Birch Run Welding And Fabricating, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1987

282 N.L.R.B. 908 (N.L.R.B. 1987)

908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Birch Run Welding and Fabricating , Inc. and Inter-
national Union, United Automobile , Aerospace
and Agricultural Implement Workers of Amer-
ica, UAW. Case 7-CA-21755
30 January 1987
SUPPLEMENTAL DECISION AND
ORDER AND ORDER REMANDING
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 March 1984 the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding in which it ordered the Re-
spondent to make whole William Humes, Timothy
Schmidt, John Clark, Patrick Reittenbach, Donald
Yaldin, Daniel Oberg, Anthony Sparck, Alan Za-
barcki, Timothy Altman, Chris Van Ness, Kenneth
Parlberg, Jose Aguirre, and Jeffery Benham for
any loss of earnings resulting from their layoff by
the Respondent in violation of Section 8(a)(3) and
(1) of the Act. On 4 June 1985 the United States
Court of Appeals for the Sixth Circuit entered its
judgment enforcing the Board's Order.2 Because a
controversy arose over the amount of backpay due
under the terms of the Board's Order, the Regional
Director for Region 7 on 24 June 1986 issued and
caused to be served on the parties a backpay speci-
fication and notice of hearing alleging the amounts
of backpay due the individual discriminatees. The
Respondent on 21 July filed an unsworn document
entitled "Employer's Response to the Backpay
Specification and Notice of Hearing," which pur-
ported to be the Respondent's answer to the speci-
fication.
On 18 August the General Counsel filed with the
Board a Motion to Strike Answer or Certain Re-
sponses of Answer to Backpay Specification and a
Motion for Summary Judgment, with attachments.
On 20 August the Board issued an Order transfer-
ring the proceeding to the Board and a Notice to
Show Cause why the General Counsel's motions
should not be granted. On 29 August the Respond-
ent filed with the Board an amended response to
the Regional Director's backpay specification of 24
June. The General Counsel has not moved to strike
the amended response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
1 269 NLRB 756.
2 761 F 2d 1175
Ruling on Motion for Summary Judgment
Section 102 . 54(b) and (c) of the Board 's 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
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
Respondent states:
[P]ursuant to Section 102.54 of the Board's
Rules and Regulations , Series 8, as amended,
282 NLRB No. 129
BIRCH RUN WELDING , 909
the Respondent shall, within, fifteen days, from
the date listed below , file with the Regional
Director , acting in this matter as an agent of
the National Labor Relations Board, an- origi-
nal and four (4) copies of the Answer to this
Specification . Said Section 102.54 provides
that to the extent that such Answer fails to
deny allegations of the Specification in the
manner required under the Board's Rules and
Regulations and failure to do so is not ade-
quately explained , such allegation shall be
deemed to be admitted to be true and the Re-
spondent shall be precluded from introducing
any evidence controverting them . Immediately
upon the filing of its Answer, Respondent shall
serve a copy thereof on each of the other par-
ties. Form NLRB 4668, Summary of Standard
Procedures in ` Formal Hearings Held Before
the National ,Labor Relations Board in Unfair
Labor Practices is attached hereto.
The General Counsel moves to strike the pur-
ported answer in its entirety because it fails to meet
the requirements of Section 102.54(b) of the Rules
and Regulations because ii is not sworn to by the
Respondent or a , duly authorized agent with power
of attorney and does not contain a post office ad-
dress of the Respondent . The General Counsel fur-
ther submits alternatively that certain paragraphs
be struck as defective because they constitute mere
general denials of matters within the knowledge of
the Respondent without providing any specific al-
ternative formula for computing -backpay. Still
other paragraphs are allegedly specious as they
urge that the amount of unemployment compensa-
tion received by each discriminatee should be de-
ducted from the backpay award.
In response to the order transferring the pro-
ceeding to the Board and the Notice to Show
Cause , on 29 August the Respondent filed an
"Amended Response to , the Backpay Specifica-
tion." The amended response , although not proper-
ly captioned as an amended answer to the backpay
specification, nevertheless constitutes an answer
within the meaning of the Board's Rules and is ac-
cepted as such . The amended answer was properly
to, 'ontained the address of the Respond-
ent's agent , and gave modified responses to the
backpay specification . The General Counsel has
not moved to strike this amended answer. The
Rules contain no specific prohibition against
amending the answer to a backpay specification,
despite the absence of an amendment to the specifi-
cation, and the Board has viewed attempts to cure
the technical defects of an initial answer to a back-
pay specification as a timely amended answer.3 Ac-
cordingly , we 'view the Respondent's 29 August
amended answer as curing the 18 July answer and
we deny the General Counsel's motion to strike
this document entirely from the record . Inasmuch
as the objectionable paragraphs in the original
answer were modified in the amended answer suffi-
cient to raise litigable issues concerning the amount
of expenses and duty to mitigate damages4 on the
part of some discriminatees, we deny the motion to
strike paragraphs 3, 4, 5, and 6.
Accordingly , we shall order a hearing limited to
the determination of those backpay issues disputed
by the amended answer.
ORDER
It is ordered that the General Counsel 's Motion
to Strike Answer or Certain Responses - of Answer
to Backpay Specification and Motion for Summary
Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 7
for the purpose of arranging a hearing before an
administrative law judge, limited to the determina-
tion of the backpay period for Donald Yaklin and
Kenneth Parlberg, the amounts of necessary and
related expenses for William Humes and Donald
Oberg, the interim earnings of Timothy Schmidt,
and the duty to mitigate damages on the part of
Alan Zabarcki and Anthony Sparck , and that the
Regional Director is authorized to issue notice.
3 See, e g, Bentleys Lounge, 265 NLRB 632 (1982); Standard Materials,
252 NLRB 679, 680 (1980).
4 Portland Cement Co , 262 NLRB 365, 366 (1982).