Paolicelli

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 881 (N.L.R.B. 2001)

PAOLICELLI 881
Carole Ann Paolicelli, Paul Paolicelli, and Carole Ann
and Paul Paolicelli and West Dixie Enterprises,
Inc., Alter Egos, and a Single Employer and In-
ternational Brotherhood of Electrical Workers,
Local Union 728, AFL–CIO. Case 12–CA–16716
August 27, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On November 8, 1997, the National Labor Relations
Board issued a Decision and Order in this proceeding in
which it ordered the Respondents, West Dixie Enter-
prises, Inc., Carole Ann Paolicelli, and Paul Paolicelli
(collectively called the Respondent), to make whole John
Ranken, David Svetlick, and Roger Whetstone for any
loss of earnings and other benefits they may have suf-
fered as a result of the Respondent’s unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act.
West Dixie Enterprises, 325 NLRB 194 (1997). On July
20, 1999, the United States Court of Appeals for the
Eleventh Circuit affirmed the Board’s Order. NLRB v.
West Dixie Enterprises, 190 F.3d 1191 (11th Cir. 1999).
On January 31, 2001, the court of appeals, in Case 98–
5192, issued as mandate its judgment enforcing the
Board’s Decision and Order.
A controversy having arisen over the amount of back-
pay due the claimants under the Board’s Order, on Octo-
ber 31, 2000, the Acting Regional Director for Region 12
issued a compliance specification and notice of hearing
(specification). The specification alleged amounts of
backpay due and notified the Respondent of its obliga-
tion to file a timely answer complying with the Board’s
Rules and Regulations. On November 22, 2000, the Re-
spondent filed an answer to the specification.
By letter dated December 8, 2000, counsel for the
General Counsel informed the Respondent that the an-
swer did not comply with Sections 102.56 and 102.114
of the Board’s Rules and Regulations. The letter further
notified the Respondent that the Regional Office would
file a Motion for Summary Judgment or Partial Summary
judgment, as appropriate, if a proper answer was not
filed by December 22, 2000. The Respondent has not
filed an amended answer.
On February 9, 2001, the General Counsel filed a Mo-
tion to Strike Respondent’s Answer to Compliance
Specification and for Summary Judgment; or in the alter-
native, Motion to Strike Portions of Respondent’s An-
swer to the Compliance Specification and for Partial
Summary Judgment. The General Counsel argues that
the answer should be stricken and summary judgment
granted because the Respondent failed to serve a copy on
the Union as required by Section 102.56(a). Alterna-
tively, the General Counsel moves to strike those por-
tions of the Respondent’s answer that either: (1) attempt
to relitigate matters that were raised in the underlying
unfair labor practice proceeding; or (2) fail to meet the
specificity requirements of Section 102.56(b). As to the
latter, the General Counsel further moves for Partial
Summary Judgment on those allegations involving mat-
ters within the Respondent’s knowledge which the
Respondent has answered with general denials.
On February 14, 2001, the Board issued an order trans-
ferring proceedings to the Board and Notice to Show
Cause why the General Counsel’s motion should not be
granted. On February 26, 2001, the Respondent filed a
Reply and Objection to Motion for Summary Judgment.
The Acting General Counsel filed a Statement in Support
of its Motion to Strike Respondent’s Answer and for
Summary Judgment and Response to Respondent’s Re-
ply and Objection to Motion for Summary Judgment.
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 to Strike Respondent’s Answer to
Compliance Specification and for Summary Judgment;
or in the Alternative, Motion to Strike Portions of Re-
spondent’s Answer to the Compliance Specification and
for Partial Summary Judgment.
1. Section 102.56(a) of the Board’s Rules and Regula-
tions provides:

(a) Filing and service of answer; form.—Each
respondent alleged in the specification to have com-
pliance obligations shall, within 21 days from the
service of the specification, file an original and four
copies of an answer thereto with the Regional Direc-
tor issuing the specification, and shall immediately
serve a copy thereof on the other parties. The an-
swer 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 ad-
dress of the respondent.

Section 102.114(c) of the Board’s Rules and Regula-
tions provides:

(c) Failure to comply with the requirements of
this section relating to timeliness of service on other
parties shall be a basis for either:
(1) A rejection of the document; or
(2) Withholding or reconsidering any ruling on
the subject matter raised by the document until after
335 NLRB No. 70
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882
service has been made and the served party has had
reasonable opportunity to respond.

The General Counsel alleges that the Respondent’s
November 22, 2000 answer should be stricken because
the Respondent did not serve it on the Union.1 In reply
to the General Counsel’s Motion for Summary Judgment,
the Respondent asserts that: at the time it filed its an-
swer, it did not have the Union’s correct mailing address;
it telephoned the Regional Office several times in an
attempt to obtain the Union’s correct mailing address,
but was unsuccessful; and, to ensure that its answer was
timely filed and a copy would be served on the Union, it
mailed both the original and the Union’s copy to the Re-
gional Office, the latter “in care of” the Acting Regional
Director. In its statement in support of its motion, the
General Counsel acknowledges the Respondent’s attempt
to serve the Union “in care of” Board personnel, but
maintains that such a service attempt is inadequate under
Section 102.56(a). Additionally, the General Counsel
asserts that NLRB Form B-4338 (6-90), which is rou-
tinely enclosed with all compliance specifications and
which was served upon all parties in this case, contained
all relevant addresses. Thus, the General Counsel argues
that the Respondent had the Union’s address at the time
it filed its answer; moreover, the Respondent has not
cured the deficiency by ever properly serving the Union.
For the following reasons, we deny the General Coun-
sel’s Motion to Strike the Answer and for Summary
Judgment. Section 102.114(c), above, of the Board’s
Rules and Regulations permits, but does not require, the
Board to reject a document not properly served on the
parties. The “Board generally will not reject an improp-
erly served document absent a showing of prejudice to a
party.” Century Parking, Inc., 327 NLRB 21 fn. 7
(1998), citing M.K. Morse Co., 302 NLRB 924 fn. 1
(1991); U.S. Postal Service, 239 NLRB 97, 98 fn. 2
(1978). Here, neither the General Counsel nor the Union
has claimed, much less demonstrated, any prejudice. In
fact, no claim has even been made that the Union has not
received the document. While the Board strongly en-
courages strict compliance with its procedural rules, in-
cluding those concerning the manner of filing and serv-
ing answers to complaints, the Board recognizes that the

1 In its response to the Respondent’s reply, the General Counsel also
argues that the answer appears to be deficient because it is not signed
by the Respondent or “by a duly authorized agent with appropriate
power of attorney affixed.” The General Counsel’s December 8, 2000
letter to the Respondent indicated that the answer received by facsimile
was signed but the original contained an “/s/” designation. The General
Counsel’s Motion for Summary Judgment did not raise this alleged
deficiency as a basis for striking the answer in its entirety, and we
decline to do so on this basis now.
law favors a determination on the merits. M.J. McNally,
Inc., 302 NLRB 120 (1991); see Quality Hotel, 323
NLRB 864 (1997); Dismantlement Consultants, 312
NLRB 650, 651 (1993).2 Accordingly, we decline to
render a default judgment here.
2. Section 102.56(b) and (c) of the Board’s Rules and
Regulations provide:

(b) Contents of answer to specification.—The an-
swer shall specifically admit, deny, or explain each
and every allegation of the specification, unless the
respondent is without knowledge, in which case the
respondent shall so state, such statement operating as
a denial. Denials shall fairly meet the substance of
the allegations of the specification at issue. When a
respondent intends to deny only a part of an allega-
tion, the respondent 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, in-
cluding but not limited to the various factors enter-
ing 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 figures
in the specification or the premises on which they
are based, the answer shall specifically state the ba-
sis for such disagreement, setting forth in detail the
respondent’s position as to the applicable premises
and furnishing the appropriate supporting figures.
(c) Effect of failure to answer or to plead specifi-
cally and in detail to backpay allegations of specifi-
cation.—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 support of the allegations of the specifi-
cation 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 an-
swer to the specification but fails to deny any allega-
tion of the specification in the manner required by
paragraph (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 evi-
dence supporting such allegation, and the respondent
2 Those cases in which the Board has granted summary judgment
generally involve circumstances more egregious than those presented
here. Compare Baumgardner Co., 298 NLRB 26 (1990), enfd. mem.
972 F.2d 1332 (3d Cir. 1992) (summary judgment not granted where
amended answer was copy of original and respondent failed to provide
four copies) with Contractors Excavating, Inc., 270 NLRB 1189 (1984)
(summary judgment granted where, after five separate extensions of
time in which to file answer, respondent ultimately filed only unsigned
and undated document purporting to be answer).
PAOLICELLI 883
shall be precluded from introducing any evidence
controverting the allegation.

Paragraph 2 of the specification sets forth the backpay
period for the discriminatees. In its answer to the speci-
fication, the Respondent generally denies paragraph 2.
Consistent with this denial, the Respondent raises a sec-
ond affirmative defense that the discriminatees were
never hired as full-time or “long-term” employees, a
third affirmative defense that the starting employment
date is incorrect, and a fourth affirmative defense that the
ending employment date is incorrect.
The General Counsel argues that, to the extent that the
Respondent is attempting to argue at the compliance
stage that the discriminatees were not bona fide appli-
cants or that their starting dates are incorrect, the Re-
spondent is attempting to relitigate issues decided in the
underlying unfair labor practice case.
We agree. In that case, the judge found that the Re-
spondent refused to hire the discriminatees on August 5,
1994, because they were union members. The Respon-
dent did not except to these findings, and we adopted
them pro forma. Issues litigated and decided in an unfair
labor practice proceeding may not be relitigated in the
ensuing backpay proceeding. Aroostook County Re-
gional Ophthalmology Center, 332 NLRB 1616, 1617
(2001); Arctic Framing, 313 NLRB 798, 799 (1994).
The Respondent is thus barred from raising its second
and third affirmative defenses at the compliance stage of
this case.3 Ellis Electric, 321 NLRB 1205 (1996);
Baumgardner Co., 298 NLRB 26, 27–28 (1990). Ac-
cordingly, those portions of Respondent’s answer which
deny matters previously litigated constitute an inappro-
priate pleading and should be stricken. Baker Electric,
330 NLRB 521 (2000); Unico Replacement Parts, 286
NLRB 738, 739 (1987).
As to the Respondent’s fourth affirmative defense, the
General Counsel argues that Respondent has failed to
comply with the Board’s specificity requirements. The
Respondent alleges that the ending date of the backpay
period is incorrect because the corporation was not in
existence then.
Again, we agree with the General Counsel. This sub-
ject is within the Respondent’s knowledge. As to such
subjects, the Board’s Rules require more than a general
denial and/or affirmative defense lacking in specificity.
The Respondent must specifically state the basis for its
disagreement, setting forth in detail its position as to the

3 In its reply, the Respondent states that it is not attempting to reliti-
gate the refusal to hire issue, but merely questioning the “dates and
figures” used to calculate backpay. One of the judge’s findings was the
date on which the Respondent refused to hire the applicants. This date
cannot be relitigated here.
applicable premises and furnishing the appropriate sup-
porting figures. Shenandoah Coal Co., 312 NLRB 30
(1993), citing Best Roofing Co., 304 NLRB 727, 728
(1991). Since the Respondent has failed to support its
denial with any specific alternative date of employment
on which the backpay period should end (and, concomi-
tantly, any basis for that date), the Respondent has failed
to comply with the requirements of Section 102.56(b).
Aspen, 310 NLRB 775, 776 (1993).
Accordingly, as to paragraph 2, we find that Respon-
dent has failed to deny the backpay period in the manner
prescribed in Section 102.56(b) and (c). Moreover, Re-
spondent has not adequately explained its failure to do
so. Thus, Section 102.56(c) requires that paragraph 2 of
the specification be deemed admitted. Baker Electric,
above.
Respondent also generally denies paragraphs 7, 22,
and 23, and states that it is without sufficient knowledge
to admit or deny each of the other allegations of the
specification.4 Paragraphs 1, 3, 4, 5, 6, 7, 8, 11, and 14
all relate to the computation of gross backpay.5 Consis-
tent with its denial of paragraph 7, the Respondent as-
serts a first affirmative defense contending that the dis-
criminatees are only entitled to an hourly wage of $10,
“based upon their testimony herein.”
Regarding these denials, the General Counsel contends
that the Respondent’s answer does not comply with the
Board’s specificity requirements. The General Counsel
argues that the wage rates paid to comparator employees
and other factors related to gross backpay are within the
Respondent’s knowledge and control.6 The General
4 Pursuant to Sec. 102.56(b), when a Respondent states that it is
without knowledge of an allegation, such statement shall operate as a
denial.
5 Par. 1 defines gross backpay. Par. 3 admits that there is no gross
backpay liability during certain calendar quarters. Par. 4 sets forth the
backpay formula. Pars. 5 and 6 allege the average hours worked and
projected and the hourly wage rates earned by comparator employees.
Par. 7 alleges the discriminatees would have earned $12/hour during
the backpay period. Pars. 8, 11, and 14 allege the gross backpay of the
three discriminatees. Pars. 9, 12, and 15 admit the three discriminatees’
interim earnings. Pars. 10 and 13 admit that two of the discriminatees
incurred no interim expenses. Par. 16 alleges the third discriminatee’s
interim expenses. Pars. 17 and 18 define calendar quarter net interim
earnings and net backpay, respectively. Pars. 19 through 21 allege the
total net backpay due the three discriminatees, respectively. Par. 22
seeks to foreclose the Respondent from introducing previously de-
manded wage and hour information. Finally, par. 23 summarizes the
total backpay due.
6 In reply, the Respondent states that it has never been involved in a
backpay proceeding before, and that it thus possesses no unique knowl-
edge in this area. The premise of the Respondent’s knowledge and
control does not relate to the Respondent’s relative experience in back-
pay proceedings; rather, it relates to which party is in possession of the
information and records necessary to compute backpay. Despite Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 884
Counsel further argues that the Respondent provided no
basis for its selection of the $10/hour figure.
We agree that the Respondent has not met the specific-
ity requirements of Section 102.56(b), above. Respon-
dent has provided no basis for disagreeing either with the
definition of “gross backpay” set forth in paragraph 1, or
with the alleged average hours worked and projected, and
hourly wage rates earned by comparator employees. Nor
has the Respondent provided an alternative backpay for-
mula. While the Respondent has set forth a specific al-
ternative wage rate for the discriminatees ($10/hour), it
provides no record citations to the testimony allegedly
supporting its claim, nor does it explain why it is inap-
propriate to use the average wage rate ($12/hour) of the
comparator employees.7
As stated above, our Rules require more than a general
denial or affirmative defense lacking in specificity. The
Respondent’s failure to detail its position as to the appli-
cable premises or to furnish appropriate supporting fig-
ures or alternative calculations to those alleged in the
specification is contrary to the specificity requirements
of the Board’s Rules. Baker Electric, above. Accord-
ingly, we deem the Respondent to have admitted the al-
legations of paragraphs 1, 3(a) and (b), 4(a) and (b), 5, 6,
7, 8, 11, and 14 of the specification.
The Respondent’s denial of the General Counsel’s ad-
mission that two of the discriminatees incurred no in-
terim expenses during the backpay period (specification,
pars. 10 and 13) raises no issue of law or fact. Accord-
ingly, we deem paragraphs 10 and 13 admitted.
The Respondent denies paragraphs 17 and 18, which
define calendar quarter net interim earnings and calendar
quarter net backpay, respectively. The General Counsel
argues that the Respondent provided no alternative defi-
nitions, but appears to attack the Woolworth formula.
F. W. Woolworth Co., 90 NLRB 289 (1950).8 In reply, the
Respondent states that it is not arguing the appropriateness
of the Woolworth formula, but merely referring to the dis-
criminatees’ testimony that they were employed by the Un-

spondent’s asserted “novice” status, it is still the party in control of the
wage and hour information.
7 The Respondent states that the transcript in the underlying case sets
forth “the date the individuals were hired, the per hour wage that they
agreed to work for, and the length of time that they were em-
ployed. . . .” Since the discriminatees were never hired by the Respon-
dent, the inadequacy of the Respondent’s assertion that $10/hour is the
appropriate wage rate is obvious. Moreover, as the specification
shows, everyone hired between August 5, 1994, and December 20,
1994, earned more than $10/hour.
8 In F. W. Woolworth, above, “net interim earnings” are defined as
“earnings less expenses. . . .” Expenses are deducted from interim
earnings on a calendar quarter basis, and no expenses are allowed over
the amount of earnings, if any, during the respective calendar quarter.
Mastro Plastics Corp., 136 NLRB 1342, 1348 (1962).
ion. Since the Respondent now effectively concedes it is
not arguing the definitional aspects of paragraphs 17 and 18
(and, as seen below, the discriminatees’ interim earnings
remain in issue), we deem these paragraphs admitted.
In sum, we grant the General’s Counsel alternative Mo-
tion to Strike Portions of Respondent’s Answer to the
Compliance Specification and for Partial Summary Judg-
ment. Pursuant to Section 102.56(b) and (c), the para-
graphs of the specification to which an answer has been
stricken are deemed to be admitted to be true. Since these
allegations have been deemed admitted, we enter an Order
for Partial Summary Judgment on the following para-
graphs: 1, 2, 3(a) and (b), 4(a) and (b), 5, 6, 7, 8, 10, 11,
13, 14, 17, 18, and 22. Paragraphs 9, 12, 15, and 16, relat-
ing to interim earnings and interim expenses;9 paragraphs
19, 20, and 21, relating to total net backpay (as may be
affected by the preceding paragraphs); and paragraph 23,
the summary paragraph, remain in issue pursuant to the
Respondent’s denials. These issues are the only issues
subject to further litigation.
ORDER
IT IS ORDERED that the General Counsel’s Motion
to Strike Portions of Respondent’s Answer to the Com-
pliance Specification and for Partial Summary Judgment
is granted as specified above.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 12 for the
purposes of issuing a notice of hearing and scheduling
the hearing before an administrative law judge, which
shall be limited to taking evidence on paragraphs of the
compliance specification as to which summary judgment
has not been granted.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a sup-
plemental decision containing findings of fact, conclu-
sions of law, and recommendations based on all of 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 and Regulations
shall be applicable.

9 Regarding the issue of interim earnings, a general denial is suffi-
cient under the Board’s Rules to warrant a hearing because that infor-
mation is generally not within the respondent’s knowledge. Aroostook
County Regional Ophthalmology Center, supra at 1619 (2001), citing
Dews Construction Corp., 246 NLRB 945, 947 (1979).