Standard Materials, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 679 (N.L.R.B. 1980)

STANDARD MATERIALS. INC.
Standard Materials, Inc. and United Steelworkers of
America, AFL-CIO. Case 15-CA-6567
September 30, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MI:MBERS
JENKINS ANI) PENII..O
On August 25, 1978, the National Labor Rela-
tions Board issued a Decision and Order' against
the Respondent, in which the Board ordered the
Respondent, inter alia, to make whole B. B. Allen,
Ellis L. Beard, Jessie Lee Brown, Theodore
Charles, Charles Cousin, Jr., Levy Crawford, Irvin
J. Edwards, Clyd Favre, Harold Hart, Talley
Hinton, Claude Ray Jenkins, James Jenkins, John
Leonard, Robert Orange, Alt Owens, Oliver
Owens, Titus Owens, Alexander Paige, Albert
Panks, Albert Panks, Jr., Edgar Peters, Ervin
Pope, James W. Square, Edward Wise, and Roose-
velt Wise, for any loss of pay they may have suf-
fered as the result of the Respondent's unfair labor
practices against them in violation of Section
8(a)(3) and (1) of the National Labor Relations
Act, as amended. Subsequently, the United States
Court of Appeals for the Fifth Circuit entered its
judgment enforcing the Board's Order. 2 A contro-
versy having arisen over the amount of backpay
owed the discriminatees, the Regional Director for
Region 15, on May 22, 1980, issued and caused to
be served on the parties a backpay specification
and notice of hearing alleging the amount of back-
pay due the individual discriminatees. Subsequent-
ly, on June 6, 1980, the Respondent filed an
answer, admitting in part and denying in part, the
allegations of the backpay specification.
On June 30, 1980, the General Counsel filed with
the Board a "Motion to Strike Respondent's
Answer to Backpay Specification and for Summary
Judgment." Thereafter, on July 7, 1980, the Board
issued an order transferring the proceeding to the
Board and Notice To Show Cause why the Gener-
al Counsel's Motion for Summary Judgment should
not be granted. 3 On July 11, the Respondent filed a
response to the Notice To Show Cause and the
General Counsel, on July 12, 1980, filed an opposi-
tion to the Respondent's response. Upon the entire
record in this proceeding, the Board makes the fol-
lowing:
m 237 NIRBH 1 130
z 6014 F 2d 449 (197'9)
" The Board alu ordcrcd the hearing h poslponcd indefimlic
252 NLRB No. 94
Ruling on the Motion for Summary Judgment
Section 102.54(b) of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, provides as follows:
(b) Contents of the answer to specifieation.-
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 spe-
cifically 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 state-
ment operating as a denial. Denials shall fairly
meet the substance of the allegations of the
specification denied. When a respondent in-
tends to deny only a part of an allegation, 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 re-
spondent, including but not limited to the var-
ious factors entering into the computation of
gross backpay, a general denial shall not suf-
fice. As to such matters, if the respondent dis-
putes 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 disagreement, setting forth his position
as to the applicable premises and furnishing
the appropriate supporting figures.
"Motion To Strike Respondent's Answer to
Backpay Specification and for Summary Judg-
ment" alleges that the Respondent's answer to the
backpay specification was not sworn to by the Re-
spondent or by a duly authorized agent with ap-
propriate power of attorney affixed, and does not
contain the post office address of the Respondent
as required by Section 102.54(b) of the Board's
Rules and Regulations. The General Counsel's
motion also avers that the Respondent's answer
generally denies certain portions of the backpay
specifications but fails to state with specificity the
basis for its disagreement. The General Counsel
further asserts that the Respondent failed to furnish
the appropriate supporting data as required under
Section 102.54(b) of the Board's Rules and Regula-
tions, and that therefore the Respondent's answer
should be stricken in its entirety, that the allega-
tions in the backpay specification should be
deemed as admitted as true, and that summary
judgment should be granted. In the alternative, the
General Counsel maintains that those portions of
the backpay specification that were not specifically
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied by the Respondent should be deemed ad-
mitted as true and that a hearing be held only on
the allegations properly raised by the Respondent's
answer.
While the Respondent's answer to the backpay
specification was neither sworn to by the Respond-
ent nor by duly a authorized agent of the Respond-
ent, and did not contain the Respondent's address,
its response, which it seeks to have the Board con-
sider as an amended answer, was sworn to and did
contain the Respondent's address. The General
Counsel, in his opposition to the response, asserts
that under Section 102.57 of the Board's Rules and
Regulations, an answer to a backpay specification
may be amended prior to a hearing only where the
specification has been amended first, and since that
is not the case here the Respondent's amended
answer should be stricken. However, Section
102.57 merely states that a backpay specification
may be amended prior to the hearing and that the
affected respondent may amend its answer. Thus,
the rules contain no specific prohibition against
amending the answer to a backpay specification in
the absence of an amendment to the specification,
and we, therefore, consider the Respondent's re-
sponse to be an amended answer. Accordingly, and
inasmuch as Section 102.121 provides that the
Board's Rules and Regulations shall be liberally
construed, we shall neither strike the Respondent's
answer in its entirety nor grant the General Coun-
sel's Motion for Summary Judgment for the failure
of the answer to be sworn to and to contain the
Respondent's address.
The General Counsel both in his "Motion To
Strike Repondent's Answer to Backpay Specifica-
tion and for Summary Judgment" and in his oppo-
sition to the Respondent's response thereto avers
that the Respondent generally denied various alle-
gations of the specification, without setting forth
alternative formulas or figures for any of the back-
pay computations and thus the denials were not
sufficient under Section 102.54(b) to raise any
issues warranting hearing. The Respondent in its
answer and amended answer generally denied var-
ious of the allegations of the backpay computa-
tions, including, inter alia, vacation pay, overtime,
backpay periods, the rates of pay the discriminatees
received at the time they were unlawfully dis-
charged, the rates of pay each of them would have
received during the backpay period, and the gross
backpay due each discriminatee. Since this data is
within the Respondent's knowledge, its failure to
set forth fully its position as to the applicable prem-
ises or to furnish appropriate supporting figures is
contrary to the specificity requirements of Section
102.54(b) of the Board's Rules and Regulations.
Accordingly, we strike the Respondent's answer
and amended answer to those allegations of the
backpay specification and, accordingly, deem such
allegations to be admitted as true.
However, the Respondent alleges that discrimin-
atees John Leonard and Levy Crawford quit their
interim jobs and that all the discriminatees either
failed to seek or failed to accept the numerous jobs
that were available in the relevant geographic area.
The Board has held that a general denial is suffi-
cient to place interim earnings into issue as that in-
formation is generally not within the knowledge of
the Respondent. 4 Inasmuch as the availability of in-
terim jobs in the area, the discriminatees' failure to
seek and accept or retain such employment, and
the quitting of interim jobs are factors that are an
aspect of the general aspect of interim earnings and
are outside the general knowledge of the Respond-
ent, we find the Respondent's general assertion of
the discriminatees' failure to seek and retain availa-
ble interim employment to be sufficient under the
Board's Rules and Regulations to put into issue the
general question of interim earnings. Therefore, we
shall deny the General Counsel's "Motion To
Strike Respondent's Answer to Backpay Specifica-
tion and for Summary Judgment" with respect to
the allegations of the specification pertaining to in-
terim employment issues.
Accordingly, we shall order a hearing limited to
the determination of the discriminatees' interim
earnings including the availability to discriminatees
of interim employment, and the discriminatees' fail-
ure to seek and/or retain such interim employment.
ORDER
It is hereby ordered that the General Counsel's
Motion To Strike Respondent's Answer to Back-
pay Specification is granted, except with regard to
those allegations concerning the discriminatees' in-
terim earnings.
IT IS FURTHER ORDERED that the General Coun-
sel's Motion for Summary Judgment be, and it
hereby is, denied.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Direc-
tor for Region 15 for the purpose of arranging a
hearing before an administrative law judge limiting
such proceeding to the determination of the avail-
ability of interim employment, the discriminatees'
failure to seek or retain interim employment, and
the interim earnings of the discriminatees listed
below, and that the Regional Director be, and he
hereby is, authorized to issue notice thereof.
4 Dehw Construcion Corp., ubsidiary of The .4spin Group. Inc., 246
NLRB No. 156 (1979).
680
STANDARD MATERIAI.S. INC
B. B. Allen
Ellis L. Beard
Jessie Lee Brown
Theodore Charles
Charles Cousin, Jr.
Levy Crawford
Robert Orange
Alt Owens
Oliver Lee Owens
Titus Owens
Alexander Paige
Albert Panks
Irvin J. Edwards
Clyde Favre
Harold Hart
Tally Hinton
Claude Ray Jenkins
James Jenkins
John Leonard
Albert Panks, Jr.
Edgar Peters
Ervin Pope
James W. Square
Edward Wise
Roosevelt Wise
681