Mazda South

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 791 (N.L.R.B. 1980)

MAZDA SOUTH
Seven Motors Ltd., d/b/a Mazda South; and South
County Chrysler Plymouth, Inc., d/b/a Seven
Motors; South County Motor Sales, Inc. (For-
merly South County Chrysler Plymouth, Inc.),
d/b/a Seven Motors; and South County Motor
Sales, Inc., d/b/a Don Flier Motors, Jointly
and District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 14-CA-10033
September 30, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELILO
On December 13, 1977, the National Labor Rela-
tions Board issued its Decision and Order in the
above-entitled proceeding' in which it ordered,
inter alia, that Respondent make whole certain of
its employees for any losses they may have suffered
as a result of Respondent's unlawful conduct. Sub-
sequently, the Board, sua sponte, reconsidered and
affirmed its original Decision and Order. 2 Thereaf-
ter, on April 7, 1980, the United States Court of
Appeals for the Eighth Circuit entered its judg-
ment enforcing in full the Board's Order.3 A con-
troversy having arisen over the amount of backpay
due under the terms of the Board's Order, as en-
forced by the court, the Regional Director for
Region 14, on May 30, 1980, 4 issued and duly
served on the parties a backpay specification and
notice of hearing alleging the amounts of backpay
due the employees under the Board's Order and
notifying Respondent that it must file a timely
answer which must comply with the National
Labor Relations Board Rules and Regulations,
Series 8, as amended. On June 24, Respondent filed
an answer to the backpay specification in which it
made a general denial of all allegations of the spec-
ification and moved that the backpay specification
be dismissed. After being informed by Region 14
that under the Board's Rules an answer which does
not specifically state the basis of Respondent's dis-
agreement with the accuracy of figures contained
in the specification or the premises on which they
are based is not sufficient under Section 102.54, Re-
spondent filed an amended answer on or about July
11. In its amended answer Respondent admitted
certain paragraphs and denied certain other para-
graphs by means of a general denial and further
stated: (1) that it did not refuse to sign a contract
' 233 NRB 1109
2243 NRi No 139 (1979)
' Enforced suh nor. L.R. B. , South Counrv Mrtor icts in IIl I n-
published decisilon
' All dales hereafter refer to 10 unless otheruise pecified
252 NLRB No. 116
and was not presented a contract by the Union; (2)
that it did give effect to the pay rate as contemplat-
ed by said contract in that all employees were paid
either at or above union scale; (3) that the Greater
St. Louis Automotive Association was not an agent
for it in its bargaining with the Union; (4) that all
employees received full pay with the exception of
Thomas Scott and David Carlson; (5) that it did
not have a contract with the Union; (6) that it sup-
plied employees with an appropriate health and
welfare benefit during the period of time for which
they were employed; (7) that it denies that it owes
any backpay to discriminatees Jacobs, Kerbler,
Kopp, Vincent, or Wruck, that they have been
paid in full, and that no sums are due and owing to
them; (8) that in each and every instance the Com-
pliance Officer "has used a hypothetical of two
years experience as and for the basis of his compu-
tation of figures which is in error"; and (9) that it
owes nothing to either District 9, International As-
sociation of Machinists and Aerospace Workers
Welfare Association or to the pension trust as it
has never had a contract with the Union and has
provided health and welfare benefits to the em-
ployees "and to their benefit." Respondent further
moves that the backpay specification be dismissed
except as to employees Carlson and Scott.
On July 28, General Counsel filed directly with
the Board a Motion for Summary Judgment. Sub-
sequently, on July 30, the Board issued an order
transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be
granted. On August 18, Respondent filed a reply to
the Motion for Summary Judgment wherein it as-
serts that its amended answer complies with the
Board's Rules and that the amended answer advises
the Board of the area wherein there is a factual
issue to be resolved at the hearing. Respondent fur-
ther explains that the amended answer sets forth
the areas of disagreement by pointing out that "the
Enforcement Officer has used a hypothetical of
two years experience as and for the basis of his
computation of figures which is in error" and that
by comparing the alleged contract to the figures in
the backpay specification, it is apparent that an ex-
perience factor of 2 years was used to compute the
contractual rates. Respondent states that correct-
ness of these computations is a question of fact that
must be resolved at a hearing. Respondent further
states that "as to the Health and Welfare and Pen-
sion for the listed employees, there still remains a
question of fact and law to be determined which
can only be resolved by an evidentiary hearing."
Respondent moves that Summary Judgment be
denied and that the matter be sent to a hearing.
791
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record, the Board makes the fol-
lowing:
Ruling on the Motion for Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions, provides, in pertinent part, as follows:
(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,
and the respondent shall be precluded from in-
troducing any evidence controverting said al-
legation.
Respondent's answer and amended answer to the
backpay specification clearly do not conform to the
a We note particularly that Respondent asserts that the compliance of-
ricer has used a "hypothetical of two years experience" for making cer-
tain calculations, but Respondent ails to specify the allegedly proper ex-
perience level or the resulting backpay calculation.
above requirements. In its amended answer Re-
spondent disputes findings, made by the Adminis-
trative Law Judge and adopted by the Board,
which are no longer at issue. In addition, Respond-
ent asserts that certain aspects of the backpay spec-
ification are not correct while failing to set forth
alternative premises or supporting details.5 Certain-
ly, these matters are within the knowledge of Re-
spondent and its failure to deny the specification in
the manner required by Section 102.54(b) or to
adequately explain its failure to do so requires that
the allegations be deemed admitted to be true in
accord with Section 102.54(c). Accordingly, the
Board finds them to be correct,6 and grants the
General Counsel's Motion for Summary Judgment.
Therefore, on the basis of the allegations of the
specification which are accepted as true, the Board
finds the facts as set forth therein, concludes the
backpay due David Carlson, Donald Jacobs, James
J. Kerbler, James R. Kopp, Thomas Scott, Thomas
Vincent, Wayne Wruck, and Barry Mensell is as
stated in the computations of the specification, and
orders that payment thereof be made by Respond-
ent to each named employee, with health and wel-
fare and pension contributions to be paid to the ap-
propriate funds on behalf of the respective employ-
ees as set forth in the backpay specification.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
South County Motor Sales, Inc., St. Louis, Missou-
ri, under whatever trade name it is doing business,
its officers, agents, successors, and assigns, shall
pay to each employee and to the Trustees of Dis-
trict No. 9, International Association of Machinists
and Aerospace Workers Welfare Association (re-
ferred to herein as health and welfare) and the
Trustees of the District No. 9, International Associ-
ation of Machinists and Aerospace Workers Pen-
sion Trust (referred to herein as pension), on their
behalf, the amounts set forth below opposite their
names, plus interest accrued to the date of payment
pursuant to the Board's Order and the court judg-
ment, minus the tax withholding required by Fed-
eral and state laws:
6 Dews Construction Corp. a subsidiary of The Aspin Group, Inc., 246
NLRB No 156 (1979); Gateway Service Co., 209 NLRB 1166 (1974).
' Respondent's motion to dismiss the backpay specification is hereby
denied.
792
MAZDA SOUTH
Employee
David Carlson
Donald Jacobs
James Kerbler
James R Kopp
Barry Mensell
Thomas Scott
Thomas Vincent
Wayne Wruck
Health &Backpav Welfare Pension
$51.96 425.(X) 589.95
121.66 500.(X) 781.00
328.04 610.00 893.70
39 04 650.(X) 867.50
()(X) 520.00 694.00
246.72 810.00 1,206.10
24625 1.895.00 2,620.05
1,110.30 715.00 954.25
793