Edward Cooper Painting, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 627 (N.L.R.B. 1990)

EDWARD COOPER PAINTING 627
Edward Cooper Painting, Inc. and Cooper and
Cooper Painting, a Partnership and Cooper and
Cooper Painting, Inc. and International Broth-
erhood of Painters and Allied Trades of the
United States and Canada, Local 768, AFL-
CIO. Case 9-CA-17245
January 31, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On February 12, 1985, the National Labor Rela-
tions Board issued a Decision and Order in this
proceeding' ordering Respondents Edward Cooper
Painting, Inc and its alter ego Cooper and Cooper
Painting, a Partnership, to recognize and bargain
with the Union and to make whole certain of their
employees for losses resulting from Respondent
Edward Cooper Painting, Inc 's unfair labor prac-
tices in violation of Section 8(a)(1), (3), and (5) of
the Act 2 The Board's Decision and Order was af-
firmed by the United States Court of Appeals for
the Sixth Circuit on November 6, 1986 3
On July 22, 1988, the Respondent filed a motion
to clarify and modify remedy and order in which
the Respondents specifically requested that in light
of the issuance of John Deklewa & Sons, Inc , 282
NLRB 1375 (1987), enfd sub nom Iron Workers
Local 3 v NLRB, 843 F 2d 770 (3d Cir 1988), the
Board reconsider the remedy set forth in its prior
decision reported at 273 NLRB 1870 On October
21, 1988, the Board issued an Order denying the
Respondents' motion
On Apnl 10, 1989, the Regional Director for
Region 9 issued an amended compliance specifica-
tion and notice of hearing alleging, inter aim, that a
controversy had arisen over the liability for, and
the backpay due, each employee under the Board's
Order as enforced, and notifying the Respondents
that they must file a timely answer that must
comply with the National Labor Relations Board
Rules and Regulations The Respondents thereafter
filed a timely response to the amended compliance
specification
In their response to the amended compliance
specification, the Respondents initially assert, inter
aim, that Cooper & Cooper Painting, Inc has never
1 273 NLRB 1870
2 The Board ruled that Respondent Edward Cooper Painting, Inc was
liable only until the date It declared bankruptcy, that is, December 4,
1981 Respondent Cooper and Cooper Painting's liability as alter ego has
continued, however The status of Cooper and Cooper Painting, Inc and
its liability, if any, for the unfair labor practices of Edward Cooper Paint-
mg, Inc, have not yet been determined For the sake of convenience,
however, we shall refer to all three entities as "the Respondents"
3 804 F 2d 934
been named as a respondent in the underlying
unfair labor practice proceedings in this case, that
Cooper & Cooper Painting (the Partnership)
should not be held liable for backpay, that the
Board's decision in Deklewa mandates a different
remedy from that which was ordered, and that at-
taching liability to the Respondents violates the
"fresh start" provisions of the bankruptcy laws Al-
ternatively, the Respondents assert that the General
Counsel seeks backpay for 6 employees who are
salaried personnel and 19 employees who are labor-
ers and that these individuals are outside the bar-
gaining unit, that the General Counsel is seeking
backpay for 32 employees who have been appren-
tices for either part or all the backpay period, and
finally that 4 employees for whom the General
Counsel seeks backpay are deceased The Respond-
ents do not otherwise contest the accuracy of the
backpay figures used by the General Counsel
On July 3, 1989, the General Counsel filed with
the Board a motion to strike portions of Respond-
ents' response to amended compliance specification
and Motion for Summary Judgment The General
Counsel contends that the majority of the Re-
spondents' answers to the amended compliance
specification should be stricken as either an attempt
to rehtigate matters that are res judicata, unrespon-
sive to the pleadings or immaterial to the instant
proceeding 4 The General 'Counsel further moves
for summary judgment on the allegations of the
amended compliance specification on the grounds
that the Respondents' response does not comply
with the Board's Rules and Regulations, particular-
ly Section 102 56(b) and (c), which requires, inter
aim, that any denial of the gross backpay formula
set forth an applicable theory or supporting figures
for the denial 5
On July 10, 1989, the Board issued an order
transfernng the proceeding to the Board and a
Notice to Show Cause why the General Counsel's
motion should not be granted On July 20, 1989,
the Respondents filed a response to the General
Counsel's motion 6
4 Counsel for the General Counsel concedes that the Issues raised by
the Respondents' response with respect to the alleged alter ego, succes
sor, and single employer status of Respondent Cooper and Cooper Paint-
ing, Inc are matters appropriate for resolution by an administrative law
judge in these compliance proceedings
5 In the alternative, the General Counsel requests summary judgment
on "all allegations of the Amended Compliance Specification including
backpay computations excepting only the inclusion of the six individuals
Respondents assert were only employed as salaried administrative person-
nel and summary judgment on the backpay computations for those indi-
viduals
5 The Respondents "Response to Motion to Strike Portions of Re-
sponse and Summary Judgment and Motion for the Board to Reconsider
its Dekkwa Decision" is' essentially a reargument of the Respondents'
Deklewa position, which was rejected by the Board in its unpublished
Continued
297 NLRB No 94
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has delegat-
ed 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 Stnke
The primary purpose of the General Counsel's
Motion to Strike appears to be to preclude the Re-
spondents from bringing back before the Board
matters that were or could have been litigated
before the administrative law judge The approach
proposed to accomplish this end—stnking all para-
graphs of the Respondents' response that do not
contain information that the General Counsel con-
cedes is still in issue—is unnecessarily broad Ac-
cordingly, we deny the motion to stnke, but rule
that the Respondents are precluded from introduc-
ing any evidence that attempts to raise a defense
based on John Deklewa & Sons, Inc , 282 NLRB
1375 (1987), and from introducing any evidence
that attempts to rehtigate the alter ego status of
Respondents Edward Cooper Painting, Inc and
Cooper and Cooper Painting, A Partnership
Ruling on Motion for Summary Judgment
Section 102 56(b) and (c) of the Board's Rules
and Regulations"' states
(b) Contents of the answer to specification —
The answer shall specifically admit, deny, or
explain each and every allegation of the speci-
fication, 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
allegation, the respondent shall specify so
much of it as is true and shall deny only the
remainder As to all matters within the knowl-
edge of the respondent, including but not lim-
ited 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
figures in the specification or the premises on
order denying motion to clarify and modify remedy and order, issued
October 21, 1988 Accordingly, we deny the Respondents motion to re-
consider, noting, however, that nothing in our decision precludes the Re-
spondents from claiming that a subsequent collective-bargaining agree-
ment that they may enter Into is indeed an 8(f) contract
7 Formerly Sec 102 54 The Board amended its rules governing pro-
ceedings concerning compliance with Agency orders effective November
13, 1988 The substance of former Secs 102 54 and 102 55 has been Incor-
porated Into Sec 102 56 as revised, former Sec 102 56, with some modi-
fication, has become the new Sec 102 57, while the substance of former
Sec 102 57 has become par (c) of the new Sec 102 55 in the revised
rules
which they are based, the answer shall specifi-
cally state the basis for such disagreement, set-
ting 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
specifications —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 sup-
port of the allegations of the specification and
without further notice to the respondent, find
the specification to be true and enter such
order as may be appropnate If the respondent
files an answer to the specification but fails to
deny any allegation of the specification in the
manner required by paragraph (b) of this sec-
tion, and the failure so to deny is not adequate-
ly 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 respondent
shall be precluded from introducing any evi-
dence controverting the allegation
We agree with the General Counsel that the Re-
spondents' answers to the allegations of backpay
amounts8 due do not conform with the above re-
quirements regarding the employees alleged by the
Respondents to be salaried administrative person-
nel, laborers, and deceased As to employees assert-
ed to be in those three categories, the Respondents
have failed to dispute the accuracy of the backpay
computations offered by the General Counsel or to
set forth their position with supporting figures
Thus, their answer fails to comport with the speci-
fications of Rule 102 56(b) and (c), and we shall
grant summary judgment on the backpay amounts
alleged with regard to those employee categories
Accordingly, we find the alleged amounts of back-
pay to be true and the Respondents are precluded
from introducing any evidence controverting them
We find, however, that the Respondents' general
denial is sufficient to raise a factual issue regarding
the status of those three groups As to those em-
ployees the Respondents alleged were salaried ad-
ministrative personnel, the General Counsel con-
cedes that the Respondents have arguably raised
issues appropriate for litigation insofar as their job
functions are concerned If the Respondents' de-
fense is proven to be true, these employees would
8 In using the term "backpay amounts" we refer not only to net back-
pay as alleged in the amended compliance specification, but also to
amounts alleged to be due under the Health and Welfare and Education
Funds, as provided for in the parties' 1981-1982 contract
EDWARD COOPER PAINTING 629
fall outside the bargaining unit and no backpay
would be due them Regarding those employees
the Respondents allege are laborers and not paint-
ers, and those it alleges to be deceased, we find
also that a factual issue is raised as to their status,
and that granting summary judgment would be in-
appropriate, based on the same reasoning 9
With respect to those employees the Respond
ents allege were apprentices either for some or all
the backpay penod, factual issues are raised both as
to their status and the amounts of backpay due If
apprentice status is confirmed regarding those em
ployees, the backpay amounts alleged in the
amended compliance specification may need to be
recalculated based on the applicable apprentice
wage rate, if any i ° Accordingly, these matters are
to be resolved by an administrative law judge pur
suant to our Order, below
Finally, we note that the Respondent failed to
contest either the status or the amounts of backpay
alleged to be due 67 individuals not otherwise dis
cussed above Accordingly, we shall grant summa-
ry judgment as to those individuals, and the Gener-
al Counsel's allegations regarding them shall be
deemed true
ORDER
It is ordered that the General Counsel's motion
to stnke portions of Respondents' response to
° If at the heanng the status of these three groups of employees is de
termmed to be as the Respondents allege then our grant of summary
judgment on the amounts of backpay due them will obviously have no
further legal effectiveness
1 ° The amounts as calculated in the specification are based on the Jour
neymen wage rate of $11 65 per hour r
amended compliance specification is denied, but
that the Respondents are precluded from litigating
any defense based on Deklewa and from rehtigating
the alter ego status of Respondents Edward
Cooper Painting, Inc , and Cooper and Cooper
Pamtmg, A Partnership
IT IS FURTHER ORDERED that the General Coun
sel s Motion for Summary Judgment is granted
with respect to the 67 individuals whose status and
backpay were not contested by the Respondents, as
set forth in the amended compliance specification
It is also granted with respect to the backpay
amounts due employees that the Respondents con
tend are salaried admmistrative personnel, laborers,
and deceased, as set forth in the amended compli-
ance specification, subject to the following
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 9
for the purpose of arranging a heanng before an
administrative law judge, limiting such proceeding
to a determination of the status of employees al-
leged by the Respondents to be salaned admimstra
tive personnel, laborers, deceased, and apprentices
The backpay amounts, if any, due those alleged to
be apprentices shall also be determined Finally, the
alter ego or successor employer status of Cooper
and Cooper Painting, Inc. may be litigated
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a
supplemental decision containing findings of fact,
conclusions of law, and recommendations based on
all the record evidence Following service of the
admmistrative law judge's decision on the parties,
the provisions of Section 102 46 of the Board's
Rules shall be applicable