Performance Friction Corp.

National Labor Relations Board - Board Decisions

Apr 22, 2003

338 N.L.R.B. 986 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986
Performance Friction Corporation and International
Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America
(UAW), AFL–CIO. Cases 11–CA–16040 and 11–
CA–18044
April 22, 2003
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On November 30, 1995, the National Labor Relations
Board issued a Decision and Order directing, inter alia,
that the Respondent, Performance Friction Corporation
(the Respondent or PFC), make whole certain discrimi-
natees, including Martha Hinson, Jerry Kennedy, and
Manual Mantecon. Performance Friction Corp., 319
NLRB 859 (1995). On June 30, 1997, the Court of Ap-
peals for the Fourth Circuit affirmed the Board’s conclu-
sions of violation, but remanded the case to the Board to
tailor a narrower remedy. Performance Friction Corp. v.
NLRB, 117 F.3d 763.
On September 18, 1998, the Board’s Region 11 issued
a compliance specification, which was amended on No-
vember 24, 1998. Following a hearing on the compli-
ance specification, Administrative Law Judge Richard J.
Linton, on October 28, 1999, issued a supplemental deci-
sion. The Respondent filed exceptions to that decision.
On September 20, 2001, the Board issued a Supplemen-
tal Decision and Order Remanding. In its Supplemental
Decision, the Board rejected several of the Respondent’s
defenses—including the defenses that the discriminatees
failed to mitigate damages, and that their wages and
benefits should be based on “individual” versus “compa-
rable employees” work histories. The Board also re-
manded this proceeding to Region 11 for further appro-
priate action, including the issuance of a new backpay
specification recalculating the backpay for Hinson, Ken-
nedy, and Mantecon in accordance with specific instruc-
tions. Performance Friction Corp., 335 NLRB 1117
(2001).1
On February 28, 2002, the Regional Director for Re-
gion 11 issued a second amended compliance specifica-
tion. As a result of controversy arising over the amount
of backpay and benefits due under the Board’s Supple-
mental Order, the Regional Director, on August 16,
2002, issued a third amended compliance specification.
On September 5, 2002, the Respondent filed its answer
to the third amended compliance specification. In its

1 A fourth discriminatee (Merri Rowe) was included in the remand,
but she is not at issue here.
answer, the Respondent “admits that the recalculated
backpay for Hinson, Kennedy, and Mantecon as set forth
in the Third Amended Compliance Specification is con-
sistent with the Board’s instructions. However, Respon-
dent denies that Hinson, Kennedy, and Mantecon are
entitled to any backpay.” The Respondent then re-
sponded to each of the compliance specification’s 18
paragraphs.
On September 13, 2002, the General Counsel filed a
Motion for Summary Judgment. In support of its mo-
tion, the General Counsel argues that paragraphs 1
through 18 of the third amended compliance specifica-
tion should be deemed admitted as true in light of the
Respondent’s admission that the entire backpay recalcu-
lations set forth in that specification are consistent with
the Board’s instruction issued in its Supplemental Deci-
sion and Order Remanding. Thus, the General Counsel
argues that it is entitled to summary judgment as a matter
of law.
On September 17, 2002, the Respondent filed a memo-
randum in opposition to General Counsel’s Motion for
Summary Judgment. In its memorandum in opposition,
the Respondent acknowledges that its answer admitted
that the recalculated backpay for Hinson, Kennedy, and
Mantecon as set forth in the third amended compliance
specification was consistent with the Board’s instruc-
tions. However, the Respondent argues that its answer
also expressly denied that Hinson, Kennedy, and Mante-
con were entitled to any backpay. The Respondent at-
tached to its memorandum in opposition to the General
Counsel’s Motion for Summary Judgment a copy of the
brief it had previously filed in support of its exceptions to
Judge Linton’s 1999 supplemental decision.
On September 18, 2002, the Board issued an order
transferring proceeding and Notice to Show Cause why
the General Counsel’s motion should not be granted. On
September 24, 2002, the Respondent filed a letter re-
questing that the Board accept its September 16, 2002
memorandum in opposition as its response to the Board’s
Notice to Show Cause.
On the entire record, the Board makes the following
Ruling on Motion for Summary Judgment
As stated by the General Counsel, the Respondent’s
answer to the third amended compliance specification
admits that the recalculated backpay for Hinson, Ken-
nedy, and Mantecon is consistent with the Board’s Sup-
plemental Decision and Order Remanding. Nonetheless,
the Respondent denies that Hinson, Kennedy, and Man-
tecon are entitled to any backpay, persisting in positions
litigated in the hearing on the first amended compliance
specification. These positions were expressly rejected by
the Board in its Supplemental Decision and Order Re-
338 NLRB No. 145
PERFORMANCE FRICTION CORP. 987
manding, issued in September 2001. It is well settled
that issues litigated and decided in an earlier phase of a
backpay proceeding cannot be relitigated in a later phase.
See, e.g., Laborers Local 135 (Bechtel Power Corp.),
311 NLRB 617 (1993), enfd. 148 LRRM 2640 (3d Cir.
1995). See generally Laredo Packing Co., 271 NLRB
553 (1984). The Respondent’s answer to the third
amended compliance specification is a clear attempt to
relitigate issues decided adversely to it in the initial
phase of this backpay proceeding.
Paragraphs 1 through 3 of the third amended compli-
ance specification set forth the backpay periods for
Hinson, Kennedy, and Mantecon, respectively. Para-
graph 4 defines “gross backpay” as the “amount of earn-
ings [the discriminatees] would have received but for
Respondent’s discrimination against them.” In its an-
swer,2 the Respondent admits the backpay periods and
accepts the definition of “gross backpay” as a “general
concept.” However, the Respondent denies that the dis-
criminatees were entitled to any backpay. In this regard,
the Respondent claims that inadequate mitigation efforts
were made.3 In the initial phase of this compliance pro-
ceeding, the Board examined the reasonableness of the
discriminatees’ mitigation efforts, and rejected the Re-
spondent’s arguments that they were unreasonable. 335
NLRB 1117, 1118 (Hinson), 3 (Mantecon), and 5 (Ken-
nedy). The Respondent cannot relitigate the adequacy of
the discriminatees’ mitigation efforts here.
Paragraph 5 sets forth a formula for determining an
appropriate measure of gross backpay, using a represen-
tative group of production employees, and “averages”
derived from that representative group. Paragraphs 6
through 9 and paragraph 14, successively set forth the
representative group of employees (par. 6), and the “av-
erages,” specifically: average overtime hours (par. 7),
average absence rate (par. 8), average mentor training
bonus (par. 9), and average Attaboy bonus (par. 14). The
Respondent admits that the employees of the representa-
tive group were all of the hourly production employees
in the relevant departments hired in the relevant time
period, and that the averages were properly derived from
the representative group, but submits that an appropriate
measure of gross backpay is “based on the individual
work histories.” The Respondent raised the identical

2 The Respondent’s answer corresponds numerically to the para-
graphs of the third amended compliance specification; thus, par. 1 of
the compliance specification is answered by par. 1 of the answer, etc.
3 Par. 1 also alleged that the 1996 reinstatement offer to Hinson,
while sufficient to toll backpay owed her, was insufficient to relieve the
Respondent of its obligation to reinstate Hinson. The Respondent
denies that allegation, and says that it offered employment to Hinson in
1998. Since Hinson declined that offer, there is no “live” controversy
remaining over any reinstatement obligation.
argument in the first phase of this backpay proceeding.
The Board rejected the argument, finding no merit in the
Respondent’s general attack on the comparable employee
formula. The Board found that the use of “average ab-
senteeism” was consistent “with the use of average over-
time and bonuses of the comparable employees,” and
found “no merit” to the Respondent’s exceptions that the
Region “inappropriately used the comparable employees’
average overtime hours and bonus earnings.” 335 NLRB
at 1117 fn. 3.
Paragraph 10 sets forth the Piece of the Action
(POTA) bonus due the discriminatees. A POTA bonus
was included in the original compliance specification.
Here, the Respondent argues that the discriminatees are
not due the POTA bonus. Respondent claims that inade-
quate mitigation efforts were made. As stated above, this
argument has been unqualifiedly rejected.
Paragraph 11 sets forth unpaid holidays. The Respon-
dent admits this paragraph.
Paragraphs 12 and 13 relate to paid holidays and paid
vacation shutdowns. As with the POTA bonus, paid
holidays and vacations were included in the original
compliance specification. Again, the Respondent’s only
argument is that the discriminatees are not due paid holi-
days and vacations due to inadequate mitigation efforts.
And again, the Board has previously rejected that argu-
ment.
Paragraph 15 sets forth the pay scale in effect during
the backpay period and the dates each discriminatee
would have advanced to the next pay level. The Re-
spondent argues that employee applications to take tests
for the next level are frequently denied, and that the Re-
gion has not produced evidence that these discriminatees
would have applied for, taken, and passed the necessary
test to advance to a higher pay level.4 This argument is a
variation on the theme it advanced in the earlier phase of
this backpay proceeding—that the Region’s approach to
measuring “average” pay level advancement was flawed
because it did not account for numerous employees who
“peaked or parked” at a particular pay level. The Board
found merit to that exception and ordered the Region to
recalculate “average pay level advancement” according
to certain directions with which the Region has now
complied. Otherwise, the Respondent’s argument is an
4 The Respondent also denies that app. E to the compliance specifi-
cation accurately represents the pay scale in effect as of October 1996.
This denial does not raise a substantial issue, because the Respondent
has admitted that the discriminatees’ backpay periods ended before
October 1996 (except for Kennedy’s, whose period ended on October
3, 1996, with de minimis effect, at best). Moreover, a mere denial of
the compliance specification on this issue is insufficient since the Re-
spondent has failed to supply the figures in its possession to verify its
denial. See Sec. 102.56(b) of the Board’s Rules and Regulations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988
extension of its previous argument that the Board should
not use a comparable employee approach (but should,
instead, look at individual work histories). As stated
above, the Board previously affirmed the appropriateness
of the comparable employee formula.
Additionally, the Respondent, while admitting that it
revised its pay scales in November 1993, denies that it
did so on November 15, 1993. If this denial is an attempt
to allege some difference in calculations based on the
date that the Respondent actually revised its pay scale in
November, that attempt must fail. The date that the Re-
spondent revised its pay scale is a matter within the Re-
spondent’s knowledge. Section 102.56(b) of the Board’s
Rules and Regulations provides that, as to all matters
within the respondent’s knowledge, including the various
factors entering into the computation of gross backpay, if
the respondent disputes either the accuracy of the figures
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 supporting
figures. See also Shenandoah Coal Co., 312 NLRB 30
(1993), citing Best Roofing Co., 304 NLRB 727, 728
(1991). Here, the Respondent has furnished neither a
specific alternative date nor any alternative figures. Sec-
tion 102.56(c) of the Board’s Rules and Regulations pro-
vides that, if the respondent files an answer but fails to
deny an allegation of the specification in the manner re-
quired by paragraph (b), and the failure 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 allega-
tion. Because the Respondent has failed to comply with
the Board’s specificity requirements, the Board deems
paragraph 15 admitted. Baker Electric, 330 NLRB 521
(2000).
Paragraphs 16 and 17 define “calendar quarter net in-
terim earnings” and “calendar quarter net backpay.” The
Respondent admits these two paragraphs.
Finally, paragraph 18 defines “total net backpay” and
specifies the amount due to each discriminatee, as set
forth in attached appendices. The Respondent admits the
“concept” of total net backpay, but denies the accuracy
of the figures in the appendices based on its arguments in
its answer and previous exceptions to Judge Linton’s
October 28, 1999 supplemental decision. These argu-
ments were rejected.
In sum, the Respondent’s efforts here are directed to-
ward relitigating issues previously litigated and decided
in the initial phase of this compliance proceeding. The
Board rejects this effort, deems admitted all paragraphs
of the third amended compliance specification not spe-
cifically admitted by the Respondent; and grants the
General Counsel’s Motion for Summary Judgment. Ac-
cordingly, we conclude that the net backpay due Martha
Hinson, Jerry Kennedy, and Manuel Mantecon is as
stated in the third amended compliance specification and
we will order payment by the Respondent of those
amounts to the discriminatees, plus interest accrued on
the amounts to the date of payment.
ORDER
It is ordered that the General Counsel’s Motion for
Summary Judgment is granted.
IT IS FURTHER ORDERED that the Respondent, Perform-
ance Friction Corporation, Clover, South Carolina, its
officers, agents, successors, and assigns, shall make
whole the individuals named below by paying them the
amounts following their names, plus interest5 and minus
tax withholdings required by Federal and State laws:

Martha Hinson $26,973
Jerry Kennedy 11,738
Manuel Mantecon 5,438

5 Interest shall be computed as set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).