Ornamental Iron Work Co

National Labor Relations Board - Board Decisions

Apr 9, 1992

307 N.L.R.B. 20 (N.L.R.B. 1992)

20
307 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 295 NLRB No. 53.
2 NLRB v. Ornamental Iron Work Co., Case 90–6020 (unpub-
lished).
3 Although it may appear that the General Counsel sought to ex-
clude from its motion to strike the Respondent’s answer in part and
motion for partial summary judgment those portions of the Respond-
ent’s answer related to reinstatement offers of discriminatees Daniel
Amhauser, Richard Marzich, Lee Vue, and Zanna Vue, it is clear
from the context of the entire document that the General Counsel’s
motion excludes only the medical expenses of Daniel Amhauser,
Louis Domico, and Henry Petz, and the interim earnings of Henry
Petz and Larry Winkler.
Ornamental Iron Work Co. and Iron Workers
Shopmen’s Local Union No. 468 of the Inter-
national Association of Bridge, Structural and
Ornamental Iron Workers, AFL–CIO. Case 8–
CA–20463
April 9, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 15, 1989, the National Labor Relations
Board issued a Decision and Order in this proceeding,1
directing Ornamental Iron Work Co., the Respondent,
inter alia, to make whole employees for their losses re-
sulting from its unfair labor practices. The United
States Court of Appeals for the Sixth Circuit enforced
the Board’s Order in its entirety on June 11, 1991.2 A
controversy having arisen over the amount of backpay
due under the terms of the Board’s Order, as enforced
by the court of appeals, the Regional Director for Re-
gion 8 issued a compliance specification and notice of
hearing on September 30, 1991, notifying the Re-
spondent that it must file a timely answer complying
with the Board’s Rules and Regulations. The Respond-
ent filed an answer.
On December 16, 1991, the General Counsel filed
with the Board in Washington, D.C., a Motion to the
National Labor Relations Board to Strike, in Part, Re-
spondent’s Answer and for Partial Summary Judgment.
The General Counsel argues that the Board should
strike the Respondent’s answer, except those portions
of the answer relating to certain discriminatees’ interim
earnings and medical expenses, because the answer
failed specifically to admit, deny, explain, or fairly
meet the substance of the allegations set forth in the
compliance specification pursuant to the requirements
of Section 102.56(b) of the Board’s Rules and Regula-
tions.
On December 19, 1991, the Board issued an order
transferring the proceeding to the Board and Notice to
Show Cause why the General Counsel’s motion should
not be granted. The Respondent filed a response.
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 the Motion to Strike, in Part,
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 states:
(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 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.
We agree with the General Counsel that the Re-
spondent’s answer to the compliance specification is
substantively deficient, except with regard to those
portions dealing with medical expenses and interim
earnings.3
In particular, the Respondent asserted in its answer
that discriminatees Daniel Amhauser, Richard Marzich,
21ORNAMENTAL IRON WORK CO.
Lee Vue, and Zanna Vue were not entitled to backpay
because the Respondent unconditionally offered them
reinstatement as soon as jobs became available for
them; however, the Respondent did not specify when
those reinstatement offers were made, what positions
were offered, or any other details about the offers.
Moreover, the Respondent stated that it attached to its
response to the Notice to Show Cause photocopies of
the reinstatement offer letters mailed to all 15
discriminatees in this case. The Respondent did, in
fact, attach copies of reinstatement offer letters ad-
dressed to 11 of the discriminatees, but there were no
such letters addressed to Amhauser, Marzich, Lee Vue,
or Zanna Vue.
Further, the Respondent argued in its answer to the
compliance specification, as well as in its response to
the Notice to Show Cause, that backpay should be
computed using the lower wage rates it offered the
discriminatees upon reinstatement. The Respondent’s
argument is based on an incorrect legal theory, i.e.,
that once it discharged the striking employees, the Re-
spondent was free to pay them wages upon reinstate-
ment at whatever rate the market would bear, and that
those lower wage rates should apply retroactively
throughout the backpay period. The Respondent’s legal
theory is erroneous because at all relevant times it was
under a statutory obligation to bargain with the Union
before changing employee terms and conditions of em-
ployment. In sum, the Respondent has not satisfac-
torily explained why it was free unilaterally to lower
the strikers’ wage rates after unlawfully discriminating
against them. Accordingly, we reject the Respondent’s
challenge to the General Counsel’s use of the
discriminatees’ prestrike wage rates as the basis for de-
termining gross backpay.
Finally, we find, contrary to the Respondent’s asser-
tions, that the General Counsel has taken into consider-
ation the availability of work when setting the dates of
each discriminatee’s backpay period. The backpay pe-
riods of only two discriminatees, Daniel Amhauser and
Henry Petz, have been set to begin before April 1988,
the date when, according to the Respondent, fabrica-
tion work began to be available for unit employees.
The Respondent has failed to explain how Amhauser’s
and Petz’ work may have been affected by the lack of
fabrication work before April 1988. In the absence of
such an explanation, we cannot find that the Respond-
ent has responded to this aspect of the compliance
specification with requisite specificity.
The remainder of the Respondent’s answer fails spe-
cifically to admit, deny, explain, or meet the substance
of any of the allegations set forth in the compliance
specification as required by Section 102.56(b). Accord-
ingly, we shall strike the Respondent’s answer except
insofar as the answer relates to the medical expenses
of disciminatees Daniel Amhauser, Louis Domico, and
Henry Petz, and to the interim earnings of
discriminatees Henry Petz and Larry Winkler. We
therefore grant the General Counsel’s Motion to Strike,
in Part, Respondent’s Answer and for Partial Summary
Judgment.
ORDER
It is ordered that the General Counsel’s Motion to
Strike, in Part, Respondent’s Answer and for Partial
Summary Judgment be granted.
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, which
shall be limited to taking evidence concerning the in-
terim earnings of Henry Petz and Larry Winkler and
the medical expenses of Daniel Amhauser, Louis
Domico, and Henry Petz.
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.