Columbia Portland Cement Co.

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 597 (N.L.R.B. 1993)

597
313 NLRB No. 75
COLUMBIA PORTLAND CEMENT CO.
1 294 NLRB 410 (1989).
2 915 F.2d 253 (6th Cir. 1990). The court reversed the Board’s de-
termination concerning the backpay period for employee Wartenbe.
3 Columbia Portland Cement Co., 303 NLRB 880 (1991), enfd.
979 F.2d 460 (6th Cir. 1992).
Columbia Portland Cement Company and its suc-
cessor Midwest Portland Cement and United
Cement, Lime, Gypsum and Allied Workers
International Union, Local No. 24, AFL–CIO,
affiliated with Cement, Lime, Gypsum and Al-
lied Workers Division, International Brother-
hood of Boilermakers, Forgers & Helpers,
AFL–CIO and Donald Fisher and Paul Slack,
and Marvin L. Baker, Jr. and Robert Barrett
and Robert Wartenbe. Cases 8–CA–18117, 8–
CA–18343–1, 8–CA–18063–3, 8–CA–18207–1,
8–CA–18220–1, 8–CA–18221, and 8–CA–18283
November 26, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 31, 1989, the National Labor Relations
Board issued its Decision and Order in this case, or-
dering Respondent Columbia Portland Cement to make
whole its striking employees for any loss of earnings
and other benefits resulting from the Respondent’s un-
fair labor practices in violation of Section 8(a)(3) and
(1) of the Act.1 On October 2, 1990, the United States
Court of Appeals for the Sixth Circuit enforced in part
and reversed in part the Board’s Order.2 A controversy
having arisen over the amount of backpay due the em-
ployees under the Board’s Order, on November 23,
1992, the Regional Director for Region 8 issued and
duly served on the Respondent a compliance specifica-
tion and notice of hearing alleging the amount of back-
pay due each discriminatee.
Subsequently, the Respondent filed an answer to the
backpay specification admitting certain paragraphs,
generally denying certain paragraphs, and denying cer-
tain other paragraphs by disputing the accuracy of the
interim earnings shown for each discriminatee and the
amounts owed for medical insurance, medical ex-
penses, and pension fund contributions.
Thereafter, on March 1, 1993, the General Counsel
filed with the Board a motion to strike portions of the
Respondent’s answer and for partial summary judg-
ment, with exhibits attached. The General Counsel es-
sentially alleges that, except as to the issues of interim
earnings, medical insurance premiums, and medical
and other expenses, the Respondent’s answer denying
certain paragraphs does not comply with the sub-
stantive requirements of Section 102.56 of the Board’s
Rules and Regulations. Accordingly, the General
Counsel requests that the Respondent’s answers to cer-
tain paragraphs be stricken as deficient insofar as they
do not conform to the Board’s requirements as to these
compliance matters within the Respondent’s knowl-
edge, and that these paragraphs be deemed to be ad-
mitted as true without taking evidence. The General
Counsel further requests that the allegations of two
other paragraphs be deemed to be admitted as true be-
cause the Respondent’s answers to these paragraphs
are without merit or lacking in specificity. The General
Counsel also moves that a partial summary judgment
be granted. On March 5, 1993, 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 Respondent has not filed
a response.
On the entire record in this case, the Board makes
the following
Ruling on Motion to Strike and for Partial
Summary Judgment
As discussed above, the General Counsel moves to
strike the Respondent’s answers to certain allegations
in the compliance specification and for partial sum-
mary judgment on the grounds that the answers are in-
sufficient under Section 102.56 of the Board’s Rules
and Regulations. We find it unnecessary to pass on
that issue at this time, however, because our review of
the specification has revealed apparent deficiencies that
warrant denial of the General Counsel’s motion. In this
regard, paragraph 4(B) of the compliance specification
alleges that the backpay period for the individuals in
group B ‘‘begins on April 27, 1987 and ends on May
1, 1988.’’ In the prior Board decision in this case, the
Board ordered the Respondent to offer reinstatement to
these former strikers upon their application and, in the
event that the Respondent refused to offer reinstate-
ment, to make the employees whole for the period
‘‘from 5 days after the date on which he or she applied
. . . for reinstatement, to the date of the Respondent’s
offer of reinstatement . . . absent a lawful justification
for the Respondent’s failure to make such an offer.’’
Following a subsequent charge and complaint, the
Board issued another decision based on a stipulation of
facts, finding that the Respondent had unlawfully
failed and refused to reinstate the strikers.3 In that de-
cision, the Board prescribed the backpay period for
those individuals as ‘‘the period from April 29, 1987,
the date of the Union’s unconditional offer [as stipu-
lated by the parties], to April 20, 1988, the date of the
Respondent’s offer of reinstatement.’’ The backpay pe-
riod alleged in the compliance specification does not
conform with either of the Board’s Orders pertaining
to these individuals. Moreover, the specification pro-
vides no explanation for the apparent inconsistency.
In addition, paragraph 4(C) of the compliance speci-
fication alleges that the backpay period for Robert
Wartenbe begins on April 18, 1985, and ends on Au-
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gust 2, 1985. However, upon review of the Board’s
earlier decision in this proceeding, the Sixth Circuit
held that backpay for Wartenbe should be discontinued
as of July 8, 1985, when the Respondent lawfully noti-
fied him that he would be discharged for an attack on
another employee. Again, the compliance specification
offers no explanation for this discrepancy.
For these reasons, we find that the compliance spec-
ification is defective in that it does not comport with
the make-whole remedy prescribed by the Board and
the Sixth Circuit in the pertinent unfair labor practice
proceedings and does not explain its failure to do so.
In order to cure this defect, the General Counsel must
either demonstrate that the specification is consistent
with the remedies ordered, or recompute the gross
backpay for the affected individuals using the dates
prescribed by the Board and the court. Because we are
unable to determine the amount of gross backpay owed
to these individuals using the present specification, we
deny the General Counsel’s motion without prejudice
as to refiling based on an amended specification.
ORDER
It is ordered that the General Counsel’s motion to
strike the Respondent’s answer to the backpay speci-
fication in part is denied.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Partial Summary Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 8 for fur-
ther appropriate action consistent with this decision.