R.B. Contracting Co.

National Labor Relations Board - Board Decisions

May 20, 1996

321 N.L.R.B. 256 (N.L.R.B. 1996)

256
321 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This summary judgment decision, 311 NLRB No. 169, is not in-
cluded in the bound Board volumes. A copy of the decision can be
obtained from the NLRB, Division of Information, Washington,
D.C., 20570.
2 The judgment of the Third Circuit is unpublished.
3 The Region’s previous efforts to locate and effect service on the
Respondent had been unsuccessful.
All subsequent dates are in 1996 unless otherwise indicated.
4 In her statement in opposition to the Respondent’s motion for re-
consideration, counsel for the General Counsel denied ever advising
the Respondent that it could file a response to the specification at
any time prior to the February 27 hearing.
5 The Respondent’s motion was denied on the ground that because
the scheduled February 27 hearing date had already passed when the
Respondent sought reconsideration, the Judges’ Division no longer
had jurisdiction over the case, which was then properly before the
Board.
R. B. Contracting Co. and Laborers’ International
Union of North America, Local No. 373, AFL–
CIO. Case 6–CA–25436
May 20, 1996
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND FOX
On August 17, 1993, the National Labor Relations
Board issued a Decision and Order1 finding that the
Respondent, R. B. Contracting Co., violated Section
8(a)(1), (3), and (5) of the Act. The Board ordered the
Respondent, among other things, to offer immediate
reinstatement to unlawfully discharged employee Rob-
ert E. Whitsett, and to make Whitsett whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against him. On February 14,
1994, the United States Court of Appeals for the Third
Circuit enforced the Board’s Order.2 A controversy
having arisen over the amount of backpay due under
the Board’s Decision and Order, the Regional Director
for Region 6 issued a backpay specification and notice
of hearing on June 13, 1994, alleging the amount of
backpay due Whitsett and the amount of contributions
owed on Whitsett’s behalf to The Laborers’ Combined
Funds of Western Pennsylvania. The specification in-
formed the Respondent that it must file a timely an-
swer complying with the Board’s Rules and Regula-
tions.
The specification was personally served on the Re-
spondent on January 23, 1996.3 An accompanying no-
tice informed the Respondent that a hearing on the
backpay specification would be held February 27. In
addition, the specification notified the Respondent that,
under Section 102.56 of the Board’s Rules and Regula-
tions, it had 21 days from service of the specification
to file an answer and serve it on the parties. The speci-
fication further provided that:
To the extent that such Answer fails to deny alle-
gations of the specification in the manner required
under the Board’s Rules and Regulations and the
failure to do so is not adequately explained, such
allegations shall be deemed to be admitted to be
true and Respondent shall be precluded from in-
troducing any evidence controverting them.
When the Respondent failed to file a timely answer,
the Region wrote it on February 20, stating that unless
it received an answer by February 23, it might seek
summary judgment.
On February 21, the Region filed a motion to post-
pone the February 27 hearing in order to permit the
General Counsel to file for summary judgment. On
February 22, Associate Chief Administrative Law
Judge Bernard Reis granted that motion. On February
29, the Respondent filed a motion for reconsideration
of the decision to postpone the backpay hearing. The
Respondent argued in its motion that the General
Counsel had assured it that it could file a response to
the specification at any time prior to the February 27
hearing date.4 The Respondent further asserted that it
had planned to file a response at that hearing.
On March 7, Associate Chief Judge Reis denied the
motion for reconsideration, finding that the Respondent
was fully and timely aware of its imminent need to op-
pose the General Counsel’s motion to postpone the
February 27 backpay hearing, that the Respondent did
not promptly act, and that the Judges’ Division no
longer had jurisdiction over the case.5
On March 18, the General Counsel filed a Motion
for Summary Judgment based on the Respondent’s
failure to file an answer to the backpay specification
as required under Section 102.56.
On March 20, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the General Counsel’s motion should not
be granted.
On April 1, the Respondent filed an answer to Mo-
tion for Summary Judgment and order transferring case
to the Board. In its ‘‘Answer,’’ the Respondent admit-
ted that it had employed Whitsett at the rate set forth
in the specification, but argued that it fired Whitsett 5
days after employing him when Whitsett complained
about the Respondent’s attempts to deduct union mem-
bership dues and fees from his pay. The Respondent
asserted that it had planned to present this argument at
the February 27 backpay hearing and that, by obtaining
a continuance of this hearing and filing for summary
judgment, the General Counsel had deprived it of its
due process rights.
On April 3, the General Counsel filed a response,
arguing that the Respondent’s attempt to answer the
specification in its response to the Notice to Show
Cause was untimely and deficient because it failed to
adequately explain why the Respondent was unable to
file a proper and timely answer. The General Counsel
257R. B. CONTRACTING CO.
6 Thus, we need not resolve the credibility conflict.
7 On the contrary, the Respondent’s counsel made clear in the Feb-
ruary 29 motion that what her client sought was the rescheduling of
the backpay hearing.
8 Although the Respondent contends that the length of the backpay
period is at issue, it is clear that what it actually challenges is the
determination that Whitsett was unlawfully discharged. Thus, the
Continued
further asserted that, in any event, the Respondent’s
April 1 response was insufficient to constitute an an-
swer, and that what the Respondent really sought was
to litigate the merits of the underlying unfair labor
practice allegations.
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 for Summary Judgment
Section 102.56(a), (b), and (c) of the Board’s Rules
and Regulations specify, in relevant part, that:
(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 Re-
gional Director issuing the specification, and shall
immediately serve a copy thereof on the other
parties. . . .
(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 orders 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.
Based on these Rules and Regulations, we agree
with the General Counsel that summary judgment is
appropriate.
Initially, we note that the Respondent failed to file
a timely answer to the backpay specification as re-
quired by Section 102.56(a). Thus, the specification,
which was served on the Respondent on January 23,
1996, expressly stated that the Respondent was re-
quired to file an answer within 21 days. When a timely
answer was not filed, the General Counsel sent the Re-
spondent a reminder letter on February 20, stating that
summary judgment could be sought unless an answer
was filed by February 23. Again, the Respondent failed
to submit an answer. Although the Respondent subse-
quently argued in its February 29 motion for reconsid-
eration that the General Counsel had assured it that an
answer could be filed prior to the February 27 hear-
ing—an allegation that the General Counsel denies—
the Respondent did not file an answer before February
27, or indeed, even after its motion for reconsideration
was denied.6 Nor is there any claim or evidence that
the February 29 motion for reconsideration was in-
tended to serve as an answer.7
Furthermore, even assuming arguendo that we were
to treat the Respondent’s April 1 response to the No-
tice to Show Cause as a timely filed answer, we would
nonetheless find that summary judgment is appropriate.
Thus, the April 1 response fails to specifically admit,
deny, or explain the allegations in the specification, as
required in Section 102.56(b). Indeed, to the extent
that it can be construed as substantively responding to
any allegation of the specification—i.e., that Whitsett
was employed at the rate set forth by the contract with
Laborers’ International Union No. 373—it admits a
specification allegation. Moreover, to the extent that
the April 1 response asserts that Whitsett was fired be-
cause he complained about union dues’ deductions
rather than—as found by the judge, Board, and Third
Circuit Court of Appeals—because he joined and sup-
ported the Union, the Respondent impermissibly seeks
to litigate in compliance an issue that properly should
have been raised in the underlying unfair labor practice
proceeding.8 See generally Baumgardner Co., 298
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board determined in its underlying decision that the Respondent rec-
ognized the Union on the Homewood Mini Mall project on January
7, 1993, thereafter hired Whitsett, and discharged him on January
15, 1993. Similarly, in its response to the Notice to Show Cause,
the Respondent admits that it employed Whitsett for 5 working days
and then discharged him. Although the Respondent contends that it
does not dispute backpay figures for Whitsett’s 5 days of employ-
ment—which are not alleged as owing in the specification—but only
amounts alleged as owing after that time, what it thereby seeks is
to relitigate in the backpay proceeding whether Whitsett’s termi-
nation was unlawful.
NLRB 26, 27–28 (1990); Ricks Construction, 272
NLRB 424, 425 (1984).
Accordingly, under all these circumstances, we find
that summary judgment is appropriate.
ORDER
The National Labor Relations Board orders that the
Respondent, R. B. Contracting Co., Pittsburgh, Penn-
sylvania, its officers, agents, successors, and assigns,
shall pay the amount specified below to Robert
Whitsett, with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required
by Federal and state laws. The Respondent is also or-
dered to pay to the Mellon Bank Laborers’ Contribu-
tion Account 182-9347 the following amount, plus any
additional amount accruing to the date of payment as
computed in accordance with Merryweather Optical
Co., 240 NLRB 1213 (1979).
Robert E. Whitsett $5,534.37
Mellon Bank Laborers’
Contribution Account 182-9347 $1,972.49
llll
TOTAL $7,506.86