United Enviro Systems

National Labor Relations Board - Board Decisions

Sep 15, 1994

314 N.L.R.B. 1130 (N.L.R.B. 1994)

1130
314 NLRB No. 170
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 301 NLRB 942.
2 No. 91–3427.
3 Par. 5 relates to the discriminatees’ net interim earnings; par. 8(b)
relates to the additional sums discriminatee Von Ohlen had to pay
in order to secure medical insurance while working for interim em-
ployers, and par. 9 relates to the amount that ‘‘the vested percentage
in Respondent’s pension and profit sharing plan for [discriminatees]
Garie and Von Ohlen would have increased due to their additional
years of service.’’
4 The Respondent generally argues in its memorandum in opposi-
tion that the amended answer it filed raises sufficient factual issues
regarding the allegations in the compliance specification to warrant
a hearing.
5 The General Counsel contends that the Motion for Partial Sum-
mary Judgment should be granted because the Respondent was in-
formed that its original answer was deficient and subsequently failed
to file a timely amended answer. The General Counsel argues that,
although the Board in Vibra-Screw, Inc., 308 NLRB 151 (1992), and
Aquatech, Inc., 306 NLRB 975 (1992), permitted respondents to
amend their answers after the Notice to Show Cause issued, those
cases involved special factual circumstances that provided a basis for
allowing the respondent to amend its answer after the filing of the
General Counsel’s Motion for Summary Judgment. The General
Counsel argues that allowing the Respondent to file amendments to
answers after the filing of summary judgment motions not only ren-
ders the Board’s Rules and Regulations meaningless but also pro-
motes needless delay in remedying unfair labor practices that the
Board has found.
Should the Board accept the Respondent’s amended answer, the
General Counsel still seeks summary judgment with respect to pars.
1–4, 6–7, and 9–10 of the specification.
United Enviro Systems, Inc. and Bradley Garie,
William Rathgeb, and Gregory Von Ohlen.
Case 22–CA–16290
September 15, 1994
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On February 27, 1991, the National Labor Relations
Board issued a Decision and Order in this proceeding1
in which it ordered the Respondent, inter alia, to make
three discriminatees whole for any loss of earnings
they suffered by reason of the Respondent’s discrimi-
nation against them. On February 14, 1992, the United
States Court of Appeals for the Third Circuit entered
a judgment enforcing the Board’s Order.2 A con-
troversy having arisen over the amount of backpay due
the discriminatees under the Board’s Order, the Acting
Regional Director for Region 22 issued a compliance
specification and notice of hearing on August 25,
1993, alleging the amounts of backpay due and noti-
fying the Respondent that it must file a timely answer
complying with the Board’s Rules and Regulations.
The Acting Regional Director issued an Erratum on
August 26, 1993, and extended the time for filing an
answer. After requesting and receiving a further exten-
sion of time, the Respondent filed an answer to the
compliance specification.
After reviewing the Respondent’s answer and find-
ing that it did not comply with Section 102.56 of the
Board’s Rules and Regulations, the Regional Office
sent the Respondent a letter, dated November 22,
1993, advising the Respondent that its answer was de-
ficient and that the Region would file a Motion for
Partial Summary Judgment if a proper answer was not
filed. The Regional Office sent the Respondent another
letter the following day which included a copy of the
Board’s relevant rules and regulations regarding the
filing of a proper answer to a compliance specification.
Despite requesting and receiving an extension of time
in which to file a proper answer, the Respondent did
not file an amended answer by the extended filing
deadline, December 16, 1993.
On January 18, 1994, the Acting General Counsel
filed with the Board a Motion for Partial Summary
Judgment, with exhibits attached. The Acting General
Counsel’s motion contended that, with the exception of
paragraphs 5, 8(b), and 9 of the compliance specifica-
tion,3 the Respondent’s answer is not in compliance
with Section 102.56(b) and (c) of the Board’s Rules
and Regulations. The Acting General Counsel moved
that the Board deem those portions not properly denied
to be admitted as true, grant its request for partial sum-
mary judgment as to the admitted allegations, and limit
the hearing to the allegations in paragraphs 5, 8(b), and
9 of the compliance specification.
On January 27, 1994, the Board issued an order
transferring the proceeding to the Board and a Notice
to Show Cause why the Acting General Counsel’s mo-
tion should not be granted. Thereafter, the Respondent
separately filed an amended answer to the compliance
specification and a ‘‘Memorandum in Opposition to
the [Acting] General Counsel’s Motion for Summary
Judgment.’’4 On May 3, 1994, the General Counsel
filed a response to the Respondent’s memorandum.5
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
Ruling on Motion for Partial Summary Judgment
Section 102.56(b) and (c) of the 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
1131UNITED ENVIRO SYSTEMS
6 See, e.g., Hiysota Fuel Co., 287 NLRB 1, 3 (1987).
7 Continental Insurance Co., 289 NLRB 579, 601 (1988).
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 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 evi-
dence supporting such allegation, and the respond-
ent shall be precluded from introducing any evi-
dence controverting the allegation.
The Respondent’s original answer to certain para-
graphs in the compliance specification constituted a
general denial which, as stated, is insufficient under
the Board’s Rules and Regulations. Based on this
original answer, the General Counsel filed his Motion
for Partial Summary Judgment. The Respondent subse-
quently filed an amended answer to the compliance
specification. In Bentley’s Lounge, 265 NLRB 632
(1982), the Board, while quoting from Standard Mate-
rials, 252 NLRB 679 (1980), stated at 632, that ‘‘even
in the absence of an amended backpay specification, a
respondent may amend its answer prior to the hearing
in the matter.’’ More recently, the Board reaffirmed
that holding in Vibra-Screw, and Aquatech, supra at
footnote 5. Thus, because the Respondent timely filed
its original answer and filed its amended answer before
any hearing was held, we find that the amended an-
swer was timely filed and will consider it on the mer-
its.
As noted, supra, the General Counsel asserts, inter
alia, in his response to the Respondent’s opposition
that, even construing the amended answer as timely
filed, the Motion for Partial Summary Judgment should
be granted on those paragraphs of the compliance
specification set forth in his supporting memorandum.
Further, based on the contents of the Respondent’s
amended answer, the General Counsel is extending his
motion also to include paragraph 9 of the compliance
specification. As discussed below, it also appears that
the General Counsel now concedes that, if the Board
accepts the Respondent’s amended answer, then a
hearing is required on all of the allegations in para-
graph 8 of the compliance specification.
We agree with the General Counsel that the Re-
spondent’s amended answer is not sufficient to raise
any litigable issue regarding paragraphs 1 through 4.
Paragraph 1 states that the backpay period for each
discriminatee begins on March 23, 1989, the date that
the Respondent discharged the employees, and ends on
August 21, 1992, the date that the Respondent made
an unconditional offer of reinstatement. Paragraphs 2
through 4 set forth the formula for calculating the
discriminatees’ gross backpay.
Regarding the backpay period, the Respondent con-
tends that there is an ‘‘issue’’ whether the dis-
criminatees would have been terminated for a lawful
reason. The Respondent argues that the discriminatees
did not meet their sales quotas before they were termi-
nated. It appears that the Respondent is attempting to
relitigate matters that were decided in the underlying
unfair labor practice case and the Board repeatedly has
held that respondents are precluded from doing this in
compliance proceedings.6 Although the Respondent
further asserts that the Board should terminate the
backpay period on the date that a subsequent employer
discharged the discriminatees, the Respondent fails to
allege that any of the discriminatees were discharged
by any interim employer during the backpay period.
We also reject the Respondent’s contention that those
unemployment benefits the discriminatees received
should be deducted from their net backpay because
‘‘unemployment insurance benefits are not interim
earnings and are not normally offset against backpay
liability.’’7
Regarding the backpay formula, the Respondent ob-
jects to the premises of the formula that the General
Counsel used. The Respondent asserts that the appro-
priate measure of backpay is the actual sales perform-
ance of the discriminatees while employed by the Re-
spondent, rather than the allegedly higher volume sales
performance of employees who were subsequently
hired and who worked during the backpay period.
However, the Respondent, in objecting to the General
Counsel’s backpay formula, fails to provide details as
to the application of any alternative method of backpay
calculation and fails to furnish any appropriate sup-
porting figures based on its contentions. The Board has
held that its Rules and Regulations require respondents
to do more than simply criticize the bases for the back-
pay specification. The Respondents must affirmatively
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 See, e.g., Heck’s, 282 NLRB 263, 264 (1986).
9 See, e.g., Dews Construction Corp., 246 NLRB 945, 947 (1979).
provide an alternative formula and supporting figures.8
Accordingly, we shall grant the General Counsel’s mo-
tion regarding paragraphs 1 through 4.
Additionally, the Respondents have generally denied
paragraphs 5 and 7 of the backpay specification. Be-
cause paragraph 5 relates to the discriminatees’ interim
earnings and because the Board has held that a general
denial is sufficient to place interim earnings into
issue,9 the General Counsel does not move for sum-
mary judgment on this paragraph. Paragraph 7 of the
specification involves the calculation of the dis-
criminatees’ quarterly net backpay, which also reflects
the amount of their interim earnings as an offset to
gross backpay. While we agree with the General Coun-
sel that net backpay should be calculated on a quar-
terly basis, we find that the Respondent’s general de-
nial with respect to paragraph 7 is sufficient to require
a hearing on net quarterly backpay as well.
The General Counsel also seeks summary judgment
on paragraph 6 of the specification which alleges that
discriminatee Gregory Von Ohlen incurred commuting
expenses while working for a new employer during the
backpay period. In its amended answer, the Respond-
ent contends that Von Ohlen suffered no increase in
commuting expenses because he ‘‘was required to
commute to respondent in any event, and only ob-
tained nearby lodging to be closer to [R]espondent,
which reduced his living expenses, while maintaining
his residence in River Edge, New Jersey.’’ Based on
the Respondent’s amended answer, we find that a hear-
ing is required on the issue of whether Von Ohlen’s
interim earnings should be offset by any commuting
expenses he incurred during the backpay period.
Notwithstanding some ambiguity in the General
Counsel’s response to the Respondent’s memorandum
in opposition, it appears that the General Counsel is
conceding that the Respondent is entitled to a hearing
on all of the allegations in paragraph 8. Thus, the Gen-
eral Counsel states that ‘‘[n]evertheless, should the
Board construe Respondent’s Memorandum as a timely
filed amendment to its Answer, then sufficient factual
issues exist to preclude summary judgment concerning
paragraph 8.’’ [Footnote omitted.] We agree that the
Respondent’s amended answer is sufficient to require
the General Counsel to prove all matters with respect
to paragraph 8.
In paragraph 9, the General Counsel avers that dur-
ing the backpay period the discriminatees’ vested per-
centage in the Respondent’s profit plan would have in-
creased if they had remained in the Respondent’s em-
ployment. The Respondent denies the allegation on the
ground that it ceased its pension and profit sharing
plans before the discriminatees were discharged. We
find that the Respondent’s amended answer is also suf-
ficient to require a hearing on this allegation.
Finally, the General Counsel moves for summary
judgment on paragraph 10 of the backpay specifica-
tion, which consists of the total backpay and
pension/profit sharing owed to the discriminatees. Be-
cause these figures encompass in part those issues on
which we are directing a hearing, we also deny sum-
mary judgment with respect to the allegations in para-
graph 10.
ORDER
It is ordered that the General Counsel’s Motion to
the Board for Partial Summary Judgment is granted
only with respect to the allegations in paragraphs 1
through 4 of the compliance specification. The General
Counsel’s motion is denied in all other respects.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 22 for the
purposes of issuing a notice of hearing and scheduling
the hearing before an administrative law judge, which
shall be limited to taking evidence concerning para-
graphs 5 through 10 of the compliance specification.
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 102.56 of the Board’s Rules shall be appli-
cable.