Hobart Mining Co., Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1990

297 N.L.R.B. 567 (N.L.R.B. 1990)

HOBART MINING CO 567
Hobart Mining Company, Inc. and Cola Ray Akers
and Cletis Boyd and Adruan Carroll and Edgar
Carroll and Arthur Collins and Danny Jarrell
and George Kidd and Mike Kidd and Hazie
Boyd and International Union, United Mine
Workers of America, AFL-CIO. Cases 9-CA-
25135-1, 9-CA-25135-2, 9-CA-25I35-3, 9-
CA-25135-4, 9-CA-25135-5, 9-CA-25135-6,
9-CA-25135-8, 9-CA-25135-9, 9-CA-25135-
11, and 9-CA-25357
January 30, 1990
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 22, 1988, the National Labor Rela-
tions Board ordered 1 the Respondent, inter alia, to
make whole unit employees for their losses result-
ing from the Respondent's violations of Section
8(a)(1), (3), (4), and (5) of the Act. A controversy
having arisen over the amount of backpay due
under the terms of the Board's Order, the Regional
Director for Region 9 issued a compliance specifi-
cation and notice of hearing on April 20, 1989, 2 al-
leging the amount of backpay due. 3 The compli-
ance specification, which was served on the Re-
spondent, directed the Respondent to file an
answer within 21 days of service pursuant to the
requirements of Sections 102 20 and 102.21 of the
Board's Rules and Regulations.4
On May 8, the Respondent filed "Debtor's Ob-
jection to Proof of Multiple Claims, for Wages,
Salaries or Commissions and Compliance Specifica-
tion and Notice of Hearing" in which it objected
to the Board's jurisdiction and to certain computa-
tions in the compliance specification. On August 2,
counsel for the Acting General Counsel informed
the Respondent that the May 8 pleading was too
general and failed to satisfy the requirements of the
Board's Rules and Regulations. The Respondent
1 292 NLRB No 10 (not printed in Board volumes)
2 All dates are in 1989 unless noted
The April 20 compliance specification contains several apparent
mathematical errors Thus, at 5, par 3(d) of the specification, the first
figure for Cletis Boyd's "1988-1" gross/net backpay should read $1178
instead of $882 At 6, par 4(d), the first figure for Adrian Carroll's
"1988-1" backpay should read $817 Instead of $816 At 9, par 8(d), the
gross/net backpay figures for George Kidd should read $389, $1095, and
$3611 instead of, respectively, $390, $1091, and $2490 At 12, par 12(d),
the total net backpay for F Kidd should read $2615 Instead of $5406 At
13, par 13, the summary of medical expenses fails to Include $1147 18 for
Hazie Boyd The summary of trust fund contributions at 14 should read
$41,075 Instead of $41,975
Based on these corrections, at 13 the net backpay figure should be
$51,605, and the claimed medical expenses should total $18,820 76
4 Sec 102 20 provides that within 14 days of service of an unfair labor
practice complaint, the respondent must file an answer that will "specifi-
cally admit, deny or explain each of the facts alleged in the complaint,"
or state that It is without sufficient knowledge to answer
was advised that summary judgment would be
sought unless a proper answer was filed. Also on
August 2, counsel for the Acting General Counsel
wrote the Respondent that no answer to the speci-
fication had been received. The Respondent was
given until August 14 to file an answer.
On August 9, the Respondent filed an answer de-
nying the substantive provisions of the backpay
specification. 3 On October 23, the Acting General
Counsel, by counsel, filed with the Board in Wash-
ington, D.C., a motion to transfer proceedings to
the Board and Motion for Summary Judgment, to-
gether with memorandum in support and attached
exhibits. This motion states that neither the May 8
nor August 9 pleading of the Respondent meets the
specificity requirements of Section 102.54 of the
Board's Rules and Regulations. The Acting Gener-
al Counsel, therefore, requests that the Board find
that the allegations in the backpay specification are
deemed to be admitted true, and enter summary
judgment in favor of the compliance specification.
On October 25, the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the Acting General Counsel's
motion should not be granted. On November 7, the
Respondent filed a response to the Notice to Show
Cause in which it submits that summary judgment
is inappropriate. Specifically, the Respondent
claims that its August 9 answer is sufficient under
Sections 102.20 and 102.21 of the Rules and Regu-
lations, which the Regional Director instructed it
to follow in the compliance specification. The Re-
spondent states that neither the Acting General
Counsel nor the Regional Director directed it to
follow any other provisions of the Rules and Regu-
lations until the October 23 Motion for Summary
Judgment, which lists Section 102.54 as the appli-
cable provision. 6 The Respondent further asserts
that Section 102.54 is inapplicable to answers to
compliance specifications and that Section 102.56
governs. 7 Finally, the Respondent submits that its
May 8 and August 9 pleadings collectively satisfy
the requirements of Section 102.56 and, if not, that
it should have leave to file an amended answer.
The Board having duly considered the matter,
IT IS ORDERED that the Respondent be given 21
days from the date of this Order to file an answer
5 On August 8, the court-appointed trustee in the Respondent's bank-
ruptcy proceeding also filed an answer in which he stated that he was
without sufficient knowledge to respond to allegations in the compliance
specification
6 The Respondent notes that the Motion for Summary Judgment erro-
neously states that it was advised in the compliance specification to
follow the provisions of Sec 102 54 when preparing its answer
Effective November 13, 1988, the Board amended its rules governing
compliance proceedings In the revised rules, the substance of former
Sec 102 54, cited in the Motion for Summary Judgment, was incorporat-
ed into Sec 102 56
297 NLRB No. 89
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the backpay specification in conformance with
the requirements of Section 102 56(b) of the
Board's Rules and Regulations 8
9 Sec 102 56 of the current Rules and Regulations provides in relevant
part that
(b) Contents of answer to specification -The answer shall specifically
admit deny or explain each and every allegation of the specification
unless the respondent is without knowledge in which case the re
spondent 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
Min the respondent shall specify so much of it as is true and shall
deny only the remainder As to 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 suf
fice As to all such matters if the respondent disputes either the ac
curacy of the figures 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 applicable premises and furnishing the appropriate supporting fig
ures
(c) Effect of failure to answer or to plead specifically and in detail to
backpay allegations of specification -If the respondent fails to file an
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 specification and without further notice to the
IT IS FURTHER ORDERED that the Acting General
Counsel s Motion for Summary Judgment is denied
without prejudice to its renewal should it be appro
pnate
IT IS FURTHER ORDERED that the proceeding is
remanded to the Regional Director for Region 9
for further appropriate action 9
respondent find the specification to be true and enter such order as
may be appropriate If the respondent files an answer to the specifi
cation but falls to deny any allegation 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 respond
ent shall be precluded from introducing any evidence controverting
the allegation
9 We believe this is the appropriate resolution under all the circum
stances including the fact that the compliance specification Incorrectly
cited Secs 102 20 and 102 21 as the provisions governing answers to
specifications and because counsel for the Acting General Counsel did
not remedy this error In his August 2 communications with the Respond
ent Moreover although the Motion for Summary Judgment refers to
Sec 104 54 rather than Secs 102 20 and 102 21 as the relevant rule Sec
102 56 has been the applicable provision since November 1988