Best Roofing Co.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 727 (N.L.R.B. 1991)

727
304 NLRB No. 92
BEST ROOFING CO.
1 298 NLRB 754.
2 No. 90–2666 (unpublished).
3 See Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
4 On June 7, 1991, the Regional Director for Region 17 issued an order re-
ferring request for production of documents and interrogatories to the Board.
On June 10, 1991, counsel for the General Counsel filed with the Board a mo-
tion to disallow discovery and to deny request for production of documents
and interrogatories. We grant counsel for the General Counsel’s motion to dis-
allow discovery. Accordingly, we deny Respondent First Class’ requests for
interrogatories and production of documents. See, e.g., Rainbow Coaches, 280
NLRB 166, 168–169 (1986).
Best Roofing Co., Inc. and Belton Roofing and Con-
struction, Inc. alter egos, John Krum, an Indi-
vidual and Susan Krum, an Individual, First
Class Roofing and Remodeling, a successor and
United Union of Roofers, Waterproofers and
Allied Workers, Local No. 20, AFL–CIO. Cases
17–CA–14094 and 17–CA–14322
August 27, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 11, 1990, the National Labor Relations
Board ordered1 Respondents Best Roofing Co., Inc.
(Best) and its alter ego, Belton Roofing and Construc-
tion, Inc. (Belton) to, inter alia, make whole the con-
tractual trust funds and to make whole certain employ-
ees and to reimburse them for certain expenses. On
December 10, 1990, the United States Court of Ap-
peals for the Eighth Circuit enforced the Board’s Order
in full.2 On March 15, 1991, the Regional Director for
Region 17 issued a compliance specification and notice
of hearing alleging that a controversy had arisen over
the amount of backpay due under the terms of the
Board’s Order, as well as over whether John Krum and
Susan Krum should be held individually liable and
whether Respondent First Class Roofing and Remodel-
ing (First Class) should be held liable as a successor
to Respondents Best and Belton,3 and notifying the
Respondents that they must file an answer complying
with the Board’s Rules and Regulations within 21 days
of service of the backpay specification. By letter dated
April 26, 1991, counsel for the General Counsel ad-
vised the Respondents that unless an answer was re-
ceived by May 17, 1991, a Motion for Summary Judg-
ment would be filed.
The Respondents Best, Belton, John Krum, and
Susan Krum filed an answer received by May 17,
1991, admitting certain allegations in the compliance
specification, denying others, and claiming insufficient
information to form a belief regarding the truth or fal-
sity of the remaining allegations.
The Respondent First Class also filed an answer on
May 23, 1991, denying certain allegations, claiming in-
sufficient knowledge to form a belief regarding the
truth or falsity of the remaining allegations in the com-
pliance specification, and raising certain affirmative
defenses.
On May 23, 1991, the General Counsel filed with
the Board a Motion for Summary Judgment against
Respondent First Class and for Partial Summary Judg-
ment against Respondents Best, Belton, John Krum,
and Susan Krum. On May 28, 1991, the General
Counsel filed with the Board an Amended Motion for
Partial Summary Judgment against Respondents First
Class, Best, Belton, John Krum, and Susan Krum with
exhibits attached. In his amended motion, the General
Counsel alleges that the Respondents’ answers to the
allegations in the compliance specification regarding
backpay computation do not meet the requirements of
Section 102.56(b) and (c) of the Board’s Rules and
Regulations. On May 31, 1991, the Board issued an
order transferring the proceeding to the Board and No-
tice to Show Cause why the General Counsel’s motion
should not be granted.
The Respondents Best, Belton, John Krum, and
Susan Krum filed a response to the Amended Motion
for Partial Summary Judgment alleging that the issue
of John and Susan Krum’s personal liability had not
been fully litigated and that the request for partial sum-
mary judgment against them was therefore premature.
Respondent First Class filed interrogatories and a re-
quest for production of documents.4
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this case, the Board makes
the following
Ruling on Motion for Partial Summary Judgment
Section 102.56(b) and (c) of the National Labor Re-
lations 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
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 On August 15, 1991, Respondent First Class filed with the Board four mo-
tions in which First Class argues, in effect, that it has been denied due process
because, inter alia, it has not been afforded the opportunity to litigate the issue
of whether it is a successor employer to Respondents Best, Belton, John Krum,
and Susan Krum. Respondent First Class also contends that it was additionally
prejudiced because it did not receive a copy of the Board’s May 31, 1991
order transferring the proceeding to the Board and Notice to Show Cause. In
denying Respondent First Class’ various motions, we shall, however, treat
them as a timely filed response to the Notice to Show Cause. In this regard,
we note that despite the fact that it was properly served with a copy of the
compliance specification and notice of hearing, Respondent First Class has not
filed an adequate answer to par. 7 through 22 of the backpay specification
itself. We also emphasize that since we are remanding the case to the Regional
Director for hearing, inter alia, on the issue of First Class’ liability as a suc-
cessor to Respondents Best, Belton, John Krum, and Susan Krum, Respondent
First Class has not been prejudiced as alleged in its motions.
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 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
of evidence supporting such allegation, and the re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
In his amended motion, the General Counsel con-
tends that with respect to the total amount due, as set
forth in paragraphs 7 through 22 of the compliance
specification, the Respondents’ general denials do not
fairly meet the substance of the allegations as required
by Section 102.56 because they do not specifically
state the basis for their disagreement with the backpay
computations therein or set forth in detail their position
as to the applicable premises together with supporting
figures. Accordingly, the General Counsel requests that
the allegations of backpay computation contained in
paragraphs 7 through 22 of the compliance specifica-
tion be deemed to be true.
We agree. The matters denied concern the various
factors entering into the computation of gross backpay.
As to these matters, the rules require more than a gen-
eral denial. The Respondents must specifically state the
basis for disagreement, setting forth in detail their po-
sition as to the applicable premises and furnishing the
appropriate supporting figures. The compliance speci-
fication served on Respondents First Class, Best,
Belton, John Krum, and Susan Krum specified that
‘‘pursuant to Section 102.56 of the Board’s Rules and
Regulations, Series 8, as amended, the Respondents
. . . shall each file . . . an answer’’ to the compliance
specification and that upon failure to do so ‘‘all of the
allegations in the Compliance Specification shall be
deemed to be admitted to be true and shall be so found
by the Board.’’ Respondents Best, Belton, John Krum,
and Susan Krum have clearly failed to file an adequate
answer under Section 102.56(b) and (c) of the Board’s
Rules and Regulations, and we therefore grant the
General Counsel’s motion and deem all of the allega-
tions contained in paragraphs 7 through 22 of the com-
pliance specification to be admitted to be true as
against Respondents Best, Belton, John Krum, and
Susan Krum. However, that portion of the Respond-
ents’ answer which denies John and Susan Krum’s
alter ego/single employer status with Best and Belton
is adequate. Consequently, we shall order a hearing on
this issue.
The portion of the First Class answer which contests
the computation of backpay is inadequate for the same
reasons as the answers of Best, Belton, John Krum,
and Susan Krum were inadequate. However, that por-
tion of the First Class answer which denies that it is
a successor to Best, Belton, John Krum, and Susan
Krum is adequate. Consequently, we shall order a
hearing on this issue.5
In sum, as the General Counsel does not seek sum-
mary judgment with respect to the alter ego/single em-
ployer status of Respondents John and Susan Krum or
with respect to the successorship status of First Class,
we shall order a hearing on those issues.
ORDER
It is ordered that the General Counsel’s Amended
Motion for Partial Summary Judgment is granted as to
the allegations contained in paragraphs 7 through 22 of
the compliance specification.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 17 for the
purpose of arranging a hearing before an administra-
tive law judge on the remaining allegations contained
in the compliance specification.
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 and Regulations shall apply.