Rich'S Precision Foundry, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 821 (N.L.R.B. 1985)

RICH 'S PRECISION FOUNDRY . ` - : 821
Rich 's Precision Foundry, -Inc. and Felix Birt., Case
25-CA-10431
28 June 1985 -
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER- AND.DENNIS
On 1 August 1980 the National Labor Relations
Board issued a Decision and 'Order in this proceed-
ing' ordering the Respondent, inter alia, to offer
immediate and full reinstatement to certain of its
employees and to make them whole for any loss of
earnings and benefits resulting from the Respond-
ent's unfair labor practices which violated Section
8(a)(3) and (1) of the National Labor Relations
Act. On 15 December 1981 the United States
Court of Appeals for the Seventh Circuit granted
enforcement of the Board's Order.2
On 25 January 1985'the Acting Regional Direc-
tor for Region 25 issued a backpay specification
and notice of hearing alleging, inter alia, that a
controversy had arisen over the amount of backpay
due under the terms of the Board's Order and noti-
fying the Respondent that it must file a timely
answer which must comply with the National
Labor Relations Board Rules and Regulations. On
11 February 1985 the Respondent filed an answer
to the backpay specification which, inter alia, con-
tends that it had agreed to the Region's._proposed
stipulation on backpay and interest before issuance
of the backpay specification. -
On 25 March 1985 the General Counsel filed
with the Board a motion to strike portions of the
Respondent's answer and Motion for Summary
Judgment. On 29 March 1985 the Board issued an
order transferring the proceeding to the Board and
a Notice to Show Cause why the General Coun-
sel's motion should not be granted. On 10 April
1985 the Respondent filed a response to the Gener-
al Counsel's motion. -The Respondent claims that it
had agreed to the Region's proposed stipulation on
backpay and interest prior to the issuance of the
backpay specification. The' Respondent contends
that the Region's substitution of the projected earn-
ings method of computation in the specification is
not proper because the parties had a previous
agreement as to the backpay calculations.
On the entire record, the Board makes the fol-
lowing
1 250 NLRB 1317
2 667 F 2d 613 (7th Cir 1981)
Ruling on the Motion for Summary Judgment
Section ' 102:54(b) and (c) of the Board 's • Rules
and Regulations provides ` as follows:
(b) Contents -of the- answer to specification.-
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 af-
fixed , and shall contain . the post office address
of the , respondent . The respondent shall specif-
ically admit , deny , _ or explain each - and every
allegation .- of the specification , unless the re-
spondent 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 specifi-_
cation denied . When a respondent intends to
deny only a part of an allegation , the respond-
ent shall specify so much of it as 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
entering _ into the computation of gross back-
pay, a general denial shall not suffice. As to
such matters , if the respondent disputes - either
the accuracy of the figures . in the specification
or the premises on which they are based, he
shall specifically state the basis for his dis-
agreement , setting forth in detail his position
as to the applicable premises and, furnishing
the appropriate supporting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to the specification .-If the
respondent fails to file any answer to the speci-,
fication -within the time prescribed by this sec-
tion, the Board may, either with or without
taking evidence in support of the allegations of
the specification and without notice to the re-
spondent , 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 specifi-
cation in the manner required by subsection
(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
respondent shall be precluded from introduc-
ing any evidence controverting said allegation.
In its answer to the backpay specification, the
Respondent entered a denial to the characterization
of the discriminatees ' discharges as illegal . The Re-
spondent further stated that it is without informa-
tion as to the definitions of calendar quarter net in-
275 NLRB No. 118
822 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
terim earnings , calendar quarter net backpay, and
total net backpay , and as to the general formula
used to calculate backpay. The Respondent offered
a denial as to the gross and net backpay informa-
tion for discriminatees Birt and Acres . In the af-
firmative, the Respondent alleges that it had en-
tered into an agreement with the Region as to the
net backpay for each of the discriminatees.
The General Counsel asserts that the Board in its
Decision and Order, found the discharges of the
discriminatees to have violated the Act and thus
the denial should be stricken. The General Counsel
further urges that the definitions used in the back-
pay specfication are well established and that be-
cause the Respondent does not contend that other
definitions of the terms are appropriate, summary
judgment is proper.- The General Counsel asserts
that the Respondent's, answer does not specifically
dispute the backpay formula or the gross and net
backpay figures , but alleges instead that there was
a purported agreement on the backpay figures. The
General Counsel contends that the Respondent had
not agreed ' to the Region 's proposed stipulation on
backpay and interest prior to' the issuance of the
backpay specification.
We agree with the General Counsel that 'the Re-
spondent 's answer, to paragraphs 4, 5, 6, and 7 does
not raise any issue of -fact which would require a
hearing. Furthermore, - the Respondent's answer to
the- remaining paragraphs does not specifically dis-
pute the accuracy of the gross backpay figures con-
tained in • the specification . The answer merely
states that there was a prior agreement between the
Respondent and the Region. The evidence of -cor-
respondence presented shows, however, that no
agreement had been reached between the Respond-
ent and the Region before the issuance of the back-
pay specification. As the Respondent has failed to
deny specifically the gross backpay allegations or
to explain adequately its failure to do so, Section
102.54(c) requires that these allegations be deemed
to be admitted true.
Accordingly, we strike the Respondent's answer
with respect to paragraphs 1, 3, 4, 5, 6, 7, 9, 10,
and 11 of-the, backpay specification, and deem such
allegations to be admitted as true.3 Thus, we shall
grant the General Counsel's Motion for Summary
Judgment. We further find that the net backpay
due the discriminatees, Kurt Elder, Homer Acres,
and Felix Birt, is as stated in the computations of
the backpay specification, and shall order the Re-
spondent to pay the amount set forth to each
named employee.
-ORDER
The National Labor Relations- Board orders. that
the Respondent, Rich's Precision Foundry, Inc.,
Yorktown, Indiana, its officers, agents, successors,'
and assigns , make whole' the employees named
below by paying them the amount set forth adja-
cent to their names, plus interest computed in the
manner prescribed in Florida Steel 'Corp:; 231'
NLRB 651 (1977),' and accrued to the date of pay-
ment, minus tax withholdings required by law.
Homer Acres-$40,915.46 ' -
Felix Birt-$19,359.62 - -
Kurt Elder-$56.00
Member Hunter , agrees that the Respondent's denials' in its answer
raise no issue of fact and that pursuant to Sec 102 54 of the Board's
Rules and Regulations the allegations of the backpay specification prop-
erly may be deemed to be admitted true ' He therefore findstit unneces-
sary to pass on the General Counsel's motion to strike portions of the
Respondent 's answer
4 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
'i'