186 N.L.R.B. 121 (N.L.R.B. 1970)

Allen Motor Express

National Labor Relations Board - Board DecisionsOct 27, 1970

186 N.L.R.B. 121 (N.L.R.B. 1970)

INTERSTATE Interstate Equipment Co., Inc., Interstate Highway Express, Inc., and Cletus G. Allen, Sole Proprietor, d/b/a Allen Motor Express and Local 135, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Interstate Equipment Co., Inc ., Interstate Highway Express, Inc., and Cletus G. Allen, Sole Proprietor, d/b/a Allen Motor Express and William D. Bundy Interstate Equipment Co., Inc ., Interstate Highway Express, Inc., and Cletus G. Allen, Sole Proprietor, d/b/a Allen Motor Express and Frank Bugh Interstate Equipment Co., Inc., Interstate Highway Express, Inc., and Cletus G. Allen , Sole Proprietor, d/b/a Allen Motor Express and William Bundy Cases 25-CA-2462,25-CA-2510,25-CA-2510-2, and 25-CA-2707 October 27, 1970 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS A controversy having arisen over the amount of backpay due the discriminatees under the Decision and Order 1 issued by the National Labor Relations Board on July 26, 1968, as affirmed by the Board in its Supplemental Decision and Order 2 dated December 10, 1969, and enforced by the United States Court of Appeals for the Seventh Circuit,3 the Regional Director for Region 25, on May 7, 1970, issued a backpay specification and notice of hearing in the above-entitled proceeding. Subsequently, the Respon- dents filed an answer denying the factual allegations of the backpay specifications without presenting any explanation in support of their position, and stating that they were without knowledge or information with regard to the remaining allegations, which concerned matters of law. Thereafter, on May 27, 1970, the General Counsel, by counsel, filed a motion for judgment on the pleadings in accordance with specifications as amend- ed, amending the backpay specification in certain respects. In view of Respondents' answer, the General Counsel moved for judgment on the pleadings in accordance with the backpay specification as amend- ed. On June 2, 1970, the Board issued an order transferring proceeding to the Board and notice to show cause requiring the Respondents to show cause 1 172 NLRB No. 145. s 179 NLRB No. 167. EQUIPMENT CO. 121 why the General Counsel's motion for judgment on the pleadings in accordance with the backpay specification, as amended, should not be granted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. The record before us establishes that in answer to the backpay specification issued on May 7, 1970, the Respondents denied paragraphs 1, 2, 3, 7, 8, and 9 and stated that it was without information with regard to paragraphs 4, 5, and 6 of the backpay specification. Paragraphs 4, 5, and 6 do not relate to factual matters but merely allege the formula for determining gross backpay and define the terms "net interim earnings" and "net backpay" as they have been defined in prior Board proceedings. With respect to the factual allegations of the backpay specification, Respondent, in its answer, stated, "1. That the Defendants herein deny the allegations contained in rhetorical paragraphs 1, 2, 3, 7, 8, and 9." But Section 102.54(b) of the Board's Rules and Regulations, Series 8, as amended, pro- vides, in pertinent part: As to all matters within the knowledge of the respondent, including but not limited to the various factors entering into the computation of gross backpay, a general denial shall not suffice. As to such matters, if the respondent disputes either the accuracy of the figures in the specifica- tion or the premises on which they are based, he shall specifically state the basis for his disagree- ment, setting forth in detail his position as to the applicable premises and furnishing the appropri- ate supporting figures. Section 102.54(c) provides, in part; If the respondent files an answer to the specifica- tion but fails to deny any allegation of the specification in the manner required by paragraph (b) of this section, and the failure so 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 evidence controverting said allegation. As may be readily seen from the foregoing, Respondents' general denials, in a proceeding where their legal obligations call for affirmative and particu- larized pleading raise no factual issues requiring a hearing for their determination. We deem, therefore, the factual allegations of the backpay specification to be admitted and shall make the following findings of 3 74 LRRM 2003. 186 NLRB No. 22 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact and conclusions in addition to the findings of fact heretofore made in prior proceedings: 1. Interstate Equipment Co., Inc., Interstate High- way Express, Inc., and Cletus G. Allen, Sole Proprie- tor, d/b/a Allen Motor Express, are the Respondents herein and are the Respondents which were the parties against whom all such prior proceedings were taken and prior orders issued. 2. Frank Bugh, William Bundy, Roe Hamilton, and Alvin Shepherd are the employees to whom the backpay is due pursuant to the orders heretofore entered. 3. Frank Bugh, William Bundy, Roe Hamilton, and Alvin Shepherd are entitled to receive from the Respondents, in accordance with the Order of the Board and the Order and Judgment of the United States Court of Appeals for the Seventh Circuit, the following amounts of net backpay, as set forth after their names in the General Counsel's Backpay Specification: Frank Bugh 383.11 William Bundy 7,760.99 Roe Hamilton 8,778.90 Alvin Shepherd 959.31 4. Respondents are required to pay to the employ- ees named above the aforesaid amounts with interest at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716, 720. ORDER On the basis of the foregoing Second Supplemental Decision and the entire record in this case, the National Labor Relations Board hereby orders that the Respondents, Interstate Equipment Co., Inc., Interstate Highway Express, Inc., and Cletus G. Allen, Sole Proprietor, d/b/a Allen Motor Express, Indianapolis, Indiana, their officers, agents, succes- sors, and assigns, shall pay to the employees involved in this proceeding, as net backpay herein determined to be due, the amounts set forth opposite their names, as follows: Frank Bugh 383.11 William Bundy 7,760.99 Roe Hamilton 8,778.90 Alvin Shepherd 959.31 less any withholdings required by Federal, state, or local law plus interest at 6 percent per annum to the date of payment, in accordance with Isis Plumbing & Heating Co., supra. The Respondents shall notify the Regional Director for Region 25, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith.