Aroostook County Regional Ophthalmology Center

National Labor Relations Board - Board Decisions

Jan 8, 2001

332 N.L.R.B. 1616 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1616
Aroostook County Regional Ophthalmology Center
and Jacquelyn Shepard and Sheila Lamoreau.
Cases 1–CA–29433 and 1–CA–29434
January 8, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On April 28, 1995, the National Labor Relations Board
issued a Decision and Order in this proceeding, in which
it ordered the Respondent, inter alia, to make whole Jac-
quelyn Shepard and Sheila Belle-Isle (formerly Lam-
oreau), for any loss of earnings they may have suffered
as a result of the Respondent’s unfair labor practices
against them in violation of Section 8(a)(1) of the Act.
317 NLRB 218. On April 12, 1996, the United States
Court of Appeals for the District of Columbia Circuit
entered its judgment enforcing the Board’s Order in rele-
vant part. Aroostook County Regional Ophthalmology
Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996). A con-
troversy having arisen over the amount of backpay owed
by the Respondent to Shepard and Belle-Isle under the
Board’s Order as enforced, the Regional Director for
Region 1 issued a compliance specification and notice of
hearing alleging the amounts of backpay due and notify-
ing the Respondent that it must file a timely answer
complying with the Board’s Rules and Regulations. The
Respondent subsequently filed an answer and an
amended answer to the compliance specification.
On February 28, 2000, the General Counsel filed with
the Board a Motion to Strike Portions of Respondent’s
Answer to the Compliance Specification and for Partial
Summary Judgment, with exhibits attached. On March
1, 2000, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the General Counsel’s motion should not be granted. On
March 15, 2000, the Respondent filed an answer to the
Notice to Show Cause, Opposition to General Counsel’s
Motion to Strike and for Partial Summary Judgment, and
Motion to Further Amend Answer to Compliance Speci-
fication, with exhibits attached.
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 Portions of Respondent’s
Answer to the Compliance Specification and for
Partial Summary Judgment
The General Counsel moves to strike those parts of the
Respondent’s amended answer (answer) to the compli-
ance specification (specification) that attempt to relitigate
matters that were raised in the underlying unfair labor
practice proceeding or that fail to meet the specificity
requirements of Section 102.56(b) of the Board’s Rules
and Regulations. The General Counsel further moves for
partial summary judgment on those allegations of the
specification that the Respondent has admitted and on
those allegations for which the Respondent has answered
with denials that the General Counsel moves to strike.
I. THE ALLEGED ATTEMPT TO RELITIGATE
MATTERS DE-CIDED IN THE UNFAIR LABOR
PRACTICE PROCEEDING
The General Counsel contends that the Respondent is
attempting to relitigate issues that were litigated and de-
cided in the unfair labor practice proceeding by denying
in its answer that it discriminated against Shepard and
Belle-Isle, affirmatively asserting that backpay to Shep-
ard and Belle-Isle is barred by Section 10(c), and af-
firmatively asserting that the two employees quit for rea-
sons unrelated to the exercise of Section 7 rights, and
that they, therefore, would not have received any Christ-
mas bonuses in 1992, 1993, 1994, and 1995. The Gen-
eral Counsel argues that the Respondent is barred from
raising these defenses at the compliance stage of the pro-
ceeding and that all parts of its answer that raise these
issues should be stricken.
A. The Denial of Discrimination
With respect to the Respondent’s denial that it dis-
criminated against Shepard and Belle-Isle, the Respon-
dent asserts in its response to the Notice to Show Cause
that neither the text of Section 8(a)(1), nor the D.C. Cir-
cuit’s decision enforcing the Board’s order in part, con-
tain the term, “discrimination.” The Respondent con-
tends that it is, therefore, entitled to object to the Board’s
use of the term in the specification. We disagree. Al-
though the text of Section 8(a)(1), unlike that of Section
8(a)(3), does not contain the term “discrimination,” the
Board nevertheless uses the term when remedying viola-
tions of Section 8(a)(1). See, e.g., A. Duie Pyle, Inc., 263
NLRB 744, 748, 756 (1982), enf. denied on other
grounds 730 F.2d 119 (3d Cir. 1984). Accordingly, we
grant the General Counsel’s motion to strike those por-
tions of the Respondent’s answer denying that it dis-
criminated against Shepard and Belle-Isle.
B. The Assertion that Backpay is Barred by Section 10(c)
The D.C. Circuit did not affirm the Board’s finding
that the Respondent violated Section 8(a)(1) by terminat-
ing Shepard and Belle-Isle. The Respondent argues that
because the court found nothing unlawful in the termina-
tions of Shepard and Belle-Isle, the two employees were
discharged for cause and Section 10(c),1 therefore, bars a

1 Sec. 10(c) provides in relevant part that:
332 NLRB No. 164
AROOSTOOK COUNTY REGIONAL OPHTHALMOLOGY CENTER 1617
backpay remedy. The General Counsel contends that the
Respondent is attempting to relitigate the issue of wheth-
er it has an obligation to make Shepard and Belle-Isle
whole.
While it is true, as the Respondent asserts, that the
D.C. Circuit found nothing unlawful in the terminations
of Shepard and Belle-Isle, the court affirmed the Board’s
finding that the Respondent’s conditions for rehiring the
two employees violated Section 8(a)(1). The backpay
remedy at issue here is for the unlawful offers of rehire,
not for the terminations. By arguing that Section 10(c)
bars a backpay remedy, the Respondent attempts to re-
litigate the lawfulness of, and the appropriate remedy for,
the unlawful offers to rehire. This matter was already
considered and decided at the unfair labor practice pro-
ceeding and, therefore, cannot be relitigated at the com-
pliance stage of the proceeding. Emsing’s Supermarket,
299 NLRB 569, 571 (1990); Hiysota Fuel Co., 287
NLRB 1, 3 (1987). Accordingly, we grant the General
Counsel’s motion to strike the Respondent’s answer con-
cerning the Section 10(c) bar to backpay.
C. The Assertion that Shepard and Belle-Isle Quit for
Reasons Unrelated to the Exercise of Section 7
Rights
In its response to the Notice to Show Cause, the Re-
spondent moves to amend its answer to the specification
by deleting from paragraphs 11(a) and 12(a) the state-
ment: “Shepard/Belle-Isle quit Respondent’s employ on
or about May 30, 1992, for reasons unrelated to the exer-
cise of Section 7 rights.” The Board has held that a re-
spondent may amend its answer before a compliance
hearing by a response to the Notice to Show Cause. See,
e.g., Ellis Electric, 321 NLRB 1205, 1206 (1996). We
grant the Respondent’s motion to delete from its answer
the assertion that Shepard and Belle-Isle quit the Re-
spondent’s employ. Through this amendment, the Re-
spondent now admits paragraphs 11(a) and 12(a) of the
specification.2 Further, the Respondent’s denial of para-
graph 5 of the specification concerning Christmas bo-
nuses was based on its assertion that Shepard and Belle-
Isle had not remained employed by the Respondent. The
Respondent’s amendment of its answer to paragraphs
11(a) and 12(a), therefore, results in an admission of
paragraph 5.

No order of the Board shall require the reinstatement of any individual
as an employee who has been suspended or discharged, or the pay-
ment to him of any back pay, if such individual was suspended or dis-
charged for cause.
2 In light of this ruling, we deny the General Counsel’s motion to
strike these portions of the Respondent’s answer.
II. THE SPECIFICITY OF THE RESPONDENT’S
ANSWER TO THE ALLEGATIONS CONCERNING
THE ANNUAL $1-
PER-HOUR PAY RAISE
The General Counsel contends that paragraph 3 of the
specification, alleging that the Respondent gave a $1-per-
hour pay raise to its registered nurses each year on their
anniversary date, should be deemed to be admitted as
true because the Respondent’s answer fails to meet the
specificity required by Section 102.56(b) of the Board’s
Rules and Regulations.3 In its response to the Notice to
Show Cause, the Respondent attaches letters to the Com-
pliance Officer in Region 1, dated November 19, 1996,
and April 4, 1997, that contain a summary of raises given
to its employees from 1990 forward and assert that the
summary does not support the conclusion that all regis-
tered nurses received raises on their anniversary dates or
that Shepard and Belle-Isle would have received raises of
$1 per hour on their anniversary dates. The Respondent
requests that the content of these letters be incorporated
into the Respondent’s answer to the specification. In
accord with Ellis Electric, supra, we grant this request.
We find that the Respondent’s answer, so amended,
meets the specificity requirement of Section 102.56(b) of
the Board’s Rules and Regulations.
III. THE ASSERTION THAT THE WOOLWORTH
FORMULA FOR CALCULATING BACKPAY
SHOULD NOT BE USED IN THE CIRCUMSTANCES
OF THIS CASE
The General Counsel moves to strike paragraphs 7, 8,
10, 11, 12, and 20(c)(i), (ii), and (iii) of the Respondent’s
answer to the specification on the ground that they deny
that the Woolworth formula4 for calculation of backpay
on a calendar quarterly basis is appropriate or define net
interim earnings differently from the Woolworth defini-
tion of such earnings. The General Counsel contends
that the Respondent has not given any valid reason why
this case differs from the Woolworth case. He further
argues that the Respondent is foreclosed from attacking
the use of the Woolworth formula at the compliance
stage of this proceeding because it failed to contest the
use of the formula before the Board or the D.C. Circuit.
3 Sec. 102.56(b) requires that:
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 speci-
fication or the premises on which they are based, the Answer shall
specifically state the basis for such disagreement, setting forth in detail
the respondent’s position as to the applicable premises and furnishing
the appropriate supporting figures.
4 F. W. Woolworth Co., 90 NLRB 289 (1950).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1618
The Board has generally applied the Woolworth for-
mula for calculating backpay on a quarterly basis since
1950 with court approval. See NLRB v. Seven-Up Bot-
tling Co. of Miami, Inc., 344 U.S. 344 (1953) (Board’s
use of the Woolworth formula is an appropriate exercise
of its discretion.). The Respondent contends that al-
though the Court upheld the Board’s use of the Wool-
worth formula in Seven-Up, it also assumed that the
Board would adapt the formula to varying circumstances.
Id. at 348. It argues that the circumstances of the instant
case warrant an adaptation of the Woolworth formula.
Thus, the Respondent argues that it offered rehire to
Shepard and Belle-Isle immediately after terminating
them for lawful reasons. With respect to the unlawful
conditions for rehire, the Respondent argues that it did
not intend to violate federal law. Instead, the Respon-
dent intended to prevent a recurrence of the events,
which caused it to lawfully terminate the two employees.
By making this argument, the Respondent essentially
attempts to relitigate the lawfulness of its conditioned
offers of rehire to Shepard and Belle-Isle. The Respon-
dent, however, cannot relitigate this issue at the compli-
ance stage of the proceeding. Emsing’s Supermarket,
supra, 299 NLRB at 571; Hiysota Fuel Co., supra, 287
NLRB at 3. Apart from this attempt at relitigation of the
rehire issue, the Respondent has shown no circumstances
that would warrant departure from the use of the Wool-
worth formula.
Moreover, the judge’s recommended Order in the un-
derlying case required use of the Woolworth formula to
calculate backpay, the Board’s Order repeated that re-
quirement, and the D.C. Circuit granted enforcement of
the Order requiring use of the Woolworth formula. Al-
though the Respondent acknowledges that it is the
Board’s normal practice to apply the Woolworth formula,
the Respondent did not raise the question of whether the
circumstances required a different backpay formula in its
exceptions to the judge’ decision or before the D.C. Cir-
cuit. The Respondent is, therefore, foreclosed, under
Section 102.46(b)(2) of the Board’s Rules and Regula-
tions,5 from raising it at the compliance stage of this pro-
ceeding. Accordingly, we grant the General Counsel’s
motion to strike paragraphs 7,8,10,11,12, and
20(c)(i),(ii), and (iii) of the Respondent’s answer to the
extent that they do not comport with the Woolworth for-
mula or the Woolworth definition of net interim earnings.

5 Sec. 102.46(b)(2) provides:
Any exception to a ruling, finding, conclusion, or recommendation
which is not specifically urged shall be deemed to have been waived.
Any exception which fails to comply with the foregoing requirements
may be disregarded.
IV. THE ASSERTIONS CONCERNING
REIMBURSEMENT FOR AND CALCULATION OF
MEDICAL PREMIUMS AND EXPENSES
The General Counsel moves to strike paragraph 9 of
the Respondent’s answer because it denies, without
comment, paragraph 9 of the specification, which alleges
that Shepard and Belle-Isle are entitled to reimbursement
for medical premiums for replacement coverage and for
medical expenses to the extent they would have been
compensated for such expenses under the Respondent’s
medical insurance, less amounts paid by any other medi-
cal policy under which they had coverage. The General
Counsel argues that discriminatees’ entitlement to what-
ever benefits they would have received, absent the dis-
crimination against them, is beyond challenge.
The Board customarily includes reimbursement of
substitute health insurance premiums and out-of-pocket
medical expenses in make-whole remedies for fringe
benefits lost. See, e.g. Cliffstar Transportation Co., 311
NLRB 152, 166 (1993), and Peelle Co. 291 NLRB 607,
608 (1988). The Respondent’s bald denial does not set
forth facts that would place paragraph 9 in contention by
negating or mitigating its liability for such expenses.
Accordingly, we grant the General Counsel’s motion to
strike paragraph 9 of the Respondent’s answer.
The General Counsel also moves to strike paragraph
20(d)(i) of the Respondent’s answer insofar as it calls, in
the alternative, for excess interim earnings to offset
medical insurance and medical expenses. The General
Counsel contends that benefits may be offset only by like
interim benefits.
The Board has held that benefits received by discrimi-
natees through substitute insurance are a proper offset on
a claim against an employer for the same losses. Cliffstar
Transportation Co., supra, 311 NLRB at 168. Similarly,
copayments of insurance premiums discriminatees would
have made, absent discrimination against them, offsets
claims for funds expended by discriminatees in securing
substitute insurance. Id. Thus, the Board generally has
offset benefits by like interim benefits. The Respondent
has not given sufficient reason to depart from this ap-
proach to benefits. Accordingly, we grant the General
Counsel’s motion to strike the last sentence in paragraph
20(d)(i) of the Respondent’s answer.
V. THE ASSERTION THAT NO INTEREST SHOULD
BE ASSESSED ON BACKPAY AFTER JUNE 30, 1996
In paragraph 20(d)(iii) of the Respondent’s answer, it
asserts that the Respondent should not be assessed inter-
est on backpay after June 30, 1996, because it promptly
furnished all information requested of it by that date and
is not responsible for the Regional Office’s delay of over
AROOSTOOK COUNTY REGIONAL OPHTHALMOLOGY CENTER 1619
3 years in issuing the specification. The Respondent
further asserts that the Supervisory Compliance Officer
for Region 1 assured the Respondent’s attorney that the
Respondent would not have to pay interest on backpay
for the delay attributable to the Regional Office. The
General Counsel argues that laches is not a defense
against the Board in its enforcement of a public right. He
therefore moves to strike paragraph 20(d)(iii) of the Re-
spondent’s answer.
The equitable defense of laches is generally not avail-
able in circumstances, like those presently before us,
where public policy requires the vindication of the rights
of the employees who have been the targets of an em-
ployer’s unfair labor practices. See Urban Laboratories,
Inc., 308 NLRB 816, 820 (1992), relying on NLRB v.
J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 264–265 (1969).
With respect to the assurance allegedly given to the Re-
spondent’s attorney by the Supervisory Compliance Of-
ficer for Region 1, the Board has held that it is not bound
by advice given to employers by Board agents, especially
when employee rights are at stake. Martel Construction,
Inc., 311 NLRB 921, 927 (1993), enfd. 35 F.3d 571 (9th
Cir. 1994). Here, Shepard and Belle-Isle’s right to be
made whole would be significantly curtailed if interest
were not assessed after June 30, 1996. Accordingly, we
grant the General Counsel’s motion to strike paragraph
20(d)(iii) of the Respondent’s answer.
VI. THE ASSERTION THAT THE VALUE OF THE
HAWAII TRIP
SHOULD BE AMORTIZED OVER FOUR
CALENDAR
QUARTERS
The specification includes the cash value of the 1994
trip to Hawaii sponsored by the Respondent in the gross
earnings for Shepard and Belle-Isle. In paragraph
20(d)(iv) of its answer, the Respondent asserts that if the
value of the trip to Hawaii is included in the backpay, it
should be amortized over the four calendar quarters of
the year in which the trip took place. The General Coun-
sel correctly asserts that the Respondent gives no reason
why the value of the trip should be amortized. The Gen-
eral Counsel moves to strike this paragraph of the Re-
spondent’s answer.
The Board’s usual procedure is to determine backpay,
including bonuses and benefits such as the Hawaii trip,
on a quarterly basis, where earnings in one particular
quarter have no effect on the backpay liability for any
other quarter. F. W. Woolworth Co., supra, 90 NLRB at
293. The Respondent having given no sufficient reason
for departure from this procedure, we grant the General
Counsel’s motion to strike paragraph 20(d)(iv) of the
Respondent’s answer.6
VII. THE RESPONDENT’S REQUEST TO AMEND
THE SPECIFICATION
In the Respondent’s response to the Notice to Show
Cause, it asserts that Region 1 overstated the amount of
gross backpay and understated the interim earnings of
Shepard and Belle-Isle. The Respondent attached tables
setting forth what it contends are the proper backpay
figures for Shepard and Belle-Isle. On the basis of these
arguments and figures, the Respondent requests that Re-
gion 1 be ordered to amend the specification.
The Respondent’s alternative figures are sufficiently
specific to entitle the Respondent to a hearing on the
amounts of gross backpay of Shepard and Belle-Isle.
With respect to interim earnings, a general denial is suf-
ficient under the Board’s Rules to raise an issue warrant-
ing a hearing because that information is generally not
within the knowledge of the respondent. Dews
Construction Corp., 246 NLRB 945, 947 (1979). In
these circumstances, we shall deem the Respondent’s
arguments and tables to be incorporated into the Respon-
dent’s answer to the specification. Ellis Electric, supra,
321 NLRB at 1206. As the Respondent may litigate
these matters at the compliance hearing, we deny the
Respondent’s motion to order Region 1 to amend the
specification.
Conclusion
We have stricken certain paragraphs of the Respon-
dent’s answer, which directly answered a paragraph of
the Compliance Specification. The paragraphs of the
specification to which an answer has been stricken are
deemed to be admitted to be true pursuant to Section
102.56 (b) and (c)7 of the Board’s Rules and Regulations.
Based on what is admitted in the Respondent’s answer,

6 Member Hurtgen would not grant summary judgment as to the is-
sue of whether there is a financial need to amortize the payment of the
cash value of the Hawaii trips. In his view, this matter raises factual
issues.
7 See fn. 3 for the text of Sec. 102.56(b). Sec. 102.56(c) provides
that:
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 specification 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 answer to the specification but fails to deny any allegation of
the specification in the manner required by paragraph (b) of this sec-
tion, and the failure so to deny is not adequately explained, such alle-
gation shall be deemed to be admitted to be true, and may be so found
by the Board without the taking of evidence supporting such allega-
tion, and the respondent shall be precluded from introducing any evi-
dence controverting the allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1620
as further amended in the Respondent’s response to the
Notice to Show Cause, and what is deemed to be admit-
ted in light of the stricken answers, the Board grants the
General Counsel’s Motion for Partial Summary Judg-
ment on the following paragraphs of the specification:
Paragraphs 1 and 2 concerning the definitions of gross
backpay and the appropriate measure of gross earnings
with the exception of the cash value of the Hawaii trip;
paragraph 5 concerning the annual Christmas bonus in
December 1992, 1993, 1994, and 1995; paragraph 6 con-
cerning medical and profit-sharing plans; paragraphs 7
and 8 concerning the definition of calendar quarter net
interim earnings and calendar quarter net backpay; para-
graph 9 concerning reimbursement of medical expenses
and premiums; paragraph 10 concerning the definition of
total net backpay; paragraph 11(a) concerning Shepard’s
backpay period; paragraph 11(b) concerning Shepard’s
rate of pay; paragraph 12(a) concerning Belle-Isle’s
backpay period; paragraph 12(b) concerning Belle-Isle’s
rate of pay; paragraph 14 concerning vesting in the
profit-sharing plans; and paragraph 15 concerning per-
formance of investments in the profit-sharing plan.
The General Counsel asserts that summary judgment
should also be granted on paragraph 13 concerning the
calculation of profit-sharing contributions. However, the
Respondent, in its answer admitted only that it had made
contributions to its profit-sharing plan each September,
through September 1995, based on the earnings of each
eligible employee during the preceding calendar year. It
denied the specific figures for profit-sharing contribu-
tions for Shepard and Belle-Isle and attached figures of
its own. By offering these specific alternative figures,
the Respondent has met the requirement for a hearing on
the profit-sharing contributions for Shepard and Belle-
Isle. Accordingly, we deny the General Counsel’s Mo-
tion for Partial Summary Judgment on paragraph 13 of
the specification.
ORDER
It is ordered that the General Counsel’s motion to
strike the following portions of the Respondent’s
amended answer to the compliance specification is
granted: the denial that the Respondent discriminated
against Shepard and Belle-Isle, the assertions that back-
pay to Shepard and Belle-Isle is barred by Section 10(c),
the assertions that the F.W. Woolworth formula for calcu-
lation of backpay is inappropriate, the denial that
Shepard and Belle-Isle are entitled to reimbursement for
medical premiums replacement coverage and for medical
expenses, the assertion that excess interim earnings
should offset medical insurance and expenses, the asser-
tion that it should not be assessed interest on backpay
after June 30, 1996, and the assertion that the value of
the trip to Hawaii should be amortized over the four cal-
endar quarters in which the trip took place.
IT IS FURTHER ORDERED that the General Coun-
sel’s Motion for Partial Summary Judgment is granted
with respect to the definitions of gross backpay and the
appropriate measure of gross earnings with the exception
of the cash value of the Hawaii trip (pars. 1 and 2); the
allegations that Shepard and Belle-Isle were entitled to
an annual Christmas bonus in the amount of $200, $300,
$400, and $500 in December 1992, 1993, 1994, and
1995, respectively (par. 5); the allegation that the Re-
spondent maintained medical and profit-sharing plans
(par. 6); the definitions of calendar quarter net interim
earnings and calendar quarter net backpay (pars. 7 and
8); the allegation that Shepard and Belle-Isle are entitled
to reimbursement of medical expenses and premiums
(par. 9); the definition of total net backpay (par. 10); the
allegation that Shepard’s backpay period began on May
29, 1992, and ended on June 5, 1996 (par. 11(a)); the
allegation that Shepard’s rate of pay immediately prior to
her termination amounted to gross earnings of $1233.85
per pay period (par. 11(b)); the allegation that Belle-
Isle’s backpay period began on May 29, 1992, and ended
on June 5, 1996 (par. 12(a)); the allegation that Belle-
Isle’s rate of pay prior to her termination amounted to
$944.62 per pay period (par.12(b)); the allegation that
Shepard and Belle-Isle would have been fully vested in
the Respondent’s profit-sharing plan (par. 14); and the
allegation concerning the investments performance of the
Respondent’s profit-sharing plan for the years 1992–
1996 (par. 15).
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 1 for the
purposes of issuing a notice of hearing and scheduling
the hearing before an administrative law judge, which
shall be limited to taking evidence concerning para-
graphs of the compliance specification as to which sum-
mary judgment has not been granted.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a sup-
plemental decision containing findings of fact, conclu-
sions of law, and recommendations based on all the re-
cord 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.