Castaways Management

National Labor Relations Board - Board Decisions

Jun 12, 1991

303 N.L.R.B. 374 (N.L.R.B. 1991)

374
303 NLRB No. 57
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 285 NLRB 954.
2 870 F.2d 1539 (11th Cir. 1989).
Castaways Management, Inc. and Hotel, Motel,
Restaurant & Hi-Rise Employees & Bartenders
Union, Local 355, AFL–CIO and Hotel, Resort
Service Union, Local 3 of Greater Miami &
South Florida Area. Cases 12–CA–8831, 12–
CA–8985, 12–CA–9184, and 12–CA–9179
June 12, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 22, 1987, the National Labor Rela-
tions Board issued its Decision, Order, and Direction
of Second Election in this proceeding,1 in which the
Board, inter alia, ordered the Respondent, Castaways
Management, Inc., to offer reinstatement to nine
named discriminatees, and to make them whole for any
loss of earnings and benefits suffered as a result of the
Respondent’s unfair labor practices. Subsequently, the
United States Court of Appeals for the Eleventh Cir-
cuit entered a judgment enforcing the Board’s Order.2
A controversy having arisen over the amount of back-
pay and benefits due under the Board’s Order, as en-
forced by the court, the Regional Director for Region
12 issued and duly served on the Respondent a compli-
ance specification and notice of hearing alleging the
amounts of backpay due the discriminatees and noti-
fying the Respondent that it must file a timely answer
complying with the Board’s Rules and Regulations.
The Respondent, through its attorney, filed an answer.
Thereafter, the Regional Director issued an amended
specification to which the Respondent filed an answer.
On January 15, 1991, the Regional Director issued a
second amended compliance specification.
On January 25, 1991, the Respondent filed an an-
swer to the second amended compliance specification.
The answer is signed by the Respondent’s attorney, but
includes neither a power of attorney nor the Respond-
ent’s mailing address. The answer denies every allega-
tion of the specification, including those paragraphs of
the specification which relate to the computation of
gross backpay, without offering an alternative formula,
alternative wage rates, or alternative gross backpay to-
tals. The answer also alleges, with regard to all nine
discriminatees, that the ‘‘General Counsel did not take
into account tips on subsequent jobs,’’ and that ‘‘no
employee seeking work could find none and wages and
tips were rising.’’ With regard to discriminatee
Maximino Gil, the answer further states that Gil was
employed by another employer following his discharge
from the Respondent and subsequently discharged
from that position for stealing.
On March 13, 1991, the General Counsel filed with
the Board a motion to strike Respondent’s answer and
a Motion for Summary Judgment, with exhibits at-
tached. The General Counsel alleges that the Respond-
ent’s answer fails to conform to the requirements of
Section 102.56 of the Board’s Rules and Regulations
in that the answer, inter alia, is not affixed with the
appropriate power of attorney, nor is the post office
address of the Respondent provided; fails to specifi-
cally admit, deny, or explain each and every allegation
of the specification; and fails to properly dispute the
accuracy of the backpay figures or the premises on
which they are based. The General Counsel also con-
tends that the answer raises no litigable issues requir-
ing a hearing on the issue of willful loss of employ-
ment or failure to exercise reasonable diligence in
seeking interim employment with respect to some or
all of the discriminatees. Accordingly, the General
Counsel requests that the answer be stricken in its en-
tirety and that the Motion for Summary Judgment be
granted as to all matters contained in the compliance
specification. Alternatively, the General Counsel
moves that the Respondent’s answer be stricken and
Motion for Summary Judgment be granted with respect
to all allegations in the specification, except for the
issues of interim earnings of all the discriminatees and
of the willful loss of employment of Maximino Gill.
On March 15, 1991, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the General Counsel’s Motion for
Summary Judgment should not be granted. On March
28, 1991, the Respondent filed an opposition to the
General Counsel’s motion, contending that the answer
is signed ‘‘Attorney for Respondent,’’ is specific, and
is in compliance with the Board’s Rules and Regula-
tions. The Respondent also states that the General
Counsel knows the Respondent’s mailing address and
has included it on all documents to date.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this proceeding, the Board
makes the following
Ruling on Motion for Summary Judgment
Section 102.56(a), (b), and (c) of the Board’s Rules
and Regulations states, in pertinent part:
(a) Filing and service of answer; form—. . .
The answer to the specification shall be in writ-
ing, the original being signed and sworn to by the
respondent or by a duly authorized agent with ap-
propriate power of attorney affixed, and shall con-
tain the mailing address of the respondent.
(b) Contents of the answer to the specifica-
tion.—The answer shall specifically admit, deny,
or explain each and every allegation of the speci-
375CASTAWAYS MANAGEMENT
3 Scotch & Sirloin Restaurant, 287 NLRB 1318, 1320 fn. 5 (1988).
4 Under the Fair Labor Standards Act, an employer may pay a tipped em-
ployee less than the minimum wage. However, this rule applies only if the
employer can show that the employee receives at least the minimum wage
when tips are taken into account. Moreover, under the National Labor Rela-
tions Act, the Respondent must make the discriminatees whole, tips and all.
Home Restaurant Drive-In, 127 NLRB 635 fn. 2 (1960).
fication, unless the respondent is without knowl-
edge, 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
specification 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 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, he shall specifically state the basis
for his disagreement, setting forth in detail his po-
sition as to the applicable premises and furnishing
the appropriate supporting figures.
(c) Effect of failure to answer or plead specifi-
cally and in detail to backpay allegations of spec-
ification.—. . . If the respondent files an answer
to the specification but fails to deny any allega-
tion of the specification in the manner required by
subsection (b) of this section, and the failure so
to deny is not adequately explained, such allega-
tion 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 intro-
ducing any evidence controverting the allegation.
The General Counsel contends that the Respondent’s
answer should be stricken in its entirety because it fails
to include a power of attorney and the Respondent’s
post office address as required by Section 102.56(a).
Although the Board has emphasized that a pleading
that substantially fails to conform to the Board’s pro-
cedural rules will normally be stricken in its entirety,3
we decline to strike the answer in the instant pro-
ceeding. As the Respondent states in its opposition, the
answer was signed ‘‘Attorney for Respondent,’’ and
the Respondent’s attorney has represented the Re-
spondent in all aspects of this case for the past 11
years. Further, the General Counsel, through its cor-
respondence, has indicated its knowledge of the Re-
spondent’s mailing address, and no documents have
ever been returned to the General Counsel because of
an incorrect address. Thus, while the answer may con-
tain certain procedural defects, we do not find it so
substantially deficient as to require it being struck in
its entirety. Under these circumstances, we deny the
General Counsel’s motion to strike the answer in its
entirety.
Notwithstanding our acceptance of the answer, we
agree with the General Counsel that the answer to the
backpay specification is deficient insofar as it contains
general denials as to those compliance matters within
the Respondent’s knowledge. The answer does not spe-
cifically dispute the accuracy of the gross pay figures
contained in the specification or provide any specific
alternative formula for computing the amounts of
backpay due, as required by Section 102.56(b). While
the Respondent states that the figures are incorrect be-
cause a tip credit was not taken into account, this
statement is erroneous as a matter of law.4 As the Re-
spondent has failed to deny specifically the gross back-
pay allegations or to explain adequately its failure to
do so, we strike the Respondent’s answers to the ex-
tent that they address those allegations of the compli-
ance specification and deem those allegations of the
second amended compliance specification to be admit-
ted as true. Lobster Trap & Casa Sirena Marina Hotel,
287 NLRB 1322 (1988); William Minter Masonry
Contractor, 260 NLRB 1121 (1982). Accordingly, we
shall grant the Motion for Summary Judgment as to
these allegations.
The Respondent has, however, put in issue the
amount of the discriminatees’ interim earnings by stat-
ing in the answer that tips were not considered, that
any employee seeking work should have reasonably
been able to find some, and that Gil was discharged
by a subsequent employer for stealing. It is well settled
that general denials of allegations involving interim
earnings are sufficient to warrant a hearing on those
issues. Ricks Construction Co., 272 NLRB 424 (1984);
Sheet Metal Workers Local 13 (Sheet Metal Contrac-
tors), 266 NLRB 59 (1983). Accordingly, we shall
order a hearing limited to the determination of the
discriminatees’ interim earnings.
ORDER
It is ordered that the General Counsel’s motion to
strike the Respondent’s answer is granted to the extent
that it addresses allegations of the compliance speci-
fication pertaining to the computation of gross back-
pay.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Summary Judgment is granted except with
regard to allegations concerning the discriminatees’ in-
terim earnings.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 12 for the
purpose of issuing a notice of hearing and scheduling
a hearing before an administrative law judge, for the
purpose of taking evidence concerning the
discriminatees’ interim earnings. The judge shall pre-
pare and serve on the parties a decision containing
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
findings of fact, conclusions of law, and recommenda-
tions based on all the record evidence. Following serv-
ice of the judge’s decision on the parties, the provi-
sions of Section 102.46 of the Board’s Rules and Reg-
ulations shall be applicable.