Harding Glass Company, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1116 (N.L.R.B. 2002)

1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Harding Glass Company, Inc. and Glaziers Local
1044, International Brotherhood of Painters &
Allied Trades, AFL–CIO. Cases 1–CA–31148
and 1–CA–31158
August 1, 2002
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND BARTLETT
On March 31, 1995, the National Labor Relations
Board issued a Decision and Order in this proceeding1 in
which it ordered the Respondent, Harding Glass Com­
pany, Inc., on request of the Union, to restore all terms
and conditions of employment to the status quo as they
existed on October 23, 1993, and make whole any em­
ployees for any losses they suffered as a result of the
unilateral changes in terms and conditions of employ­
ment, with interest. In addition, the Board ordered the
Respondent, on application, to offer immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi­
leges, to all those employees who went on strike on Oc­
tober 18, 1993, and were not permanently replaced prior
to October 25, 1993, discharging if necessary any re-
placements hired on or after October 25, 1993.
On March 27, 1996, the United States Court of Ap­
peals for the First Circuit entered a judgment enforcing
the Board’s Order, inter alia, directing the Respondent to
restore all terms and conditions of employment to the
status quo as it existed on October 23, 1993, and to make
whole all employees, with interest, for any losses they
may have suffered as a result of the unilateral changes in
the terms and conditions of employment made by the
Respondent in violation of Section 8(a)(1) and (5) of the
Act.2 The circuit court declined to adopt the Board’s
finding that the economic strike which began on October
18, 1993, was converted to an unfair labor practice strike
on October 25, 1993, and, accordingly, denied enforce­
ment to that portion of the Board’s Order that required
the Respondent to offer immediate and full reinstatement
to all those employees who went on strike on October 18,
1993, and were not permanently replaced prior to Octo­
ber 25, 1993.
A controversy having arisen over the amount of back-
pay due the claimants under the Board’s Order, the Re­
gional Director for Region 1 issued a compliance specifi­
cation and notice of hearing on July 1, 1997. On July 22,
1997, the Respondent filed its answer. Thereafter, on
1 316 NLRB 985.

2 NLRB v. Harding Glass Co., No. 95–1727 (unpublished opinion).

January 20, 2000, the Regional Director for Region 1
issued an amended compliance specification and notice
of hearing, and on February 10, 2000, the Respondent
filed its answer. The amended compliance specification
sets forth backpay formulae and calculations for glass-
workers Robert Mosely, David Elworthy, Mark Zaltberg,
Christopher Pelletier, Kenneth Bullock, and Christopher
Carle, and glaziers James Tritone, James Gabrielle, Rich­
ard Poirer, and Richard Von Merta.
On March 10, 2000, the compliance officer for Region
1 advised the Respondent that its answer to the amended
compliance specification, in part, failed to meet the re­
quirements of Section 102.56(b) and (c) of the Board’s
Rules and Regulations, and that the General Counsel
would file a Motion for Partial Summary Judgment if the
Respondent did not file an appropriate amended answer
by March 20, 2000. On March 21, 2000, the Respondent
filed its first amended answer to the amended compliance
specification.
On May 19, 2000, the General Counsel filed with the
Board a motion to strike portions of Respondent’s first
amended answer to the amended compliance specifica­
tion and for partial summary judgment. On May 23,
2000, the Board issued an order and Notice to Show
Cause, transferring the proceeding to the Board and post­
poning indefinitely the hearing scheduled in this case.
On June 6, 2000, the Respondent filed its opposition to
the motion to strike and Motion for Partial Summary
Judgment. The Respondent generally denies the General
Counsel’s formulae for computing backpay and the
application of those formulae to the claimants. The
Respondent also raises several affirmative defenses. The
General Counsel argues that the Respondent’s answers
are substantively deficient under Section 102.56(b) and
(c) of the Board’s Rules and Regulations and that the
Respondent’s affirmative defenses are unsupported.
Ruling on Motion to Strike Portions of Respondent’s
First Amended Answer to the Amended Compliance
Specification and for Partial Summary Judgment
Section 102.56(b) and (c) of the Board’s Rules and
Regulations state, in pertinent part:
(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
337 NLRB No. 175
HARDING GLASS CO. 1117
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
dence supporting such allegation, and the respondent
shall be precluded from introducing any evidence
controverting the allegation.
The General Counsel contends that the Respondent, in
its answer, failed to comply with the specificity require­
ments of Section 102.56(b) of the Board’s Rules and
Regulations. We agree except as indicated below. Baker
Electric, 330 NLRB 521 (2000). The Respondent failed
to provide any explanation or figures in its amended an­
swer to the first paragraph in the amended specification
to support its claim that Robert Mosely was properly
paid. Similarly, in its amended answer to the second
paragraph of the amended specification, the Respondent:
denied without elaboration that the alleged hourly rates
of pay were applicable to the employees; and denied that
Elworthy and Pelletier were glassworkers.
In this respect, we note that Section 102.56(b) of the
Board’s Rules, supra, specifies that as to all matters
within the knowledge of a respondent, a general denial
shall not be sufficient. Rather, if a respondent disputes
the premises on which an allegation is based, the respon­
dent’s answer shall specifically state the basis for the
respondent’s disagreement with the allegation. Further,
the answer shall set forth in detail the respondent’s posi­
tion as to the applicable premises.
Elworthy’s and Pelletier’s job classifications are obvi­
ously well within the Respondent’s knowledge. Under
Section 102.56(b), then, it is not enough for the Respon­
dent generally to deny, without more, that Elworthy and
Pelletier were glassworkers. To be sufficient under Sec­
tion 102.56(b), the Respondent’s flat denial of the job
classifications alleged in the specification must be sup-
ported by a counterassertion from the Respondent as to
what Elworthy’s and Pelletier’s job classifications in fact
were, if not glassworkers. But the Respondent’s answer
makes no such counterassertion. Nor does it contain a
statement of even the basis for the Respondent’s dis­
agreement with the job classifications alleged in the
specification, much less a detailed statement of the Re­
spondent’s position as to the applicable premises on
which the determination of the job classifications in
question should be based. Accordingly, the Respon­
dent’s answer to the backpay specification in the instant
case fails to support its general denials of the alleged job
classifications of Elworth and Pelletier with affirmative
counterassertions about what their job classifications
actually were.3
The Respondent also denied the gross backpay formula
in its amended answer to the third paragraph of the
amended specification, and the actual hours worked by,
and the actual hourly rates paid to, the employees in its
amended answer to the seventh paragraph of the
amended specification. The Respondent provided nei­
ther an alternative formula nor alternative figures.
Again, in its amended answer to the 10th paragraph of
the amended specification, the Respondent provided no
alternative formula for the total amount of fringe benefit
contribution payments due on behalf of each employee to
each of the four contractual benefit funds. Finally, in its
amended answer to the amended specification’s 12th
through 21st paragraphs, which detail the amounts owed
to each of the 10 employees, the Respondent again failed
to provide specific alternative supporting figures.4 Ac-
3 Chairman Hurtgen would deny the General Counsel’s Motion for
Summary Judgement as to the status of Elworthy and Pelletier. The
General Counsel alleges that these two employees were glassworkers
whose wages were unilaterally changed. The Respondent specifically
denies that they were glassworkers. Chairman Hurtgen would allow
the Respondent an opportunity to prove that Elworthy and Pelletier
were not glassworkers. He would not require the Respondent to prove
what they were. That is irrelevant. It is sufficient to assert that they
were not glassworkers.
Sec. 102.56(b), on which his colleagues rely, deals with backpay
figures. By contrast, the issue here is simply whether Elworthy and
Pelletier were glassworkers. The Respondent’s denial here fairly raised
that issue.
4 With respect to its amended answer to pars. 12, 14, 15, 17, 18, and
19, the Respondent points to some handwritten changes on the appen­
dices to the amended specification. The Respondent neither explained
these changes nor used them in alternative figures which were clearly
explained. These changes therefore do no meet the requirements of
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cordingly, we grant the General Counsel’s Motion for
Summary Judgment on these issues.
As to the status of Tritone, however, we shall deny the
General Counsel’s Motion for Summary Judgment and
allow the parties to litigate this issue. The General
Counsel alleges that Tritone was a glazier, that he should
have been reinstated as a glazier, and that he was not so
reinstated. The Respondent asserts that there was a le­
gitimate basis for such nonreinstatement as a glazier, viz.
that Tritone was physically unable to perform glazier
work. We would give the Respondent an opportunity to
prove this asserted fact.5
We disagree with our dissenting colleague on this mat­
ter. As noted above, the issue concerning employee Tri­
tone is whether he should have been reinstated to a glazier
position at glazier pay, as opposed to reinstatement to a
lesser position at lower pay. The Respondent’s answers to
the original and amended compliance specifications said
only that Tritone was “properly paid.” We assume ar­
guendo that this response was not sufficiently specific, i.e.,
it did not assert that Tritone was physically unable to per-
form glazier work. However, when the General Counsel
moved for summary judgment on this basis, the Respon­
dent timely responded with its specific defense, and at­
tached thereto a letter of October 30, 1996, in which it
specifically argued that Tritone could not physically per-
form glazier work. In these circumstances, we would not
enter a default judgment against the Respondent and
thereby deprive it of its right to litigate the issue.
We also agree with the General Counsel that the Re­
spondent’s affirmative defenses are without merit. The
Respondent argues that the amended compliance specifi­
cation should be dismissed in its entirety because of the
delay in excess of 2 years between the date when the
original compliance specification issued and the date the
amended compliance specification issued. However, it is
well established, that “laches may not defeat the action of
a governmental agency in enforcing a public right,” and,
Sec. 102.56(b) of the Board’s Rules and Regulations. Baker Electric,
supra.
5 Member Liebman would grant the General Counsel’s Motion for
Summary Judgment as to the status of Tritone. Tritone’s job classifica­
tion is within the Respondent’s knowledge. In Member Liebman’s
view, it is not enough for the Respondent to generally deny that Tritone
returned to work as a glazier. She would find no basis, in turn, for
allowing the Respondent to seek to prove that Tritone was physically
unable to perform glazier work. This contention was not raised in the
Respondent’s July 22, 1997 answer to the compliance specification and
notice of hearing issued on July 1, 1997, or in the Respondent’s Febru­
ary 10, 2000 answer to the amended compliance specification and
notice of hearing issued on January 20, 2000. Rather, it was raised only
in an October 30, 1996 letter from the Respondent’s attorney. This
assertion in a precompliance specification letter does not satisfy the
requirements of Sec. 102.56 of the Board’s Rules, supra.
“the Board is not required to place the consequences of its
own delay, even if inordinate, upon wronged employees to
the benefit of wrongdoing employers.” Mid-State Ready
Mix, 316 NLRB 500 (1995), citing Carrothers Construc­
tion Co., 274 NLRB 762, 763 (1985), and NLRB v. J. H.
Rutter-Rex Mfg. Co., 396 U.S. 258, 264 (1969).
The Respondent also argues that the amended specifi­
cation fringe benefit contribution payments due on behalf
of each employee to each of the four contractual benefit
funds must be offset by the value of any alternative pay­
ments made by the Respondent. The Respondent further
argues that the amended specification payments in this
respect fail to benefit the employees, are unduly harsh on
the Respondent, afford a windfall to the funds, and are
punitive and inconsistent with the remedial purposes of
the Act. However, it is well established that “[e]mploy­
ees have, in addiion to a stake in receiving benefits nego­
tiated on their behalf by their chosen representatives, a
clear economic stake in the viability of funds to which
part of their compensation is remitted.” Grondorf, Field,
Black & Co., 318 NLRB 996, 997 (1995), enf. denied in
pertinent part 107 F.3d 882 (D.C. Cir. 1997). Moreover,
the wrongdoing employer should not benefit by having at
its disposal money which rightfully belonged to the con­
tractual funds. Nor is the wrongdoing employer disad­
vantaged by receiving no offset for benefits provided
through an employer sponsored alternative plan. Thus,
“[A]n employer cannot complain of the extra cost of im­
properly created, substitute fringe benefits . . . The com­
pany is merely required to repay what it has unlawfully
withheld . . . [I]t was the company that unlawfully chose
to incur the additional expense of a private insurance
program.” Stone Boat Yard v. NLRB, 715 F.2d 441, 446
(9th Cir. 1983). See also Banknote Corp. of America,
327 NLRB 625 (1999).6
6 Chairman Hurtgen concurs. He does not pass on the validity of the
D.C. Circuit’s view in Grondorf Field, Black & Co. v. NLRB, supra.
Assuming arguendo that the court’s view is correct, there is no proffer
of evidence showing an “improper windfall” here. That is, if there
were a proffer of evidence showing that the Employer-Union plan
provided no coverage to the employees during the period of the viola­
tion, a Board-ordered payment to the plan fund for that period would
be, to that extent, a windfall to the fund. However, there is no such
proffer of evidence, and thus there is no showing of the kind of windfall
that concerned the court in Grondorf.
Contrary to his colleagues, Member Bartlett would permit the Respon­
dent to present evidence at the compliance hearing, consistent with the
D.C. Circuit’s decision in Grondorf, Field, Black & Co. v. NLRB, supra,
denying enf. of and remanding 318 NLRB 996 (1995), that its contribu­
tions to the contractual benefit funds should be reduced to avoid an im­
proper windfall for those funds. Although the Board has not adopted the
D.C. Circuit’s view in Grondorf, allowing the Respondent to introduce
such evidence into the record now would avoid a remand by the D.C.
Circuit later, in the event the Respondent seeks court review of the
HARDING GLASS CO. 1119
In sum, the Respondent’s affirmative defenses are
without merit, and we therefore grant the General Coun­
sel’s motion to strike them. In addition, the Respon­
dent’s amended answer to the designated paragraphs of
the amended specification fails to comport with Board
Rule 102.56(b). The General Counsel is therefore enti­
tled to summary judgment on these matters under Board
Rule 102.56(c). Francis Building Corp., 330 NLRB No.
48 (1999) (not reported in Board volumes.)
ORDER
IT IS ORDERED that the Respondent’s affirmative de­
fenses are stricken.
IT IS ALSO ORDERED that the Ge neral Counsel’s Motion
for Partial Summary Judgment is granted with respect to
amended compliance specification paragraphs 1 through
10, and 12 through 21, relating to the backpay period and
the backpay calculations for all the employees except as
Board’s final decision. Further, a full factual record might assist the
Board in evaluating whether to adopt the D.C. Circuit’s view.
to the amount of interim earnings and expenses of each
of the employees, and except as to the status of James
Tritone.
IT IS FURTHER ORDERED that this proceeding is re­
manded to the Regional Director for Region 1 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 paragraphs
of the amended 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.