ification and moved that the backpay specification be dismissed. After being informed by Region 14 that under the Board's Rules an answer which does not specifically state the basis of Respondent's dis- agreement with the accuracy of figures contained in the specification or the premises on which they are based is not sufficient under Section 102.54, Re- spondent filed an amended answer on or about July 11. In its amended answer Respondent admitted certain paragraphs and denied certain other para- graphs by means of a general denial and further stated: (1) that it did not refuse to sign a contract ' 233 NRB 1109 2243 NRi No 139 (1979) ' Enforced suh nor. L.R. B. , South Counrv Mrtor icts in IIl I n- published decisilon ' All dales hereafter refer to 10 unless otheruise pecified 252 NLRB No. 116 and was not presented a contract by the Union; (2) that it did give effect to the pay rate as contemplat- ed by said contract in that all employees were paid either at or above union scale; (3) that the Greater St. Louis Automotive Association was not an agent for it in its bargaining with the Union; (4) that all employees received full pay with the exception of Thomas Scott and David Carlson; (5) that it did not have a contract with the Union; (6) that it sup- plied employees with an appropriate health and welfare benefit during the period of time for which they were employed; (7) that it denies that it owes any backpay to discriminatees Jacobs, Kerbler, Kopp, Vincent, or Wruck, that they have been paid in full, and that no sums are due and owing to them; (8) that in each and every instance the Com- pliance Officer "has used a hypothetical of two years experience as and for the basis of his compu- tation of figures which is in error"; and (9) that it owes nothing to either District 9, International As- sociation of Machinists and Aerospace Workers Welfare Association or to the pension trust as it has never had a contract with the Union and has provided health and welfare benefits to the em- ployees "and to their benefit." Respondent further moves that the backpay specification be dismissed except as to employees Carlson and Scott. On July 28, General Counsel filed directly with the Board a Motion for Summary Judgment. Sub- sequently, on July 30, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. On August 18, Respondent filed a reply to the Motion for Summary Judgment wherein it as- serts that its amended answer complies with the Board's Rules and that the amended answer advises the Board of the area wherein there is a factual issue to be resolved at the hearing. Respondent fur- ther explains that the amended answer sets forth the areas of disagreement by pointing out that "the Enforcement Officer has used a hypothetical of two years experience as and for the basis of his computation of figures which is in error" and that by comparing the alleged contract to the figures in the backpay specification, it is apparent that an ex- perience factor of 2 years was used to compute the contractual rates. Respondent states that correct- ness of these computations is a question of fact that must be resolved at a hearing. Respondent further states that "as to the Health and Welfare and Pen- sion for the listed employees, there still remains a question of fact and law to be determined which can only be resolved by an evidentiary hearing." Respondent moves that Summary Judgment be denied and that the matter be sent to a hearing. 791 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record, the Board makes the fol- lowing: Ruling on the Motion for Summary Judgment Section 102.54 of the Board's Rules and Regula- tions, provides, in pertinent part, as follows: (b) Contents of the answer to specification.- . . . The respondent shall specifically admit, deny, or explain each and every allegation of the specification, unless the respondent is with- out 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 specification denied. When a respondent intends 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 knowl- edge of the respondent, including but not lim- ited to the various factors entering into the computation of gross backpay, a general denial shall not suffice. As to such matters, if the re- spondent 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 disagreement, setting forth in detail his position as to the applicable premises and furnishing the appropriate sup- porting figures. (c) Effect of failure to answer or to plead spe- cifically and in detail to the specification.-. . . If the respondent files an answer to the specifi- cation 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. Respondent's answer and amended answer to the backpay specification clearly do not conform to the a We note particularly that Respondent asserts that the compliance of- ricer has used a "hypothetical of two years experience" for making cer- tain calculations, but Respondent ails to specify the allegedly proper ex- perience level or the resulting backpay calculation. above requirements. In its amended answer Re- spondent disputes findings, made by the Adminis- trative Law Judge and adopted by the Board, which are no longer at issue. In addition, Respond- ent asserts that certain aspects of the backpay spec- ification are not correct while failing to set forth alternative premises or supporting details.5 Certain- ly, these matters are within the knowledge of Re- spondent and its failure to deny the specification in the manner required by Section 102.54(b) or to adequately explain its failure to do so requires that the allegations be deemed admitted to be true in accord with Section 102.54(c). Accordingly, the Board finds them to be correct,6 and grants the General Counsel's Motion for Summary Judgment. Therefore, on the basis of the allegations of the specification which are accepted as true, the Board finds the facts as set forth therein, concludes the backpay due David Carlson, Donald Jacobs, James J. Kerbler, James R. Kopp, Thomas Scott, Thomas Vincent, Wayne Wruck, and Barry Mensell is as stated in the computations of the specification, and orders that payment thereof be made by Respond- ent to each named employee, with health and wel- fare and pension contributions to be paid to the ap- propriate funds on behalf of the respective employ- ees as set forth in the backpay specification.7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, South County Motor Sales, Inc., St. Louis, Missou- ri, under whatever trade name it is doing business, its officers, agents, successors, and assigns, shall pay to each employee and to the Trustees of Dis- trict No. 9, International Association of Machinists and Aerospace Workers Welfare Association (re- ferred to herein as health and welfare) and the Trustees of the District No. 9, International Associ- ation of Machinists and Aerospace Workers Pen- sion Trust (referred to herein as pension), on their behalf, the amounts set forth below opposite their names, plus interest accrued to the date of payment pursuant to the Board's Order and the court judg- ment, minus the tax withholding required by Fed- eral and state laws: 6 Dews Construction Corp. a subsidiary of The Aspin Group, Inc., 246 NLRB No 156 (1979); Gateway Service Co., 209 NLRB 1166 (1974). ' Respondent's motion to dismiss the backpay specification is hereby denied. 792 MAZDA SOUTH Employee David Carlson Donald Jacobs James Kerbler James R Kopp Barry Mensell Thomas Scott Thomas Vincent Wayne Wruck Health & Backpav Welfare Pension $51.96 425.(X) 589.95 121.66 500.(X) 781.00 328.04 610.00 893.70 39 04 650.(X) 867.50 ()(X) 520.00 694.00 246.72 810.00 1,206.10 24625 1.895.00 2,620.05 1,110.30 715.00 954.25 793