D.L. Baker, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 2000

330 N.L.R.B. 521 (N.L.R.B. 2000)

BAKER ELECTRIC 521
D.L. Baker, Inc., t/a Baker Electric, and its alter ego
and/or Successor Baker Electric, Inc., and Dan-
iel L. Baker and Maggie Barry, Individually and
International Brotherhood of Electrical Work-
ers. Cases 5–CA–24131 and 5–CA–24190
January 19, 2000
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
On May 8, 1995, the National Labor Relations Board
issued a Decision and Order in this proceeding1 in which
it ordered the Respondent, D.L. Baker, Inc., t/a Baker
Electric, to offer reinstatement to Michael Tangy and to
make him whole for any loss of earnings and other bene-
fits he suffered as a result of the discrimination against
him, to offer employment to individuals on the Union’s
out-of-work list who were denied an opportunity to work
for the Respondent due to the Respondent’s failure and
refusal to adhere to the NECA-Union Inside Wireman
Master Agreement, and to make whole the Respondent’s
own employees and those who were unlawfully denied
employment for all loss of earnings and other benefits
they suffered as a result of the Respondent’s failure to
adhere to the agreement. On January 8, 1997, the United
States Court of Appeals for the Fourth Circuit entered a
judgment enforcing the Board’s Order.2
A controversy having arisen over the amount of back-
pay due the claimants under the Board’s Order, the Re-
gional Director for Region 5 issued a compliance specifi-
cation and notice of hearing setting forth backpay formu-
lae and calculations for the three groups of claimants:
employees who worked for the Respondent during the
backpay period; individuals on the Union’s out-of-work
list who were not referred for employment due to the
Respondent’s failure to use the hiring hall; and discrimi-
natee Tangy, who had been discharged for engaging in
protected activities. The specification also alleges that
three additional Respondents are derivatively liable for
the amounts due the claimants. Specifically, the specifi-
cation alleges that Respondent Baker Electric, Inc. is an
alter ego and/or successor of D.L. Baker, Inc., t/a Baker
Electric, and is jointly and severally liable for the back-
pay, interest, and other relief required by the Board’s
Order as enforced by the court. The specification further
alleges that Daniel L. Baker and Maggie Barrie, indi-
vidually, acted as the alter egos of Respondents D.L.
Baker, Inc., t/a Baker Electric and Baker Electric, Inc.
and that both individuals are personally liable, jointly
and severally, for payment of backpay, interest, and other
relief.

1 317 NLRB 335 (1995).
2 NLRB v. Baker Electric, No. 96–1377 (4th Cir. 1997) (per curiam)
(unpublished opinion).
All four Respondents filed answers to the compliance
specification on April 21, 1999. The answers generally
deny the General Counsel’s formulae for computing
backpay and the application of those formulae to the
claimants. The Respondents additionally raise several
affirmative defenses.
On May 11, 1999, the General Counsel filed with the
Board a Motion for Partial Summary Judgment. The
General Counsel argues that the Respondents’ answers
are substantively deficient under Section 102.56(b) of the
Board’s Rules and Regulations, because the Respon-
dents’ general denials to paragraphs 17, 18, 19, 24, and
32 relate to matters within the Respondents’ knowledge.
The General Counsel further argues that the Respon-
dents’ affirmative defenses are unsupported, and that the
Respondents improperly seek to relitigate the Respon-
dents’ liability. The General Counsel urges the Board to
strike the Respondents’ answers to paragraphs 17, 18, 19,
24, and 32 in their entirety, or, alternatively, to grant
summary judgment as to the allegations in those para-
graphs.3
On May 18, 1999, the Board issued an order transfer-
ring proceedings to the Board and Notice to Show Cause
why the General Counsel’s motion should not be
granted. On June 1, 1999, the Respondents filed a joint
opposition to the General Counsel’s motion and, in addi-
tion, filed joint motions to compel the return of original
documents, for the production of certain information
related to the compliance specification, and for an en-
largement of time in which to file an amended answer to
the compliance specification following production of the
requested documents. The Charging Party filed a brief in
support of the General Counsel’s motion. The General
Counsel filed a reply brief to the Respondents’ joint op-
position to his motion and an opposition to the Respon-
dents’ motions. The Respondents sought to file a surre-
ply brief to the General Counsel’s reply brief, which the
Board’s Executive Secretary rejected pursuant to the
Board’s longstanding policy against accepting surreply
briefs. The Respondents then filed with the Board a mo-
tion to accept the surreply brief.4
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
3 The motion does not seek summary judgment with respect to alter
ego or successor issues, interim earnings of hiring hall claimants or
Tangy, claimants’ medical expenses, or contractual funds payments.
4 Motions for Summary Judgment are governed by Sec. 102.24 of
the Board’s Rules and Regulations. Sec. 102.24(b) permits a party to
file an opposition to the motion and a response to the Notice to Show
Cause. In addition, although not expressly provided for in Sec. 102.24,
it is the Board’s practice to permit the party moving for summary
judgment to file a reply brief, just as a party filing exceptions under
Sec. 102.46 is permitted to file such a brief. See Sec. 102.46(h). In
consideration of the need for administrative finality, however, surreply
briefs are generally not permitted, “except by special leave of the
Board.” Id. Here, no circumstances were presented warranting special
leave, and the Respondents’ motion to file a surreply brief is therefore
denied.
330 NLRB No. 79
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522
On the entire record, the Board makes the following
Ruling on Motion for Partial Summary Judgment
Section 102.56 of the Board’s Rules and Regulations
provides that:

(b) Contents of answer to specification.—The
answer shall specifically admit, deny, or explain
each and every allegation of the specification, unless
the respondent is without knowledge, in which case
the respondent shall so state, such statement operat-
ing as a denial. Denials shall fairly meet the sub-
stance of the allegations of the specification at issue.
When a respondent intends to deny only a part of an
allegation, the respondent 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 enter-
ing 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 figures
in the specification or the premises on which they
are based, the answer shall specifically state the ba-
sis for such disagreement, setting forth in detail the
respondent’s position as to the applicable premises
and furnishing the appropriate 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 an-
swer to the specification within the time prescribed
by this section, the Board may, either with or with-
out taking evidence in support of the allegations of
the specification and without further notice to the re-
spondent, 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 re-
quired by paragraph (b) of this section and the fail-
ure so to deny is not adequately explained, such al-
legation 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.

Having considered the matter, the Board has decided
to grant the General Counsel’s motion.5 With respect to

5 Based on the entire record, we find the Respondents’ motions for
return or production of documents to be without merit. The Respon-
dents demand return of the original financial records subpoenaed dur-
ing compliance proceedings. The General Counsel retained the origi-
nals of financial records to be introduced at the compliance hearing, in
view of concerns about integrity of evidence that arose during pro-
tracted subpoena enforcement litigation. The General Counsel pro-
vided the Respondents with date stamped copies of all retained origi-
nals. The Respondents do not allege that the copies and the originals
differ. To facilitate the return of the originals, the General Counsel
made several efforts to authenticate copies for use at trial, all of which
met with no success: the Respondents opposed the General Counsel’s
the answer filed by the original Respondent, D.L. Baker,
Inc., t/a Baker Electric, we find that it fails to raise any
issue warranting a hearing with respect to those portions
of the compliance specification on which summary
judgment is sought. The general denials in the Respon-
dent’s answers to paragraphs 17, 18, 19, 24, and 32 of
the compliance specification do not meet the require-
ments of Section 102.56 of the Board’s Rules and Regu-
lations. Paragraphs 17, 18, and 19 of the specification
base gross backpay, interim earnings, and calendar quar-
ter net backpay for the Respondent’s own employees on
the hours they actually worked for the Respondent during
the backpay period and the wages they were actually
paid, incorporating the increases provided in the Master
Agreement. Paragraphs 24 and 32 use the same basis for
determining gross backpay, but not interim earnings or
net backpay, for the hiring hall claimants and for dis-
criminatee Tangy. These matters, including the interim
earnings of employees on the Respondent’s payroll, in-
volve information within the Respondent’s knowledge
and control. The Respondent’s failure to set forth fully
its position as to the applicable premises or to furnish
appropriate supporting figures or alternative calculations
to those alleged in paragraphs 17, 18, 19, 24, and 32 is
contrary to the specificity requirements of Section 102.56
of the Board’s Rules and Regulations.6

motion to reopen the record to authenticate copies, refused to stipulate
to authenticity or to allow the Respondents’ principals to swear to au-
thenticity, and ignored the General Counsel’s standing offer to the
Respondents’ counsel to review the originals at the Regional Office as
needed. In addition, the Respondents’ allegation that the General
Counsel breached a district court order to return records is without
foundation; the record does not contain such an order. We thus deny
the Respondents’ motion to compel return of original documents. The
Respondents further moved for production of certain other documents
related to the compliance specification. As the requested records are
not relevant to matters on which summary judgment is sought, we deny
the motion. Consequently, we also deny the Respondents’ motion for
enlargement of time to file an answer to the compliance specification,
as that motion was predicated on receipt of the requested documents.
6 The Respondent argues that its answer should be considered suffi-
cient under Aquatech, Inc., 306 NLRB 975 (1991), and Vibra-Screw,
Inc., 308 NLRB 151 (1992). In those cases, the Board construed oppo-
sitions to summary judgment motions that cured procedural defects or
provided new information as amended answers. Here, conversely, the
Respondent’s opposition contains no new information. Further, the
Respondent’s speculation that if it had additional documents it might
produce more specific answers is baseless. We have found no merit in
the Respondent’s motions requesting the General Counsel to return or
produce additional documents.
We need not decide the question of the adequacy of the answers
filed by the three additional Respondents. Resolution of the derivative
liability issue will necessarily resolve that question as well. If there is
no merit in the successorship and alter ego allegations of the compli-
ance specification, then these Respondents will not be liable for any
backpay. If, on the other hand, the General Counsel establishes that
such a relationship exists among the Respondents, then the additional
Respondents will be bound by the failure of the original Respondent to
provide an adequate answer to pars. 17, 18, 19, 24, and 32 of the com-
pliance specification. See Carib Inn Tennis Club & Casino, 320 NLRB
1113, 1114 fn. 4 (1996), supplemented by 323 NLRB 591 fn. 5 (1997).
BAKER ELECTRIC 523
The Respondents also deny liability for the backpay
period set forth in the compliance specification, includ-
ing the allegations in paragraphs 17, 18, 19, 24, and 32,
on the ground that the Respondent, D.L. Baker, Inc., t/a
Baker Electric, repudiated the collective-bargaining
agreement in September 1993, shortly after the backpay
period commenced. In the underlying case, however, the
Board and the court of appeals specifically found that the
Respondent had never effectively repudiated the agree-
ment.7 Thus, the Respondents’ argument that backpay
tolls in September 1993 has already been rejected and
may not be relitigated in this proceeding. Viola Indus-
tries, 316 NLRB 424 (1995); Arctic Framing, Inc., 313
NLRB 798 (1994).
Accordingly, pursuant to Section 102.56(c) of the
Board’s Rules, we deem the Respondent to have admit-
ted the allegations of paragraphs 17, 18, 19, 24, and 32 of
the compliance specification as to the gross backpay
formula for all claimants and as to the interim earnings
and calendar quarter net backpay formula for the Re-
spondent’s own employees, and we grant the General

7 317 NLRB at 346; NLRB v. Baker Electric, unpublished opinion at
8. The compliance specification alleges that effective repudiation oc-
curred on May 28, 1997, subsequent to the Board and court orders, and
adopts that date as the termination of the backpay period.
Counsel’s Motion for Partial Summary Judgment as to
those matters.
ORDER
It is ordered that the General Counsel’s Motion to the
Board for Partial Summary Judgment is granted with
respect to the compliance specification’s paragraphs 17,
18, 19, 24, and 32 with respect to formulae and calcula-
tions of gross backpay for all claimants and interim earn-
ings and calendar quarter net backpay for claimants who
worked for Respondent D.L. Baker, Inc., t/a Baker Elec-
tric.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 5 for the
purposes of issuing a notice of hearing and scheduling
the hearing before an administrative law judge, which
shall be limited to the taking of evidence concerning the
remaining allegations of the compliance specification.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a supplemen-
tal decision containing findings of fact, conclusions of
law, and recommendations based on all the record evi-
dence. Following 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 be
applicable.