Artic Framing

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 798 (N.L.R.B. 1994)

798
313 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 306 NLRB No. 77 (not reported in Board volumes).
2 No. 92–4171 (unpublished).
3 The compliance specification sent by certified mail was returned
‘‘unclaimed’’ by the United States Postal Service. Thereafter, by let-
ter dated September 2, 1993, the Respondent was advised that, if no
answer was received in the Regional Office by September 10, 1993,
the Regional Office would seek summary judgment. On September
9, 1993, the Respondent was provided another copy of the compli-
ance specification and given an extension of time to September 18,
1993, to file its answer. Thereafter, the Respondent informed the Re-
gional Office that it intended to file an answer by September 28. By
letter dated September 21, 1993, the Respondent’s counsel entered
his appearance and requested certain information concerning the case
in order to prepare the answer.
Clay Cullen d/b/a Arctic Framing, Inc. and United
Brotherhood of Carpenters and Joiners of
America, Local 210, AFL–CIO. Case 34–CA–
5340
February 28, 1994
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On February 26, 1992, the National Labor Relations
Board issued its Decision and Order in Case 34–CA–
5340,1 which, inter alia, directed the Respondent to re-
imburse various benefit funds and make unit employ-
ees whole for its failure to abide by the terms of suc-
cessive collective-bargaining agreements effective May
1, 1988, through April 30, 1991, and May 1, 1991,
through April 30, 1994. On December 3, 1992, the
United States Court of Appeals for the Second Circuit
entered its judgment enforcing the Board’s Order.2 A
controversy having arisen over the amounts due under
the Board’s Order, as enforced by the court, the Re-
gional Director for Region 34 on August 10, 1993,
issued and caused to be served on the Respondent a
compliance specification and notice of hearing alleging
the amounts due under the terms of the Board’s Order
and notifying the Respondent that it must file a timely
answer complying with Section 102.56 of the Board’s
Rules and Regulations. Subsequently, on September
28, 1993, the Respondent filed its answer to the com-
pliance specification,3 denying generally certain allega-
tions, and denying the remaining allegations on the
grounds that the Respondent was not obligated under
the terms of the collective-bargaining agreements or
that the compliance specification calculations were
‘‘erroneous.’’
On October 12, 1993, the General Counsel filed the
instant Motion for Summary Judgment and for
issuance of Board Supplemental Decision and Order,
with exhibits attached. The General Counsel alleges
that the Respondent’s answer fails to comply with the
Board’s Rules and Regulations. On October 21, 1993,
the Board issued an order transferring proceedings to
the Board and Notice to Show Cause why the General
Counsel’s motion should not be granted. The Respond-
ent has not filed a response to the Notice to Show
Cause.
On the entire record in this case, the Board makes
the following
Ruling on Motion for Summary Judgment
Section 102.56(b) and (c) of the Board’s Rules and
Regulations states:
(b) Contents of answer to specification.—The
answer shall specifically admit, deny, or explain
each and every allegation of the specification, un-
less the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. Denials shall fair-
ly meet the substance of the allegations of the
specification at issue. When a respondent intends
to deny only 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 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 re-
spondent disputes either the accuracy of the fig-
ures in the specification 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 applica-
ble premises and furnishing the appropriate sup-
porting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to backpay allegations of
specification.—If the respondent fails to file any
answer to the specification within the time pre-
scribed by this section, the Board may, either with
or without taking evidence in support of the alle-
gations of the specification and without further
notice to the respondent, find the specification to
be true and enter such order as may be appro-
priate. If the respondent files an answer to the
specification but fails to deny any allegation of
the specification in the manner required by para-
graph (b) of this section, and the failure 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 respond-
ent shall be precluded from introducing evidence
supporting the allegation.
The Respondent’s answer fails to raise any issue
with respect to the compliance specification warranting
a hearing. The answer generally denies paragraph 1 of
the specification which alleges that the backpay period
begins on January 30, 1991, and ends on December
31, 1991, when the Respondent ceased all operations.
799ARCTIC FRAMING
4 306 NLRB No. 77, slip op. at 4. To the extent the Respondent
is denying that the backpay period ends on December 31, 1991,
when the Respondent ceased all operations, the denial is inadequate
because the matter is within the Respondent’s knowledge and the
Respondent has failed to offer an alternative premise. See, e.g., J.
Huizinga Cartage Co., 308 NLRB 106 (1992); Schumaker Bros. Op-
erating Engineers, 300 NLRB 802 (1990).
5 306 NLRB No. 77, slip op. at 3–4.
6 The Respondent neither admits nor denies par. 7(a), stating only
that ‘‘the calculation speaks for itself.’’
7 See, e.g., J. Huizinga Cartage Co., supra; Schumaker Bros. Oper-
ating Engineers, supra.
In the underlying case, the Board found that the Re-
spondent failed to apply the terms and conditions of
the collective-bargaining agreement beginning on Janu-
ary 30, 1991.4 Similarly, in response to the allegations
of paragraphs 2, 3, and 4 of the specification, which
allege the specific provisions of the collective-bargain-
ing agreements that form the basis for subsequent alle-
gations, and paragraphs 5(a) and 5(b), which set forth
the formula and detail the method for determining
wages owed, the Respondent states only that it was not
‘‘obligated’’ under the collective-bargaining agree-
ments. In the underlying case, however, the Board
found that the Respondent was bound to the agree-
ments.5 Thus, the facts supporting the allegations of
paragraphs 1, 2, 3, 4, and 5(a) and 5(b) have already
been decided and may not be relitigated in this pro-
ceeding. Schumaker Bros. Operating Engineers, 300
NLRB 802 (1990); Ford Bros., 284 NLRB 211, 213
(1987); Brown & Root, Inc., 132 NLRB 486, 492
(1961), enfd. 311 F.2d 447, 451 (8th Cir. 1963).
The Respondent denies paragraphs 5(c), 5(d), 5(e),
6, 7(b), 8, and 9, which detail and then summarize the
various calculations, stating only that the calculations
are ‘‘erroneous’’ and ‘‘misstated.’’6 These matters are
within the Respondent’s knowledge and control and its
failure to set forth fully its position as to the applicable
premises or to furnish appropriate supporting figures or
alternative calculations is contrary to the specificity re-
quirements of Section 102.56(b) of the Board’s Rules
and Regulations.7
Accordingly, pursuant to Section 102.56(c) of the
Board’s Rules, we deem the Respondent to have ad-
mitted the allegations of the compliance specification
and we grant the General Counsel’s Motion for Sum-
mary Judgment.
ORDER
The National Labor Relations Board orders that the
Respondent, Clay Cullen d/b/a Arctic Framing, Inc.,
New Milford, Connecticut, its officers, agents, succes-
sors, and assigns, shall make whole the unit employees
and pay into the benefit funds the amounts as stated
in the compliance specification.