Gold State Acoustics

National Labor Relations Board - Board Decisions

Mar 3, 1993

310 N.L.R.B. 557 (N.L.R.B. 1993)

557
310 NLRB No. 90
GOLD STATE ACOUSTICS
1 301 NLRB No. 21 (not printed in bound volumes).
2 Docket No. 91–4182.
Gold State Acoustics & Drywall, Inc. and its alter
ego, Gold State Acoustics, Inc. and United
Brotherhood of Carpenters and Joiners of
America Local Union 203 and Fund Trustees,
AFL–CIO. Case 3–CA–15711
March 3, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On January 17, 1991, the National Labor Relations
Board issued a Decision and Order in this proceeding1
directing Gold State Acoustics & Drywall, Inc. and its
alter ego, Gold State Acoustics, Inc., collectively the
Respondent, to give full force and effect to an 8(f) col-
lective-bargaining agreement, including making con-
tractually required payments owing to benefit funds of
United Brotherhood of Carpenters and Joiners of
America Local Union 203, AFL–CIO, the Charging
Party, arising during the term of that agreement. The
Board also ordered the Respondent to make whole all
bargaining unit employees for any losses suffered as
result of the Respondent’s failure to comply with the
bargaining agreement. On November 26, 1991, the
United States Court of Appeals for the Second Circuit,
by unpublished decision, enforced the Board’s Order.2
On October 13, 1992, the Regional Director for Region
3 issued an amended compliance specification and no-
tice of hearing, setting forth allegations with respect to
the amount of money owing to various Carpenters’
funds. On November 16, 1992, the Respondent filed an
answer to the amended compliance specification.
On November 30, 1992, the General Counsel filed
with the Board a Motion to Transfer Proceeding to the
Board and for Summary Judgment, with exhibits at-
tached. The General Counsel contends that portions of
the answer to the amended compliance specification
fail to conform to the requirements of Section 102.56
of the Board’s Rules and Regulations because they
lack specificity and that certain issues raised in the an-
swer are barred from further litigation by the doctrine
of res judicata. The General Counsel also moved to
strike as substantively deficient certain paragraphs of
the Respondent’s answer.
On December 2, 1992, the Board issued an order
transferring the proceeding to the Board and a Notice
to Show Cause why the General Counsel’s motion
should not be granted. Thereafter, the Respondent filed
a response.
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 for Summary Judgment
Section 102.56(b) and (c) of the National Labor Re-
lations Board’s Rules and Regulations states, in perti-
nent part:
(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-
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 plead specifi-
cally and in detail to backpay allegations of spec-
ification.—. . . If the respondent files an answer
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 evidence supporting such allegation, and the re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
As indicated above, the General Counsel has moved
for summary judgment and to strike portions of the
Respondent’s answer on the basis of alleged sub-
stantive deficiencies. We find merit in the General
Counsel’s motion.
The amended specification sets forth the amounts al-
legedly owing to various Carpenters’ benefit funds on
behalf of four bargaining unit employees based on the
number of hours worked by each employee at the ap-
plicable hourly contribution rate. The amended speci-
fication also sets forth the amount of interest allegedly
owing to the funds for delinquencies in payment and
for attorney fees incurred, as set forth in the applicable
collective-bargaining agreement.
The Respondent’s amended answer admits that the
backpay period begins January 1, 1990, and ends May
31, 1990, and that an appropriate measure of the
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
amounts owing to the various funds is based on the
number of hours worked by each bargaining unit em-
ployee multiplied by the applicable hourly contribution
rate as set forth in the amended backpay specification.
However, with respect to the alleged amounts owing to
the funds on behalf of the four alleged bargaining unit
employees specifically named in the amended speci-
fication, the Respondent contends that it ‘‘will not bar-
gain with [the] union as representative of these em-
ployees’’ because under New York state law these em-
ployees have not designated the Charging Party as
their bargaining agent and that the Charging Party has
not been certified or recognized as representing a ma-
jority of the Respondent’s employees. The Respondent
contends, therefore, that the gross amounts allegedly
owing to each fund and the interest payments, as set
forth in the amended specification, are ‘‘not applica-
ble,’’ that it owes no attorney fees to the funds ‘‘since
there are no amounts due to the [f]unds,’’ and that in
the absence of the selection of the Charging Party by
a majority of unit employees, it ‘‘owes nothing’’ to the
funds. The Respondent also contends that its employ-
ees have stated that they would prefer to receive di-
rectly any money owed, if any, because otherwise they
would receive no benefit as they are not members of
the Charging Party. In its response to the Notice to
Show Cause, the Respondent states, inter alia, that the
Charging Party has never represented its employees.
Insofar as the Respondent contends in its amended
answer that the Charging Party must establish a show-
ing of majority status in order to be entitled to enforce
the provisions of the applicable bargaining agreement,
we find that this answer constitutes an attempt to reliti-
gate issues determined in the underlying unfair labor
practice proceeding enforced by the court of appeals.
As the Board found in the underlying proceeding,
under the principles of John Deklewa & Sons, 282
NLRB 1375 (1987), enfd. sub nom. Iron Workers
Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), the
Charging Party was the limited exclusive collective-
bargaining representative of the Respondent’s employ-
ees and the provisions of the applicable 8(f) prehire
agreement were enforceable under Section 8(a)(5) and
(1) of the Act.
As the Respondent’s amended answer does not oth-
erwise take issue with the allegations set forth in the
amended specification concerning the obligations aris-
ing under the terms of the applicable bargaining agree-
ment, irrespective of union membership, and does not
fairly meet the substance of the allegations or reveal
any substantive disagreement with the amended speci-
fication’s allegations, or offer or set forth in detail sup-
porting figures or alternative premises, we find that
portions of the amended answer are substantively defi-
cient. Thus, we agree with the General Counsel that
paragraphs 3, 5, 6, 7, 8, and 9 of the Respondent’s
amended answer fail to comply with the requirements
of Section 102.56(b) and (c), and we shall grant the
General Counsel’s motion to strike these paragraphs
from the answer. We therefore deem all the allegations
of the amended specification to be admitted as true.
Accordingly, we shall grant the General Counsel’s Mo-
tion for Summary Judgment.
ORDER
It is ordered that the General Counsel’s motion to
strike in part the Respondent’s amended answer is
granted.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Summary Judgment is granted and the Re-
spondent, Gold State Acoustics & Drywall, Inc., and
its alter ego, Gold State Acoustics, Inc., its officers,
agents, successors, and assigns, shall make whole the
various Carpenters’ funds, as set forth in the General
Counsel’s amended compliance specification, by pay-
ment to the funds in the amount of $4,206.12.