Heck'S Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1986

282 N.L.R.B. 263 (N.L.R.B. 1986)

HECK'S INC. 263
-Heck's Inc. and Dorothy B., Stulberg, Esq. `Case .1'0-
CA-20230
24 November 1986
SUPPLEMENTAL DECISION AND
ORDER
BYCHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 29 November 1985 the Board issued its Deci-
sion and Order in this case, affirming the finding of
the administrative law judge that the Respondent,
Heck's, Inc., had, among other things, discharged
employee Kathleen Jackson in violation of Section
8(a)(1) and (3), and ordering the Respondent to
offer Jackson reinstatement, with backpay.' A con-
troversy having arisen over the amount of backpay
due Jackson, the Regional' Director for Region 10
issued a backpay specification and notice of hearing
on 16 July 1986,2 alleging the amount of backpay
due and notifying the Respondent that it must file
an answer in conformance with the Board's Rules
and Regulations.3 As a measure of the backpay
due, the backpay specification used the earnings of
four "replacement employees" since the time of
Jackson's discharge. The specification then com-
puted Jackson's backpay on the basis of the earn-
ings of those replacement employees from 24
March 1984 to 14 January 1986.
On 29 July the Respondent filed an answer to
the specification in which it challenged the back-
pay computations described above on the basis that
the replacement employees' duties and work habits
"were sufficiently different from those of Jackson
as to make such comparison inappropriate."4 The
answer contained no factual support for this con-
tention. The answer further denied that Duncan
and the other comparison employees "replaced"
Jackson. It also alleged generally that Jackson had
not exercised due efforts in securing interim earn-
ings.
1 277 NLRB 916 ( 1985).
2 All dates refer to 1986 unless otherwise, specified.
The backpay specification notified the Respondent that:
[P]ursuant to Section 102 .54 of the Board's Rules and Regulations,
the Respondent shall, within fifteen (15) days of the date of this
Specification, file with the Regional Director , acting in this matter as
an agent of the National Labor Relations Board , an original and four
(4) copies of an Answer to said Specification . To the extent that such
Answer fails to deny the allegations of the Specification in the
manner required by the Board's Rules and Regulations and the fail-
ure to do so is not adequately explained, such allegations shall be
deemed to be admitted to be true and Respondent shall be precluded
from introducing any evidence controvertmg them.
4 For example, par. 2 of the answer states that "Respondent denies the
allegation of paragraph 2 and shows that employee Teresa Duncan's
duties and work habits were sufficiently different from those of Jackson
as to make such comparison inappropriate."
By letter dated 5 August, counsel for the Gener-
al Counsel informed the Respondent that its answer
was "both deficient and inadequate, and not in con-
formance with the requirements of Section 102.54
of the Board's Rules and Regulations. Specifically,
your answer . . . does not set forth in detail Re-
spondent's position as to the applicable premises or
furnish appropriate supporting figures."
On ' 15 August the Respondent filed an amended
answer containing, the denials of the 'original
answer, but adding by way of explanation that the
duties of the comparison employees "have been
charged [sic] due to a restructuring of the store
after Jackson left and as a result thereof the duties
of each employee listed therein has [sic] been dif-
ferent than Jackson."
On 27 August counsel for the General Counsel
filed with the Board a Motion to Transfer the Case
to the Board and for Partial Summary Judgment.
He alleges that, except concerning the issue of
Jackson's interim earnings, the Respondent's
answer and amended answer fail to comply with
requirements of Section 102.54(b) and (c) of the
Board's, Rules and Regulations in that the Respond-
ent has failed to offer the names of any other em-
ployees that could be used for comparison; has
failed to propose any alternative method of compu-
tation; and has failed to provide any computation
of Jackson's backpay based on its asserted conten-
tions. Counsel for the General Counsel further al-
leges that, although the Respondent claims that the
comparison employees did not "replace" Jackson,
it has not provided the names of employees who
did replace her, or any information on their earn-
ings. Counsel for the General Counsel also alleges
that the Respondent's explanation in its amended
answer (that the duties of the employees in ques-
tion were changed because of a restructuring of its
facility after Jackson's discharge) fails to demon-
strate how its contention would affect the specifi-
cation, and offers neither factual support nor alter-
native computations. Accordingly, counsel for the
General Counsel alleges that the contentions of the
Respondent's amended answer that fail to comply
with the requirements of Section 102.54(b) of the
Board's Rules 'and Regulations should be stricken,
and than the corresponding allegations of the back-
pay specification should be deemed to be true as
provided in Section 102.54(c).5
On 5 September the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the General Counsel's Motion
for Partial Summary Judgment should not be
s Counsel for the General Counsel does not seek summary judgment
on the issues of interim earnings or mitigation of damages.
182 NLRB No. 43
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted. On 16 September the Respondent filed an
answer to the Board's Notice to Show Cause, stat-
ing in relevant part that it would be difficult, if not
impossible, to explain in its answer all the differ-
ences between Jackson's former duties and those of
the comparison employees. Rather, the Respondent
asserts, "this is what the backpay hearing is for."
The Respondent thus asserts that its answer fully
complies with the Board's Rules.
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 the Motion for Summary Judgment
Section 102.54(b) and (c) of the Board's Rules
and Regulations states, in pertinent part, that:
(b) Contents of the answer to specification-
. .. The respondent shall specifically admit,
deny, or explain each and every allegation of
the specification, unless the-respondent is with-
out 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 denied.
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
which they are based , he shall specifically
state the basis for his disagreement , setting
forth in detail his position as to the applicable
premises and furnishing the appropriate sup-
porting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to the specification.- .. .
If the respondent files an answer to the specifi-
cation but fails to deny any allegation of the
specification in the manner required by subsec-
tion (b) of this section, and the failure so to
deny is not adequately explained , such allega-
tion 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,
troducing any evidence controverting said al-
legation.
We agree with the General Counsel that the Re-
spondent's amended answer to the backpay specifi-
cation does not conform to the Board's require-
ments about those compliance matters within its
knowledge. The answer asserts that certain allega-
tions of the backpay specification are incorrect, but
fails to offer any alternative formula or to furnish
appropriate supporting figures for computing the
amounts owed Jackson. It also fails ' to explain in
what respect the duties of the comparison employ-
ees differ from those formerly performed by Jack-
son. Finally, it neither identifies the employees
who, it contends, ^ replaced her nor provides any in-
formation on their earnings. Those matters are in-
disputably within the knowledge of the Respond-
ent, and its failure to deny the specification as pre-
scribed by Section 102.54(b), or to explain ade-
quately its failure to do so, requires that those alle-
gations of the specification be deemed admitted to
be true as provided in Section 102.54(c). Accord-
ingly, the Board finds those allegations to be cor-
rect and grants the General Counsel's Motion for
Partial Summary Judgment.
As noted previously, the General Counsel does
not seek summary judgment with respect to the
issues of Jackson's interim earnings or her efforts to
mitigate her damages during the backpay period.
The Respondent's general denial concerning the
amounts of interim earnings, based on its general
assertion that Jackson failed to mitigate her dam-
ages, is sufficient to require a hearing on the ques-
tion of interim earnings.6 However, as stated
above, we deem the Respondent to have admitted
all other allegations in the backpay specifications to
be true.
ORDER
IT IS ORDERED that the General Counsel's
Motion for Partial Summary Judgment concerning
all allegations in the backpay specification, except
the amount of interim earnings, be granted.
IT IS FURTHER ORDERED that this proceeding be
remanded to the Regional Director for Region 10
for arranging and giving notice of a hearing before
an administrative law judge and that such proceed-
ing be limited to the determination of the amounts
of Kathleen Jackson's interim earnings.
and the respondent shall be precluded from in- 6 Portland Cement Co., 262 NLRB 365, 366 (1982).