Denart Coal Co.

National Labor Relations Board - Board Decisions

Jan 28, 1991

301 N.L.R.B. 391 (N.L.R.B. 1991)

391
301 NLRB No. 64
DENART COAL CO.
1 Not reported in Board volumes.
2 No. 90–1004 (unpublished).
3 Formerly Sec. 102.54(b) and (c). The Board amended its rules governing
compliance proceedings effective November 13, 1988. The substance of
former Sec. 102.54 has been incorporated into Sec. 102.56 as revised.
Denart Coal Co., Inc. and its alter ego, V. Coal Co.,
Inc.; Laing Enterprises; Vance Trucking;
Delores Vance d/b/a D & J Trucking, a sole
proprietorship; Don Vance; Don E. Vance; and
Michael Vance and United Mine Workers of
America, District 17. Case 9–CA–25650
January 28, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On August 14, 1989, the National Labor Relations
Board issued an Order in this proceeding,1 adopting, in
the absence of exceptions, the administrative law
judge’s recommended Order that the Respondents,
Denart Coal Co., Inc. (Denart Coal) and its alter ego
V. Coal Co., Inc. (V. Coal), inter alia, make whole
former and current employees for losses resulting from
its unfair labor practices. On March 1, 1990, the
United States Court of Appeals for the Fourth Circuit
enforced the Board’s Order in full.2 On June 4, 1990,
the Regional Director for Region 9 issued a compli-
ance specification and notice of hearing, alleging that
a controversy had arisen over the amount of money
due under the terms of the Board’s Order and the iden-
tity of the entities responsible for payment, and noti-
fying the Respondents that they must file a timely an-
swer that must comply with the Board’s Rules and
Regulations.
The Respondents, Laing Enterprises, Vance Truck-
ing, Delores Vance d/b/a D & J Trucking, a sole pro-
prietorship, Don Vance, Don E. Vance, and Michael
Vance (collectively the additional Respondents) filed
an answer. The answer, inter alia, denied that the Re-
spondent Companies constituted a single employer
with the Respondents, Denart Coal and V. Coal, and
denied that the individual Respondents were personally
liable for the amounts due, as alleged in paragraphs 1–
4 of the specification. The answer also claimed insuffi-
cient information to admit or deny the allegations con-
cerning the specific backpay assignments for each
discriminatee, medical expenses, trust fund obligations,
and calculated total amounts alleged in paragraphs
5(e), 6, 7, and 8, respectively.
The Respondents, Denart Coal and V. Coal, did not
file an answer to the compliance specification. On Sep-
tember 7, 1990, counsel for the General Counsel wrote
to the Respondents, Denart Coal and V. Coal, inform-
ing them that if an answer was not filed by September
14, 1990, a Motion for Summary Judgment would be
filed. Respondents Denart Coal and V. Coal later ad-
vised counsel for the General Counsel by telephone
that they would not file an answer because they lacked
assets and were no longer doing business.
On October 9, 1990, the General Counsel filed with
the Board in Washington, D.C. a Motion for Partial
Summary Judgment and Motion to Preclude Respond-
ents from Controverting Certain Allegations of the
Compliance Specification and Memorandum in Sup-
port. Subsequently on October 11, 1990, the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the General
Counsel’s motions should not be granted.
The additional Respondents filed a memorandum in
opposition to the General Counsel’s motion. Respond-
ents Denart Coal and V. Coal have not filed any re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this case, the Board makes
the following
Ruling on Motion for Partial Summary Judgment
and Motion to Preclude Respondents from
Controverting Certain Allegations of the
Compliance Specification
Section 102.56(b) and (c)3 of the National Labor
Relations Board’s Rules and Regulations states:
(b) Contents of answer to specification.—The
answer shall specifically admit, deny, or explain
each and every allegation of the specification, un-
less the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. Denials shall fair-
ly meet the substance of the allegations of the
specification at issue. 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, the answer shall specifically state
the basis for such disagreement, setting forth in
detail the respondent’s position as to the applica-
ble premises and furnishing the appropriate sup-
porting 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 pre-
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We note that in this case there is no indication that the pertinent corporate
records are in the possession of the General Counsel. Under such cir-
cumstances, we do not require the Respondents to demonstrate what efforts,
if any, it has taken to obtain the records from the General Counsel. See Urban
Laboratories, 295 NLRB 1120 (1989).
scribed by this section, the Board may, either with
or without taking evidence in support of the alle-
gations of the specification and without further
notice to the respondent, find the specification to
be true and enter such order as may be appro-
priate. If the respondent files an answer to the
specification but fails to deny any allegation of
the specification in the manner required by para-
graph (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 re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
In his motion, the General Counsel alleges that with
respect to paragraphs 5(e), 7, and 8 of the compliance
specification, the additional Respondents failed to file
an answer conforming to the requirements of Section
102.56. The General Counsel contends that the Re-
spondents’ claim of insufficient information to admit
or deny the allegations in paragraphs 5(e), 7, and 8 of
the compliance specification is without merit, and that
the individual Respondents, by virtue of their relation-
ships with the Respondent Companies and each other,
have access to information to answer those allegations
specifically. Accordingly, the General Counsel requests
that paragraphs 5(e), 7, and 8 of the compliance speci-
fication be deemed to be true.
We address now the Motion for Partial Summary
Judgment against the Respondents, Denart Coal and V.
Coal. The compliance specification served on the Re-
spondents states that, pursuant to the Board’s Rules
and Regulations, ‘‘the Respondents shall, within 21
days from the date of this compliance specification,
file . . . an original and four (4) copies of an answer
to the compliance specification. 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 ex-
plained, such allegations shall be deemed to be admit-
ted to be true and the party failing to properly deny
said allegations shall be precluded from introducing
any evidence controverting them.’’
It is clear that Respondents Denart Coal and V. Coal
have failed to file an answer to the compliance speci-
fication, despite having been advised of the filing re-
quirements, and have failed to respond to the Notice
to Show Cause. Further, the Respondents’ assertion
that their business is defunct and without assets is an
inadequate explanation for their omissions. See Star
Grocery Co., 245 NLRB 196, 197 (1979). We there-
fore grant the General Counsel’s motion and deem all
the allegations in the compliance specification to be
admitted as true against the Respondents, Denart Coal
Co., Inc. and its alter ego V. Coal Co., Inc.
In their memorandum in opposition, the additional
Respondents assert that the General Counsel is pro-
ceeding on the assumption that the Respondents are
able to determine where the General Counsel derived
its backpay figures and have access to those sources.
The Respondents also claim that the cases cited by the
General Counsel in his supporting memorandum are
not on point because they do not deal with the records
of separate legal entities, as they claim Denart Coal
and V. Coal are to them.
With regard to paragraphs 5(e), 7, and 8 of the spec-
ification, the Board ordinarily presumes that the var-
ious factors entering into the computation of gross
backpay are within the knowledge of a respondent em-
ployer and therefore finds that a general denial as to
these matters is not sufficient. See Section 102.56(b) of
the Board’s Rules; Marine Machine Works, 256 NLRB
15, 17 (1981). The additional Respondent Companies,
however, have not been found to constitute a single
employer with the original Respondents, Denart Coal
and V. Coal. Indeed, the General Counsel acknowl-
edges that the single-employer issue is one that must
be resolved at a hearing. Thus, at this stage of the pro-
ceeding, it cannot be said that the additional Respond-
ent companies are liable for the backpay.
In arguing that the additional Respondents do pos-
sess the requisite knowledge and therefore should have
answered paragraphs 5(e), 7, and 8 more specifically,
the General Counsel relies on certain findings of the
administrative law judge in the underlying unfair labor
practice proceeding that show an interrelationship
among the various Respondents. The additional Re-
spondents, however, were not parties to that pro-
ceeding and the General Counsel does not present any
argument why those findings should be binding on
them. Further, the additional Respondents have denied
the allegation of the compliance specification that the
individual Respondents were ‘‘agents’’ of the alleged
single employer, and the General Counsel has not
sought to controvert that denial.4
We do not, however, need to address specifically the
access, if any, that the additional Respondents may or
may not have to the records of the Respondents named
in the underlying unfair labor practice case. Resolution
of the single-employer issue will, necessarily, resolve
the adequacy of the answer to the backpay specifica-
tions filed by these additional Respondents.
If all the Respondents are a single employer, then
they are all responsible for, and bound by, the actions
of the single employer in this proceeding. That in-
cludes the failure of the original, named Respondents
to provide an adequate answer here and against whom
393DENART COAL CO.
5 Our ruling does not, however, permit Respondents Denart Coal Co., Inc.
and its alter ego V. Coal Co., Inc. to participate in that hearing. See Transpor-
tation by La Mar, 281 NLRB 508, 510 fn. 6 (1986).
we have granted partial summary judgment. If they are
not a single employer, then there is no basis on this
motion for imposing liability on the additional Re-
spondents. In that circumstance, their access to any
records necessary to answer the backpay specification
is irrelevant; it does not run against them.
As the General Counsel does not seek summary
judgment with respect to the single-employer status of
the Respondent Companies and the personal liability of
the individual Respondents alleged in paragraphs 1–4,
and does not seek to preclude the Respondents from
controverting allegations of the medical expenses al-
leged in paragraph 6 of the compliance specification,
we shall order a hearing on those issues.
Accordingly, we grant the General Counsel’s Motion
for Partial Summary Judgment against Respondents
Denart Coal Co., Inc. and its alter ego V. Coal Co.,
Inc., except to the extent that issues raised by the other
Respondents have been remanded for a hearing.5
ORDER
It is ordered that the General Counsel’s Motion for
Partial Summary Judgment and to preclude Respond-
ents Laing Enterprises, Vance Trucking, Delores
Vance d/b/a D & J Trucking, a sole proprietorship,
Don Vance, Don E. Vance, and Michael Vance, from
controverting certain allegations of the compliance
specification is denied without prejudice.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Partial Summary Judgment against Re-
spondents Denart Coal Co., Inc. and its alter ego V.
Coal Co., Inc. is granted, except to the extent that
issues raised by the other Respondents have been re-
manded for a hearing.
IT IS FURTHER OREDERED that this proceeding is re-
manded to the Regional Director for Region 9 for the
purpose of arranging a hearing before an administra-
tive law judge, and that the Regional Director is au-
thorized to issue notice thereof.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a decision
containing findings, conclusions, and recommendations
based on all of the record evidence. Following the
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 apply.