Otten Truck Line; United Star Express, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1989

295 N.L.R.B. 875 (N.L.R.B. 1989)

OTTEN TRUCK LINE 875
Otten Truck Line; United Star Express , Inc.; and
Claude Hayes, an Individual and Teamsters,
Chauffeurs , Warehousemen and Helpers, Local
Union No . 833, AFL-CIO.' Cases 17-CA-
12053-1,2,3
June 28, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 22, 1986 , the National Labor Rela-
tions Board issued its Decision and Order2 in this
case directing Otten Truck Line; United Star Ex-
press, Inc.; and Claude Hayes, an Individual (the
Respondent) to make whole employees who in-
curred losses since December 12, 1983, because of
its failure to abide by certain terms and conditions
of its collective -bargaining agreement with Team-
sters, Chauffeurs , Warehousemen and Helpers,
Local Union No. 833, AFL-CIO ( the Union). In-
cluded in that Order were requirements that the
Respondent pay contractually agreed -on health and
welfare and pension trust contributions it had failed
to make since December 12, 1983 . The Order also
required the Respondent to pay the union dues it
had failed to remit since December 12, 1983, for
employees who had authorized dues deductions.
On December 9, 1987, the United States Court of
Appeals for the Eighth Circuit entered its judg-
ment enforcing the Board 's Order. 3
Because a controversy had arisen over the
amount of union membership dues and fringe bene-
fit payments the Respondent owed, the Regional
Director for Region 17, on January 5 , 1989 , issued
a backpay specification4 and notice of hearing that
specified in detail the payments due from the Re-
spondent to the pension fund , the health and wel-
fare fund , and for union dues for the period be-
tween December 12, 1983 , and March 8, 1985. On
February 15, 1989 , the Respondent submitted a
purported answer , which consisted of a copy of
certain pages from the specification and accompa-
nying appendix , with handwritten notations added.
That answer, however, was neither signed nor
sworn to, did not contain the Respondent 's mailing
address, and failed to respond specifically to each
allegation in the specification.
On March 6, 1989, the General Counsel filed
with the Board a motion to strike the Respondent's
purported answer and to transfer proceeding to the
Board and for summary judgment, with exhibits at-
tached. The General Counsel's motion alleges that
the Respondent's answer fails to satisfy the require-
ments of Section 102.54(b) of the Board's Rules
and Regulations because of the defects previously
described. On March 10, 1989, the Board issued a
Notice to Show Cause why the General Counsel's
motion should not be granted. The Respondent
failed to file a response.
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 to Strike Respondent's
Answer and for Summary Judgment
Section 102.56(a), (b), and (c) of the Board's
Rules and Regulations6 states:
(a) Filing and service of answer; form. Each
respondent alleged in the specification to have
compliance obligations shall, within 21 days
from the service of the specification, file an
original and four copies of an answer thereto
with the Regional Director issuing the specifi-
cation, and shall immediately serve a copy
thereof on the other parties. The answer to the
specification shall be in writing, the original
being signed and sworn to by the respondent
or by a duly authorized agent with appropriate
power of attorney affixed, and shall contain
the mailing address of the respondent.
(b) Contents of answer to specification. The
answer shall specifically admit, deny, or ex-
plain each and every allegation of the specifi-
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-
gation 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-
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change.
2 282 NLRB 494.
The court's judgment was not published.
Under Sec . 102.54 of the Board 's Rules, and Regulations that became
effective November 13, 1988 , the term "backpay specification" has been
changed to "compliance specification" to reflect more accurately the
range of issues that may be covered in the supplemental portion of an
unfair labor practice proceeding.
5 The substance of the section to which the General Counsel referred
was incorporated into Sec 102 . 56, effective November 13, 1988.
6 Formerly Sec. 102.54. The Board amended its rules governing pro-
ceedings concerning compliance with Agency orders effective November
13, 1988. In the revised rules, the substance of former Secs . 102.54 and
102.55 has been incorporated into Sec . 102.56 , former Sec . 102 56, with
some modification , has become Sec. 102 57 , while the substance of
former Sec . 102.57 has become par. (c ) of the new Sec. 102 55.
295 NLRB No. 84
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
der. As to all matters within the knowledge of
the respondent, including but not limited to
the various factors entering 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-
propriate 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
prescribed 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 appropriate. 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 General Counsel's motion to strike the Re-
spondent's answer and for summary judgment sub-
mits that the Respondent has failed to comply with
the Board's Rules. We agree with the General
Counsel that the Respondent's answer is deficient
because it is neither signed nor sworn to, fails to
contain the Respondent' s mailing address , and does
not respond specifically to each allegation in the
specification.'
9 See Scotch & Sirloin Restaurant, 287 NLRB 1318 (1988). In view of
our determination that the Respondent 's answer is substantively inad-
Moreover, the Respondent has not filed any re-
sponse to the Notice to Show Cause or offered any
explanation for its failure to deny the allegations in
the manner required by Section 102.56.
Under these circumstances, Section 102.56(c) re-
quires that the allegations be deemed admitted to
be true. Accordingly, we conclude the amounts
due the pension fund, the health and welfare fund,
and the Union for dues are as stated in the backpay
specification and we will order payment by the Re-
spondent.
ORDER
The National Labor Relations Board grants the
General Counsel's motion to strike Respondent's
purported answer and to transfer proceeding to the
Board and for summary judgment. Accordingly,
the Board orders the Respondent, Otten Truck
Line; United Star Express, Inc.; and Claude Hayes,
an Individual; Eldon, Missouri, its officers, agents,
successors , and assigns , to pay the health and wel-
fare and the pension trust funds the amounts listed
below:
Health and Welfare
Fund $14,924
Pension Plan 18,040
Additional amounts applicable to the above pay-
ments are to be computed in accordance with the
Board's decision in Merryweather Optical Co., 240
NLRB 1213 (1979). The Respondent shall also
remit to the Union dues amounting to $644, plus in-
terest accrued to the date of payment to be com-
puted in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
equate , we find it unnecessary to pass on the General Counsel 's allegation
that the answer was not timely filed. We note, however , that the backpay
specification incorrectly notified the Respondent that it had only 14 days
to respond pursuant to Secs . 102 20 and 102 21 of the Board's Rules and
Regulations . The period allowed for responding pursuant to Sec.
102.56(a), the section applicable to the filing and service of an answer to
a compliance specification , is 21 days. The error was harmless because
Respondent was notified of the opportunity to file an answer "immediate-
ly" more than 30 days after it received the specification.