Challenge-Cook Brothers Of Ohio, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 435 (N.L.R.B. 1989)

CHALLENGE-COOK BROS. OF OHIO
Challenge-Cook Brothers of Ohio , Inc. and United
Steelworkers of America, AFL-CIO-CLC.
Cases 8-CA-15391 and 8-CA-16250
June 15, 1989
SUPPLEMENTAL DECISION AND
ORDER REMANDING
BY MEMBERS JOHANSEN , CRACRAFT, AND
DEVANEY
On October 24, 1986, the National Labor Rela-
tions Board issued a Decision and Order in this
proceeding,' in which the Board , inter alia, or-
dered the Respondent, Challenge-Cook Brothers of
Ohio, Inc., to make whole unspecified employees
in a manner similar to that required in Transmarine
Navigation Corp. ,2 for any losses suffered as a result
of the Respondent 's unfair labor practices. On
March 29, 1988, the United States Court of Ap-
peals for the Sixth Circuit entered a judgment en-
forcing the Board 's Order . 3 A controversy having
arisen over the amount of backpay due under the
Board's Order , as enforced by the court, the Re-
gional Director for Region 8 issued and duly
served on the Respondent a backpay specification
and notice of hearing alleging the amounts of back-
pay due and the number and names of the discri-
minatees , and notifying the Respondent that it must
file a timely answer complying with the Board's
Rules and Regulations.
In his backpay specification the General Counsel
sets forth a backpay formula that was based on the
percentage of mixer units (i.e., the transferred
work) previously produced at the Respondent's
Bryan plant as compared with the total number of
mixer units produced throughout the Respondent's
system during the backpay period . Based on this
percentage , the General Counsel alleged that a
total of 350 mixer units had been transferred to an-
other facility during the backpay period and de-
vised a method for calculating the number of man-
hours required to produce each mixer . Utilizing
this method , the General Counsel arrived at an ag-
gregate number of actual manhours lost due to the
transfer, and calculated backpay accordingly for
employees who were laid off when the transfer
was effected.
On September 26, 1988 , the Respondent filed an
answer, with exhibits, to the specification, and a
motion to dismiss or, in the alternative , a motion to
remand and enlarge upon time for response with
the Regional Director . In the answer, the Respond-
ent admits that the Board ordered a Transmarine
' 282 NLRB 21.
4 170 NLRB 389 (1968)
8 Case 87-5153 (unpublished).
435
remedy . However , it contends that the conditions
for tolling the backpay have occurred in that a
bona fide impasse in bargaining has taken place or
that the Charging Party has never bargained in
good faith.
The Respondent admits that the quantity of
work that was transferred and the number of em-
ployees affected thereby must be determined. It
also admits that the raw figures contained in the
specification and in its Appendix A were directly
derived from the information and data furnished by
the Respondent and are correct . However , the Re-
spondent contends that the backpay formula is
fraught with assumptions not based on facts, as-
sumptions that are contrary to the data it provided,
and represent conclusions that are contrary to fact.
In this connection , the Respondent contends that
there are no employees adversely affected by the
transfer of work from its Bryan facility to its Cal-
houn facility . Rather, it alleges that the changes
were because of changes in economic conditions, as
demonstrated by its having to recall all laid-off em-
ployees, except for those who removed themselves
from the list, and as demonstrated by its having to
hire other employees after the economic conditions
improved.
The Respondent generally denies the allegations
set forth in the General Counsel's backpay specifi-
cation . In this regard it disputes the General Coun-
sel's allegation that had the transfer of work not
occurred , 350 units would have remained at the
Bryan facility . Though the Respondent contends
that only 21 units were transferred to Calhoun and
that this transfer would not have resulted in the
recall of any of the employees laid off from Bryan,
the Respondent offers no supporting evidence to
substantiate these assertions . The Respondent also
contends , in denying the General Counsel 's method
of computation, that the efficiency rate utilized by
the General Counsel is incorrect . However, the
Respondent does not support this contention with
any evidence to show that even if the efficiency
rate utilized by the General Counsel is inaccurate,
it affects the ultimate outcome .4 The Respondent
also contends that the hours not used for producing
mixers and dryers were used for other duties, in-
cluding the manufacturing or fabricating of spare
parts . However , the Respondent does not assert
that the General Counsel 's method of allocating
4 In this regard we note that ultimately the General Counsel 's backpay
specification relies on figures reached by multiplying the actual number
of hours worked times a ratio that represents a figure that shows the pro-
portionate share of all hours worked at the plant to be allocated to mixers
as contrasted with the share to be allocated to dryers . Thus, as the plant
efficiency figure does not affect the ratio reached , the Respondent 's argu-
ment with regard to the accuracy of the plant efficiency rates appears to
be irrelevant.
295 NLRB No. 50
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
such work proportionately between the two prod-
uct lines (i.e., mixers and dryers) is incorrect.
The Respondent generally denies the calculations
and conclusions in Appendices Cl through C4, D1
through D4, E3 through E28, and Fl through F37.
It contends that it can neither admit nor deny the
figures for Gross Interim Earnings and Net Interim
Earnings , because it has insufficient evidence on
which to base an answer . The Respondent general-
ly denies the assertions contained in subsections C
(Employment) and D (Summary) of the specifica-
tion , and reasserts its prior contentions concerning
backpay . The Respondent generally denies that it
owes any moneys to anyone including those named
in the specification , and that more than 100 em-
ployees constitute the affected group . It contends
that the specification attempts to impose a settle-
ment agreement contrary to Section 8(d) of the
Act.
In the motion to dismiss filed with the Regional
Director, the Respondent alleges that the specifica-
tion fails to conform to the requirements of Section
102.52 et seq . of the Board 's Rules and Regulations
and the guidelines in Section 10656.1 et seq. of the
Board 's Casehandling Manual (Part III), because
the narrative portion of the specification lacks clar-
ity and specificity . Therefore, the Respondent as-
serts that it cannot answer the specification as re-
quired under Section 102.54.
On February 6, 1989 , the General Counsel filed
directly with the Board a Motion to Strike the Re-
spondent's Answer in part and for Partial Summary
Judgment . The General Counsel agrees that the
Respondent put in dispute interim earnings and
whether or not the backpay period was tolled by a
valid impasse in bargaining or the Charging Party's
bad-faith bargaining . The General Counsel con-
tends that the answer admits that the appropriate
formula for calculating the number of backpay re-
cipients and amounts owed involves a determina-
tion of the quantity of work that was transferred
and the number of employees affected thereby,
admits that the raw figures contained in the specifi-
cation , section II and Appendix A are correct, and
does not dispute the figures employed relating to
the number of manhours needed to produce a
cement mixer and dryer. The General Counsel fur-
ther contends that the Respondent 's answer fails to
conform to the requirements of Section 102.54(b)
and (c) of the Board 's Rules and Regulations in
that the answer fails to properly dispute the accu-
racy of the backpay figures or the premises on
which they are based , and fails to specifically state
the basis for disagreement or set forth in detail any
alternative premises with appropriate supporting
figures . The General Counsel alleges that the Re-
spondent is attempting to relitigate matters previ-
ously decided in the underlying unfair labor prac-
tice proceeding , i.e., that no unit employees were
affected by its decision to relocate work. Accord-
ingly, the General Counsel requests that para-
graphs 2, 3, 4, and 5 of the answer be stricken as
insufficient to raise an affirmative defense and for
failing to comply with the Board's Rules and Reg-
ulations. The General Counsel also requests that
pursuant to Section 102.54 (c) of the Board's Rules
and Regulations, all allegations of the specification
be deemed to be admitted as true without taking
evidence, with the exception of the length of the
backpay periods and the amount of interim earn-
ings, and that a partial summary judgment be
granted.
On February 9, 1989 , the Board issued an order
transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel's
motion should not be granted . On February 22,
1989 , the Respondent filed a response . In the re-
sponse, the Respondent states that the answer is
complete and sufficient . It contends that it is enti-
tled to a response and ruling on its motion to dis-
miss before having to defend its answer . The Re-
spondent asserts that its lead counsel is presently
out of the country, which precludes a more de-
tailed response to the motion to strike .5 The Re-
spondent moves to hold the motion to strike in
abeyance until its motion to dismiss is decided or,
in the alternative , to consolidate the proceeding
and extend the time to respond.
On March 3 , 1989, the General Counsel filed a
response to the Respondent 's motion to dismiss. In
the response , the General Counsel contends that
the Respondent does not assert that the specifica-
tion fails to set forth the names of the backpay
claimants, the applicable backpay periods broken
down by calendar quarter , specific figures for gross
backpay and interim earnings, expenses , net back-
pay, and the like, only that the narrative portion of
the specification lacks clarity and specificity. The
General Counsel contends that the specification
sets forth the basis for the computations specifically
and in detail , and moves that the Respondent's
motion to dismiss be denied.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this case , the Board
makes the following
S The Respondent did not seek an extension of time to file a response
to the Notice to Show Cause.
CHALLENGE-COOK BROS. OF OHIO 437
Ruling on the Motion to Dismiss and the
Motion for Partial Summary Judgment
Because this proceeding has been transferred to
the Board, we have considered the Respondent's
motion to dismiss and alternative motion to remand
and enlarge upon time for response, and the Gener-
al Counsel's response.
Section 102.55(a)6 of the Board's Rules and Reg-
ulations states:
(a) Contents of specification with respect to al-
legations concerning the amount of backpay
due.-With respect to allegations concerning
the amount of backpay due, the specification
shall specifically and in detail show, for each
employee, the backpay periods broken down
by calendar quarters, the specific figures and
basis of computation of gross backpay and in-
terim earnings, the expenses for each quarter,
the net backpay due, and any other pertinent
information.
We find that the specification is sufficient under
Section 102.55(a) in that it specifically and in detail
states for each employee the backpay periods
broken down by calendar quarters, the specific fig-
ures and basis of computations for gross backpay
and interim earnings, the expenses for each quarter,
the net backpay due, and in all other regards is suf-
ficiently specific. The Respondent filed an answer
on September 26, 1988, within the required time
limitations. Therefore, because the specification is
sufficiently specific and the Respondent has filed
an answer, we shall deny the Respondent's motion
to dismiss and motion to remand and enlarge upon
time for response.
Section 102.56(b) and (c)7 of the Board's Rules
and Regulations states:
(b) Contents of answer to specification.-The
answer shall specifically admit, deny, or ex-
plain each and every allegation of the specifi-
cation, unless the respondent is without knowl-
edge, in which case the respondent shall so
state, such statement operating as a denial. De-
nials shall fairly meet the substance of the alle-
gations of the specification at issue. When a re-
spondent intends to deny only a part of an al-
legation, the respondent shall specify so much
of it as is true and shall deny only the remain-
der. As to all matters within the knowledge of
6 Formerly Sec. 102 . 53(a). The Board amended its rules governing
compliance proceedings effective November 13, 1988 . The substance of
former Sec . 102.53 has been incorporated into Sec . 102.55 as revised.
r Formerly Sec 102 . 54(b) and (c). The Board amended its rules gov-
erning compliance proceedings effective November 13, 1988. The sub-
stance of former Sec. 102.54 has been incorporated into Sec . 102.56 as
revised.
the respondent , including but not limited to
the various factors entering into the computa-
tion of gross backpay, a general denial shall
not suffice . As to such matters, if the respond-
ent disputes either the accuracy of the figures
in the specification or the premises on which
they are based , the answer shall specifically
state the basis for such disagreement, setting
forth in detail the respondent 's position as to
the applicable premises and furnishing the ap-
propriate supporting 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
prescribed by this section , the Board may,
either with or without taking evidence in sup-
port of the allegations of the specification and
without further notice to the respondent, 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 specification in the
manner required by paragraph (b) of this sec-
tion, and the failure so to deny is not adequate-
ly 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 introducing any evi-
dence controverting the allegation.
The specification duly served on the Respondent
states that, pursuant to Section 102 .54 of the
Board's Rules and Regulations, the Respondent
"shall file . . . an Answer to said Specification
within twenty -one (21 ) days from the service
hereof, and that to the extent that such Answer
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 the Respondent shall be
precluded from introducing any evidence contro-
verting them." The requirements of the rule are set
out clearly and unambiguously.
As indicated above , the General Counsel filed a
motion to strike the Respondent 's answer in part
on the basis of alleged substantive deficiencies in
the answer . We find that the answer is substantive-
ly deficient insofar as it contains general denials
concerning those matters within the Respondent's
knowledge . These denials are insufficient because
they do not fairly meet the substance of the allega-
tions of the specification , nor do they reveal any
basis for disagreement with the specification's alle-
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gations, or offer or set forth in detail supporting
figures and alternative premises.8 Additionally, the
Respondent's assertion that there were no employ-
ees adversely affected by the transfer of work from
the Bryan facility to the Calhoun facility is an at-
tempt to relitigate a matter previously decided in
the underlying unfair labor practice proceeding
and, therefore, is an insufficient defense.9 Thus, we
agree with the General Counsel that paragraphs 2,
3, 4, and 5 of the Respondent's answer fail to
comply with the requirements of Section 102.56(b)
and (c). We therefore grant the General Counsel's
motion to strike these paragraphs from the answer.
Accordingly, we shall grant the General Coun-
sel's Motion for Partial Summary Judgement and
shall direct a hearing limited to determining the
amount of the interim earnings and whether the
backpay period was tolled due to a valid impasse in
bargaining or due to the Charging Party's bad faith
in bargaining . Because we have found that the Re-
spondent 's general denials as to all other allegations
in the specification are insufficient under Section
102.56(b) and (c) of the Board 's Rules and Regula-
tions, we deem the Respondent to have admitted
all other allegations to be true.
Sneva 's Rent-A-Car, 270 NLRB 1316, 1317 ( 1984).
Ricks Construction Co., 272 NLRB 424, 425 (1984).
ORDER
It is ordered that the Respondent's motion to dis-
miss and motion to remand and enlarge upon time
for response are denied.
IT IS FURTHER ORDERED that the General Coun-
sel's motion to strike the Respondent 's answer to
the backpay specification in part is granted as to
paragraphs 2, 3, 4, and 5.
IT IS FURTHER ORDERED that the General Coun-
sel's Motion for Partial Summary Judgment is
granted except with regard to the allegations con-
cerning the amount of interim earnings , and wheth-
er the backpay period was tolled.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 8
for the purpose of issuing a notice of hearing and
scheduling a hearing before an administrative law
judge for the purpose of taking evidence concern-
ing the amount of interim earnings and whether the
backpay period was tolled due to a valid impasse in
bargaining or due to the Charging Party's bad faith
in bargaining . The 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
judge 's decision on the parties, the provisions of
Section 102 .46 of the Board 's Rules and Regula-
tions shall be applicable.