The Victoria Medical Group And The West Jefferson Medical Group

National Labor Relations Board - Board Decisions

Mar 18, 1985

274 N.L.R.B. 1006 (N.L.R.B. 1985)

1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barry S . Solof, M.D., a Professional Corporation,
d/b/a the Victoria Medical Group and the West
Jefferson Medical Group and Punkin Clay Ste-
phens. Case 31-CA-10623
18 March 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 September 1982 the National Labor Rela-
tions Board issued a Decision and Order' in this
proceeding in which it ordered the Respondent,
inter alia, to make whole Elissa Einhorn, Jan Fra-
zier, Whitney LeBlanc, and Punkin Clay Stephens
for any loss of earnings resulting from the Re-
spondent's termination of them in violation of Sec-
tion 8(a)(1) of the Act. On 4 August 1983 the
United States Court of Appeals for the Ninth Cir-
cuit entered a Judgment enforcing the Board's
Order.2 Because a controversy arose over the sums
of backpay owed the discriminatees, the Regional
Director for Region 31, on 30 November 1983,
issued and caused to be served on the parties a
backpay specification and notice of hearing alleg-
ing the amounts of backpay due the individual dis-
criminatees. The Respondent answered the back-
pay specification by letter dated 7 December 1983.
On 26 January 1984 the General Counsel filed
with the Board a motion to transfer case to and
continue proceedings before the Board; a Motion
for Summary Judgment; and a motion to strike
portions of the Respondent's answer to the back-
pay specification. On 3 February 1984, the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the Gen-
eral Counsel's motions should not be granted. Sub-
sequently, at the Respondent's request, the Board
extended the time for the Respondent to respond to
the Notice to Show Cause from 17 February to I
March 1984. On 1 March 1984 the Respondent
filed with the Board a second answer to the Re-
gional Director's backpay specification of 30 No-
vember 1983. The General Counsel moved to
strike this answer on 19 March 1984.
Ruling on Motion for Summary Judgment
Section 102.54(b) and (c) of the Board's Rules
and Regulations states:
(b) Contents of the answer to specij?cation.-
The answer to the specification shall be in
writing, the original being signed and sworn to
264 NLRB 99 (1982)
2 No 83-7147 (9th Or. 1983)
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 is true and
shall deny only the remainder . As to all mat-
ters within the knowledge of the respondent,
including 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 offailure 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.
The backpay specification duly served on the
Respondent states:
[P]ursuant to Section 102.54 of the Board's
Rules and Regulations , Series 8, as amended,
Respondent shall file with the undersigned Re-
gional Director , acting in this matter as agent
of the National Labor Relations Board, an
original and four copies of an answer to said
Specification within 15 days from the service
thereof. To the extent that such answer fails to
deny allegations of the Specification in the
274 NLRB No. 155
VICTORIA MEDICAL GROUP 1007
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 the Re-
spondent shall be precluded from introducing
any evidence controverting them.
The Respondent characterized its letter of 7 De-
cember 1983 as a "response" to the Regional Di-
rector's backpay specification. It demanded evi-
dence to support the specification's allegations and
offered what appears to be an alternative formula
for computing the discriminatees' backpay.3 The
Respondent also contended that because of legiti-
mate business reasons three of the four discrimina-
tees, LeBlanc, Frazier, and Stephens, would not
have been retained in its employ following the Re-
spondent's unlawful activity in October 1980, and
that, therefore, it should not be held liable for
backpay as to these three. Finally, the Respondent
contended that it had ceased business operations
over a year earlier4 and was "no longer a financial-
ly viable entity." The Respondent's 1 March 1984
answer denies, albeit generally, that backpay is due
to the discriminatees, the backpay formula, and the
monthly or hourly rate of pay during each claimed
calendar quarter. The remaining allegations of the
backpay specification involving backpay period,
gross backpay, net backpay, interim earnings, and
expenses were denied by the Respondent in its 1
March 1984 letter on the basis of a lack of suffi-
cient information and/or belief on which to base an
answer. It is properly captioned, properly sworn
to, and includes the Respondent's mailing address.
In her motion papers, the General Counsel points
out that the Respondent's initial response, the 7
December letter, is not properly sworn to by the
Respondent or by an appropriate agent of the Re-
spondent. It also does not include the Respondent's
post office address. Further, it does not explicitly
admit, deny, or explain the backpay specification's
allegations, or state that the Respondent is without
knowledge with regard to the allegations. There-
fore, the General Counsel moves that the 7 Decem-
ber letter be stricken entirely from the record and
that summary judgment be granted as to all the
specification's allegations because the letter does
not conform in any respect to the requirements of
Section 102.54(b) and (c), above, and in effect is
not an "answer within the meaning of Board law."
In the alternative, the General Counsel argues that
a The Respondent advanced that the backpay claims should be aver-
aged with the income derived by the claimants over the period for which
claims are made
4 If the Respondent in fact ceased operations over a year before its 7
December letter, its cessation of business would have occurred prior to
the termination of the backpay period alleged by the General Counsel
summary judgment should be granted at least with
respect to those allegations of the specification
which involve matters within the Respondent's
knowledge, i.e., gross backpay, which the Re-
spondent failed to deny or explain. The General
Counsel also moves that the Respondent's alterna-
tive backpay computation formula and its two de-
fenses be stricken from the record as lacking in
merit.
With regard to the Respondent's 1 March 1984
answer, the General Counsel moves to strike based
on its untimeliness as an answer to the 30 Novem-
ber specification and because, like the 7 December
letter, it fails to respond specifically to the allega-
tions of the specification. Further, the General
Counsel urged that it be stricken because it does
not, in fact, respond to the Board's Notice to Show
Cause or to the General Counsel's earlier motions
and because it does not include an affidavit of serv-
ice on the parties to the proceeding.
Section 102.121 of the Board's Rules and Regula-
tions states that the Rules and Regulations "shall be
liberally construed to effectuate the purposes and
provisions of the act." With this in mind, we find
that the Respondent's 7 December letter is an
"answer" sufficient to deny the General Counsel's
motion to strike it in its entirety. While technically
deficient, it was characterized by the Respondent
as a "response" and it is, in fact, a reply to the
backpay specification. There is an implicit denial of
the specification's allegations in the Respondent's
demand for supporting evidence. Further, with
regard to the Respondent's second answer, the
Board has viewed such an attempt to cure the
technical defects of an initial answer to a backpay
specification as a timely amended answer. See, e.g.,
Bentleys Lounge, 265 NLRB 632 (1982); Standard
Materials, 252 NLRB 679, 680 (1980). We note that
here, as in Standard Materials, above, the Respond-
ent's 1 March document partially cures its 7 De-
cember answer in that it is properly sworn to by
the Respondent's legal agent in this proceeding and
it includes the Respondent's mailing address. It also
adds explicit general denials. Accordingly, we view
the Respondent's 7 December answer and its 1
March amended answer as properly before us, and
we deny the General Counsel's motions to strike
both of these documents entirely from the record.-5
We turn now to the question whether the answer
and the amendment conform to the particular re-
quirements of Section 102.54(b) and (c). Taking
both documents into account, the Respondent gen-
5 Because we do not consider the Respondent's I March document a
response to the Board's Notice to Show Cause, we find no reason to pass
on the General Counsel's allegations as to the inadequacies of the docu-
ment in that light
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erally denies allegations 3, 4, and 5 of the specifica-
tion which concern the gross backpay calculations
as to each discriminatee. We agree with the Gener-
al Counsel that these matters are within the Re-
spondent's knowledge and that general denials of
allegations concerning these matters do not suffice
under Section 102.54. The Respondent has neither
specifically denied these allegations nor adequately
explained its failure to do so. Accordingly, we
strike the Respondent's answer and amended
answer to the extent they address these allegations
of the backpay specification. We therefore deem
such allegations to be admitted as true pursuant to
Section 102.54(c) and we shall treat them accord-
ingly. Further, with regard to the Respondent's ap-
parent alternative backpay computation formula,
the Respondent has not specifically explained the
basis for its disagreement with the Regional Direc-
tor's formula, has not set forth in detail its position
as to the premises of its alternative formula, and
has not furnished appropriate supporting figures.
This aspect of the Respondent's plea does not con-
form to the requirements of Section 102.54(b) and
must be disregarded. We therefore also strike this
portion of the Respondent's answer. Having disre-
garded the Respondent's purported alternative
backpay formula and deemed those allegations of
the backpay specification pertaining to gross back-
pay to be true, we shall grant the General Coun-
sel's Motion for Summary Judgment as to the gross
amounts of backpay due the discriminatees.
The Respondent's denials for lack of information
and/or belief of the allegations concerning the dis-
criminatees ' interim earnings and related matters
present a different issue. It is well established that
matters involving interim earnings are not consid-
ered to be within a respondent's knowledge and
that, therefore, general denials of allegations as to
these matter are sufficient to raise factual issues
warranting a hearing. See, e.g., Sheet Metal Work-
ers Local 13 (Sheet Metal Contractors), 266 NLRB
59, 60 (1983); Standard Materials, above at 680;
Dews Construction Corp., 246 NLRB 945, 947
(1979). Accordingly, we shall deny the General
Counsel's motions to strike and for Summary Judg-
ment with respect to the allegations of the specifi-
cation pertaining to interim employment issues.
The Respondent also raised several contentions
in its 7 December letter. The Respondent claimed
that discriminatees LeBlanc, Frazier, and Stephens
would have been laid off for legitimate business
reasons soon after the Respondent's unlawful con-
duct. The Respondent further claimed that it
ceased business operations prior to the termination
of the alleged backpay period. Both of these con-
tentions go to the issue of job availability during
the backpay period and are valid matters for litiga-
tion at the compliance stage. See, e.g., McDonnell
Douglas Corp., 270 NLRB 1204 (1984); Goldblatt
Bros., Inc., 135 NLRB 153, 159 (1962). Therefore
to the extent the General Counsel's motions to
strike and for Summary Judgment concern these
contentions, they also shall be denied.
The Respondent also claimed that it is "no
longer a financially viable entity." To the extent
that the Respondent is suggesting that it is unable
to pay the backpay award its contention is without
merit. The purpose of a backpay proceeding is to
determine the amount due the discriminatees, not a
respondent's ability to pay. Columbia Engineers
International, 268 NLRB 337 (1983); Star Grocery
Co., 245 NLRB 196, 197 (1979).
The Respondent's answers to the backpay speci-
fication frame certain factual issues sufficient to re-
quire a hearing concerning interim earnings and re-
lated matters and job availability during the back-
pay period. Accordingly, we shall deny the Gener-
al Counsel's Motion for Summary Judgment as to
these matters and order a hearing for the determi-
nation of the discriminatees' interim earnings and
related matters, including calendar quarter expenses
and net backpay. The Respondent will be allowed
to raise its contentions which relate to job avail-
ability during the backpay period.
ORDER
It is ordered that the General Counsel's motions
to strike the Respondent's answer and amended
answer to the backpay specification are granted,
except with regard to those allegations concerning
the discriminatees' interim earnings and the Re-
spondent's contentions which relate to job avail-
ability during the backpay period.
IT IS FURTHER ORDERED that the General Coun-
sel's Motion for Summary Judgment is granted
only with respect to the gross backpay computa-
tions for all discriminatees.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 31
for the purpose of issuing a notice of hearing and
scheduling a hearing before an administrative law
judge, which hearing shall be for the purpose of
taking evidence as to matters concerning the inter-
im earnings of discriminatees Elissa Einhorn, Jan
Frazier, Whitney LeBlanc, and Punkin Clay Ste-
phens; as to the Respondent's contention that it
would not have continued to employ discriminatees
Frazier, LeBlanc, and Stephens for legitimate busi-
ness reasons ; and as to the Respondent 's contention
that it ceased business operations prior to the termi-
nation of the alleged backpay period.