Ellis Electric

National Labor Relations Board - Board Decisions

Aug 27, 1996

321 N.L.R.B. 1205 (N.L.R.B. 1996)

1205
321 NLRB No. 165
ELLIS ELECTRIC
1 315 NLRB 1187.
2 The compliance specification mistakenly includes two pars. num-
bered ‘‘11.’’ The second of those paragraphs follows par. 12 of the
compliance specification and summarizes the total backpay due to
each of the six discriminatees. We shall renumber and refer to this
paragraph as par. 2 Ls. 13.
Daniel J. Ellis d/b/a Ellis Electric and International
Brotherhood of Electrical Workers, Local 288.
Case 18–CA–12634
August 27, 1996
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On December 30, 1994, the National Labor Rela-
tions Board issued a Decision and Order in this pro-
ceeding,1 in which it ordered the Respondent, inter
alia, to make whole six named individuals for any loss
of earnings suffered by reason of the Respondent’s dis-
crimination against them. A controversy having arisen
over the amount of backpay due the discriminatees
under the Board’s Order, the Regional Director for Re-
gion 18 issued a compliance specification2 and notice
of hearing alleging the amounts of backpay due and
notifying the Respondent that it must file a timely an-
swer complying with the Board’s Rules and Regula-
tions. The Respondent subsequently filed an answer
and an amended answer to the compliance specifica-
tion.
On February 13, 1996, the General Counsel filed
with the Board a Motion to Strike Portions of Amend-
ed Answer and for Partial Summary Judgment, with
exhibits attached. On February 15, the Board issued an
order transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel’s mo-
tion should not be granted. On March 5, the Respond-
ent filed a Joint Resistance to Motion to Strike Por-
tions of Amendment and Answers and for Partial Sum-
mary Judgment and Response to Motion to Show
Cause.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
Ruling on Motion To Strike Portions of the
Amended Answer and for Partial Summary
Judgment
The General Counsel moves to strike those parts of
the Respondent’s amended answer that attempt to re-
litigate matters that were raised in the underlying un-
fair labor practice proceeding or that fail to meet the
specificity requirements of the Board’s Rules and Reg-
ulations. The General Counsel further moves for partial
summary judgment on those allegations for which the
Respondent has answered with denials that the General
Counsel moves to strike, and on those allegations of
the compliance specification that the Respondent has
admitted. In sum, the General Counsel seeks partial
summary judgment on gross backpay computations for
discriminatees Jeffrey Hicks, Ritchie Kurtenbach, Jon
Mariani, and Jeffrey Fisher, on vacation pay computa-
tions for Kurtenbach and Fisher, and on the appro-
priateness and use of the average adjusted hours
worked by a comparable group of electricians as a for-
mula for Kendall Jacobs and the 25 total hours per
week formula for Melissa Jacobs, as set forth in the
compliance specification.
With respect to discriminatee Hicks, the General
Counsel moves to strike those parts of the Respond-
ent’s amended answer that dispute the backpay period
and the gross backpay formula in the compliance spec-
ification on the ground that Hicks falsified information
about prior work experience on his job application.
The General Counsel contends that the Respondent is
attempting to relitigate an issue considered and decided
by the Board in the underlying unfair labor practice
proceeding. We agree. The Board specifically decided
there that Hicks did not forfeit his right to reinstate-
ment by misrepresenting to the Respondent his work
experience. The Respondent is barred from raising this
issue again as a defense at the compliance stage of the
case. Emsing’s Supermarket, 299 NLRB 569, 571
(1990); Hiysota Fuel Co., 287 NLRB 1 (1987). Ac-
cordingly, we grant the General Counsel’s motion to
strike. All allegations in the compliance specification
about the computation of Hicks’ gross backpay there-
fore stand unanswered. We deem these allegations to
be true, and we grant the General Counsel’s Motion
for Summary Judgment as to all matters of Hicks’
gross backpay. Any hearing on matters relating to
backpay for Hicks shall be limited to issues of interim
earnings and the resultant computation of net backpay.
Section 102.56(b) and (c) of the 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-
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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-
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.
The General Counsel moves to strike several other
portions of the amended answer concerning various
gross backpay allegations in the compliance specifica-
tion. As to these matters, the above Rules require more
than a general denial. The Respondent must specifi-
cally state the basis for disagreement, stating in detail
its position as to the applicable premises and furnish-
ing the appropriate figures. In considering the suffi-
ciency of the Respondent’s denials, however, we ex-
amine not only its answer and amended answer but
also its response to the Notice to Show Cause. The
Board has held that a respondent may properly cure
defects in its answer before a hearing either by an
amended answer or a response to a Notice to Show
Cause. See, e.g., Vibra-Screw, Inc., 308 NLRB 151,
152 (1992); Bentleys Lounge, 265 NLRB 632 (1982),
enfd. 116 LRRM 2096 (6th Cir. 1983).
In its response to the Notice to Show Cause, the Re-
spondent supplemented general denials it had earlier
made with more specific information about an alter-
native formula for computing gross backpay for
discriminatee Kurtenbach for calendar quarters 1994–I
through 1995–I. By offering this specific alternative,
founded on a denial of Kurtenbach’s automatic entitle-
ment to annual 50-cent-hour wage increases, the Re-
spondent has met the requirement for a hearing on the
computation of Kurtenbach’s gross backpay and vaca-
tion pay for these periods. We shall therefore grant
summary judgment only with respect to the compli-
ance specification’s gross backpay allegations for
Kurtenbach concerning calendar quarters in 1993.
With respect to discriminatees Fisher and Mariani,
the Respondent has essentially admitted all gross back-
pay allegations in the compliance specification, includ-
ing allegations concerning the computation of vacation
pay for Fisher. We grant the General Counsel’s Motion
for Summary Judgment on these allegations. Any hear-
ing on matters relating to backpay for Fisher and
Mariani shall be limited to issues of interim earnings
and the resultant computation of net backpay.
With respect to discriminatee Melissa Jacobs, the
Respondent’s amended answer, including the specific
alternative gross backpay calculation in its response to
the Notice to Show Cause, is sufficiently specific to
entitle the Respondent to a hearing on all gross back-
pay issues beyond calendar quarter 1993–I. We shall
therefore grant the General Counsel’s Motion for Par-
tial Summary Judgment only as to the appropriateness
of the compliance specification’s use of a 25-total-hour
per week gross backpay formula for Jacobs for cal-
endar quarter 1993–I.
Finally, with respect to discriminatee Kendall Ja-
cobs, the Respondent’s amended answer, including its
response to the Notice to Show Cause, effectively ad-
mits the appropriateness of the compliance specifica-
tion’s gross backpay formula for the backpay period
from March 7 to May 30, 1993, when the Respondent
asserts Jacobs would have been discharged due to his
incarceration. The General Counsel admits that the Re-
spondent has raised a litigable issue concerning the
length of the backpay period for Jacobs. We shall
therefore grant summary judgment on the specifica-
tion’s gross backpay formula only for the period in
which the Respondent admits that Jacobs would be en-
titled to backpay.
In sum, we grant the General Counsel’s Motion for
Partial Summary Judgment on all of the compliance
specification’s gross backpay allegations for
discriminatees Jeffrey Hicks, Jon Mariani, and Jeffrey
Fisher; on gross backpay allegations for discriminatee
Ritchie Kurtenbach for calendar quarters 1993–I
through 1993–IV; on the gross backpay formula for
discriminatee Melissa Jacobs for calendar quarter
1993–I; and on the gross backpay formula for
discriminatee Kendall Jacobs through May 30, 1993.
ORDER
It is ordered that the General Counsel’s motion to
strike portions of the Respondent’s amended answer to
gross backpay allegations concerning Jeffrey Hicks in
the compliance specification is granted.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Summary Judgment is granted with respect
to all gross backpay allegations for Jeffrey Hicks, Jon
Mariani, and Jeffrey Fisher; gross backpay allegations
for Ritchie Kurtenbach for calendar quarters 1993–I
through 1993–IV; the gross backpay formula for
1207ELLIS ELECTRIC
discriminatee Melissa Jacobs for calendar quarter
1993–I; and on the gross backpay formula for Kendall
Jacobs through May 30, 1993.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 18 for the
purposes of issuing a notice of hearing and scheduling
the hearing before an administrative law judge, which
shall be limited to taking evidence concerning para-
graphs of the compliance specification as to which
summary judgment has not been granted.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a supple-
mental decision containing findings of fact, conclu-
sions of law, and recommendations based on all the
record evidence. Following service of the administra-
tive law judge’s decision on the parties, the provisions
of Section 102.46 of the Board’s Rules shall be appli-
cable.