Lott's Electric Co.

National Labor Relations Board - Board Decisions

Feb 12, 1991

301 N.L.R.B. 687 (N.L.R.B. 1991)

687
301 NLRB No. 97
LOTT’S ELECTRIC CO.
1 293 NLRB 297.
Lott’s Electric Company, Inc. and Net Jersey IBEW
Construction Business Managers Association,
International Brotherhood of Electrical Work-
ers, AFL–CIO and International Brotherhood
of Electrical Workers, AFL–CIO
Lott’s Electrical Company, Inc. and Gauntt Con-
struction Company, Inc. and New Jersey IBEW
Construction Business Managers Association,
International Brotherhood of Electrical Work-
ers, AFL–CIO. Cases 22–CA–14656, 22–CA–
14745, and 22–CA–14705
February 12, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 15, 1989, the National Labor Relations
Board issued a Decision and Order in this proceeding.1
On November 14, 1989, the United States Court of
Appeals for the Third Circuit entered a judgment en-
forcing in full the Board’s Order. A controversy hav-
ing arisen over the amount of backpay due the
discriminatees under the Board’s Order, the Acting Re-
gional Director for Region 22 on July 31, 1990, issued
a compliance specification and notice of hearing alleg-
ing the amount of backpay due each of the six
discriminatees, and notifying the Respondent that it
must file an answer in conformance with Section
102.56 of the Board’s Rules and Regulations, as
amended. Subsequently, the Respondent timely filed an
answer to the compliance specification. On September
21, 1990, the Regional Director informed counsel for
the Respondent that the answer to the compliance
specification was deficient under applicable sections of
the NLRB Rules and Regulations. The letter further
notified the Respondent that if a proper answer to the
compliance specification was not received by October
5, 1990, the Regional Office would file a Motion for
Partial Summary Judgment. On October 5, 1990, the
Respondent filed an amended answer to the compli-
ance specification.
Thereafter, on November 19, 1990, the General
Counsel filed a Motion to the Board for Partial Sum-
mary Judgment and Memorandum in Support, with ex-
hibits attached. The General Counsel’s motion con-
tends that portions of the Respondent’s answer and
amended answer to the compliance specification are
not in compliance with Section 102.56(b) and (c) of
the Board’s Rules and Regulations. On November 21,
1990, the Board issued an order transferring the pro-
ceeding to the Board and Notice to Show Cause why
the General Counsel’s motion should not be granted.
On December 12, 1990, the Respondent filed a re-
sponse. In the response, the Respondent states that it
will not oppose the General Counsel’s motion. The Re-
spondent asserts that after reviewing its records and
payroll information and Section 102.56(b) and (c) of
the Board’s Rules and Regulations, ‘‘any reduction in
backpay as a result of Respondent’s allegations in
paragraphs 1(b), 1(c) and 1(d) would not justify the
expense and time incurred in compiling such data.’’
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this case, the Board makes
the following
Ruling on the Motion for Partial Summary
Judgment
Section 102.56(b) and (c) of the Board’s Rules and
Regulations states:
(b) Contents of answer to specification.—The
answer shall specifically admit, deny, or explain
each and every allegation of the specification, un-
less the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. Denials shall fair-
ly meet the substance of the allegations of the
specification at issue. 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 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 suffice. As to such matters, if the re-
spondent disputes either the accuracy of the fig-
ures 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 applica-
ble premises and furnishing the appropriate sup-
porting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to backpay allegations of
specification. . . . If the respondent files an an-
swer to the specification but fails to deny any al-
legation of the specification in the manner re-
quired 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 with-
out the taking of evidence supporting such allega-
tion, and the respondent shall be precluded from
introducing any evidence controverting the allega-
tion.
On September 21, 1990, the Regional Director wrote
to the Respondent’s counsel advising that the Respond-
ent’s answer did not comply with the Board’s Rules
and Regulations regarding an answer to a specification.
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
That letter spelled out in detail the insufficiencies, with
particular emphasis on the need for providing specific
alternative theories of calculation rather than general
denials of matters within the Respondent’s knowledge.
The Regional Director also enclosed a copy of the sec-
tions of the Rules and Regulations cited, as well as a
citation to the Board’s decision in Heck’s Inc., 282
NLRB 263 (1986), in which the Board granted the
General Counsel’s Motion for Partial Summary Judg-
ment in similar circumstances. Further, the Regional
Director provided Respondent’s counsel an opportunity
to file an amended answer, and advised that, in the ab-
sence of a proper answer, a Motion for Partial Sum-
mary Judgment would be filed. The Respondent timely
filed its amended answer.
The General Counsel asserts that the Respondent’s
answer and its amended answer, taken together, leave
paragraphs 2 and 5–10 to be litigated, and paragraphs
1a, 3, and 4 to be partially litigated. Paragraphs 1b, 1c,
and 1d have not been answered in accordance with the
Board’s Rules and Regulations, and Respondent has
admitted portions of paragraphs 1a, 3, and 4.
Paragraph 1a: This paragraph of the specification
alleges that the backpay period for Mark Seltner in-
cludes November 3 through 7, 1986, the week of his
suspension, and started again on December 19, 1986,
the first workday after he was laid off, and ended
April 11, 1989, the date he returned to work following
the Employer’s offer of reinstatement. In its original
answer, the Respondent admitted the entire allegation.
In its amended answer, the Respondent admitted the
dates of Seltner’s suspension and initial lay off but
claimed that the backpay period should exclude all
time after December 31, 1987, as Seltner ‘‘would have
been laid off for non-discriminatory reasons from that
point forward’’ due to the lack of ‘‘residential work’’
available after that time when the Wilson Homes
project ended. The General Counsel seeks, and we
grant, summary judgment with respect to the admis-
sions as to the dates of Mark Seltner’s suspension and
initial layoff contained in Respondent’s amended an-
swer to paragraph 1a of the specification.
Paragraph 1b: The specification alleges that the
backpay period of John Koerner and Barry Galczynski
started October 19, 1986, the first workday after they
were laid off, and ended April 10, 1989, the date the
Employer’s bona fide offer of reinstatement was to be
effective. In its original answer, the Respondent admit-
ted the entire allegation. In its amended answer, the
Respondent admitted the beginning of Koerner and
Galczynski’s backpay period but claimed for the first
time that they ‘‘would have been laid off sometime in
1987’’ because of their seniority ranking and the Re-
spondent’s economic condition, and that no further
backpay is due after that time ‘‘due to a legitimate
non-discriminatory lay-off.’’ The General Counsel as-
serts, and we agree, that the amended answer is defi-
cient under the Board’s Rules and Regulations. Thus,
Respondent did not provide a specific date when the
employees would have been laid off, nor did it provide
alternative supporting backpay calculations based on
the alleged layoff date. Therefore, we grant summary
judgment with respect to paragraph 1b of the specifica-
tion.
Paragraph 1c: The specification alleges that the
backpay periods for Joseph Carluccio and John Oliver
started on October 14 and November 4, 1986, respec-
tively, the first workday after they were discharged,
and ended on April 10, 1989, the date the Employer’s
bona fide offers of reinstatement were to be effective.
In its original answer the Respondent admitted the en-
tire allegation. In its amended answer, the Respondent
admitted the beginning of backpay periods for
Carluccio and Oliver but claimed that they ‘‘would
have been laid off sometime in 1987’’ due to their se-
niority ranking and Respondent’s economic condition,
and that no further backpay is due after that time ‘‘due
to a legitimate non-discriminatory lay-off.’’ The Gen-
eral Counsel asserts, and we agree, that Respondent’s
amended answer is deficient under the Board’s Rules
and Regulations. Thus, asserting that a layoff would
have occurred ‘‘sometime in 1987’’ does not provide
the necessary supporting detail including, e.g., the spe-
cific date when the employees would have been laid
off, nor has the Respondent provided alternative back-
pay calculations based on the alleged layoff date,
which, under the Board’s Rules and Regulations, the
Respondent’s answer must contain. Therefore, we
grant summary judgment with respect to paragraph 1c
of the specification.
Paragraph 1d: The specification alleges that the
backpay period for Vito Galati started on October 19,
1986, the first workday after he was discharged, and
ended April 10, 1990, the date the Employer’s bona
fide offer of reinstatement was to be effective. In its
original answer and amended answer, the Respondent
admitted that Galati’s backpay period started on Octo-
ber 19, 1986, the first workday after he was dis-
charged, but denied that a bona fide offer of reinstate-
ment was made to be effective April 10, 1990. The
Respondent asserted that a bona fide offer of reinstate-
ment was to be effective on April 10, 1989. In its
amended answer, the Respondent pleads that Galati
‘‘would have been laid off sometime in 1987’’ due to
his seniority ranking and the Respondent’s economic
condition and that no further backpay is due after that
time ‘‘due to a legitimate non-discriminatory lay-off.’’
That portion of the Respondent’s amended answer
where it is asserted that Galati ‘‘would have been laid
off sometime in 1987’’ does not provide the necessary
supporting detail to be a sufficient response under the
Board’s Rules and Regulations. Therefore, we grant
689LOTT’S ELECTRIC CO.
summary judgment as to these allegations in paragraph
1d of the specification. However, the Respondent’s re-
sponse to the allegation as to when it made a bona fide
offer to reinstate Galati is specific and responsive to
the specification allegation. Therefore, we deny sum-
mary judgment as to this allegation of paragraph 1d.
Paragraph 3: The specification alleges that the quar-
terly gross backpay period for discriminatees Koerner,
Galczynski, Carluccio, Oliver, and Galati is to be de-
termined by the average earnings for journeymen elec-
tricians in the calendar quarter as set forth in the speci-
fied sections of appendices B and E through I. The
specification alleges further that the quarterly gross
backpay for each discriminatee in the first and last
quarters of the backpay period was calculated by mul-
tiplying the average gross earnings of representative
journeymen for the quarter by the number of days in
the backpay period for each discriminatee in that quar-
ter and dividing that product by the number of days in
the quarter. In its original answer and amended answer,
the Respondent partially denied the specification alle-
gation regarding the calculation for quarterly gross
backpay to the discriminatees, but admitted that the
calculations for the first and last quarters of the back-
pay period of the backpay specification for Koerner,
Galczynski, Carluccio, and Oliver were properly com-
puted as to the days of those quarters that should be
included in the calculations. The General Counsel
seeks, and we grant, summary judgment with respect
to these admissions.
Paragraph 4: The specification alleges that the quar-
terly backpay for discriminatee Seltner is determined
by the average earnings for apprentice electricians in
the calendar quarter as set forth in the specified sec-
tions of appendices C and J. The quarterly gross back-
pay for Seltner in the first and last quarters of the
backpay period was calculated by multiplying the aver-
age gross earnings of the representative group who
worked as apprentice electricians for that quarter by
the number of days in the backpay period for Seltner
and dividing that product by the number of days in the
quarter. In its original answer, the Respondent admit-
ted the entire allegation that the quarterly gross back-
pay for discriminatee Seltner should be determined by
the average earnings for apprentice electricians in the
calendar quarter. In its amended answer, Respondent
partially denied the allegation, asserting that Seltner’s
backpay ‘‘must be reduced in the amount of cash
wages paid in lieu of benefits pursuant to federal and
state prevailing wage laws . . .’’ The Respondent ad-
mitted that the calculations used to determine the num-
ber of days in the first and last quarters of the backpay
specification should be included in the calculations.
The General Counsel seeks, and we grant, summary
judgment with respect to these admissions.
ORDER
It is ordered that the General Counsel’s Motion for
Partial Summary Judgment be granted as to the allega-
tions in the compliance specification paragraphs 1b
and 1c and portions of the compliance specification
paragraphs 1a, 1d, 3, and 4. It is ordered that the mo-
tion be denied as the reinstatement date alleged in
paragraph 1d.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 22 for the
purpose of issuing a notice of hearing and scheduling
a hearing before an administrative law judge for the
purpose of taking evidence concerning those allega-
tions contained in paragraphs 1a, 1d, and 2–10 of the
compliance specification as to which summary judg-
ment has not been granted. The judge shall prepare
and serve on the parties a supplemental decision con-
taining findings of fact, conclusions of law, and rec-
ommendations based on all the record evidence. Fol-
lowing service of the judge’s decision on the parties,
the provisions of Section 102.46 of the Board’s Rules
and Regulations shall be applicable.