A.N. Electric Corp.

National Labor Relations Board - Board Decisions

Aug 10, 1989

285 N.L.R.B. 297 (N.L.R.B. 1989)

A N. ELECTRIC CORP.
A.N. Electric Corp. and its successor or alter ego
Ozone Electric Corp . and Jose Gonzalez and
Ray Edwin Coffie and Ismael DeJesus. Cases
2-CA-19011, 2-CA-19227, 2-CA-19387, and
2-CA-19429
10 August 1989
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 30 September 1985 the National Labor Rela-
tions Board issued its Decision and Order' in the
above-entitled proceeding in which it concluded,
inter alia, that Respondent A.N. Electric Corp.
(A.N.) had violated Section 8(a)(1) of the Act by
discharging employees Jose and John Gonzalez,
Ray Coffie, Jose Robles, Rupert Allen, and Ismael
DeJesus. The Board ordered Respondent A.N.,
inter alia, to make whole these unlawfully dis-
charged employees for any loss of pay suffered as a
result of its unlawful conduct. On 16 May 19862
the United States Court of Appeals for the Second
Circuit entered a consent judgment enforcing the
Board 's Order.3 A controversy having arisen over
the amount of backpay due under the terms of the
Board's Order, on 29 August the Acting Regional
Director for Region 2 issued and duly served on
Respondent A.N. and on Respondent Ozone Elec-
tric Corp. (Ozone) a backpay specification and
notice of hearing alleging the backpay due under
the Order up to 30 June, and alleging Respondent
Ozone's joint and several liability for the unfair
labor practices of Respondent A.N. as A.N.'s suc-
cessor or alter ego. The backpay specification also
notified each Respondent that it should file a
timely answer to the specification within 15 days of
service. On 15 September the Region notified Re-
spondent A.N. by certified letter that no answer to
the specification had been received and that coun-
sel for the General Counsel intended to move for
summary judgment if no answer was received by
29 September. Also on 15 September counsel for
Respondent Ozone requested an extension of time
within which to serve its answer. Subsequently, the
Regional Director issued and duly served on the
Respondents an order extending the time for each
Respondent to file an answer until 3 October. On
10 October Respondent Ozone filed its answer
1 276 NLRB 887 ( 1985).
2 All dates hereinafter are in 1986 unless otherwise noted
3 NLRB v. A.N. Electric Corp, No 86-4034, unpublished.
297
with the Region.4 Respondent A.N. did not file an
answer to the specification.
On 15 January 1987 counsel for the General
Counsel filed with the Board a Motion for Summa-
ry Judgment with respect to Respondent A.N. and
a motion to strike in part Respondent Ozone's
answer to the specification. On 20 January 1987 the
Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the
General Counsel's motions should not be granted.
Respondent Ozone filed a timely response to the
Board's Notice to Show Cause. Respondent A.N.
did not file a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment and
Motion to Strike
At the time of the issuance of the backpay speci-
fication, Section 102.54 of the Board's Rules and
Regulations provided, in relevant part, as follows.5
(a) Filing and service of answer to specifica-
tion .-The respondent shall, within 15 days
from the service of the specification, if any,
file an answer thereto; an original and four
copies shall be filed with the regional director
issuing the specification, and a copy thereof
shall immediately be served on any other re-
spondent jointly liable.
(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-
* Counsel for the General Counsel does not contest the timeliness of
Respondent Ozone's 10 October answer
5 Subsequent to the issuance of the specification , the Board , effective
29 September 1986, revised Sec 102 54 of the Rules and Regulations to
provide for the filing of an answer within 21 days of service of the speci-
fication
285 NLRB No. 38
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 offailure 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, fmd the specification to be true and
enter such order as may be appropriate. If the
respondent files an answer to the specification
but fails to deny any allegation of the specifi-
cation in the manner required by subsection
(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 introduc-
ing any evidence controverting said allegation.
The backpay specification issued and served on
Respondents A.N. and Ozone states that each Re-
spondent shall, within 15 days from the service of
the specification , file an answer thereto with the
Regional' Director for Region 2, and that to the
extent such answer fails to deny the specification's
allegations in the manner prescribed by the Board's
Rules and Regulations, and does not adequately ex-
plain that failure, the allegations shall be deemed to
be admitted to be true and the Respondent shall be
precluded from introducing any evidence contro-
verting them.
Respondent A.N. has failed to answer the back-
pay specification and has not responded to the
Board's Notice to Show Cause why the General
Counsel 's Motion for Summary Judgment should
not be granted . In the absence of good cause being
shown for Respondent A.N.'s failure to file any
answer, the specification 's allegations are deemed
to be admitted to be true in accordance with the
rule set forth above. Thus we grant the General
Counsel 's Motion for Summary Judgment with re-
spect to Respondent A.N., and conclude that the
net backpay due each of the employees, and Re-
spondent A.N.'s liability therefor, is as stated in the
computations of the specification.
With respect to Respondent Ozone , the General
Counsel contends in the motion to strike that cer-
tain portions of Ozone 's 10 October answer to the
backpay specification should be stricken because
they do not conform to the requirements of Section
102.54(b) and (c), above. The portions of the
answer at issue are those that respond to the speci-
fication's allegations in paragraphs I and II, con-
cerning the backpay periods for the discharged em-
ployees and the backpay formula and computations
of gross backpay for the employees, and to the al-
legations in paragraph VI, asserting Ozone's joint
and several liability based on its alleged status as an
alter ego of Respondent A.N. or A.N.'s successor
with knowledge of its unremedied unfair labor
practices . In the 10 October answer , Respondent
Ozone pleaded lack of knowledge with respect to
the allegations concerning the backpay periods and
the backpay formula and gross backpay computa-
tions, and denied that it was an alter ego or succes-
sor of Respondent A.N. In its response to the
Board's Notice to Show Cause, Respondent Ozone
contends that it was not a party to any prior pro-
ceedings and that the General Counsel had not of-
fered any evidence of its successor or alter ego
status, and thus it properly pleaded absence of
knowledge concerning the allegations involving
backpay for Respondent A.N.'s unlawfully dis-
charged employees.
We note that Respondent Ozone was not a
named party in the underlying unfair labor practice
proceeding and that the evidence on this record
and that of the underlying proceeding is not suffi-
cient to resolve the matter of Respondent Ozone's
status as it may relate to Respondent A.N. for pur-
poses of liability. Accordingly , we shall order that
a hearing be held to determine the alter ego or suc-
cessor status and liability of Respondent Ozone.
See, e .g., Dews Construction Corp., 246 NLRB 945,
946 (1979). The hearing will also address any other
matters concerning the backpay specification that
the administrative law judge deems appropriate in
light of a determination of Respondent Ozone's
status. At this time we fmd that the 10 October
answer to the specification meets the requirements
of Section 102.54(b) and (c) and , accordingly, we
deny the General Counsel 's motion to strike, with
leave to renew it before the judge at an appropriate
time.
ORDER
It is ordered that the Respondent, A.N. Electric
Corp., New York, New York, its officers, agents,
successors, and assigns, shall make whole each of
the employees named below by payment to them
of the amounts set forth adjacent to their names,
plus interest to be computed in the manner pre-
A.N. ELECTRIC CORP. 299
scribed in New Horizons for the Retarded" and ac-
crued to the date of payment, minus the tax with-
holdings required by Federal , state, and city laws:?
Jose Gonzalez $ 144,353
John Gonzalez 160,287
Ray Coffie 207,942
Jose Robles 100,334
Rupert Allen 185,735
Ismael DeJesus 207,784
IT IS FURTHER ORDERED that this proceeding be
remanded to the Regional Director for Region 2
B In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 will be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts
accrued prior to 1 January 1987 shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
' We note the backpay specification's statement that backpay for these
employees continues to accrue on a daily basis , and that the net backpay
figures herein reflect the backpay computations only through 30 June
1986.
for the purpose of issuing a notice of hearing and
scheduling a hearing before an administrative law
judge, which hearing shall be for the purpose of
taking evidence as to the status and liability of Re-
spondent Ozone Electric Corp. as an alter ego or
successor of Respondent A.N. Electric Corp., and
for the further purpose of taking evidence as to any
other matters concerning the backpay specification
in this proceeding which the administrative law
judge deems appropriate in light of the determina-
tion of the status of Respondent Ozone Electric
Corp.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a
supplemental decision containing findings of fact,
conclusions of law, and recommendations based on
all the record evidence. Following service of the
administrative law judge's decision on the parties,
the provisions of Section 102.46 of the Board's
Rules and Regulations shall be applicable.