Howard R. Singer Legal Services

National Labor Relations Board - Board Decisions

Mar 7, 1986

278 N.L.R.B. 902 (N.L.R.B. 1986)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard R. Singer and Michael E. Davis, a partner-
ship and/or Howard R. Singer d/b/a Howard
R. Singer Legal Services and/or David D.
DeAngelis and Carol Ann Canovali . Case 6-
CA-16246
7 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS'
DENNIS AND JOHANSEN
On 6 December 1983 the National Labor Rela-
tions Board issued an order (not published in Board
volumes) in this proceeding in which it ordered the
Respondents, inter alia, to make whole Carol Ann
Canovali for any loss of earnings resulting from her
unlawful termination by Respondents, in violation
of Section 8(a)(3) and (1) of the National Labor
Relations Act. On 16 April 1984 the United States
Court of Appeals for the Third Circuit entered a
Judgment enforcing in full the Board's Order."
Because a controversy arose over the backpay
owed the discriminatee, the Regional Director for
Region 6, on 16 July 1985,2 issued and caused to
be served on the parties a backpay specification
and notice of hearing alleging the amount of back-
pay due the discriminatee. The Respondents failed
to answer the backpay specification by 5 August,
the time period prescribed by Section 102.54(a) of
the Board's Rules and Regulations. By' letter dated
12 August, the Respondents were notified by the
General Counsel of their obligation to file an
answer and informed that unless an answer was re-
ceived "immediately," a Motion for Summary
Judgment would be filed. On 21 August the Gener-
al Counsel mailed to the Board and the parties a
Motion for Summary Judgment based on ,the Re-
spondents' failure to file an answer. On 22 August
the Regional Director received answers from Re-
spondents Howard Singer, Michael Davis, and
David DeAngelis. On 29 August 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. On 30
August the General Counsel filed with the Board a
motion to strike the Respondents' answers as being
untimely and failing to comply with the filing re-
quirements of Section 102.54(a) of the Board's
Rules and Regulations and filed a Supplemental
Motion for Summary Judgment.
Thereafter, the Respondents filed with the Re-
gional Director an answer to both the Notice to
Show Cause and the General Counsel's motion to
strike the Respondents' answers to the backpay
i No. 84-3153 (3d Cir. 1984)
2 All dates are in 1985 unless otherwise designated
specification. In addition, the Respondents filed
amended answers to the backpay specification
which purported to cure the defects in the initial
answers. On 23 September the General Counsel
filed with the Board a motion to strike the Re-
spondents' amended answers to the backpay speci-
fication and a Second Supplemental Motion for
Summary Judgment, moving in the alternative to
strike paragraphs 5, 6, and 7 of the amended an-
swers.
The National Labor Relations Board has delegat-
ed its authority -in this proceeding to a three-
member panel.
Ruling on Motion to Strike Answers and
Motion for Summary Judgment
The backpay specification served ' on the Re-
spondents ^ on 16 July states:
[P]ursuant to Section 102.54 of the Board's
Rules and Regulations, Respondents shall file
with the undersigned Regional Director,
acting in this matter as agent of the National
Labor Relations Board, within fifteen (15)
days after the service of the Specification, an
original and four (4) copies of an Answer to
the Specification and a copy thereof shall be
immediately serviced on any other Respondent
jointly liable. Immediately upon the filing of
its Answer, Respondent shall serve a copy
thereof on each of the other parties. To the
extent that such Answer fails to deny allega-
tions of the Specification in the manner re-
quired under the Board's Rules and Regula-
tions and the failure to do so is not adequately
explained, such allegations shall be deemed to
be admitted to be true and the Respondents
shall be precluded from introducing any evi-
dence controverting them.
Pursuant to Section 102.54, the Respondents
should have filed their answers by 5 August. Nev-
ertheless, by letter dated 12 August, the General
Counsel notified the Respondents of their obliga-
tion to file an answer and informed them that
unless an answer was received "immediately," a
Motion for Summary Judgment would be filed.
The General Counsel asserts that the original an-
swers were -not timely filed on 22 August. The Re-
spondents assert that inasmuch as "immediately"
would be absurb if taken literally, it should be
taken to mean "within a reasonable time." Accord-
ing to the Respondents, since their answers were
filed within 10 days of the 12 August letter, the
filing time was reasonable and therefore timely. We
find merit in the Respondents' position. Section
102.121 of the Board's Rules and Regulations states
278 NLRB No. 123
HOWARD R . SINGER LEGAL SERVICES
that the Rules and Regulations "shall be liberally
construed to effectuate the purposes and provisions
of the Act." Although this does not mean that our
deadlines can be disregarded , under the circum-
stances of this case we cannot strictly enforce Sec-
tion 102.54. The General Counsel's letter of 12
August waived the 5 August deadline and granted
the Respondents time in which to file their an-
swers . The letter was deficient in that it did not es-
tablish a date certain by which answers were due.
We find that the 22 August filing was within a rea-
sonable time and, accordingly , was timely.
The General Counsel also asserts that the origi-
nal answers are deficient in that they did not meet
the requirements set forth in the following section.
Section 102.54(b) of the Board 's Rules and Regu-
lations states:
(b) Contents of the answer to specification.-
The answer to the specification shall be in
writing , the original being signed and sworn to
by the respondent or by a duly authorized
agent with appropriate power of attorney af-
fixed, and shall contain the post office address
of the respondent. The respondent shall specif-
ically admit, deny, or explain each and every
allegation of the specification , unless the re-
spondent 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 specifi-
cation denied . 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 mat-
ters within the knowledge of the respondent,
including but not limited to the various factors
entering into the computation of gross back-
pay, a general denial shall not suffice. 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, he
shall specifically state the basis for his dis-
agreement, setting forth in detail his position
as to the applicable premises and furnishing
the appropriate supporting figures.
Specifically, the General Counsel points out that
the answers were not sworn to as required by the
above-cited section. They also allegedly contain
what amounts to general denials of matters within
the knowledge of the Respondents. In particular,
the General Counsel claims that paragraphs 5, 6,
and 7 appear to dispute the method of computation
of gross backpay and net backpay, but do not set
forth any alternative method of computation except
to the extent that it is contended that "no provision
903
has been made for unemployment compensation,"
which purportedly affects the state tax charged to
the Respondents . The General Counsel character-
izes this objection as specious in light of the Su-
preme Court's decision in NLRB v. Gullet Gin Co.,
340 U.S. 361 (1951), which held that the Board
need not deduct from backpay awards sums paid to
discharged discriminatees as unemployment com-
pensation . The General Counsel implicitly argues
that, by the same token, the amount of unemploy-
ment compensation tax the Respondents must pay
as a result of the unemployment compensation re-
ceived by the discriminatee cannot be taken into
account when computing a backpay award.
As previously discussed , the Respondents filed
amended answers which purportedly superseded
the initial answers and/or cured the technical de-
fects of the initial answers . These amended answers
were sworn to and contained a mailing address but
they maintained the same position with respect to
the unemployment compensation as the initial
answer . In the past, the Board has viewed such an
attempt to cure the technical defects of an initial
answer to a backpay specification as a timely
amended answer . See, e .g., Bentleys Lounge, 265
NLRB 632 (1982), and Standard Materials, 252
NLRB 679, 680 (1980). We note that here, as in
Standard Materials, the Respondents' 30 August
amended answers cure their 22 August answers in
that they are properly sworn to and include the
Respondents' mailing addresses . Accordingly, the
Respondents' 22 August answers and 30 August
amended answers are properly before us, and we
deny the General Counsel 's motion to strike these
documents entirely from the record.
We focus our attention now on whether para-
graphs 5 , 6, and 7 of the amended answers conform
to the requirements of Section 102.54(b) of the
Board's Rules and Regulations which require that
Respondent "shall specifically state the basis for his
disagreement , setting forth in detail his position as
to the applicable premises and furnishing the ap-
propriate supporting figures ." Paragraphs 5, 6, and
7 of all three amended answers are identical. Para-
graph 5 disputes the method of computation of
quarterly gross backpay and states , "No provision
has been made for unemployment compensation re-
ceived by Carol Canovali which affects the tax
chargeable to your Respondent where an allow-
ance must be made for the increased taxation
chargeable to Respondent up to an amount not ex-
ceeding unemployment compensation actually re-
ceived by Carol Canovali." Paragraphs 6 and 7 of
the amended answers dispute the method of com-
puting the quarterly net backpay and total net
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay for the same reason advanced in para-
graph 5 of the amended answers.
We agree with the General Counsel that para-
graphs 5, 6, and 7 do not conform to the require-
ments of Section 102.54(b) because the Respond-
ents have not furnished the appropriate supporting
figures for their alternative method of computation.
Since this data is within the Respondents' knowl-
edge, its failure to furnish the appropriate support-
ing figures is contrary to the specificity require-
ments of that section., Moreover, even if the Re-
spondents had included such figures, they could
not be used to offset the backpay calculations. The
Board consistently, with Supreme Court approval,
has not deducted unemployment compensation ben-
efits from backpay awards. NLRB v. Gullet Gin
Co., 340 U.S. 361 (1951). ,The Court found these
benefits collateral, and not direct, benefits from the
employer because "[p]ayments of unemployment
compensation were not made to the employees by
respondent but by the state out of state funds de-
rived from taxation."3 The Court recognized that
"these taxes were paid by employers, and thus to
some extent respondent helped create the fund.
However, the payments to the employees were not
made to discharge any liability or obligation of re-
spondent, but to carry out a policy of social better-
ment for the benefit of the entire state."4 If the
benefit itself is not treated as interim earnings off-
setting gross backpay, the result would be anoma-
lous if the taxes paid by the Respondents to estab-
lish the benefit fund could offset gross backpay.5
Accordingly, we strike paragraphs 5, 6, and 7 of
the Respondents' answers and amended answers.
We therefore deem such allegations to be admitted
as true pursuant to Section 102.54(c).6 Having dis-
regarded the Respondents ' denials as to the method
of computing quarterly , calendar quarterly, and
total net backpay due Carol Ann Canovali and
deemed those allegations of the backpay specifica-
tion pertaining to the method of calculating gross
backpay to be true, we shall grant the General
Counsel 's Motion for Summary Judgment as to the
method of calculating gross backpay.
The Respondents ' amended answers to all re-
maining paragraphs of the backpay specification
frame certain factual issues sufficient to require a
hearing concerning the issues of successorship,
when the backpay obligation was tolled, and the
amount of backpay due the discriminatee . Accord-
ingly, we shall deny the General Counsel's Motion
for Summary Judgment as to all paragraphs of the
backpay specification, with the exception of para-
graphs 5 , 6, and 7.
ORDER
It is ordered that the General Counsel's motion
to strike paragraphs 5, 6, and 7 of the Respondents'
answers and amended answers to the backpay spec-
ification is granted.'
IT IS FURTHER ORDERED that the General Coun-
sel's Motion for Summary Judgment is granted
only with respect to the method of computing the
gross backpay for the discriminatee.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 6
for the purpose of issuing a notice of hearing and
scheduling -a hearing before an administrative law
judge for the purpose of taking evidence as to
successorship to the partnership and to whom the
liability for paying the backpay attaches; tolling of
the backpay period; and how much backpay is due.
' Id. at 364. (Emphasis added.)
4 Id (footnotes omitted).
5 Chairman Dotson relies solely on the insufficiency of the answers.
6 Sec 102.54(c) provides in relevant part-
If the respondent files an answer to the specification 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 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 respondent shall be precluded
from introducing any evidence controverting said allegation
° Pars. 5, 6, and 7 of the amended answer submitted by Respondent
David D DeAngelis are identical to the paragraphs contained in the an-
swers submitted-by Respondents Davis and Singer. Although the General
Counsel's motion to strike neglected to mention pars. 5, 6, and 7 of
DeAngelis' amended answer, we view this omission as inadvertent and
strike these paragraphs from DeAngelis' amended answer as well.