Knickerbocker Plastic Co., Inc.

National Labor Relations Board - Board Decisions

Oct 15, 1957

118 N.L.R.B. 1607 (N.L.R.B. 1957)

KNICKERBOCKER PLASTIC CO., INC. 1607-
(a) All employees in the styrene and butadiene steam plants and the
dehydrogenation plant, excluding all other employees and supervisors
as defined in the Act.
(b) All production and. maintenance employees, including truck-
drivers, and warehouse and shipping employees; but excluding the
styrene. and butadiene steam plant and dehydrogenation plant em_ .
ployees, office and plant clerical employees, electricians, laboratory
employees , professional employees, guards, and supervisors as defined.
in the Act.
If a majority of the employees in voting group (a) select Operating-
Engineers , that group will be taken to have indicated their desire to
constitute a separate bargaining unit, which the Board, under those
circumstances , finds to be appropriate for purposes of collective bar-
gaining, and the Regional Director conducting the elections is hereby
instructed to issue a certification of representatives to such union for
such unit. In that event, if a majority of employees in voting group.,
(b) select Oil Workers, then the Regional Director is instructed to is-
sue a certification of representatives to that union for a unit of such
employees, which the Board under the circumstances finds to be.
appropriate for purposes of collective bargaining.
However, if a majority of the employees in voting group (a) do not
vote for Operating Engineers, such group will be appropriately in-
cluded in the same unit with the employees in voting group (b) and
their votes will be pooled with those in that voting group.3 If a ma-
jority of employees in the pooled group select Oil Workers, the
Regional Director is instructed to issue a certification of representa-
tives to that union for such unit, which under such circumstances the.
Board finds to be appropriate for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
If the votes are pooled, they are to be tallied in the following manner : The votes
for Operating Engineers shall be counted as valid votes, but neither for nor against the
union seeking the production and maintenance employees ; all other votes are to be
accorded ' their face value, whether for representation by a union or for no union.
Knickerbocker Plastic Co ., Inc. and International Association of
Machinists, District Lodge No. 727. Case No. 21-CA-1111.
October 15, 1957
FINDINGS AND ORDER
On April 3,1957, the Board issued and served upon the parties here-
specifications for back pay, medical and hospitalization expenses,
and death benefits. On May 20, 1957, the Respondent filed an answer
to the specifications. On June 13, 1957, the General Counsel filed a.
118 NLRB No. 221.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion requesting the Board to find the allegations in the specifications
to be true and to issue an order precluding the Respondent from intro-
ducing evidence controverting said allegations and striking the af-
firmative defenses in said answer.' On June 23, 1957, the Respondent,
filed an amended answer to the specifications, and on July 9, 1957, the
General Counsel renewed his previous motion in the light of the
amended answer. An opposition and response to such motion was filed
by the Respondent on July 19,1957.
The Board has considered all the foregoing papers, and the entire
record in this case, and finds as follows :
The General Counsel alleges that the Respondent's amended answer
fails to meet the requirements set forth in Section 102.51 c (b) of the
Board's Rules and Regulations relating to the contents of an answer to
back-pay specifications. We shall consider the issues raised by the
General Counsel seriatim.
1. Paragraph A of schedule I of the specifications sets forth the
gross back pay for each claimant, based on information furnished by
the Respondent. The General Counsel contends that the amended
answer is deficient in that, while disputing the accuracy of the gross
back-pay figures in the specifications, it fails as required by Section
102.51 c (b) of the Board's Rules to "state the basis for [its] disagree-
ment" with the specifications, "setting forth in detail [its] position as
to the applicable premises and furnishing the appropriate supporting
figures."
While the amended answer itself is somewhat ambiguous in this re-
spect, the statement in opposition to the General Counsel's motion
makes it clear that the Respondent admits the accuracy of the computa-
tions of gross back pay in the specifications (except as modified by the
figures listed in the exhibit attached to the amended answer), and
that the Respondent merely questions that the claimants would have
worked throughout the back-pay period had they not been discharged.
This is, in effect, merely a refusal to admit that the claimants would
have been willing or able to work throughout that period. That is,
however, an issue separate and distinct from the accuracy of the gross
back-pay figures as a statement of the wages which the claimants
would have received during particular quarters had they actually
worked during those quarters. As that is the only purpose for which
the gross back-pay figures may properly be offered by the General
Counsel and as the Respondent has, in effect, admitted that they are
an accurate statement for that purpose, we find no violation of the
Board's Rules here.
2. The specifications set forth the amount of back pay alleged to be
due to 79 named persons. Paragraph III of the amended answer states
'On July 10, 1957, the Board received from the Respondent a statement in opposition
to that motion.
KNICKERBOCKER PLASTIC CO., INC. 1609
that Respondent has no knowledge as to the identity of the persons who
were ordered reinstated with back pay by the United States Court
of Appeals in enforcing the Board's Order in this case, and for that
reason denies that any of the 79 is entitled to back pay. The Board's
Order, as enforced, required Respondent to reinstate with back pay two
named employees (Goff and Rounsavell) and "all of the employees
discharged on July 10 and 11, 1951." 2 In its opposition to the mo-
tion, the Respondent admits only that the persons named in the speci-
fications were employed by its before the strike,' and reaffirms its
position that it does not know what persons were ordered reinstated,
as such persons were not specifically named by the Board or the
court. However, as the Board and the court identified those entitled
to reinstatement and back pay (other than Goff and Rounsavell) as
"all of the employees discharged" on certain dates, the Respondent's
position is in effect that it does not know whom it discharged on those
dates. Absent any explanation of such lack of knowledge, we do not
deem this a sufficient answer under Section 102.51 c (b) of the Board's
Rules. However, we shall give the Respondent an opportunity to file
within 10 days from the date of this Order an amendment to its
amended answer either (a) stating which of the 79 persons for whom
back pay is claimed in the specifications were, or were not, discharged
on July 10 or 11, 1957, or (b) explaining why it is unable to furnish
such information. Failure to file such an amendment shall be deemed
an admission that all such 79 persons were discharged on those dates.
3. Schedule II of the specifications sets forth claims for benefits due
the claimants under 'Respondent's 1952 insurance plan, which, the
specifications allege, was in effect during 1952 and throughout the bal-
ance of the back-pay period, ending on April 1955. While apparently
denying in its amended answer that its 1952 plan was in effect during
such periods, Respondent attached to its amended answer a copy of
the plan, dated January 10, 1952, which it admits was in effect during
the back-pay period. General Counsel contends that the latter ad-
mission is inconsistent with the prior denial. However, in its state-
ment opposing the motion, Respondent unequivocally asserts that the
1952 plan "was applicable on and after 1952." Under these circum-
stances, we find that the Respondent has admitted that the 1952
plan was applicable during 1952 and during the balance of the back-
pay period covered by the specifications.
4. Schedule III of the specifications sets forth the claims of certain
reinstated employees for back pay because of the alleged discrimina-
tory failure of the Respondent to pay them the rate of wages to which
they were entitled upon reinstatement. It is not entirely clear whether
2 The strike herein began on July 9, 1951.
8 Respondent admits also in its statement opposing the motion of July 9 that Goff and
Rounsavell are entitled to relief under the court ' s decree , and amends its amended answer
to that effect.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the amended answer denies the correctness of the amounts alleged to
have been actually paid or merely asserts that such amounts were not
discriminatory. General Counsel takes the former view, and contends
that such denial is defective under the Rules in that it fails to set forth
a countercomputation. However, in its opposition to the motion Re-
spondent disavows any attack on the accuracy of the figures, and states
that its sole contention is that the amounts paid were not discrimina-
tory. Accordingly, we find that Respondent has admitted that the
wages alleged in schedule III to have been paid are those actually
paid to the employees involved.
5. Schedule V of the specifications sets forth the amounts of va-
cation pay alleged to be due certain of the claimants with respect to
the period preceding their discharge. The amended answer denies
that such amounts are due to the "persons listed"' in the specifications.
General Counsel contends that this denial is insufficient under the
Rules as it is not supported by any explanation or countercomputa-
tion. However, in its opposition to the motion, Respondent disclaims
any disagreement with the computation in schedule V, but explains
that it is merely challenging the right of the persons named in
schedule V to any relief under the decree of the court, in view of the
failure of the court and the Board to list by name the beneficiaries
of the back-pay remedy. This raises merely the same issue as is dis-
cussed in paragraph 2, above. We find, therefore, that the Respond-
ent has admitted that the persons listed in schedule V earned vaca-
tion pay in 1951 in the amounts set forth therein, but denies that such
persons are the ones entitled to relief under the decree of the court
in this case. For reasons stated in paragraph 2, above, we deem such
denial insufficient under the Board's Rules 4
6. Schedule VII of the specifications recapitulates the sums due
each claimant under the other schedules. Paragraph VIII of the
amended answer denies, "for the reasons set forth . . . above" that
any of such sums are due to the persons listed. General Counsel con-
tends that such a general denial is insufficient under the Board's
Rules, since many of the matters embraced in the computation in
schedule VII are within the Respondent's knowledge. However, we
find that in this paragraph of its amended answer Respondent is
merely incorporating by reference all its previously stated objections
to the specifications. Accordingly, the sufficiency of paragraph VIII
depends upon that of the preceding paragraphs of the amended
answer, and raises no new issue.
7. The General Counsel moves the Board to strike various affirma-
tive defenses pleaded by the Respondent. In these defenses, the Re-
4 However, we shall not here require any amendment of the amended answer, as in
paragraph 2, above, since the persons listed in schedule V are included among the 79
persons referred to in paragraph 2, and any disposition of the issue raised as to those
79 persons will presumably settle the question here raised.
NATVAR CORPORATION 1611
spondent, inter alia, challenges the authority of the Board to proceed
in this matter, and contends that the Respondent has been denied due
process.' Without passing on the merits of the affirmative defenses,
we do not believe that Respondent should be foreclosed from urging
them in this proceeding.
In conclusion, we find, for reasons stated above, that the amended
answer, as modified and clarified by the Respondent's statement in
opposition to the General Counsel's motion on July 9, complies with
the Board's Rules, except in the respects noted in paragraphs 2 and 5,
above. We will accordingly deny the General Counsel's motion ex-
cept to the extent indicated in paragraph 2, above.s
ORDER
IT IS IIER.EBY ORDERED that, unless the Respondent, within 10 days
from the date of this Order, amends its amended answer by either (a)
stating which of the 79 persons for whom back pay is claimed in the
specifications were, or were not, discharged on July 10, or 11, 1957,
or (b) explaining why it cannot furnish this information, such 79
persons will be deemed to have been discharged on those dates by
Respondent and it will be precluded from introducing any evidence
to the contrary at the hearing in this case.
IT Is rURTHER ORDERED that the General Counsel's motion of June
13, 1957, as renewed on July 9, be, and it hereby is, denied in all other
respects.
5 We note, in passing , Respondent 's characterization of the back pay claimed in the
specifications as "grossly exaggerated" and as based upon " false and fraudulent state-
ments" of claimants . Such characterization. is difficult to reconcile with Respondent's
admission that the gross hack-pay figures are accurate , except for some relatively minor
Corrections , and its assertion in paragraph I (B) of the amended answer that it has no
"knowledge or information sufficient to form a belief " as to the interim earnings and
deductible expenses of the claimants or as to their search for work.
6 Respondent contends in its opposition to the motion that there is no authority in the
Board 's Rules for , filing the instant motion . However, Section 102.51 c ( c) of the Rules
authorizes the Board, in an appropriate case , to grant the relief here sought by the
General Counsel . Such provision necessarily implies that the General Counsel may seek
Such relief from the Board through an appropriate pleading.
Natvar Corporation and Stephen Huszar, Petitioner and United
Paperworkers of America , AFL-CIO.'. Case No. 02-RD-4.
October 15, 1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Alan Zurlnick, hear-
1 We have been administratively advised that the Union , United Paperworkers of
America, AFL-CIO, and the International Brotherhood of Papermakers , AFL-CIO,
merged, effective March 8, 1957 ; and the merged name appears as United Papermakers
and Paperworkers of America, AFL-CIO.
118 NLRB No. 223.