Mobile Home Estates

National Labor Relations Board - Board Decisions

May 10, 1991

302 N.L.R.B. 884 (N.L.R.B. 1991)

884
302 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 292 NLRB 691.
2 No. 89–5265 (unpublished).
3 The Respondent’s additional claim that par. 2(b) of the amended compli-
ance specification was deficient because it allegedly sets forth gross ‘‘weekly’’
earnings, but actually sets forth quarterly earnings is specious. Par. 2(b) clearly
presents gross weekly earnings, ‘‘on a quarterly basis.’’ (Emphasis added.)
Mobile Home Estates, Inc. and International Union,
Allied Industrial Workers of America, AFL–
CIO, and its Local 712. Cases 8–CA–17640, 8–
CA–18405, 8–CA–19660, 8–CA–19662, 8–CA–
19663, 8–CA–19778, and 8–CA–19779
May 10, 1991
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On January 26, 1989, the National Labor Relations
Board issued a Decision and Order in this proceeding,1
directing Mobile Home Estates, Inc., the Respondent,
inter alia, to make whole Alan C. Lupien for any loss
of pay and other benefits resulting from its unfair labor
practices. The United States Court of Appeals for the
Sixth Circuit enforced the Board’s Order on October
10, 1990.2 On February 1, 1991, the Regional Director
for Region 1 issued an amended compliance specifica-
tion and notice of hearing, alleging that a controversy
had arisen over the amount of backpay and medical
payments due under the terms of the Board’s Order.
Subsequently, the Respondent filed an answer to the
amended compliance specification denying in part and
claiming lack of knowledge in part to the allegations.
On March 25, 1991, the General Counsel filed with
the Board in Washington, D.C., a motion to strike Re-
spondent’s answer in part and for partial summary
judgment and a brief in support. The General Counsel
submits that the Respondent’s answer to the amended
compliance specification does not conform to the re-
quirements of the Board’s Rules and Regulations relat-
ing to the discriminatee’s backpay period and the
method of calculating gross backpay. The General
Counsel thus submits that all allegations of the speci-
fication should be found to be true with the exception
of the amount of interim earnings and medical ex-
penses of the discriminatee.
On March 29, 1991, the Board issued an order trans-
ferring 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 response April
15, 1991.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
Ruling on Motion for Partial Summary Judgment
Section 102.56(b) and (c) of the National Labor Re-
lations Board’s Rules and Regulations states, in perti-
nent part:
(b) . . . 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 disputes ei-
ther the accuracy of the figures in the specifica-
tion or the premises on which they are based, the
answer shall specifically state the basis for such
disagreement, setting forth in detail the respond-
ent’s position as to the applicable premises and
furnishing the appropriate supporting figures.
(c) . . . If the respondent files an answer to the
specification but fails to deny any allegation of
the specification in the manner required by para-
graph (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 re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
In its answer to the amended compliance specifica-
tion, the Respondent disputes the gross backpay cal-
culation. The Respondent claims that the calculation of
gross weekly earnings set forth in the compliance sec-
tion ‘‘does not accurately depict the adverse impact the
discriminatee’s deficient attendance record would have
had on the discriminatee’s gross earnings had he been
continually employed by the Respondent during the
backpay period.’’ In its response to the Notice to Show
Cause, the Respondent maintains that it has satisfied
the requirements of the Board’s Rules by stating that
the discriminatee’s absenteeism record is not reflected
in the gross backpay calculation and that the General
Counsel has comprehensive information pertaining to
the attendance record in his possession. Section
102.56(b) makes clear, however, that both the basis of
the disagreement and supporting figures must be sup-
plied in an answer to a compliance specification. In the
instant case, the Respondent has not furnished in its
answer appropriate supporting figures.3
As the Respondent has not complied with Section
102.56(b) of the Board’s Rules and Regulations by not
providing appropriate supporting figures, we grant the
General Counsel’s motion to strike the Respondent’s
answer in part and for partial summary judgment. In
accordance with the rules set forth above, all allega-
tions of the backpay specification, except as to
amounts of interim earnings and medical expenses, are
deemed to be true.
885MOBILE HOME ESTATES
ORDER
IT IS ORDERED that the General Counsel’s motion to
strike the Respondent’s answer to the amended compli-
ance specification is granted with respect to paragraphs
1, 2(A), 2(B), 3, 4, 5, 8, and 9.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Partial Summary Judgment is granted with
respect to the calculation of the discriminatee’s gross
backpay.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 8 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 the alleged interim
earnings and medical expenses of Alan C. Lupien. The
judge shall prepare and serve on the parties a decision
containing findings of fact, conclusions of law, and
recommendations based on all the record evidence.
Following service of the judge’s decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.