Douglas Electrical Contracting

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 47 (N.L.R.B. 2001)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Douglas Electrical Contracting, Inc. and its alter ego
and/or successor Nationwide Electrical Con­
tracting, Inc. and Franklin Douglas Black Jr.
and Mary Frances Black and International
Brotherhood of Electrical Workers, AFL–CIO,
Local Unions 342 and 379. Cases 11–CA–17176
and 11–CA–17471
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On February 4, 1998, the National Labor Relations
Board issued an unpublished Order, inter alia, directing
Douglas Electrical Contracting, Inc., (Respondent Doug­
las) to make whole the discriminatees, Michael Miller,
Charles Booe, Paul Vogler, Mike Hill, Tommy Hill, David
London, Robert Durham, James Druhl, Thomas West,
Tony Smith, William Owen, Bill Forester, Ray Singleton,
Leslie Burgess, James Sneed, Richard Brooks, Roger
Bowyer, Bobby Barnett, and Al Craver, for loss of earn­
ings and other benefits resulting from the Respondent’s
discrimination against them in violation of the National
Labor Relations Act. On August 3, 1998, the United
States Court of Appeals for the Fourth Circuit entered its
unpublished Order enforcing the Board’s Order.
A controversy having arisen over the amount of back-
pay due discriminatees, on May 31, 2001, the Regional
Director for Region 11 issued a compliance specification
and notice of hearing alleging that Respondent Nation-
wide Electrical Contracting, Inc. (Respondent Nation-
wide) is an alter ego and/or successor to Respondent
Douglas and is jointly and severally liable for backpay,
interest and other relief as required under the Board’s
Order as enforced by the court. The compliance specifi­
cation further alleges that Franklin Douglas Black, Jr.
and Mary Frances Black, individually, acted as alter egos
of Respondents Nationwide and Douglas and that they
are personally liable, jointly and severally, for backpay,
interest and other relief as required under the Board’s
Order as enforced by the court. In addition, the compli­
ance specification notified the Respondents that they
should file a timely answer complying with the Board’s
Rules and Regulations. On June 19, 2001, the Respon­
dents filed an answer generally denying the allegations of
the compliance specification.1
By letters dated June 20, 2001, and July 25, 2001, the
Region advised the Respondents that the answer to the
1 The motion for Partial Summary Judgment treats the answer and
amended answer (discussed infra) as having been filed on behalf of all
four Respondents.
compliance specification did not comply with the re­
quirements of Section 102.56 of the Board’s Rules and
Regulations. The letter advised the Respondents that
unless an appropriate answer was filed by August 3,
2001, summary judgment would be sought. By letter
dated August 2, 2001, the Respondents filed an amended
answer to the compliance specification, admitting certain
allegations and denying certain other allegations.
On August 13, 2001, the General Counsel filed with
the Board a Motion for Partial Summary Judgment and
memorandum in support, with exhibits attached. On
August 15, 2001, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondents
filed no response.
Ruling on the Motion for Partial Summary Judgment
Section 102.56(a) of the Board’s Rules and Regula­
tions provides that the Respondent shall file an answer
within 21 days from service of a compliance specifica­
tion. Section 102.56 further states:
(b) Contents of answer to specification—The an­
swer 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 operating as
a denial. Denials shall fairly meet the substance of
the allegations of the specification at issue. When a
respondent intends to deny only a part of an allega­
tion, 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, in­
cluding 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 specifi­
cally and in detail to backpay allegations of specifi­
cation—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 support of the allegations of the specifi­
cation 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 an­
swer to the specification but fails to deny any allega­
tion of the specification in the manner required by
paragraph (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 evi-
337 NLRB No. 47
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dence supporting such allegation, and the respondent
shall be precluded from introducing any evidence
controverting the allegation.
In the amended answer to the compliance specifica­
tion, the Respondents admitted the date that Respondent
Douglas ceased operations, the incorporation date of Re­
spondent Nationwide, the supervisors and agents of Re­
spondents Douglas and Nationwide, and that Respondent
Nationwide was on notice of the liability of Respondent
Douglas resulting from the Board’s Order, as set forth in
paragraphs 1, 3, 4, and 5 of the compliance specification.
The Respondents denied the remaining allegations in the
compliance specification.
The General Counsel contends that the Respondents’
general denials with respect to paragraphs 17 through 62
of the compliance specification, which set forth the for­
mula, calculations, and amounts of gross and net backpay
for all the discriminatees, do not comply with the re­
quirements of Section 102.56(b) and (c). Thus, the Ge n­
eral Counsel argues, the allegations set forth in the com­
pliance specification at paragraphs 17 through 62 should
be deemed admitted as true.2
We agree with the General Counsel that, with respect to
Respondent Douglas, the amended answer is not sufficient
to raise any litigable issues regarding paragraphs 17
through 62, but only to the extent discussed below.3 Para-
graph 17 states that the gross backpay due the discrimina­
tees is the amount of earnings each would have received
but for the discrimination against them. Paragraphs 18
through 36 allege that the backpay period for each dis­
criminatee. Paragraphs 37 through 39 set forth the basis
for determining the gross backpay for each discriminatee.
A general denial is not sufficient to refute allegations
pertaining to the backpay period and the gross backpay
calculations. United States Service Industries, 325
NLRB 485, 486 (1998). Inasmuch as the data at issue is
within the knowledge and control of Respondent Doug­
las, its failure to set forth fully its position as to the ap­
plicable premises or to furnish appropriate supporting
figures is contrary to the specificity requirements of Sec­
tion 102.56(b) and (c). DeMuth Electric, 319 NLRB 942
(1995); Best Roofing Co., 304 NLRB 727 (1991). We
shall therefore grant partial summary judgment as to the
allegations in paragraphs 17 through 39 of the compli-
2 The General Counsel does not seek summary judgment with re­
spect to alter ego or successor issues.
3 With respect to the three additional Respondents, we need not de­
cide whether the amended answer is adequate under the Board’s rules.
Resolution of the derivative liability issue will necessarily resolve that
question as well. If there is no merit in the alter ego and successorship
allegations of the compliance specification, then these Respondents will
not be liable for any backpay. If, on the other hand, the General Coun­
sel establishes that such a relationship exists among the Respondents,
then the additional Respondents will be bound by the failure of original
Respondent Douglas to provide an adequate answer to the gross back-
pay computations of the compliance specification. Baker Electric, 330
NLRB 521 (2000).
ance specification as to the gross backpay basis, formula,
and calculations for all discriminatees.
Paragraphs 40 through 42 state that calendar quarter
net interim earnings is the difference between calendar
quarter earnings and calendar quarter interim expenses;
that calendar quarter net backpay is the difference be-
tween calendar quarter gross backpay and calendar quar­
ter net interim earnings; and that the total net backpay
due each discriminatee is the sum of the calendar quarter
amounts of net backpay due them. Again, Respondent
Douglas provides no methodology in its answer setting
forth an alternative formula as the basis for determining
the net backpay of each discriminatee. The General
Counsel is entitled to partial summary judgement on
these paragraphs as well. Taylor Machine Products, 335
NLRB No. 56 (2001).
Paragraphs 43 through 61 refer to attached appendixes
for the gross backpay, interim earnings and interim ex­
penses of each discriminatee. The amended answer
states that the allegations in these paragraphs are false,
and notes that the appendixes are not correct due to not
showing any earnings for the discriminatees referenced
in appendixes F, G, J, L, M, P and Q. This general de­
nial is sufficient to place interim earnings and expenses
into issue for all the discriminatees because that informa­
tion is not generally within the knowledge of a respon­
dent. DeMuth Electric, 319 NLRB at 943. Accordingly,
we shall order a hearing for determination of the dis­
criminatees’ interim earnings and expenses.
The first section of paragraph 62 states that the Re­
spondent’s obligation to make whole the discriminatees
includes a payment for any excess federal and state in-
come taxes they may incur in the form of an increased
tax liability that results from receiving in 1 year a lump
sum backpay distribution that represents a backpay
award for a multiyear backpay period that would have
encompassed several tax years but for the Respondent’s
unlawful conduct. We find that Respondent Douglas’
general denial of the allegations in this section of para-
graph 62 constitutes a sufficient answer, and we deny
summary judgment on this portion of paragraph 62.
The second portion of paragraph 62 summarizes the
facts and calculations set forth in the compliance specifi­
cation, and we grant summary judgment on this section
of paragraph 62, except as detailed above. Thus, we find
that the gross backpay amounts are as alleged in the
compliance specification, but that the net backpay calcu­
lations are subject to the hearing that we shall order re­
garding the discriminatees’ interim earnings and ex­
penses.
ORDER
IT IS ORDERED that the General Counsel’s Motion for
Partial Summary Judgment is granted with respect to the
allegations in the compliance specification’s paragraphs
17 through 62, insofar as they relate to the backpay pe-
DOUGLAS ELECTRICAL CONTRACTING 3
riod and the gross backpay calculations for all the dis­
criminatees.
IT IS FURTHER ORDERED that this proceeding is re­
manded to the Regional for Region 11 for the purpose of
issuing a notice of hearing and scheduling the hearing
before an administrative law judge, which shall be lim­
ited to taking evidence concerning the paragraphs of the
compliance specification as to which summary judgment
was not granted.
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 of the record
evidence. 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.
Dated, Washington, D.C. December 20, 2001
Peter J. Hurtgen, Chairman
Wilma B. Liebman, Member
Dennis P. Walsh, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD