Diehl Equipment Co.

National Labor Relations Board - Board Decisions

Feb 12, 1991

301 N.L.R.B. 657 (N.L.R.B. 1991)

657
301 NLRB No. 89
DIEHL EQUIPMENT CO.
1 297 NLRB 504.
2 The Respondent also contends that the backpay specification erroneously
states that the hourly pay rate for Hermes was $17.85. The General Counsel
has conceded this error and has filed a revised appendix to the compliance
specification setting forth the correct hourly pay rate of $14.25.
3 The Respondent’s exceptions to the judge’s decision did not contest the
fact of Wilson’s application for employment on February 29.
Diehl Equipment Company, Inc. and Local Union
#469 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Can-
ada, AFL–CIO. Case 28–CA–9333
February 12, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 29, 1989, the National Labor Rela-
tions Board issued a Decision and Order against the
Respondent in this proceeding.1 The Board ordered the
Respondent, inter alia, to offer immediate employment
to and make whole Karl Stahl, Greg Wilson, and John
Lehner for any loss of earnings suffered as a result of
the Respondent’s unlawful refusal to hire them because
of their known or suspected union activity. On May
11, 1990, the General Counsel and the Respondent en-
tered into a stipulation that the Respondent waived its
right under Section 10(e) and (f) of the Act to contest
either the propriety of the Board’s Order or the find-
ings of fact and conclusions of law underlying that
Order.
A controversy having arisen over the amount of
backpay due, the Regional Director for Region 28
issued a compliance specification on July 31, 1990, al-
leging the amounts of backpay due the discriminatees.
The Respondent filed an amended response to the
specification on August 29, 1990, admitting in part and
denying in part the allegations of the specification.
On October 25, 1990, the General Counsel filed di-
rectly with the Board a ‘‘Motion to Strike Portions of
Respondent’s Amended Response to Compliance Spec-
ification and Motion for Partial Summary Judgment,’’
with exhibits attached. The General Counsel submits
that the Respondent’s amended response seeks to reliti-
gate issues previously resolved in the underlying unfair
labor practice proceeding and fails to comport with the
requirements of Section 102.56 of the Board’s Rules
and Regulations. Accordingly, the General Counsel
moves that the Board strike certain portions of the
amended response and grant summary judgment as to
several paragraphs of the backpay specification.
On October 26, 1990, 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 November 13, 1990, the Re-
spondent filed a response.
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 to Strike Portions of Amended
Response and for Partial Summary Judgment
In the compliance specification, the General Counsel
asserts, inter alia, that: discriminatee Wilson applied
for work with the Respondent on February 29, 1988;
the backpay period for discriminatees Stahl and Wilson
began on March 28, 1988, when the Respondent hired
James Carpenter and Larry Quarles; the backpay pe-
riod for discriminatee Lehner began on October 3,
1988, when the Respondent hired Guy Hermes; and
that gross backpay for the three discriminatees should
be computed on the basis of hours and wage rates for
a representative group of employees, including Car-
penter, Quarles, and Hermes, who worked for the Re-
spondent during the backpay periods stated.
In its amended response to the compliance specifica-
tion, the Respondent denies the assertion that Wilson
applied for work. It contends that he ‘‘simply made a
telephone inquiry.’’ In addition, the Respondent denies
several paragraphs of the specification which are pre-
mised, in whole or in part, on the hiring, hours, and
wage rates of Carpenter, Quarles, and Hermes. The
Respondent contends that these individuals were exist-
ing employees who were not first hired on the dates
set forth in the compliance specification. It further con-
tends that as existing employees they should be ex-
cluded from the group of representative employees
whose hours and wage rates provide the basis for quar-
terly gross backpay computations.2 Although the Re-
spondent has failed to provide in its amended response
any alternative computation setting forth the specific
amounts of quarterly gross backpay allegedly owing to
the three discriminatees, it contends that such computa-
tion can easily be made after excluding information
about the hours and wage rates of Carpenter, Quarles,
and Hermes from current backpay specification figures.
We agree with the General Counsel that the Re-
spondent’s denials with respect to Wilson’s application
for employment and with respect to Carpenter,
Quarles, and Hermes constitute attempts to relitigate
issues resolved in the underlying unfair labor practice
proceeding. The Board’s Decision and Order affirmed
specific findings and conclusions by the administrative
law judge that: Wilson applied for employment at the
Respondent’s offices on February 29, 1988, and there-
after made telephone inquiries about employment;3
after Stahl and Wilson had applied for employment,
the Respondent hired Quarles and Carpenter on March
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The judge set forth in full the Respondent’s February 12, 1988 list of cur-
rent employees eligible to participate in a scheduled representation election.
The names of Quarles and Carpenter were not on the list.
5 The Respondent’s exceptions to the judge’s decision specifically raised the
issue of the judge’s alleged failure to find that previous employees were pre-
ferred for reemployment and that 9 of the 14 employees hired between Feb-
ruary 22 and December 14, 1988, were rehires. The Board’s Decision and
Order affirmed the judge’s findings without comment on this point.
6 We find no need to pass on the General Counsel’s contention that the Gen-
eral Counsel’s motions should be granted because the Respondent’s pleadings
lack the specificity and supporting alternative backpay computations required
in Sec. 102.56(a) and (b) of the Board’s Rules.
7 It is undisputed that par. 12 at issue should correctly be numbered as par.
14.
8 The General Counsel acknowledges that a hearing is necessary on the
issues of interim earnings, related quarterly expenses, and net backpay as it
relates to net interim earnings.
28, 1988;4 these and other hirings proved antiunion
discrimination against Stahl and Wilson; Hermes left
the Respondent’s employ sometime after February 13,
1988, but was rehired on October 3, 1988; the hiring
of Hermes and two other individuals on October 3,
after Lehner had applied for employment, proved
antiunion discrimination against Lehner; and, finally,
the Respondent’s employment records refuted its con-
tention, made in defense of its failure to hire new job
applicants Stahl, Wilson, and Lehner, that it limited its
hiring to former employees.5
Based on the foregoing, we find that all relevant
issues concerning Wilson’s application for employment
and the Respondent’s prior employment of Carpenter,
Quarles, and Hermes were resolved in the unfair labor
practice proceeding. In the parties’ May 11, 1990 stip-
ulation, the Respondent waived its right to contest fur-
ther the findings of fact and conclusions of law in the
unfair labor proceeding. In addition, ‘‘it is well-settled
that matters litigated in the unfair labor practice pro-
ceeding can not be relitigated under the guise of avoid-
ing backpay.’’ Workroom For Designers, 289 NLRB
1143, 1438–1439 (1988). Accordingly, we shall grant
the General Counsel’s motion to strike those portions
of the amended response to paragraphs of the compli-
ance specification relating to previously resolved
issues, and we shall grant the Motion for Partial Sum-
mary Judgment as to those paragraphs of the compli-
ance specification.6
ORDER
It is ordered that the General Counsel’s motion to
strike paragraphs II, IV, VI through XV, and XVII of
the Respondent’s amended response to the compliance
specification is granted.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Partial Summary Judgment with respect to
paragraphs 1(b), 2(a) and (b), 4(a) and (b), 5, 6(a)–(e),
7(a)–(c), 8(a), 9(a), 10(a), 13 and 127 of the compli-
ance specification is granted.8
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 28 for fur-
ther appropriate action.