Aneco, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 2000

330 N.L.R.B. 969 (N.L.R.B. 2000)

ANECO, INC. 969
Aneco, Inc. and International Brotherhood of Electri-
cal Workers Local Union No. 606, AF–CIO.
Case 12–CA–15738
March 20, 2000
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On February 27, 1998, the National Labor Relations
Board issued a Decision and Order in this proceeding,1 in
which it found that the Respondent violated Section
8(a)(3) and (1) of the Act by refusing to hire applicant
Winston Cox. As a remedy for this violation, the Board
ordered the Respondent to offer Cox employment in the
same or a substantially equivalent position for which he
applied and to make him whole for any losses suffered as
a result of the Respondent’s discrimination against him.
On June 15, 1998, the Respondent executed a stipulation
waiving its rights under Section 10(e) and (f) of the Act
to contest either the propriety of the Board’s Order or the
findings of fact and conclusions of law underlying that
Order. The stipulation further provided for a compliance
hearing to resolve any disputes concerning the amount of
backpay due under the terms of the Board’s Order.
A controversy having arisen over the amount of back-
pay due under the terms of the Board’s Order, the Re-
gional Director for Region 12 issued a compliance speci-
fication and notice of hearing on May 28, 1999, alleging
the amount of backpay due and notifying the Respondent
that it must file an answer complying with the Board’s
Rules and Regulations. The specification, inter alia, al-
leges that the backpay period should run from July 12,
1993, to April 1, 1998, and that gross backpay should be
calculated using the average weekly regular and overtime
hours and wage rates of comparator journeyman electri-
cians employed by the Respondent. The specification
excludes nine calendar quarters from the Respondent’s
gross backpay liability, but also alleges that Cox incurred
no interim earnings during the backpay period which
would reduce the backpay owed to him.
On June 15, 1999, the Respondent filed an answer to
the specification. By letter dated July 16, 1999, the Gen-
eral Counsel notified the Respondent that it deemed the
answer inadequate. In response, the Respondent filed an
amended answer (the amended answer) admitting in part
and denying in part the allegations in the specification
and raising several affirmative defenses.
On October 25, 1999, the General Counsel filed with
the Board a Motion to Strike Respondent’s Amended
Answer in Part and for Partial Summary Judgment.2 On
October 27, 1999, the Board issued an order transferring
proceeding to the Board and a Notice to Show Cause
why the General Counsel’s motion should not be
granted. On December 10, 1999, the Respondents filed a
memorandum in opposition to the motion.
1 325 NLRB 400.
2 The General Counsel contends that the amended answer to the
backpay specification is substantively deficient, except with respect to
par. 3 of the specification (which excludes several quarters from the
backpay period) and the matters relating to Cox’s interim earnings set
forth in pars. 8–11 of the specification. Accordingly, the General
Counsel does not seek summary judgment with respect to these para-
graphs.
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 to Strike the Respondent’s Amended
Answer in Part and for Partial Summary Judgment
Section 102.56(b) and (c) of the Board’s Rules and
Regulations states, in pertinent part:

(b) Contents of answer to specification.—The an-
swer shall specifically 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 statement operating as
a denial. Denials shall fairly meet the substance of
the allegations of the specification at issue. When a
respondent intends to deny only a part of an allega-
tion, 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 respondent, in-
cluding but not limited to the various factors enter-
ing 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, the answer shall specifically state the ba-
sis for such disagreement, setting forth in detail the
respondent’s position as to the applicable premises
and furnishing the appropriate supporting figures.
(c) Effect of failure to answer or to plead specifi-
cally and in detail to backpay allegations of specifi-
cation.—If the respondent 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 allegations of the specifi-
cation and without further notice to the respondent,
find the specification to be true and enter such order
as may be appropriate. If the respondent files an an-
swer to the specification but fails to deny any allega-
tion 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 evi-
dence supporting such allegation, and the respondent
shall be precluded from introducing any evidence
controverting the allegation.

330 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 970
A. Definition of Gross Backpay
1. Positions of the parties
Paragraph 1 of the specification alleges that “[t]he
gross backpay due Winston J. Cox is the amount of earn-
ings he would have received but for the discrimination
against him.” In its amended answer, the Respondent
denies the gross backpay definition in paragraph 1 of the
specification and asserts that gross backpay is “the
amount of earnings Cox would have received . . . offset
by the amount of earnings [he] made or should have
made in a reasonable attempt to mitigate economic dam-
ages.” The General Counsel argues that the language of
the Respondent’s answer essentially admits the Board’s
definition of gross backpay as set forth in paragraph 1.
2. Analysis and conclusions
We agree with the General Counsel that the Respon-
dent’s answer regarding the definition of “gross back-
pay” constitutes an admission. The specification clearly
states that gross backpay is a preliminary figure, which
would be reduced by any interim earnings.3 Accord-
ingly, we shall strike those portions of the Respondent’s
amended answer denying the gross backpay definition
and grant the Motion for Summary Judgment with regard
to paragraph 1 of the specification.
B. Duration of the Gross Backpay Period and Appropri-
ate Comparator Position
1. Positions of the parties
Paragraph 2 of the specification alleges that “[t]he
backpay period for Cox commences on July 12, 1993
when he was discriminatorily denied employment as a
journeyman electrician by the Respondent, and ends on
April 1, 1998, when he received an offer of employment
from the Respondent.” Paragraphs 4, 5, 6, and 7 of the
specification set forth computations for the gross back-
pay and net backpay owed by utilizing the average
weekly regular and overtime hours and wage rates earned
by the Respondent’s journeymen electricians.4
In its amended answer, the Respondent denies that any
backpay is due and generally denies the allegation re-
garding the duration of the backpay. The Respondent
admits that it made an unconditional offer of employ-
ment to Cox on April 1, 1998, but asserts that the back-
pay period should be limited to the period from the al-
leged discriminatory event until the time that Cox would
have left its employment when he had either successfully
organized the Respondent’s employees or conceded the
futility of doing so. The Respondent further asserts that
this time period would not have exceeded 2 weeks after
he started his employment with the Respondent. The

3 Any issues as to Cox’s interim earnings will be litigated at the
compliance hearing.
4 These hours and wage rates are set forth in appendices A-1–A-10
of the specification and summarized in appendix C.
Respondent also denies the specification’s computation
of the gross backpay on the basis that the appropriate
comparator position is electrician helper and not jour-
neyman electrician. The Respondent states that since
Cox was seeking work either as an electrician helper or
journeyman electrician and since he had been out of the
trade for an extended period, helper would have been
Cox’s “logical starting position.” Therefore, the Respon-
dent contends that backpay should be calculated using
the wages paid to the Respondent’s electrician helpers.5
The General Counsel argues in its motion that the
amended answer’s responses to paragraphs 2, 4, 5, 6, and
7 are inappropriate inasmuch as they raise matters al-
ready decided by the underlying unfair labor practice
decision. With regard to the opening date for the back-
pay period, the General Counsel notes that the Respon-
dent gives no explanation, or alternative starting date,
despite the information both being within its knowledge
and already having been determined by the underlying
decision. As to the closing date of the backpay period,
the General Counsel argues that the Respondent’s un-
conditional offer of employment indicates on its face that
it was received on April 1, 1998. Finally, with regard to
the proper comparator position, the General Counsel ar-
gues that both the underlying unfair labor practice deci-
sion and the Respondent’s unconditional offer of em-
ployment indicates that the position sought was an elec-
trician’s position.
In its opposition to the motion, the Respondent ac-
knowledges that backpay normally terminates upon an
offer of reinstatement, but argues that in the instant case,
backpay can be tolled at an earlier point. The Respon-
dent asserts that the date when Cox would have left the
Respondent’s employment is an open question that has
not been decided in the underlying unfair labor practice
proceedings. Finally, the Respondent argues that the
proper comparator position should be electrician helper
and not journeyman electrician since “electrician” as
used in the underlying unfair labor practice decision
could have referred to any electrical position with the
Respondent.
2. Analysis and conclusions
We agree with the General Counsel that the Respon-
dent’s general denial regarding the starting date of the
backpay period is substantively deficient. The Respon-
dent gave no explanation of its denial of July 12, 1993,
as the appropriate starting date of the backpay period and
did not submit an alternative date despite the information
being clearly within the Respondent’s knowledge. Nephi
Rubber Products Corp., 312 NLRB 297 (1993). As
such, Section 102.56 requires that this allegation be
deemed admitted as true. Moreover, the date of the dis-
5 The Respondent otherwise admits that the specification’s computa-
tions in appendices A-1–A-10 and C would be accurate if journeyman
electrician was the appropriate comparator.
ANECO, INC. 971
criminatory refusal to hire, which constitutes the opening
date of the backpay period, has already been litigated and
adjudicated in the unfair labor practice proceeding and
cannot be relitigated in a compliance proceeding. Quality
Hotel, 323 NLRB 864, 865 (1997). See also Transport
Service Co., 314 NLRB 458, 459 (1994).
As to the ending date of the backpay period, however,
we shall deny the General Counsel’s motion.6 The Re-
spondent acknowledges that it made an unconditional
offer, but alleges an alternative date and basis as to when
the backpay period would end. We find this answer suf-
ficiently specific to raise a litigable issue of fact regard-
ing the closing date of the backpay period and that this
issue is best resolved by a hearing. Bardaville Electric
Co., 315 NLRB 759, 760 fn. 9 (1994).
With regard to the comparator position for determining
the amount of gross backpay due, we agree with the
General Counsel that, in the underlying unfair labor prac-
tice proceeding, the Board found that Cox had applied
for an electrician position and not the helper position.
Aneco, Inc., 325 NLRB 400, 404 (1998). Therefore, we
find that this issue has been litigated and decided in the
underlying unfair labor practice proceeding and cannot
now, especially in light of the Respondent’s stipulation,
be relitigated in the ensuing backpay proceeding. Trans-
port Service Co., supra.7
For the reasons stated above, we will strike those por-
tions of the Respondent’s amended answer regarding the
duration of the backpay period, except as to the closing
date, and regarding the computation of gross backpay
based on the comparator position of journeyman electri-
cian.8 We shall grant the Motion for Summary Judgment

6 To the extent, however, that the Respondent’s answer alleges, as an
affirmative defense, that Cox was not genuinely seeking employment
because he was a “tester,” we shall grant the General Counsel’s motion
to strike. This issue was resolved in the unfair labor practice proceed-
ing and cannot be relitigated in the compliance stage.
7 Member Hurtgen would deny the General Counsel’s motion in this
respect. In the underlying case, the Board decided that Cox was unlaw-
fully denied employment to the position of electrician. The Respondent
asserts that there are two kinds of electricians—journeyman and helper
and that, irrespective of union activity, Cox would have been hired only
as a helper. If that is so, backpay would be at the lower helper rate.
Member Hurtgen would permit the Respondent to make a showing as
to that factual issue.
8 The General Counsel also seeks to strike those portions of the Re-
spondent’s answer denying generally that Cox is due backpay or that it
has an obligation to make him whole. In its opposition, the Respondent
concedes that the Board’s standard remedy is to provide backpay to
make discriminatees whole for injury suffered as a result of that dis-
crimination, but reiterates its assertions that Cox has either fully miti-
gated his losses or failed to make a reasonable effort to do so and that
the backpay period has been tolled at an earlier date. We agree with the
General Counsel that the Respondent cannot generally deny its backpay
obligation that has been decided by the Board. Accordingly, we shall
strike the portions of the Respondent’s amended answer contesting this
obligation and deem that the Respondent has admitted its general obli-
with respect to the compliance specification’s paragraph
2, except as to the closing date of the backpay period,
paragraphs 4, 5, 6, 7, and those portions of paragraphs 10
and 11 related to the Respondent’s general backpay obli-
gation.
Conclusion
In sum, we shall strike the Respondent’s amended an-
swer to the compliance specification’s paragraphs 1, 2,
except as to the closing date of the backpay period, para-
graphs 4, 5, 6, 7, and the “make-whole” portions of para-
graphs 10 and 11. We shall also strike those portions of
the amended answer’s affirmative defenses relating to
Cox’s being a “tester.” We shall grant summary judg-
ment with respect to the compliance specification’s para-
graphs 1, 2, except as to the closing date of the backpay
period, paragraphs 4, 5, 6, 7, and those portions of para-
graphs 10 and 11 related to the Respondent’s general
backpay obligation.
ORDER
It is ordered that the General Counsel’s Motion for
Partial Summary Judgment is granted as to the allega-
tions contained in the compliance specification’s para-
graphs 1, 2, except as to the closing date of the backpay
period, paragraphs 4, 5, 6, and 7, and those portions of
paragraphs 10 and 11 related to the Respondent’s general
backpay obligation except insofar as those allegations
relate to interim earnings.
IT IS FUTHER ORDERED that the General Counsel’s mo-
tion to strike is granted as to the Respondent’s amended
answer to the compliance specification’s paragraphs 1, 2,
except as to the closing date of the backpay period, para-
graphs 4, 5, 6, 7, the “make-whole” portions of para-
graphs 10 and 11, and the affirmative defense regarding
Cox’s status as a “tester” insofar as it challenges Cox’s
status as a bona fide applicant except as those allegations
relate to interim earnings.
IT IS FUTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 12 for the
purposes of issuing a notice of hearing and scheduling a
hearing before an administrative law judge, for the taking
of evidence concerning the remaining allegations of the
compliance specification.
IT IS FUTHER ORDERED that the judge shall prepare and
serve on the parties a supplemental decision containing
findings of fact, conclusions of law, and recommenda-
tions based on all the record evidence. Following service
of the judge’s decision on the parties, the provisions of Sec-
tion 102.46 of the Board’s Rules shall be applicable.

gation to pay backpay to discriminatee Cox as alleged in par. 11 of the
compliance specification.