Baumgardner Co.

National Labor Relations Board - Board Decisions

Mar 30, 1990

298 N.L.R.B. 26 (N.L.R.B. 1990)

26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Elmer R . Baumgardner t/a Baumgardner Company
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local Union No . 32, AFL-CIO. Cases
6-CA-19251 and 6-CA-19564
March 30, 1990
SUPPLEMENTAL DECISION AND
ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 12, 1988, the National Labor Relations
Board issued a Decision and Order ' in which the
Board , inter alia , ordered the Respondent, Elmer
R. Baumgardner t/a Baumgardnnr Company, to
make whole Marvin Welsh Jr. for any loss of pay
he may have suffered as a result of the Respond-
ent's unfair labor practices against him in violation
of Section 8(a)(3) and (1) of the Act. On December
28, 1988 , the United States Court of Appeals for
the Third Circuit entered a judgment enforcing the
Board's Order.2 A controversy having arisen over
the amount of backpay due under the Board's De-
cision and Order, the Regional Director for Region
6 issued a backpay specification and notice of hear-
ing alleging the amount of backpay due the dis-
criminatee and notifying the Respondent that it
must file a timely answer complying with the
Board 's Rules and Regulations.
The Respondent thereafter filed an answer to the
backpay specification. The answer contained gener-
al denials and alleged that Welsh was not entitled
to backpay because the job for which he was hired
was eliminated on June 27, 1986. The answer ad-
mitted that Welsh's rate of pay prior to June 27,
1986, was $5.20 per hour but denied that Welsh
would have received the pay raises alleged in the
specification that were based on the pay raises of
representative welding employees .3 The answer al-
leged that the representative welding employees
employed by the Respondent possessed work quali-
fications "substantially in excess of those possessed
by discriminatee Welsh" and that such increases
"would not have been provided to discriminatee
Welsh had he continued in the employ of respond-
ent." Paragraph 8(c) of the answer also demanded
proof for Welsh's interim earnings.
' 288 NLRB 977.
a Unpublished
To measure the backpay due, the backpay specification used the pay
increases of representative welding employees employed by the Respond-
ent since the time of Welsh's discharge . The specification then computed
Welsh's backpay on the basis of his wage rate immediately prior to the
Respondent 's unfair labor practices, and the subsequent pay raises of the
representative welding employees
On August 17, 1989, the General Counsel filed
with the Board a Motion to Strike or, in the Alter-
native , Motion for Summary Judgment . The Gen-
eral Counsel alleged that the motion to strike
should be granted because the answer failed to
meet the requirements of Section 102.56(a) as it
was neither signed nor sworn to by the Respondent
or by a duly authorized agent with appropriate
power of attorney affixed. In the alternative, the
General Counsel alleged that summary judgment
should be granted because: ( 1) the Respondent's af-
firmative defense that discriminatee Welsh's job
was terminated on June 27, 1986 , had already been
litigated; and (2) the Respondent 's argument that
Welsh would not have received the same wage in-
creases as the representative welders failed to set
forth in sufficient detail the Respondent 's position
and lacked appropriate supporting figures as re-
quired by Section 102.56(b). Accordingly, the Gen-
eral Counsel requested that all paragraphs of the
answer be admitted as true.
On August 21, 1989, the Board issued an order
transferring the proceeding to the Board and
Notice to Show Cause why the General Counsel's
Motion to Strike or, in the Alternative, Summary
Judgment should not be granted. The Respondent
filed an amended answer4 on September 5, 1989,
and a response to the General Counsel's Motion to
Strike or, in the Alternative, Motion for Summary
Judgment. On September 20, 1989, the General
Counsel filed a response to the Respondent's
amended answer. 5
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this proceeding, the
Board makes the following
4 The amended answer was signed and sworn to by the Respondent.
The amended answer dented that Welsh would have received the same
pay raises as the representative welders because the welders allegedly
possessed qualifications "substantially in excess of those possessed by
Welsh . . " The answer alleged that Welsh was incapable of obtaining
these qualifications because of his "minimal training and educational
background ." The Respondent further alleged that it would be inappro-
priate to calculate the number of hours that Welsh would have worked
by considering the representative welders because Welsh "was not capa-
ble of doing all forms of welding, both gas and electric, and was incapa-
ble of reading blueprints , architectural plans, schematic drawings and
other technical documentation." The amended answer also continued to
demand proof for Welsh's interim earnings
5 The General Counsel alleged that a motion to strike should be grant-
ed because the Respondent did not provide an "original" amended
answer and four copies as required by Sec 102 56(a) of the Board's Rules
and Regulations . In the alternative, the General Counsel alleged that the
Motion for Summary Judgment should be granted because the amended
answer did not raise any valid defense to the backpay specification The
General Counsel argued that par 8(c) of the amended answer regarding
Welsh's interim earnings demanded proof without elaboration and thus
failed to comply with the specificity requirements of Sec. 102 56(b).
298 NLRB No. 6
BAUMGARDNER CO. 27
Ruling on the Motion to Strike, or in the
Alternative, Motion for Summary Judgment
Section 102.56(a) of the National Labor Rela-
tions Board Rules and Regulations requires that an
original and four copies of an answer must be filed
with the Regional Director who issued the back-
pay specification within 21 days from the service
of the specification. The answer must also be in
writing, the original being signed and sworn to by
the respondent or by a duly authorized agent. The
General Counsel first alleged that the Respondent's
answer failed to comply with Section 102.56(a) be-
cause the answer had not been signed and sworn to
by the Respondent or by a duly authorized agent.
The Respondent filed an amended answer that was
properly signed and sworn to by the Respondent.
We find, therefore, that the procedural defect of
the Respondent's answer was cured by the amend-
ed answer. The General Counsel next alleged that
the amended answer failed to comply with Section
102.56(a) because the Respondent had not provided
an "original" signed by the Respondent or an au-
thorized agents and had not provided four copies
of the amended answer. The General Counsel
therefore asserted that the Respondent's amended
answer should be stricken and that all paragraphs
of the backpay specification should be admitted as
true.
The Board has recently stated that a pleading
that substantially fails to conform to the Board's
procedural rules will normally be stricken in its en-
tirety. Scotch & Sirloin Restaurant, 287 NLRB 1318
fn. 5 (1988). Although the amended answer is a
copy of the original and the Respondent failed to
provide the requisite number of copies, the amend-
ed answer does set forth all the information and
signatures required by Section 102.56(a). We thus
find that the amended answer substantially con-
formed to the Board's procedural rules.? Accord-
ingly, we deny the General Counsel's motion to
strike the answer in its entirety.
Section 102.56(b) and (c) of the Board's Rules
and Regulations states, in pertinent part:8
(b) Contents of answer to specification.-The
answer shall specifically admit, deny, or ex-
plain each and every allegation of the specifi-
6 The amended answer that the Respondent filed was a copy of the
original.
° Cf. Contractors Excavating, 270 NLRB 1189, 1190 (1984), in which
the Board granted a motion to strike the respondent 's unsigned and un-
dated answer.
8 Formerly Sec. 102 54. The Board amended its Rules governing pro-
ceedings concerning compliance with Agency orders effective November
13, 1988 The substance of former Secs. 102.54 and 102 . 55 has been incor-
porated into Sec. 102 56 as revised; and former Sec. 102.56, with some
modification, has become the new Sec . 102 57, while the substance of
former Sec. 102.57 has become par. (c) of the new Sec 102.55, in the
revised Rules
cation, unless the respondent is without knowl-
edge, in which case the respondent shall so
state, such statement operating as a denial. De-
nials shall fairly meet the substance of the alle-
gations of the specification at issue. . . . As to
all matters within the knowledge of the re-
spondent, including but not limited to the vari-
ous factors entering into the computation of
gross backpay, a general denial shall not suf-
fice. As to such matters, if the respondent dis-
putes either the accuracy of the figures 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 appli-
cable premises and furnishing the appropriate
supporting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to backpay allegations of
specification.-.. . If the respondent files an
answer to the specification but fails to deny
any allegation of the specification irk the
manner required by paragraph (b) of this sec-
tion, and the failure so to deny is not adequate-
ly 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 introducing any evi-
dence controverting the allegation.
We agree with the General Counsel that the Re-
spondent's amended answer to the backpay specifi-
cation is substantively deficient, except with regard
to the wage increase allegations in paragraph 8(a),
the gross backpay amounts set forth in paragraph
8(b) in the event merit is found to the Respondent's
contentions regarding the wage allegations in para-
graph 8(a), and Welsh's interim earnings in para-
graph 8(c) of the specification.
Section 102.56(b) mandates that a respondent's
answer concerning all matters within its knowl-
edge, including the various factors entering into the
computation of gross backpay, be specifically
drawn and that a general denial about those mat-
ters does not suffice. Although the Respondent dis-
putes the number of hours Welsh would have
worked, it does not set forth: alternatives with sup-
porting figures. Its failure to deny the specification
as prescribed by Section 102.56(b), or to explain
adequately its failure to do so, requires that those
allegations of the specification be deemed admitted
to be true under Section 102.56(c). We also reject
the Respondent's argument that Welsh is not enti-
tled to backpay because the job for which he was
hired was eliminated, as this issue has already been
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
litigated in the underlying unfair labor practice
case.9 The Respondent is barred from raising such
a defense at the compliance stage of the case. See
Overseas Motors, 277 NLRB 552, 554 (1985), re-
manded on other grounds 818 F.2d 517 (6th Cir.
1987). Accordingly, the Board fords all allegations,
except for the allegations concerning the wage in-
creases and interim earnings discussed below, to be
true and grants the General Counsel's Motion for
Summary Judgment with respect to these allega-
tions.
The General Counsel is seeking summary judg-
ment regarding the calculation of Welsh's pay
raises . The Respondent's answer and amended
answer alleged that Welsh would not have enjoyed
the same wage increases as the representative weld-
ers because Welsh did not possess their qualifica-
tions. The Respondent's answers suggest that
Welsh would have continued to earn $5.20 per
hour throughout the entire backpay period with no
pay increases. Although the Respondent's answer
and amended answer did not set forth in detail al-
ternative backpay calculations, the Respondent has
set forth an appropriate supporting figure (the
$5.20 per hour that Welsh was earning prior to the
Respondent's unfair labor practices), as required by
Section 102.56(b). We therefore ford that the Re-
spondent's denials concerning Welsh's pay in-
creases are sufficient to require a hearing on that
issue.
The General Counsel is also seeking summary
judgment regarding Welsh's interim earnings. The
9In 288 NLRB 977 (1988), the Board rejected the Respondent's argu-
ment that Welsh's job had been ehmmated and found that the Respond-
ent unlawfully discharged Welsh
Respondent's answer and amended answer demand-
ed proof of Welsh' s interim earnings . The Board
has held that a general denial is sufficient to place
interim earnings into issue as that information is
generally not within the knowledge of the Re-
spondent. Dews Construction Corp., 246 NLRB 945
(1979). We consider the Respondent's answers to
be a sufficient general denial of paragraph 8(c) of
the specification that sets out Welsh's interim earn-
ings. Accordingly, we ford that the Respondent's
denial concerning Welsh's interim earnings is suffi-
cient to require a hearing on that issue.
ORDER
It is ordered that the General Counsel' s motion
to strike is denied and that the General Counsel's
Motion for Summary Judgment be granted with re-
spect to all allegations in the backpay specification,
except the issues of Welsh's pay increases and in-
terim earnings.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 6
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 the pay increases and interim earnings
of Marvin Welsh Jr.
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 shall be applicable.