Toledo 5 Auto/Truck Plaza

National Labor Relations Board - Board Decisions

Mar 25, 1992

306 N.L.R.B. 842 (N.L.R.B. 1992)

842
306 NLRB No. 163
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 291 NLRB 319.
2 The court’s judgment was not published.
Toledo 5 Auto/Truck Plaza, Inc. and Teamsters,
Chauffeurs, Warehousemen and Helpers
Union, Local 20, a/w International Brother-
hood of Teamsters, AFL–CIO. Case 8–CA–
20261
March 25, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 30, 1988, the National Labor Rela-
tions Board issued its Decision and Order in this case
directing the Respondent, Toledo 5 Auto/Truck Plaza,
Inc., to make whole the discriminatee, Doris Dunlap,
for any losses she may have incurred as a result of the
Respondent’s unfair labor practices.1 On May 30,
1991, the United States Court of Appeals for the Sixth
Circuit entered its judgment enforcing the Board’s
Order.2 A controversy having arisen over the amount
of backpay due the discriminatee under the Board’s
Order, as enforced by the court, the Regional Director
for Region 8 issued a compliance specification and no-
tice of hearing alleging the amount of backpay due the
discriminatee. Subsequently, on September 18, 1991,
the Respondent filed an answer to the compliance
specification, generally denying the allegations of the
compliance specification.
On December 18, 1991, the General Counsel filed
with the Board a motion to strike Respondent’s answer
in part and for Partial Summary Judgment. The Gen-
eral Counsel’s motion alleged that, with the exception
of the Respondent’s general denial of the allegations
concerning the amount of interim earnings and medical
expenses of the discriminatee, the Respondent’s answer
does not comply with the specificity requirements of
Section 102.56(b) of the Board’s Rules and Regula-
tions. Thereafter, on December 26, 1991, the Respond-
ent filed with the Board a motion in opposition to the
General Counsel’s motion to strike and motion for
leave to file amended answer.
On December 30, 1991, the Board issued an order
transferring the proceeding to the Board and Notice to
Show Cause why the General Counsel’s motion should
not be granted. On January 13, 1992, the Respondent
filed its memorandum to show cause why the General
Counsel’s motion to strike should not be granted.
Also on January 13, 1992, the General Counsel filed
a motion to strike and motion in opposition to Re-
spondent’s motion in opposition to General Counsel’s
motion to strike and for leave to file amended answer.
In his motion, the General Counsel argues that the
Board’s Rules and Regulations do not permit the Re-
spondent to file an amended answer and accordingly
asks that the Respondent’s amended answer be stricken
in its entirety. Alternatively, the General Counsel
moves to strike paragraph 2 of the Respondent’s
amended answer, which relates to the gross earnings
the discriminatee would have earned during the back-
pay period. The General Counsel further requests that
summary judgment be granted on all allegations of the
compliance specification not appropriately denied in
the Respondent’s amended answer.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this proceeding, the Board
makes the following
Ruling on Motion for Partial Summary Judgment
Section 102.56(b) and (c) of the National Labor Re-
lations Board’s Rules and Regulations states:
(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 order 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
843TOLEDO 5 AUTO/TRUCK PLAZA
3 Rainbow Coaches, 266 NLRB 585, 586 (1983); Bentleys Lounge,
265 NLRB 632 (1982), enfd. mem. 725 F.2d 684 (6th Cir. 1983);
Standard Materials, 252 NLRB 679, 680 (1980).
of evidence supporting such allegation, and the re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
As noted above, the Respondent’s original answer to
the backpay specification offers a general denial to
each of the allegations in the compliance specification.
In its amended answer and memorandum to show
cause, however, the Respondent does set forth an alter-
native date and theory for determining the backpay pe-
riod, and also sets forth alternative figures for calcu-
lating gross backpay. The Board has held that, even in
the absence of an amended backpay specification, a re-
spondent may amend its answer prior to the hearing in
the matter.3 Accordingly, we deny as lacking in merit
the General Counsel’s motions to strike the Respond-
ent’s answer in part and its amended answer in its en-
tirety, and we grant the Respondent’s motion for leave
to file an amended answer.
The General Counsel has also moved to strike para-
graph 2 of the Respondent’s amended answer, which
denies the calculation of gross earnings the
discriminatee would have received during the backpay
period. Specifically, the General Counsel argues that
the Respondent has failed to state the basis for its de-
nial and fails to set forth an alternative theory for cal-
culating backpay. In its amended answer and in its
memorandum to show cause, however, the Respondent
does furnish alternative figures to measure the amount
of gross backpay due the discriminatee in compliance
with Section 102.56(b). Therefore, we find that the Re-
spondent’s amended answer to the allegation in the
compliance specification concerning the gross earnings
of the discriminatee is sufficient to raise a genuine
issue of material fact that may best be resolved after
a hearing before an administrative law judge. Accord-
ingly, we deny the General Counsel’s motion to strike
paragraph 2 of the Respondent’s amended answer and
for Partial Summary Judgment concerning the gross
earnings the discriminatee would have earned during
the backpay period.
As the Respondent’s amended answer admits that
the number of straight-time hours the discriminatee
would have worked during the backpay period is 40
hours per week and that the number of overtime hours
the discriminatee would have worked is 5 hours per
week, we shall grant the General Counsel’s Motion for
Partial Summary Judgment as it pertains to these mat-
ters as set forth in paragraphs 2(c) and (f) of the com-
pliance specification. Further, as neither the Respond-
ent’s answer nor its amended answer denies that the
discriminatee’s overtime rate is the product of the ap-
plicable straight-time rate times 1.5, we shall deem the
allegation in paragraph 2(g) of the compliance speci-
fication to be admitted to be true under Section
102.56(c) and shall grant the General Counsel’s Mo-
tion for Partial Summary Judgment as it pertains to
paragraph 2(g) of the compliance specification. We
also deem paragraphs 2(a), (b), (e), and (h) to be ad-
mitted and grant the General Counsel’s Motion for
Partial Summary Judgment in that respect.
ORDER
It is ordered that the General Counsel’s motions to
strike the Respondent’s answer in part, to strike the
amended answer in its entirety, and, alternatively, to
strike the amended answer in part are denied.
IT IS FURTHER ORDERED that the General Counsel’s
alternative Motion for Partial Summary Judgment is
granted except with respect to the allegations con-
cerning the applicable backpay period, wage rates, in-
terim earnings, expenses, insurance premiums, and
medical expenses of Doris Dunlap.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 8 for the
purpose of scheduling a hearing before an administra-
tive law judge, to take evidence concerning the appli-
cable backpay period, wage rates, interim earnings, ex-
penses, insurance premiums, and medical expenses of
Doris Dunlap.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a supple-
mental decision containing findings of fact, conclu-
sions of law, and recommendations based on all the
record evidence. Following service of the administra-
tive law judge’s decision on the parties, the provisions
of Section 102.46 of the Board’s Rules shall be appli-
cable.