Bojangles Famous Chicken And Biscuits

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1160 (N.L.R.B. 1985)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Noah Robinson ; Master Food Services , Inc.; First
Class Cafeterias , Inc.; Stanley Ryan & Associ-
ates, Inc.; Renoja Management Co., Inc ., d/b/a
Wendy's Old Fashioned Hamburgers ; and Bren-
ico Management Inc., d/b/a Bojangles Famous
Chicken and Bisquits , a Single Employer and/or
alter ego and Local 129, Chicago School Lunch-
room Employees Union , Hotel and Restaurant-
- Employees and Bartenders International Union,
AFL-CIO. Case 13-CA-19283
30 September 1985-
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 12 July 1982 the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding' finding, inter alia, that Re-
spondent Noah Robinson was the alter, ego of Re-
spondent Master Food Services, Inc., and that they
had violated Section 8(a)(1) and (3) of the Act by
unlawfully discharging employees Kenneth Harde-
man, Ronald Henderson, Bernice Johnson, Erma
Jordan, Lorraine Mosley, and Rubin Reed on 2
November 1979 for engaging in protected union
activity. The Board ordered that the discriminatees
be reinstated and that they be made whole for any
loss of earnings they suffered by reason of the dis-
crimination practiced against them. On 23 June
1983 the United States Court of Appeals for the
Seventh Circuit entered its judgment2 enforcing
the Board's Order.
A controversy having arisen over the amount of
backpay due the discriminatees under the terms of
the Board's Order, the Regional Director for
Region 13, on 31 January 1985, issued a backpay
specification and notice of hearing alleging, inter
alia, that Noah Robinson; Master Food Services,
Inc. (herein Master Food); First Class Cafeterias,
Inc.; and Brenico Management Inc., d/b/a Bojan-
gles Famous Chicken and Bisquits have been affili-
ated business enterprises under Noah Robinson's
control and constitute an alter ego to Noah Robin-
son. On 15 February 1985 Robinson, Master Food,
and Bojangles filed an answer to the backpay spec-
ification. After receipt of the answer, the General
Counsel wrote them a letter, dated 1 March 1985,
advising them that various denials in the answer
failed to conform to the specificity requirements of
Section 102.54(b) of the Board's Rules and Regula-
tions. They were further advised in the letter that a
1 262 NLRB 804 (1982)
2 NLRB v Master Food Services, Inc. and Noah Robinson , Case No 83-
1349, unpublished
failure to plead more specifically by„12 March 1985
would cause the General Counsel to file a motion
for summary judgment with the Board. They filed
no answer by the time specified. The Regional Di-
rector issued an amended backpay specification oii
21 March 1985, alleging, inter alia, that, in addition
to the above-named entities, Stanley Ryan & Asso-
ciates, Inc. and Renoja Management Co., Inc.,
d/b/a Wendy's Old Fashioned Hamburgers have
been affiliated business enterprises under Robin-
son's control; constitute an alter ego to Robinson;
and are jointly and severally liable for the mone-
tary and reinstatement liability imposed by the
Board. On 5 April 1985 all the entities alleged in
the amended specification as Robinson's alter egos,
except First Class Cafeterias, filed an answer to the
amended specification.
Thereafter, on 15 April 1985, the General Coun-
sel filed directly with the Board a Motion to Strike
Portion of Answer to Backpay Specification, and
for Partial Summary Judgment. Subsequently, on-
17 April 1985, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to
Show Cause why the General Counsel's motion
should not be granted. On 15 May 1985 Robinson
and all the alleged alter egos-except First Class
Cafeterias filed a response to the motion to strike.3
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 to Strike Portion of
Answer to Backpay Specification and for
Partial 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-
3 In the motion, the General Counsel does not seek summary judgment
on the issue of the joint and several liability of all the companies alleged
in the specification as alter egos to Robinson The General Counsel states
that this is an issue that must go to hearing , including the status of First
Class Cafeterias , which has not filed an answer or response in this pro-
ceeding We are thus aware that the joint and several liabilities of all
those entities except Robinson and Master Food is an open issue For
ease of reference, however, and aware that First Class Cafeterias has not
filed a response in this proceeding, we shall refer to all those listed in the
present case caption as the Respondents _
276 NLRB No. 123
MASTER FOOD SERVICES - 1161
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 amended backpay specification duly served
on the Respondents states that , pursuant to Section
102.54(a) of the Board's Rules and Regulations, the
Respondents
.. . shall, within 15 days from the date of the
amended specification , file with the under-
signed Regional Director, acting in this matter
as agent of the National Labor Relations
Board , an original and four (4) copies of an
answer to the Amended Specification (and a
copy - thereof shall immediately be served on
any other ' Respondent jointly liable). To the
extent that such answer fails to deny allega-
tions of the Amended Specification in the
manner required under the Board 's Rules. and
Regulations and the failure to do so is not-ade-
quately explained , such allegations shall be
deemed to be admitted to be true and the Re-
spondent' shall 'be precluded from introducing
any evidence controverting them.
The General Counsel submits in her motion that
the answer filed by the Respondents to the amend-,
ed specification merely states a general denial of
specification paragraphs XI(b) and (c), XV, XVI,
and XVII .4 The General Counsel urges that these
paragraphs pertain , in whole or in part, to the Gen-
eral Counsel 's gross backpay methods and compu-
tations , and therefore , since these are matters con-
sidered within the Respondents ' 'knowledge, a gen-
eral denial of the gross backpay figures set out in
these paragraphs is insufficient. Therefore, the
General Counsel requests that the Board strike the
Respondents ' general denial of the gross backpay
methods and calculations reflected in paragraphs
XI(b) and (c), XV, XVI, .and XVII, and deem the
gross backpay allegations in those paragraphs to be
true and admitted without -the need for the taking
of evidence.
Review of the Respondents' answer to the
amended specification shows that in response to
paragraphs XI(b) and (c), they denied that the dis-
criminatees worked the average number of hours
per day alleged in those paragraphs and claimed
that they worked less, but stated that as the Re-
spondents had -been unable to locate the payroll
records of Master Food , for whom the employees
worked' prior to their discharges , they could not
give a more specific answer at that time. The
answer to paragraph XV denied that the paragraph
accurately reflected the number of hours and days
worked by the discriminatees because this para-
graph failed to consider the days that their employ-
er's cafeteria operations were closed due to the
Thanksgiving and Christmas holidays in 1979. The
answer to paragraph XVI denied the gross backpay
allegations - in the . paragraph , claiming that the
number of - hours and days allegedly worked was
not accurate ; that the backpay period should not
extend beyond June 1980, at which time Master
Food filed for bankruptcy ; that the backpay period
should not cover the time period that the Respond-
ents were not in the restaurant business, which al-
legedly was from June 1980 to October 1983; and
that the Respondents could not answer more spe-
cifically at that time because they had been unable
to locate the payroll records of Master Food. The
answer to paragraph ' XVII denied this paragraph
* Par XI(b) of the amended specification alleges the average number
of hours worked per day by each employee prior to his or her discharge;
par XI(c) alleges the daily rate of pay for each employee; par XV al-
leges the gross backpay for each employee for the fourth quarter of 1979;
par. XVI alleges the gross backpay for each employee for each quarter of
the backpay period , and par. XVII summarizes the total backpay due
each employee -
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"for reasons heretofore set forth in this answer."
The answer also stated that despite diligent
searches , the Respondents had been unable to
locate the records of Master Food and thus at that
time could not set forth specifically , the actual
number of hours and days worked by the discri-
minatees , and the answer stated that the Respond-
ents reserved the right to amend the answer at a
later date in the event that Master Food 's records
were located.
In the Motion for Partial Summary Judgment,
the General Counsel argues that while 'the Re-
spondents - in their answer disputed the accuracy of
the gross - backpay figures set out in paragraphs
XI(b) and (c), XV, XVI, and XVII , the Respond-
ents offered no alternate figures but only claimed
that they have been unable to locate Master Food's
payroll records . She argues that this claim is insuf-
ficient absent an explanation of what steps have
been taken to gain access to these records . In their
response to the motion to strike , the Respondents
argue that the denials in their answer are adequate-
ly set forth and that a more specific answer was
not possible because of the Respondents ' inability
to locate various records . They have included an
affidavit of their attorney detailing their efforts to
locate these records .5 They further indicate that if
information dealing with the average number of
hours the discriminatees worked prior to their dis-
charges is not obtained by them within a reasona-
ble period of time prior to a rescheduled hearing,
they would concede the correctness of the figures
alleged in paragraphs XI(b) and (c) of the amended
specification.
We agree with the General Counsel that the Re-
spondents' answers to paragraphs XI(b) and (c),
XV, and that portion of paragraph XVI alleging
gross backpay through the first quarter of 1980
constitute general denials which fail to comply
with the requirements of Section 102.54(b) and (c).
Thus , these answers simply dispute the accuracy of
the figures in the specification , but do not provide
any alternative formula for computing the amounts
of gross backpay owed . We note that - Section
102.54(b) provides that "the respondent. shall spe-
cifically admit , deny, or explain each and every al-
legation of the specification , unless the respondent
is without knowledge . . .." (Emphasis added.)
The number of hours worked by the employees
(which is the basis for the Respondents ' denial of
pars . XI(b) and (c) and XV, and part of the reason
S The affidavit also indicates that Respondent Robinson indicated to
the affiant that he last saw Master Food's records at the National Labor
Relations Board hearing room in Chicago, Illinois, in November 1980,
where they were brought pursuant to a subpoena duces tecum issued by
the Board in the underlying unfair labor practice case
for their denial of par. XVI through the first quar-
ter of 1980) is a fact presumed within the Respond-
ents' knowledge.6 The Respondents claim that they
cannot answer more specifically because 'they
cannot locate the payroll records of Master Food.
We note, however, that the Respondents have not
indicated that they have ever requested access to
copies of the Master Food payroll records from the
National Labor Relations Board's Chicago Region-
al Office, which had subpoenaed them.? More im-
portantly, the Respondents have been on notice
since about 15 April 1985 that the General Counsel
contends that their answer was not sufficiently spe-
cific. As of the date of this decision, the Respond-
ents have still not supplied data to' support-their
contention that the specification's figures are inac-
curate.
Since the Respondents have failed to deny spe-
cifically the gross backpay allegations in para-
graphs XI(b) and (c), XV, and XVI through the
first quarter of 1980, or to explain adequately their
failure to do so, Section 102.54(c) requires that
these allegations be deemed to be admitted to be
true. Accordingly, we find them to be correct, and
we shall grant the General Counsel's Motion for
Partial Summary Judgment as to them. However,
we will give the Respondents 20 days from the
date of this Order to file a motion for reconsider-
ation should they obtain information concerning
these paragraphs which would enable them to file a
more specific answer. .
In regard to the General Counsel's Motion for
Partial Summary Judgment on the Respondents'
answers to paragraph XVI, beyond the first quarter
of .1980, and paragraph XVII, we note that partial
support for the Respondents' denial of these para-
graphs is the Respondents' contention that Master
Food filed bankruptcy in June 1980 and that the
Respondents were not in the restaurant business
from about June 1980 to October 1983. To find
that the Respondents are responsible for backpay
for the period of June 1980 to October 1983 ap-
pears to require a finding that the Respondents
were jointly and severally liable with' Respondent
First Class Cafeterias. However, since First Class
Cafeterias was not a party to the underlying unfair
labor practice proceeding in this case, there is
nothing in the record to support such a finding
presently and indeed, as noted above, the General
Counsel does not now seek summary judgment on
the Respondents' joint and several liability. We
therefore find that the Respondents' denial of the
allegations in paragraph XVI, beyond the' first
6 Marine Machine Works, 256 NLRB 15 (1981)
7 Cf Frenchy's K & T, 264 NLRB 412 (1982)
MASTER FOOD SERVICES 1163
quarter of 1980, and paragraph XVII is sufficient
to require a hearing, and we deny the General
Counsel's motion related to gross backpay compu-
tations beyond the first quarter of 1980. We shall
therefore order a hearing on this issue, on the
single employer/alter ego' issue, and on the issue of
the interim earnings and offsets of the discrimina-
tees.s
ORDER
It is ordered that the General Counsel 's Motion
to Strike Portion of Answer to Backpay Specifica-
tion, and for Partial Summary Judgment is granted
with respect to amended backpay specification
paragraphs XI(b) and (c), XV, and XVI as it al-
leges gross backpay through the first quarter of
8 We deny the Respondents' request to file an amended answer should
the General Counsel prevail in the motion. No good reason has been of-
fered for such a request . See generally Normike Contractors , 267 NLRB
836 (1983).
1980. The Respondents shall have 20 days from the
date of this Order to file a motion for reconsider-
ation should they obtain information which enables
them to answer these paragraphs with the specifici-
ty required by Section 102.54(b) and (c) of the
Board's Rules and Regulations.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 13
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 on the issues noted in this Supplemental
Decision and Order.
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 and Regulations shall be applicable.