Nephi Rubber Products Corp.

National Labor Relations Board - Board Decisions

Sep 22, 1993

312 N.L.R.B. 297 (N.L.R.B. 1993)

297
312 NLRB No. 42
NEPHI RUBBER PRODUCTS
1 303 NLRB 151 (1991).
2 976 F.2d 1361.
Nephi Rubber Products Corp., a Cypher-Jones
Company and Jerry D. Steele and Kim W. Hall
and Keith Steele and Marlynn Buckley and
Carl Calderwood. Cases 27–CA–9671–2, 27–
CA–9671–3, 27–CA–9671–4, 27–CA–9671–5,
and 27–CA–9671–6
September 22, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 29, 1991, the National Labor Relations
Board issued its Decision and Order in this case,1 or-
dering the Respondent, Nephi Rubber Products Corp.,
inter alia, to make whole the Charging Parties for any
loss of pay they may have suffered as a result of the
Respondent’s unlawful denial of employment to them.
On October 9, 1992, the United States Court of Ap-
peals for the Tenth Circuit entered its judgment enforc-
ing in full the backpay provisions of the Board’s
Order.2
A controversy having arisen over the amount of
backpay due the discriminatees under the terms of the
Decision and Order issued by the Board, the Regional
Director for Region 27 issued and duly served on the
Respondent a compliance specification and notice of
hearing on April 7, 1993, notifying the Respondent
that it must file a timely answer complying with the
Board’s Rules and Regulations. Subsequently, the Re-
spondent filed an answer, admitting in part and deny-
ing in part the allegations of the compliance specifica-
tion.
On May 10, 1993, counsel for the General Counsel
filed with the Board a Motion to Strike Portions of Re-
spondent’s Answer and for Partial Summary Judgment,
with attachments. The General Counsel’s motion al-
leges that the Respondent’s answer, except those por-
tions relating to the discriminatees’ regular expenses,
medical expenses, interim earnings, and the resulting
net pay, failed to satisfy the requirements of Section
102.56 of the Board’s Rules and Regulations which re-
quires, inter alia, that any denial as to matters within
the Respondent’s knowledge must specifically state the
basis for disagreement with the specification and set
forth in detail the Respondent’s position as to applica-
ble premises with supporting figures for its denial.
On May 13, 1993, the Board issued an order trans-
ferring the proceedings to the Board and a Notice to
Show Cause why the motion should not be granted.
On the entire record in this proceeding, the Board
makes the following
Ruling on the Motion to Strike Portions of
Respondent’s Answer and for Partial
Summary Judgment
Section 102.56(b) and (c) of the National Labor Re-
lations Board’s Rules and Regulations state:
(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 fails to file any
answer to the specification within the time pre-
scribed by this section, the Board may, either with
or without taking evidence in support of the alle-
gations of the specification and without further
notice to the respondent, find the specification to
be true and enter such order as may be appro-
priate. 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 as 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.
We agree with the General Counsel that the Re-
spondent’s answer is substantively deficient insofar as
it contains only general denials concerning those mat-
ters within the Respondent’s knowledge. The compli-
ance specification served on the Respondent indicates
that the Respondent’s answer must comport with the
requirements of Section 102.56 of the Board’s Rules
and Regulations, and, to the extent it fails to do so
without adequate explanation, the allegations in the
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
specification shall be deemed to be admitted to be true.
The Respondent’s answer denies for all five
discriminatees the following allegation of the specifica-
tion: (1) that the backpay period begins on May 2,
1986; (2) the formula for calculating backpay; (3) the
quarterly gross backpay; and (4) the net backpay. The
Respondent’s answer does not state the basis for its de-
nials, does not assert an alternative formula for deter-
mining gross or net backpay, and does not provide any
supporting figures for its positions, as required by Sec-
tion 102.56 (b) of the Board’s Rules and Regulations.
All the above-enumerated allegations denied by the
Respondent pertain to subjects clearly within the Re-
spondent’s knowledge. Therefore, we agree with the
General Counsel that the Respondent’s answer to the
compliance specification is substantively deficient, ex-
cept with regard to those portions dealing with the
discriminatees’ regular expenses, medical expenses, in-
terim earnings, and the resulting net backpay. Because
we have found that the Respondent’s general denials as
to the above-enumerated allegations are insufficient
under Section 102.56(b) and (c) of the Board’s Rules
and Regulations, we deem the Respondent to have ad-
mitted these allegations to be true. Accordingly, we
shall grant the General Counsel’s motion and shall
order a hearing limited to determining the
discriminatees’ regular expenses, medical expenses, in-
terim earnings, and the resulting net backpay.
ORDER
It is ordered that the General Counsel’s Motion to
Strike Portions of Respondent’s Answer and for Partial
Summary Judgment is granted.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 27 for the
purpose of issuing a notice of hearing and scheduling
a hearing before an administrative law judge, which
shall be limited to taking evidence concerning the reg-
ular expenses, medical expenses, interim earnings, and
the resulting net backpay of Jerry D. Steele, Kim W.
Hall, Keith Steele, Marlynn Buckley, and Carl
Calderwood.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a decision
containing findings, conclusions, and recommendations
based on all the record evidence. Following the service
of the administrative law judge’s decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall apply.