Francis Building Corp.

National Labor Relations Board - Board Decisions

Dec 20, 1999

330 N.L.R.B. 48 (N.L.R.B. 1999)

330 NLRB No. 48
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
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.
Francis Building Corporation, Francis Brothers
Sewer and Drainage, Inc., and Island Bay De-
velopment Corp. and Diego Matos. Case 29–CA–
20480
December 20, 1999
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On January 29, 1999,1 the National Labor Relations
Board issued a Decision and Order, 327 NLRB No. 89,
finding that the Respondent violated Section 8(a)(1) of
the Act and directing that the Respondent, inter alia, of-
fer immediate and full reinstatement to Diego Matos and
make him whole, with interest, for any loss of earnings
and other benefits resulting from the Respondent’s un-
lawful discrimination. By stipulation dated July 15, the
Respondent waived its right under Section 10(e) and (f)
of the Act to file a petition for review of the Board’s de-
cision.
On August 25, the Acting Regional Director for Re-
gion 29 issued a compliance specification and notice of
hearing, which was duly served on the Respondent. The
compliance specification alleged, inter alia, the compen-
satory amounts and contributions owed by the Respon-
dent, pursuant to the Board’s decision, to Matos and to
various benefit funds, and the wage and hour derivation
of those amounts. On September 22, counsel for the
General Counsel sent written notice to the Respondent
that an answer had not been timely filed and that the
General Counsel would file a Motion for Summary
Judgment unless an answer was filed by October 1.
On September 28, the Respondent filed an answer in
which it summarily denied the allegations in the compli-
ance specification and raised four affirmative defenses.
The first affirmative defense denied the Board’s jurisdic-
tion over Francis Brothers Sewer and Drainage, Inc. and
Island Bay Development Corp. The second affirmative
defense alleged that Matos had received “funds from
other sources which should be considered in reduction
and mitigation of any damages awarded.” The third af-
firmative defense alleged that “the hours indicated are
not reflective of the actual hours of work available” for
Matos. The fourth affirmative defense alleged that the
“number of hours of work” available for Matos, “upon
consideration of his overall lack of skill and the needs of
the project must be considered in diminution of the sums
sought herein.”
On October 7, the Regional Director issued an order
rescheduling the hearing on this matter from October 20
to January 12, 2000. On October 25, the General Counsel

1 All dates herein are in 1999 unless otherwise noted.
filed the instant Motion for Partial Summary Judgment,
seeking summary judgment on all the allegations in the
compliance specification, except those pertaining to the
Respondent’s second affirmative defense, which ad-
dresses interim earnings received by Matos during the
backpay period.
On October 27, the Board issued an order and notice to
show cause, transferring the proceeding to the Board and
postponing indefinitely the hearing scheduled for January
12, 2000. The Respondent filed an “affidavit in opposi-
tion,” signed by its counsel.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Partial Summary Judgment
Board Rule 102.56(b) states that with respect to “all
matters within the knowledge of the respondent” con-
cerning “factors entering into the computation of gross
backpay, a general denial [to a compliance specification]
shall not suffice.” The rule continues:
As to such matters, if the respondent disputes either the
accuracy of the figures in the specification or the
premises on which they are based, the answer shall
specifically 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.
Under Rule 102.56(c), to the extent that a respondent’s an-
swer fails to comply with the specificity requirements of
Rule 102.56(b), “such allegation shall be deemed to be ad-
mitted 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.”
The Respondent’s answer contains no “supporting fig-
ures” or specific statement of “the basis for its disagree-
ment” with respect to the accuracy of the General Coun-
sel’s premises and figures pertaining to the backpay pe-
riod, wage and contribution rates, hours worked, or the
computation of gross backpay. All such information is
within the knowledge and possession of the Respondent.
The General Counsel is accordingly entitled to summary
judgment on these matters under Board Rule 102.56 (b)
and (c). Emsing’s Supermarket, 299 NLRB 569, 570–
572 (1990).
With respect to the single employer issue raised in the
Respondent’s first affirmative defense, the judge in the
underlying decision and, by adoption, the Board, specifi-
cally found that Francis Building Corporation, Francis
Brothers Sewer and Drainage, Inc., and Island Bay De-
velopment Corp. were a single employer. The Respon-
dent by stipulation waived its right under Section 10(e)
and (f) to contest either the propriety of the Board’s Or-
der or the findings of fact and conclusions of law under-
lying that order. The Board’s ruling on this issue is ac-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
cordingly final and not subject to relitigation in a com-
pliance proceeding. Thalbo Corp., 323 NLRB 630, 634
(1997), enfd. 171 F.3d 102 (2d Cir. 1999).
ORDER
It is ordered that the General Counsel’s Motion for
Partial Summary Judgment is granted with respect to all
allegations in the compliance specification, except those
concerning the amount of interim earnings received by
Matos during the backpay period and the required offset
of such earnings.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 29 for the
purpose of issuing a notice of hearing and scheduling the
hearing before an administrative law judge, which shall
be limited to taking evidence concerning the interim
earnings received by Matos during the backpay period.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a supple-
mental decision containing findings of fact, conclusions
of law, and recommendations based on all the record
evidence. Following service of the administrative law
judge’s decision on the parties, the provisions of Section
102.46 to 102.51 of the Board’s Rules shall be applica-
ble.
Dated, Washington, D.C. December 20, 1999
Sarah M. Fox, Member
Wilma B. Liebman, Member
Peter J. Hurtgen, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD