Aspen

National Labor Relations Board - Board Decisions

Mar 22, 1993

310 N.L.R.B. 775 (N.L.R.B. 1993)

775
310 NLRB No. 128
ASPEN
1 298 NLRB 1090.
2 No. 90–3421.
3 The Board’s Order was inadvertently dated January 6, 1992.
Aspen and Deborah Ragas and Carole Manla. Cases
22–CA–15851, 22–CA–16148, and 22–CA–16060
March 22, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue presented here is whether the Board
should grant the General Counsel’s Motion for Partial
Summary Judgment based on the Respondent’s alleged
failure to file an adequate answer to several allegations
in the compliance specification. On April 30, 1990, the
Board issued a Decision and Order1 which, inter alia,
ordered the Respondent to reinstate and make whole
Judith Votto, Deborah Ragas, Patricia Conoran, and
Constance Pasquale for losses resulting from the Re-
spondent’s unlawful discrimination against them. On
February 15, 1991, the United States Court of Appeals
for the Third Circuit entered a judgment enforcing in
full the Board’s Order.2 On July 28, 1992, the Re-
gional Director for Region 22 issued a compliance
specification alleging the amount of backpay due the
discriminatees and notifying the Respondent that it
must file a timely answer complying with the Board’s
Rules and Regulations.
On September 25, 1992, the Respondent timely filed
an answer to the compliance specification. By letter
dated December 1, 1992, counsel for the General
Counsel informed the Respondent that the answer did
not comply with Section 102.56 of the Board’s Rules
and Regulations. The letter further notified the Re-
spondent that the Regional Office would file a Motion
for Partial Summary Judgment if a proper answer was
not filed by December 8, 1992.
On January 4, 1993,3 the General Counsel filed with
the Board a Motion for Partial Summary Judgment,
with exhibits attached. On January 6, 1993, the Board
issued an order transferring the proceeding to the
Board and Notice to Show Cause why the General
Counsel’s motion should not be granted. On January
29, 1993, the Respondent filed a certification in oppo-
sition to notice of Motion for Partial Summary Judg-
ment. It attached to this document an amended answer
to the compliance specification.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this proceeding, 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 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 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 as to backpay allegations of
specification.—. . . If the respondent files an an-
swer to the specification but fails to deny any al-
legation of the specification in the manner re-
quired 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 with-
out the taking of evidence supporting such allega-
tion, and the respondent shall be precluded from
introducing any evidence controverting the allega-
tion.
The compliance specification duly served on the Re-
spondent states that, pursuant to Section 102.56 of the
Board’s Rules and Regulations, the Respondent shall
file an answer to the specification and that ‘‘[t]o the
extent that such answer fails to deny allegations of the
Specification in the manner required under the Board’s
Rules and Regulations and the failure to do so is not
adequately explained, such allegations shall be deemed
to be admitted to be true and the Respondent shall be
precluded from introducing any evidence controverting
them.’’ Furthermore, the December 1, 1992 letter from
counsel for the General Counsel to the Respondent
specifically refers to several deficiencies in the answer
timely filed by the Respondent and warned that failure
to file an answer in conformance with the requirements
of Section 102.56 ‘‘may result in the filing of a motion
for partial summary judgment.’’
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Board has held that, even in the absence of an amended
compliance specification, a respondent may amend its answer prior
to a hearing in the matter. E.g., Aquatech, Inc., 306 NLRB 975
(1991).
In the Motion for Partial Summary Judgment, the
General Counsel alleges that the Respondent’s original
answer fails to comply with the requirements of Sec-
tion 102.56(b) and (c) of the Board’s Rules and Regu-
lations as to specificity, except insofar as the Respond-
ent’s answer concededly raises the issue of
discriminatees’ interim earnings. The General Counsel
submits that the answer generally disputes the backpay
periods in the compliance specification and alleges that
certain discriminatees have declined valid offers of re-
instatement, but the answer fails to state with requisite
specificity any alternative backpay periods, the dates of
the alleged offers, and appropriate supporting calcula-
tions of gross backpay.
As noted above, the Respondent has filed an amend-
ed answer in response to the Notice to Show Cause.
We find this amendment to be permissible.4 The Re-
spondent has effectively admitted all of the compliance
specification’s allegations with respect to discriminatee
Pasquale. Accordingly, we shall grant the General
Counsel’s Motion for Partial Summary Judgment for
those allegations.
We further find that the amended answer does not
raise any litigable issues of fact with respect to the
gross backpay of the other three discriminatees. The
Respondent concedes the appropriateness of the for-
mula used by the General Counsel to compute gross
backpay. It continues to deny, however, the compli-
ance specification’s allegation that the backpay period
should run until February 27, 1992. Section 102.56(b)
mandates that a respondent’s answer concerning all
matters within its knowledge specifically state the
basis for disagreement, setting forth in detail the re-
spondent’s position as to the appropriate premises, and
furnishing the appropriate supporting figures. To the
extent that the Respondent has failed to support its
backpay period contentions with specific alternative
dates on which the backpay period should end, it has
failed to comply with the requirements of Section
102.56(b).
The Respondent does specifically contend that the
backpay period of discriminatee Ragas should not ex-
tend beyond March 7, 1991, when she was allegedly
residing outside the State of New Jersey where Re-
spondent’s business is located. With respect to
discriminatees Conoran and Votto, the Respondent spe-
cifically contends that their backpay period should end
on March 27, 1991, when they allegedly informed Re-
spondent that they would never return to the Respond-
ent’s employ. These contentions do not, however, raise
any issue warranting a hearing. The compliance speci-
fication does not allege net backpay for any of the
discriminatees in any quarter of the backpay period
after the fourth quarter of 1990. Therefore, the amount
of backpay owed by the Respondent would not differ
from that which is set forth in the compliance speci-
fication even if the backpay period terminated in
March 1991.
Based on the foregoing, we shall grant the General
Counsel’s Motion for Partial Summary Judgment and
shall direct a hearing limited to issues related to in-
terim earnings.
ORDER
The National Labor Relations Board orders that the
Respondent, Westmont Plaza t/a The Aspen, Parsip-
pany, New Jersey, its officers, agents, successors, and
assigns, shall make Connie Pasquale whole by paying
her the amount of backpay set forth in the compliance
specification, plus interest at the appropriate rate,
minus tax withholdings required by Federal and state
laws.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Partial Summary Judgment be granted on
all allegations in the compliance specification about
Judith Votto, Deborah Ragas, and Patricia Conoran,
except with respect to the issue of their interim earn-
ings.
IT IS FURTHER ORDERED that this proceeding be re-
manded to the Regional Director for Region 22 for the
purpose of issuing a notice of hearing and scheduling
a hearing before an administrative law judge, which
shall be limited to taking evidence concerning the in-
terim earnings of Judith Votto, Deborah Ragas, and
Patricia Conoran.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a decision
containing findings, conclusions, and recommendations
based on all the record evidence. Following the service
of the administrative law judge’s decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules shall apply.