M&M Affordable Plumbing, Inc.

National Labor Relations Board - Board Decisions

Mar 23, 2017

365 NLRB No. 49 (N.L.R.B. 2017)

365 NLRB No. 49
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
M & M Affordable Plumbing, Inc. and Jeffrey Ceren.
Case 13–CA–121459
March 23, 2017
SUPPLEMENTAL DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The General Counsel seeks partial summary judgment
in this compliance proceeding on the basis that the Re-
spondent’s answer to the compliance specification at-
tempted to raise matters that had been decided in the un-
derlying unfair labor practice proceeding and is inade-
quate under the Board’s Rules and Regulations. For the
reasons that follow, we grant the General Counsel’s mo-
tion.
On August 4, 2015,1 the National Labor Relations
Board issued a Decision and Order finding that the Re-
spondent, M & M Affordable Plumbing, Inc., violated
Section 8(a)(3) and (1) of the Act by discharging em-
ployee Jeffrey Ceren. M & M Affordable Plumbing, Inc.,
362 NLRB No. 159 (2015). Among other things, the
Board ordered the Respondent to offer Ceren full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges pre-
viously enjoyed by him. Id., slip op. at 8. The Board
further ordered that the Respondent make Ceren whole
for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest
compounded daily. Id., slip op. at 8–9.
On October 30, based on noncompliance with the
Board’s Order, the Acting Regional Director for Region
13 issued a compliance specification and notice of hear-
ing, alleging the amounts due and notifying the Re-
spondent of its obligation to file a timely answer comply-
ing with the Board’s Rules and Regulations. On No-
vember 27, the Respondent filed an answer to the com-
pliance specification. In its answer, the Respondent de-
nied each allegation, repeatedly asserting that the under-
lying unfair labor practice case was decided in error.
Therefore, the Respondent asserted, it had no obligation
to reinstate Ceren, and no backpay was due him. The
answer also asserted that the General Counsel failed to
allege or otherwise set forth any efforts by Ceren to miti-
gate his losses.

1 All dates are in 2015, unless otherwise indicated.
On November 30, the General Counsel sent the Re-
spondent’s counsel a letter advising counsel that the an-
swer was deficient because it attempted to relitigate is-
sues that had been resolved in the underlying proceeding
and lacked the requisite specificity prescribed by the
Board’s Rules and Regulations. The letter informed the
Respondent’s counsel that unless it filed an amended
answer complying with the Board’s Rules and Regula-
tions by December 7, the General Counsel would file a
Motion for Summary Judgment with the Board.
No such amended answer was filed, and on December
15, the General Counsel moved for partial summary
judgment on the compliance specification, stating that
the Respondent’s answer failed to meet the specificity
requirements of the Board’s Rules and Regulations. The
General Counsel asserts that the Respondent’s answer
did little more than attempt to relitigate the Board’s con-
clusions in the underlying unfair labor practice proceed-
ing, and points out that the Respondent failed to set forth
any alternative calculations of backpay. The General
Counsel therefore asserts that the Board should grant
summary judgment as to the calculation of gross back-
pay.2
On December 18, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the General Counsel’s motion should not be
granted. The Respondent filed a brief in opposition to
the General Counsel’s motion on January 4, 2016.
On the entire record, 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, in relevant part:
(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 respondent shall so
state, such statement operating as a denial. Denials shall
fairly meet the substance of the allegations of the specifi-
cation at issue. 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 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 respondent

2 The General Counsel acknowledges that the Respondent’s general
denials of certain aspects of interim earnings pled in the compliance
specification may be sufficient to require a hearing in which the Re-
spondent will be required to carry its burden of proving interim earn-
ings. The General Counsel further asserts, however, that in any such
hearing the Respondent should be precluded from introducing evidence
or arguments as to the General Counsel’s calculation of gross backpay.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disputes either the accuracy of the figures in the specifi-
cation or the premises on which they are based, the an-
swer shall specifically state the basis for such disagree-
ment, setting forth in detail the respondent’s position as
to the applicable premises and furnishing the appropriate
supporting figures.
(c) Effect of failure to answer or to plead specifically
and in detail to backpay allegations of specification . . . .
If the respondent files an answer to the specification but
fails 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 alle-
gation shall be deemed to be admitted to be true, and
may be so found by the Board without the taking of evi-
dence supporting such allegation, and the respondent
shall be precluded from introducing any evidence con-
troverting the allegation.
We examine whether the Respondent’s answer, as
supplemented by its opposition brief, satisfies the re-
quirements of Section 102.56(b).
1. Backpay period
(Paragraphs I and II of specification)
Paragraph I of the specification alleges that the back-
pay period begins on September 24, 2013, the date of
Ceren’s discharge, and ends when the Respondent ex-
tends Ceren a valid offer of reinstatement or until the
Respondent’s reinstatement obligation is otherwise ex-
tinguished for nondiscriminatory reasons. The Respond-
ent denies paragraph I, arguing that the Board’s decision
was made in error, and therefore, Ceren is due neither
reinstatement nor backpay. More specifically, the Re-
spondent denies that Ceren was employed by the Re-
spondent or that he was discharged on September 24,
2013.
In the underlying proceeding, the Board, adopting the
decision of the administrative law judge, found that the
Respondent violated Section 8(a)(3) and (1) of the Act
by discharging Ceren because he was a union member.
362 NLRB No. 159, slip op. at 5. It further found that
the Respondent had violated the Act by conditioning
Ceren’s employment on withdrawal from the Union. Id.,
slip op. at 6. The Board rejected the Respondent’s argu-
ments that it had never hired, employed, or discharged
Ceren, and that Ceren was not an employee of the Re-
spondent under Section 2(3) of the Act but rather held a
managerial position or was an independent contractor.
Id., slip op. at 3 fns. 6, 7.
It is well settled that an employer may not relitigate
matters in the compliance stage that were decided in an
underlying unfair labor practice proceeding. M.D. Miller
Trucking and Topsoil, Inc., 363 NLRB No. 49, slip op. at
2 (2015); Convergence Communications, Inc., 342
NLRB 918, 919 (2004). Here, in contending that neither
backpay nor reinstatement was warranted because “the
Board’s decision was in error,” and that it had neither
employed nor discharged Ceren, the Respondent at-
tempts to do just that. Accordingly, we agree with the
General Counsel that summary judgment is warranted as
to paragraph I.3
2. Gross backpay and excess tax
(Paragraphs III and VI of specification)
Paragraph III(a) of the specification addresses the
method by which backpay was calculated. It sets forth
the following formula: “An appropriate measure of the
gross backpay due Ceren is based [on] the total annual
salary divided by the number of hours worked by a full-
time employee and the value of a pretax benefit received
as fuel directly from Respondent’s gas pump.”
In addition to arguing that “the Board’s decision was
made in error and that no backpay is due,” the Respond-
ent also denies “that the alleged ‘value of a pretax bene-
fit’ concerning the receipt of fuel is an appropriate com-
ponent of backpay.” The Board’s decision specifically
found that Ceren was allowed to take gasoline from the
Respondent’s pump free of charge, and that this was an
in-kind payment to Ceren that was part of “a scheme
[hatched] by” him and the Respondent’s owner Michael
Malak to pay Ceren in an indirect fashion that would
hide from the Union that Ceren was employed by the
Respondent. See M & M Affordable Plumbing, supra,
slip op. at 3–4. Even without regard to motive, it is well
established that gross backpay encompasses in-kind ben-
efits. See Teamsters Local 164, 274 NLRB 909, 910–
911 (1985), enfd. 835 F.2d 879 (6th Cir. 1987); Amshu
Associates, Inc., 234 NLRB 791, 796 (1978). These
benefits include items such as telephone and gasoline
privileges. See Teamsters Local 164, supra, at 910–911.
Therefore, we grant summary judgment for the General
Counsel on this issue.
Paragraph III(b) states that “Ceren’s negotiated annual
salary is assumed to reflect full-time employment of 40
hours per week, 520 hours per calendar quarter, and
2,080 hours per calendar year.” After its standard con-
tention that no backpay is due because the Board erred in
the underlying decision, the Respondent states that it

3 Paragraph II simply defines the term “calendar quarter” as used in
the specification. The Respondent admits “that the Specification sets
forth the referenced time periods,” but “denies they have any applica-
bility to Ceren’s proposed employment with Respondent,” and once
again contends that “the Board’s Decision was made in error.” As the
Respondent’s answer to paragraph II relies on an attempt to relitigate
the underlying Board decision, summary judgment is also granted as to
paragraph II. See M.D. Miller, supra, slip op. at 2.
M & M AFFORDABLE PLUMBING, INC. 3
“admits that the Board is making the assumptions alleged
in relation to Ceren’s alleged employment with Re-
spondent, but denies the accuracy of the assumptions
because they do not reflect the anticipated number of
weeks to have been worked by Ceren under the proposed
employment with Respondent.” Here, the Respondent’s
references to Ceren’s “alleged” and “proposed” employ-
ment, following on the heels of its oft-repeated conten-
tion that “the Board’s decision was made in error,”
strongly suggest that the Respondent is merely attempt-
ing to relitigate the underlying decision. That is, its “ar-
gument” appears to be that the “anticipated number of
weeks to have been worked by Ceren” set forth in the
specification is in error because Ceren was never em-
ployed by the Respondent—an argument that was, as
stated above, rejected in the underlying decision. To the
extent that the answer can be read as going beyond reliti-
gation of the Board’s finding that Ceren was an employ-
ee of the Respondent, it is insufficient under the Board’s
Rules because although this is a matter within the Re-
spondent’s knowledge, the answer lacks any explanation
of the basis for the Respondent’s disagreement with the
General Counsel’s premise of a 40-hour week, and does
not set forth any proposed alternative figure. Rules and
Regulations Section 102.56(b); Shenandoah Coal Co.,
312 NLRB 30, 30–31 (1993).4
In its answers to the remainder of Paragraph III, the
Respondent does little more than contend that the under-
lying decision was in error. To the extent it denies any
specific allegations made by the General Counsel, see
Paragraphs III(e) and (f), its answer relies on unsupport-
ed and unexplained assertions, which, as explained
above, are insufficient under the Board’s Rules.
Paragraph VI, as supplemented by exhibit 3 to the
compliance specification, alleges with specificity the
compensation Ceren should receive to offset the adverse
tax consequences of receiving a lump-sum backpay
award for a period of over 1 year. In its answer, the Re-
spondent repeats that the underlying Board decision was
in error and takes issue with specific findings made in
that decision. The Respondent’s answer fails to comply
with Board law, which requires the Respondent to specif-
ically rebut allegations regarding adverse income tax
consequences. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10, slip op. at 6 (2014).
For the reasons stated above, we agree with the Gen-
eral Counsel that, pursuant to Section 102.56(b) and (c)
of the Board’s Rules and Regulations, summary judg-

4 In finding summary judgment warranted as to paragraph III(b) of
the compliance specification, Acting Chairman Miscimarra relies only
on the insufficiency of the Respondent’s answer under Sec. 102.56(b)
of the Board’s Rules and Regulations.
ment is warranted as to paragraphs III and VI of the
compliance specification.
3. Interim earnings and expenses
(Paragraphs IV-V of specification)
Paragraph IV contains allegations such as the name of
an interim employer that Ceren allegedly worked for and
the wage information that this employer submitted to the
General Counsel. It further sets forth certain premises
that the General Counsel used in calculating Ceren’s in-
terim earnings. Paragraph IV also incorporates exhibits
1 and 2, which set forth calculations regarding Ceren’s
interim employment. Paragraph V states that net back-
pay for each calendar quarter is the difference between
Ceren’s gross backpay and interim earnings, and that the
total amount due, without interest, is set forth as a total
for each quarter under “Net Backpay and Expenses” in
exhibit 1. The Respondent’s answers to paragraphs IV
and V consist of its standard assertions regarding the
Board’s alleged error in the underlying proceeding and as
to certain findings therein, and general denials.
As the General Counsel acknowledges, where infor-
mation is not within the Respondent’s knowledge, such
as a discriminatee’s interim earnings and expenses, a
general denial is sufficient to warrant a hearing on those
issues. Douglas Electrical Contracting, 337 NLRB No.
47, slip op. at 2 (2001) (not reported in Board volumes);
Dews Construction Corp., 246 NLRB 945, 947 (1979).
Accordingly, we shall order a hearing limited to the is-
sues of Ceren’s interim earnings and expenses. The Re-
spondent shall not be permitted, however, to relitigate
any issues resolved in the Board’s underlying decision,
nor to introduce evidence to challenge the gross backpay
calculations and conclusions contained in the compliance
specification.5
ORDER
IT IS ORDERED that the General Counsel’s Motion for
Partial Summary Judgment is granted except with regard
to allegations concerning Ceren’s interim earnings and
expenses.

5 The General Counsel requests that we strike the Respondent’s con-
tentions that the Board’s underlying decision was in error and that it has
no backpay or reinstatement obligations to Ceren, and its related con-
tentions that attempt to relitigate issues resolved in the earlier proceed-
ing. Given that we have granted the motion for partial summary judg-
ment, we find it unnecessary to strike any portion of the Respondent’s
answer.
Acting Chairman Miscimarra agrees that partial summary judgment
is appropriate in this compliance proceeding for the reasons stated in
this Supplemental Decision (with the qualification he noted above).
Acting Chairman Miscimarra has not previously participated in this
case, and he does not reach or pass on the merits of the underlying
unfair labor practice decision.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 13 for the
purpose of arranging a hearing before an administrative
law judge on the issues of interim earnings and expenses.
Dated, Washington, D.C. March 23, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD