Norco Products

National Labor Relations Board - Board Decisions

Feb 23, 1990

297 N.L.R.B. 778 (N.L.R.B. 1990)

778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
USA McDonald Corporation d/b/a Norco Products
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 2, AFL-CIO. Cases
19-CA-18986 and 19-CA-19184
February 23, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 31, 1988, the National Labor Relations
Board issued its Decision and Order in this case di-
recting USA McDonald Corporation d/b/a Norco
Products (the Respondent) to make whole employ-
ees Joseph Bauer, Richard Chapdelaine, Montana
Boyd, Ron Butcher, Jim Gates, Scott Green,
Kathy Hambley, Roger Hambley, Richard Harris,
Ken Juhnke, Don Martin, Patty Martin, Kelly
Quinn, Steve Rodriguez, Gary Tnmp, and Tom
Ye1ton for any losses they may have incurred as a
result of the Respondent's unfair labor practices'
On December 1, 1988, the United States Court of
Appeals for the Ninth Circuit entered its judgment
enforcing the Board's Order 2 On January 5, 1989,
the Regional Director for Region 19 issued a back-
pay specification that set forth specifically and in
detail the backpay computations for the net back-
pay due the above-named employees Although the
Respondent never filed a document entitled
"answer" to the backpay specification, it did file
substantial correspondence relating to the specifica-
tion with the Regional Office 3 On February 16,
1 288 NLRB 1416
2 The court's judgment was not published
3 During the period January 17, 1988, through February 9, 1989, the
Respondent wrote nine letters to various individuals in the Regional
Office In these letters the Respondent, Inter aim, stated its disagreement
with the decisions of the administrative law judge, the Board, and the
Ninth Circuit Court of Appeals, alleged that the case against It was the
result of a conspiracy by disgruntled employees, the Union, and the
Board to intentionally injure the Company, requested disciplinary action
against certain Regional Office employees, requested copies of applicable
rules and regulations and cases, disagreed with the Regional Office as to
the applicability of certain case law, asked the Regional Office to provide
the evidence for its backpay allegations, and claimed no backpay was
due The Regional Office answered the Respondent s letters repeatedly
explaining in depth the finality of the unfair labor practice Issues, the
Board s backpay procedures, the specification Itself, and the applicable
law, and provided copies of the applicable sections of the Board's Rules
and Regulations, and offered to provide copies of the cases at reasonable
cost ($22 50) The Regional attorney wrote assuring the Respondent that
everything possible had been done to ensure fairness and due process,
and that the Board was not involved in any conspiracy to injure the
Company, and urging the Respondent to employ experienced counsel
Counsel for the General Counsel wrote asking whether the Respondent
intended its correspondence to constitute an answer, explaining that the
correspondence failed to meet the Board s requirements for specificity,
and stating his Intention to seek summary judgment if no appropriate
answer was forthcoming The Regional Office invited the Respondent to
make an offer of monetary settlement at any time The Respondent s re-
1989, the Respondent also filed a motion to dismiss
the specification in the Ninth Circuit Court of Ap-
peals, in which it denies the allegations in the back-
pay specification paragraph by paragraph 4
On February 22, 1989, the General Counsel filed
with the Board a Motion for Partial Summary
Judgment with respect to the computation of gross
backpay, with exhibits attached 5 The General
Counsel's motion alleged that the Respondent did
not file an answer to the gross backpay allegations
in the specification with the specificity required by
the Board On February 27, 1989, the Board issued
a Notice to Show Cause why the General Coun-
sel's Motion for Partial Summary Judgment should
not be granted The Respondent filed a timely re-
sponse to the Notice to Show Cause 6
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
On the entire record in this proceeding, the
Board makes the following
Ruling on Motion for Partial Summary
Judgment
Section 102 56(b) and (c) of the Board's Rules
and Regulations state 7
(b) Contents of answer to specification —The
answer shall specifically admit, deny, or ex-
plain each and every allegation of the specifi-
quest that the Board provide sanctions against the Regional Office is
denied as lacking in merit
4 Copies of the motion to dismiss were forwarded to the Board by both
the Respondent and the General Counsel We note that the Respondent is
not represented by counsel in this proceeding In the circumstances of
this case, we will construe the Respondent's timely filed correspondence,
as clarified by its motion to the court, as a timely answer See generally
Standard Materials, 252 NLRB 679 (1980) (Board considered response to
Notice to Show Cause to be an amended answer curing deficiencies in
original answer)
5 On February 27, 1989, the General Counsel filed a supplement to his
motion
6 The due date for a response to the Notice to Show Cause was March
13, 1989 The Board's Rules and Regulations, Sec 102 II 1, provides that
the Board will accept as timely filed any document that is postmarked on
the day before or earlier than the due date The Respondent filed a re-
sponse postmarked March 12, 1989 Therefore, the General Counsel s
motion to strike is denied
The parties also filed the following additional documents the Respond-
ent filed a motion to dismiss backpay specification and objection to
Motion for Partial Summary Judgment, the General Counsel filed a re-
sponse to that motion and another document styled the General Coun-
sel s response to Respondent's de facto motion to dismiss, and the Re-
spondent filed a rebuttal to the General Counsel's response to Respond-
ent's de facto motion to dismiss
The Respondent's motion falls to state any proper basis for dismissing
the specification Accordingly, we deny the Respondent's motion
7 Formerly Sec 102 54 The Board amended its rules governing pro-
ceedings concerning compliance with Agency orders effective November
13, 1988 The substance of former Secs 102 54 and 102 55 has been incor-
porated Into Sec 102 56 as revised, and former Sec 102 56, with some
modification, has become the new Sec 102 57, while the substance of
former Sec 102 57 has become par (c) of the new Sec 102 55, in the
revised rules
297 NLRB No 134
NORCO PRODUCTS 779
cation, unless the respondent is without knowl-
edge, in which case the respondent shall so
state, such statement operating as a denial De-
nials shall fairly meet the substance of the alle-
gations of the specification at issue When a re-
spondent intends to deny only a part of an al-
legation, the respondent shall specify so much
of it as is true and shall deny only the remain-
der As to all matters within the knowledge of
the respondent, including but not limited to
the various factors entenng into the computa-
tion of gross backpay, a general denial shall
not suffice As to such matters, if the respond-
ent disputes either the accuracy of the figures
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 applicable premises and furnishing the ap-
propnate supporting 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
prescnbed by this section, the Board may,
either with or without taking evidence in sup-
port of the allegations of the specification and
without further notice to the respondent, find
the specification to be true and enter such
order as may be appropnate 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 sec-
tion, and the failure so to deny is not adequate-
ly 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 respondent
shall be precluded from introducing any evi-
dence controverting the allegation
The Motion for Partial Summary Judgment sub-
mits that Respondent did not file an answer to the
gross backpay allegations of the specification with
the specificity required by the Board In a supple-
mental filing with respect to the General Counsel's
Motion for Partial Summary Judgment, the Gener-
al Counsel argues that the Respondent's motion to
dismiss filed with the Board and the court has all
the substantive inadequacies of the prior corre-
spondence The General Counsel submits that to
the extent that the motion to dismiss is to be con-
sidered an answer to the specification, it should be
stricken as nonresponsive, untimely, and improper-
ly filed
As noted above, we have decided to construe
Respondent's correspondence, including its motion
to dismiss, as a timely filed answer However, we
find that with one exception noted below, the Re-
spondent's answer to the gross backpay allegations
does not conform to the Board's Rules and Regula-
tions Thus, the Respondent has offered a general
denial to each of the allegations of the specifica-
tion, except paragraph 6 The Respondent has gen-
erally denied the accuracy of the General Coun-
sel's allegations concerning the backpay period, the
formula used to compute backpay, and the compu-
tation of gross backpay for each employee The
General Counsel asserts that information regarding
each of these matters is within the Respondent's
knowledge, and that the Respondent has failed to
state the basis for its disagreement with any of the
allegations in the specification Accordingly, the
General Counsel contends that the Respondent's
general denials do not comply with the require-
ments of the Board's Rules, and therefore the alle-
gations of the backpay specification should be
deemed to be true and that partial summary judg-
ment should be granted as to the computation of
gross backpay
We agree with the General Counsel's contention,
except with respect to that part of paragraph 6 that
pertains to the wage rate of Joe Bauer Inasmuch
as the data at issue is within the Respondent's
knowledge and control, its failure to set forth fully
its position as to the applicable premises or to fur-
nish appropnate supporting figures is contrary to
the specificity requirements of Section 102 56(b)
As the Respondent has failed to deny the gross
backpay allegations in the manner prescribed or ex-
plain its failure to do so, we deem such allegations
to be admitted to be true under Section 102 56(c)
Accordingly, we deem the allegations of para-
graphs 1-6 (except concerning Joe Bauer) of the
backpay specification to be admitted as true Fur-
ther, we shall grant the General Counsel's Motion
for Partial Summary Judgment as it pertains to
these allegations
Concerning the allegations of paragraph 6 of the
backpay specification relating to the wage rate of
Joe Bauer, the Respondent specifically denies the
accuracy of the allegation and furnishes alternative
figures in compliance with Section 102 56(b)
Therefore, we find the Respondent's answer to this
allegation is sufficient to raise a genuine issue of
material fact that may best be resolved after a hear-
ing before an administrative law judge According-
ly, we deny the General Counsel's Motion for Par-
tial Summary Judgment regarding Joseph Bauer's
rate of pay
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
It is ordered that the General Counsel's Motion
for Partial Summary Judgment is granted with re-
spect to the gross backpay allegations of the speci-
fication, except concerning the wage rate of Joseph
Bauer
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 19
for the purpose of issuing a notice of heanng and
scheduling the hearing before an administrative law
judge, which shall be limited to taking evidence
concerning the wage rate of Joseph Bauer and the
interim earnings of Joseph Bauer, Richard Chapde-
lame, Montana Boyd, Ron Butcher, Jim Gates,
Scott Green, Kathy Hambley, Roger Hambley,
Richard Harris, Ken Juhnke, Don Martin, Patty
Martin, Kelly Quinn, Steve Rodriguez, Gary
Trtmp, and Tom Yelton
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a
supplemental decision containing findings of fact,
conclusions of law, and recommendations based on
all the record evidence Following service of the
administrative law judge's decision on the parties,
the provisions of Section 102 46 of the Board's
Rules shall be applicable