Beech Branch Coal Co.

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 536 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beech Branch Coal Company, Eldridge Coal Co.,
Inc., d/b/a Eldridge Brothers Coal Co., Poplar
Branch Coal Co., Inc., and Parker Branch, Inc.
and Donald Pittman. Case 9-CA-15425
28 March 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 12 March 1982 the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding' finding, inter alia, that Re-
spondent Beech Branch Coal Company violated
Section 8(a)(1) of the Act by unlawfully discharg-
ing employees Larry Caudill, Harrad Clevins,2
Robert Davis, Curtis Dean Sr., Cecil Lamb, Henry
Quesenberry, and Ernest Vickers because they en-
gaged in protected concerted activity. The Board
ordered that the discriminatees be reinstated if the
Respondents resumed the same or substantially
similar business operations, and that they be made
whole for any loss of earnings they suffered by
reason of the discrimination practiced against them.
On 16 March 1983 the United States Court of Ap-
peals for the Sixth Circuit entered its judgments
enforcing the Board's Order.
Because of a dispute over the amount of backpay
due the discriminatees under the terms of the
Board's Order, the Regional Director for Region 9,
on 7 September 1983, issued a backpay specifica-
tion and notice of hearing alleging, inter alia, that
Respondents Beech Branch; Eldridge Coal Co.,
d/b/a Eldridge Brothers Coal Co.; Poplar Branch
Coal Co., Inc.; and Parker Branch, Inc. constitute a
single integrated business enterprise and a single
employer within the meaning of the Act. On 16
September 1983 the Respondents jointly filed an
answer generally denying the allegations of the
backpay specification.
Thereafter, on 3 October 1983 counsel for the
General Counsel filed directly with the Board a
"Motion for Summary Judgment and to Strike Re-
spondent's Answer." Subsequently, on 5 October
1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. The Re-
' 260 NLRB 907.
2 We note that in the backpay specification the General Counsel refers
to a person named "Howard Blevins" as being entitled to backpay from
the Respondents. However, in the underlying unfair labor practice case,
we ordered backpay for "Harrad Clevins" who was named as an alleged
discriminatee in the complaint. We also use that name here to be consist-
ent with the earlier case.
3 NLRB v. Beech Branch Coal Co., 709 F.2d 1505.
269 NLRB No. 96
spondents did not file a response to the Notice to
Show Cause.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in the case, the Board
makes the following
Ruling on the Motion for Summary Judgment
Section 102.54(b) and (c) of the National Labor
Relations Board Rules and Regulations states:
(b) Contents of the answer to specification.-
The answer to the specification shall be in
writing, the original being signed and sworn to
by the respondent or by a duly authorized
agent with appropriate power of attorney af-
fixed, and shall contain the post office address
of the respondent. The respondent shall specif-
ically admit, deny, or explain each and every
allegation of the specification, unless the re-
spondent 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 specifi-
cation denied. 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 mat-
ters within the knowledge of the respondent,
including but not limited to the various factors
entering into the computation of gross back-
pay, a general denial shall not suffice. As to
such matters, if the respondent disputes either
the accuracy of the figures in the specification
or the premises on which they are based, he
shall specifically state the basis for his dis-
agreement, setting forth in detail his position
as to the applicable premises and furnishing
the appropriate supporting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to the specification.-If the
respondent fails to file any answer to the speci-
fication within the time prescribed by this sec-
tion, the Board may, either with or without
taking evidence in support of the allegations of
the specification and without notice to the re-
spondent, 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 specifi-
cation in the manner required by subsection
(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
536
BEECH BRANCH COAL CO.
of evidence supporting such allegation, and the
respondent shall be precluded from introduc-
ing any evidence controverting said allegation.
The backpay specification duly served on the
Respondents states that, pursuant to Section 102.54
of the Board's Rules and Regulations "Respondents
shall, within 15 days from the date of this specifica-
tion, file with the undersigned Regional Director
an original and four (4) copies of (an) answer(s) to
the specification. To the extent that such answer(s)
fails to deny allegations of the specification in the
manner required under the Board's Rules and Reg-
ulations and the failure to do so is not adequately
explained, such allegations shall be deemed to be
admitted to be true and Respondents shall be pre-
cluded from introducing any evidence controvert-
ing them."
In his memorandum in support of the "Motion
for Summary Judgment and to Strike Respondent's
Answer," counsel for the General Counsel submits
that the Respondents' answer fails to comply with
'the requirements of Section 102.54(b) and (c) of the
Board's Rules and Regulations as to specificity.
Therefore, counsel for the General Counsel re-
quests that the Board deem the allegations of the
backpay specification to be true and admitted with-
out the need for the taking of evidence.
A copy of the answer filed by the Respondents
is attached to the Motion for Summary Judgment
as an exhibit. This answer simply denies all of the
allegations contained in the backpay specification.
We agree with counsel for the General Counsel
that the Respondents' answer constitutes a general
denial, which fails to comply with the requirements
of Section 102.54(b) and (c) as to those compliance
matters within its knowledge. Thus, the answer
does not set forth any basis for disputing the accu-
racy of the gross backpay figures contained in the
specification or provide any alternative formula for
computing the amounts of gross backpay owed.
The answer also does not state that Respondent
Beech Branch is without knowledge as to the
wages and hours of the seven discriminatees, nor
does the answer contain any explanation for the
failure to deny specifically the gross backpay alle-
gations as required by Section 102.54(c). Since Re-
spondent Beech Branch has failed to deny specifi-
cally the gross backpay allegations or to explain
adequately its failure to do so, Section 102.54(c) re-
quires the these allegations be deemed to be admit-
ted and true. Accordingly, we find them to be cor-
rect.
However, since we have held that a general
denial of the allegations concerning the interim
earnings in a backpay specification is sufficient
under Section 102.54 to raise an issue warranting a
hearing,4 we shall order a hearing to determine the
net interim earnings of the seven discriminatees.
We shall also order a hearing on the issue of
whether Respondents Eldridge Coal, Poplar
Branch Coal, and Parker Branch together with Re-
spondent Beech Branch constitute a single integrat-
ed business enterprise within the meaning of the
Act. The General Counsel clearly has the burden
as the party making this assertion to demonstrate
proof of such integration. 5 However, since Re-
spondents Eldridge Coal, Poplar Branch Coal, and
Parker Branch were not made parties to the under-
lying unfair labor practice proceeding in this case,
there is nothing in the record to support such a
finding here. It thus is essential that these Respond-
ents be given the opportunity to present evidence
at a hearing concerning their liability for the un-
lawful conduct that Respondent Beech Branch
committed. We therefore find that the Respond-
ents' general denial of the allegation in the backpay
specification regarding their status as a single em-
ployer is sufficient to require a hearing.6
Accordingly, we shall deny the General Coun-
sel's Motion for Summary Judgment, 7 and we shall
direct a hearing limited to determining the seven
discriminatees' interim earnings and whether Re-
spondents Eldridge Coal, Poplar Branch Coal, and
Parker Branch consitute a single employer with
Respondent Beech Branch and thus are also re-
sponsible for remedying the violations found in the
underlying unfair labor practice case. However,
since we have found that the general denial of the
Respondents as to all other allegations in the back-
pay specification is insufficient under Section
102.54(b) and (c) of the Board's Rules and Regula-
tions, and as no explanation or response to the
Notice to Show Cause has been filed, we deem the
Respondents to have admitted all other allegations
in the backpay specification to be true.
ORDER
It is hereby ordered that the General Counsel's
Motion for Summary Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 9
for the purpose of issuing a notice of hearing and
scheduling such hearing before an administrative
law judge, which hearing shall be limited to taking
evidence as to the seven discriminatees' net interim
earnings, and as to the liability of Respondents El-
4 Dews Construction Corp., 246 NLRB 945 (1979).
a See, e.g., Senco, Inc., 177 NLRB 882, 887 (1969).
6 See Sheet Metal Workers, Local Union Na 13 (Sheet Metal Contractors
Assn.), 266 NLRB 59 (1983); and Dews Construction Corp., supra.
' For the reasons set out herein, we also deny the General Counsel's
motion to strike the Respondents' answer.
537
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dridge Coal, Poplar Branch Coal, and Parker
Branch for Respondent Beech Branch's unfair
labor practices.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a
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 and Regula-
tions shall be applicable.
538