Transportation By La Mar, Inc., Ready Transportation Co., Inc.,

National Labor Relations Board - Board Decisions

Sep 17, 1986

281 N.L.R.B. 508 (N.L.R.B. 1986)

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transportation by La Mar, Inc., Ready Transporta-
tion Co., Inc ., La Mar Googer and Jerome
Butler and John Osby and Beer, Soft Drink,
Water, Fruit Juice, Carbonic Gas, Liquor Sales
Drivers, Helpers, Inside Workers, Bottlers,
Warehousemen, School, Sightseeing , Charter
Bus Drivers, General Promotional Employees of
Affiliated Industries , Local Union No. 744, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 13-CA-19615 and
13-CA-19634
17 September 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 22 July 1981 the National Labor Relations
Board issued its Order in the above-entitled pro-
ceeding' in which it ordered, inter alia, that Re-
spondent Transportation by La Mar, Inc., its offi-
cers, agents, successors , and assigns, make whole
certain of its employees for any loss of pay they
may have suffered as a result of the Respondent's
unfair labor practices. On 29 January 1982 the
United States Court of Appeals for the Seventh
Circuit entered its judgment enforcing the Board's
Order.2 A controversy having arisen over the
amount of backpay due under the Board's Order,
as enforced by the court, the Regional Director for
Region 13 issued and served on the Respondents,
Transportation by La Mar, Inc., Ready Transporta-
tion Co., Inc., La Mar Googer, and Jerome
Butler, 3 a backpay specification on 28 June 1985,
and an amended backpay specification on 2 July
1985, alleging the amounts of backpay due the dis-
criminatees and notifying the Respondents that
they must file a timely answer complying with the
Board 's Rules and Regulations.
On 2 October 1985 Respondent La Mar Googer,
acting individually and as a former officer of Re-
spondents Transportation by La Mar, Inc. and
Ready Transportation Co., Inc., filed a "Response
to Amended Backpay Specification" consisting of
four numbered paragraphs that do not correspond
to the allegations of the specification. In the first
two paragraphs the response states that the Re-
' Not reported in Board volumes The Board's Order was entered pro
forma in the absence of exceptions to the administrative law judge's deci-
sion
2 No 82-1144, unpublished
8 On 22 August 1984 the Seventh Circuit entered a civil contempt
order against Respondent Transportation by La Mar, Inc. and additional
Respondents Ready Transportation Co, Inc., La Mar Googer, and
Jerome Butler for failing and refusing to comply with the court's 29 Jan-
uary 1982 judgment
spondents, in accordance with the Board 's Order of
22 July 1981, are liable for backpay due the discri-
minatees , but that the award is subject to offsets in
the amount shown by the discriminatees' failure to
mitigate their losses. In the third paragraph the re-
sponse states that Respondent La Mar Googer has
no knowledge as to the discriminatees' efforts to
mitigate their losses . The fourth paragraph of the
response states that, inasmuch as the discriminatees
were hourly employees subject to business avail-
ability, their tax returns for the year 1979 are not a
reliable gauge of the amount of pay they would
have received during the period for which the Re-
spondents are liable.
On 14 April 1986 the General Counsel wrote to
the Respondents, advising them that their response
failed to meet the specificity requirements of Sec-
tion 102.54(b) and (c) of the Board's Rules and
Regulations, particularly regarding the factors en-
tering into the computation of backpay . The Gen-
eral Counsel further advised the Respondents that,
unless an amended answer was received by 24
April 1986, a Motion for Partial Summary Judg-
ment would be filed with the Board. To date, the
Respondents have filed no amended answer.
Respondent Jerome Butler failed to file any
answer. On 5 September 1985 the General Counsel
wrote to Butler, advising him that if he failed to
file an answer by the close of business on 12 Sep-
tember 1985, the General Counsel would file a
Motion for Summary Judgment with the Board.
On 12 September 1985 the General Counsel again
wrote to Butler, confirming a telephone conversa-
tion that day , stating that in light of Butler's con-
tinuing refusal to file an answer, the General Coun-
sel would seek summary judgment against him.
On 27 May 1986 the General Counsel filed di-
rectly with the Board a "(1) Motion for Order
Transferring Proceeding to National Labor Rela-
tions Board ; (2) Motion for Summary Judgment
Against Respondent Jerome Butler; (3) Motion to
Strike Answer Filed by Respondents Transporta-
tion by La Mar, Inc ., Ready Transportation Co.,
Inc., and La Mar Googer, and for Summary Judg-
ment Against These Respondents; or in the Alter-
native to Strike Part of Answer Filed by Respond-
ents Transportation by La Mar, Inc., Ready Trans-
portation Co., Inc., and La Mar Googer, and for
Partial Summary Judgment Against These Re-
spondents," with exhibits attached. The General
Counsel submits, regarding the motion against Re-
spondent Butler that he failed to file an anwser,
failed to respond to letters advising him of that fail-
ure, and has given no indication that he intends to
file an answer in the future. Regarding the motions
against Respondents Transportation by La Mar,
281 NLRB No. 79
TRANSPORTATION BY LA MAR
Inc., Ready Transportation Co., Inc ., and La Mar
Googer, the General Counsel submits that the Re-
spondents filed an answer which , inter alia, fails to
specifically admit, deny, or explain the failure to
deny each and every allegation of the amended
backpay specification in accordance with the re-
quirements of Section 102.54 (b) of the Board's
Rules and therefore the entire answer should be
stricken . Alternatively, the General Counsel sub-
mits that the fourth paragraph of the answer at best
constitutes only a general denial of the factors en-
tering into the calculation of gross backpay with-
out offering any alternative formula or supporting
figures and therefore the answer should be stricken
to the extent it relates to the gross backpay allega-
tions of the specification . The General Counsel ac-
knowledges , however, that the third paragraph of
the answer constitutes a denial, on the basis of in-
sufficient knowledge , of the sufficiency of the dis-
criminatees' efforts to mitigate their losses.
On 11 June 1986 the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the General Counsel 's motions
should not be granted . The Respondents have
failed to file a response to the Notice to Show
Cause.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this case , the Board
makes the followingRuling on Motions for Summa-
ry Judgment
Section 102.54(b) and (c) of the Board 's Rules
and Regulations states:
(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 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
509
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 allegations 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 amended backpay specification served on
the Respondents states that, pursuant to Section
102.54 of the Board's Rules and Regulations, the
Respondents
... shall, within 15 days from the date of the
Amended Specification , file with the under-
signed Regional Director, acting in this matter
as agent of the National Labor Relations
Board, an original and four (4) copies of an
answer to the Specification . . . . To the
extent that such answer fails to deny allega-
tions of the Amended Specification in the
manner required under the Board's Rules and
Regulations and the failure to do so is not ade-
quately explained, such allegations shall be
deemed to be admitted to be true and the Re-
spondents shall be precluded from introducing
any evidence controverting them.
With respect to the answer filed by Respondents
Transportation by La Mar, Inc., Ready Transporta-
tion Co., Inc., and La Mar Googer, we agree with
the General Counsel that the Respondents ' answer
to the amended backpay specification does not con-
form to the requirements of Section 102.54(b) and
(c) as to those matters within the Respondents'
knowledge. Review of the fourth paragraph of the
answer shows that the answer does not specifically
dispute the accuracy of the gross backpay figures
contained in the amended backpay specification.
The answer merely states that the Respondents
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not use the discriminatees ' 1979 tax returns
as an absolute gauge of the amount of backpay
they are due.4 The Respondents do not provide
any specific alternative formula for computing the
amounts of backpay due or furnish appropriate sup-
porting figures . These matters are clearly within
the knowledge of the Respondents, and their fail-
ure to deny the gross backpay allegations in the
amended backpay specification in the manner re-
quired by Section 102 .54(b) or to explain adequate-
ly their failure to do so requires that such allega-
tions be deemed to be admitted as true in accord
with Section 102.54(c). Accordingly , we strike the
Respondents ' answer as to the alleged amounts of
gross backpay and deem such allegations to be ad-
mitted as true.
We find, however, that the Respondents ' denial
of knowledge of the discriminatees ' efforts to miti-
gate their losses is sufficient to place in issue the
amount of interim earnings of the discriminatees.
While the Respondents ' denial is not specific, the
Board has held that even a general denial of the al-
legations concerning interim earnings is sufficient
under Section 102.54 to raise an issue warranting a
hearing . 5 Therefore, we shall order a hearing limit-
ed to the determination of the discriminatees' net
interim earnings , including the availability to the
discriminatees of interim employment and the dis-
criminatees' failure to seek and retain such interim
employment. Accordingly , we deny the General
Counsel 's motion to strike in its entirety the answer
filed by these Respondents and for summary judg-
ment against them, but we grant the General Coun-
sel's alternative motion to strike part of the answer
filed by these Respondents and for partial summary
judgment against them.
With respect to Respondent Jerome Butler, as
stated in the General Counsel 's Motion for Summa-
ry Judgment, it is uncontroverted that the Re-
spondent, despite having been advised of the filing
requirements , failed to file an answer to the amend-
ed backpay specification . Moreover, Butler has not
shown good cause for his failure to file an answer.
We therefore deem the allegations in the amended
4 Par. VII of the amended backpay specification determined the dtscn-
minatees ' average weekly wage from their 1979 gross wages as reported
on their withholding statements, not their tax returns.
backpay specification to be admitted as true. Under
the circumstances of this case , however, since the
other Respondents have raised the issue of interim
earnings , a determination of the exact amount of
backpay liability will not be made until such issue
has been resolved at a hearing. Accordingly, we
grant the General Counsel's Motion for Summary
Judgment against Respondent Butler, except as to
the extent that the issue of interim earnings raised
by the other Respondents has been remanded for a
hearing.6
ORDER
It is ordered that the General Counsel 's motion
to strike the answer filed by Respondents Trans-
portation by La Mar, Inc ., Ready Transportation
Co., Inc., and La Mar Googer, and for summary
judgment against these respondents , is denied.
IT IS FURTHER ORDERED that the General Coun-
sel's motion to strike part of the answer filed by
Respondents Transportation by La Mar, Inc.,
Ready Transportation Co., Inc., and La Mar
Googer, and for partial summary judgment against
these Respondents , is granted.
IT IS FURTHER ORDERED that the General Coun-
sel's Motion for Summary Judgment against Re-
spondent Jerome Butler is granted, except as to the
extent that the issue of interim earnings raised by
the other Respondents has been remanded for a
hearing.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director For Region 13
for the purpose of arranging a hearing before an
administrative law judge, limiting such proceeding
to a determination of the amounts of interim earn-
ings of the employees involved herein , and that the
Regional Director is authorized to issue notice
thereof.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a
decision containing findings, conclusions , and rec-
ommendations based on all the record evidence.
Following the service of the administrative law
judge's decision on the parties , the provisions of
Section 102.46 of the Board 's Rules and Regula-
tions shall apply.
6 Transportation Management Corp, 277 NLRB 474 (1985); Dews Con- 6 Our ruling does not, however, permit Respondent Butler to pancci-
strucnon Corp., 246 NLRB 945 (1979). pate in that hearing