United Paperworkers International Union, Local 1575 (Scott Paper Co)

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 72 (N.L.R.B. 1988)

72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Paperworkers International Union, Local
1575 (Scott Paper Co ) and Robert E Lathan
Case 15-CB-2860
September 30 1988
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 16 1987 the National Labor Relations
Board issued a Decision and Order' in which the
Board found that the Respondent violated Section
8(b)(1)(B) of the Act by refusing to give its consent
to Robert Lathan s retention of seniority if he was
again designated as a temporary supervisor by the
Employer thereby causing the Employer to de
cline to promote Lathan to the position of tempo
rary supervisor The Board ordered the Respond
ent, inter alia, to make whole Lathan for any losses
that he may have suffered by reason of the Re
spondent s unlawful conduct On October 21 1987
the Respondent through counsel entered into a
stipulation approved by the Regional Director for
Region 15 on November 3 1987 whereby the Re
spondent waived its right under Section 10(e) and
(f) of the Act to contest either the propriety of the
Boards Order or the findings of fact or conclu
sions of law underlying that Order A controversy
having arisen over the amount of backpay due
under the Board s Order the Regional Director for
Region 15 issued and duly served on the Respond
ent a backpay specification and notice of heanng
alleging the amount of backpay due the discnmina
tee Subsequently the Respondent filed an answer
to the backpay specification denying the allega
tions
Thereafter on February 8 1988 the General
Counsel filed with the Board a motion to strike Re
spondent s answer to backpay specification and for
judgment on the pleadings with exhibits attached
The General Counsel essentially alleges that the
Respondents answer does not comply with the
substantive requirements of Section 102 54 of the
Board s Rules and Regulations Accordingly the
General Counsel moves that the answer be stricken
pursuant to Section 102 54(c) of the Board s Rules
and that all the allegations of the backpay specifi
cation be deemed to be admitted to be true and be
so found by the Board without the taking of evi
dence supporting these allegations and that the Re
spondent be precluded from introducing any evi
dence controverting the allegations On February
12, 1988 the Board issued an order transferring the
' 284 NLRB 1019
proceeding to the Board and a Notice to Show
Cause why the General Counsels motion should
not be granted
On February 19 1988 the Respondent filed a re
sponse to the General Counsels motion In its re
sponse the Respondent contends that it is only at
tempting to have resolved the issue of whether
the discnminatee is entitled to backpay for any
period after June 30 1984 It argues in this regard
that there is no evidence in the record that the Em
ployer would have requested further letters of
protection pursuant to which it would have tem.
poranly promoted the discnminatee after June 30
1984 It further asserts that it can produce evidence
at heanng to demonstrate that subsequent to this
penod the practice of promoting unit employees to
move up supervisor was discontinued On March
8 1988 the General Counsel filed a reply to the
Respondents response contending that the back
pay penod should end on August 24, 1987 the date
the Respondent notified the Employer it had re
scinded all unlawful action against Lathan The
General Counsel argues that the Employers failure
to request additional letters of protection for
Lathan is not dispositive because the making of
such requests would have been futile under the cir
cumstances
On the entire record in this proceeding the
Board makes the following
Ruling on Motion for Judgment on the
Pleadings
Section 102 54(b) and (c) of the Board s Rules
and Regulations states
(b) Contents of the answer to specification -
The respondent shall specifically admit,
deny or explain each and every allegation of
the specification unless the respondent is with
out 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 specification denied
When the respondent intends to deny only
part of an allegation the respondent shall
specify so much of it as is true and shall deny
only the remainder As to the matters within
the knowledge of the respondent including
but not limited to the various factors entering
into the computation of gross backpay a gen
eral denial shall not suffice
(c) Effects of failure to answer or plead specifi
cally and in detail to the specification - If
the respondent files an answer to the specifica
tion but fails to deny any allegation of the
specification in the manner required by subsec
291 NLRB No 12
PAPERWORKERS LOCAL 1575 (SCOTT PAPER) 73
tion (b) of this section and the failure so to
deny is not adequately explained such allega
tion 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 in
troducing any evidence controverting said al
legation
As indicated above the General Counsel has
filed a motion to strike the Respondents answer in
its entirety on the basis of alleged substantive defi
ciencies in the answer We agree with the General
Counsel that with one exception, the answer to the
backpay specification fails to deny the allegations
of the specification in the manner required under
Section 102 54(b) of the Board s Rules Further in
its response to the General Counsels motion the
Respondent expressly states that the only issue in
dispute is the length of the backpay period By so
stating the Respondent essentially amends its
answer to admit the allegations of the specification
insofar as they do not relate to the length of the
backpay period used to compute the gross backpay
due the discriminatee 2 Accordingly as there are
no issues remaining except with respect to the
length of the backpay period we will grant the
General Counsels motion except insofar as it con
cerns the length of the backpay period We there
fore deem all the allegations in the backpay specifi
cation insofar as they do not involve the length of
the backpay period to be admitted as true and the
Respondent is precluded from introducing any evi
dence controverting them
We find however that the Respondents answer
as amended, raises a substantial and material issue
2 See United Hydraulic Services 282 NLRB 645 (1987)
concerning the date on which the backpay period
ended In this regard the Respondent argues that
there is no evidence that the discnmmatee would
have been made a temporary supervisor after June
30 1984 and further that it can produce evidence
affirmatively establishing that the Employer had
abandoned its practice of temporarily promoting
unit employees after that date Accordingly we
will deny the General Counsels motion and we
will remand this proceeding for a hearing limited
to the issue of whether the backpay period should
end on June 30 1984 as contended by the Re
spondent or on August 24 1987 as alleged in the
backpay specification
ORDER
IT IS ORDERED that the General Counsel s
motion is granted regarding all allegations of the
backpay specification except insofar as they relate
to the length of the backpay period
IT IS FURTHER ORDERED that the General Coun
sel s motion is denied regarding the allegations of
the backpay specification insofar as they involve
the backpay period used to compute the gross
backpay due the discriminatee
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 15
for the purpose of arranging a hearing before an
administrative law judge on the issue of the proper
backpay period
Thereafter the judge will prepare and serve on
the parties a supplemental decision containing find
ings of fact conclusions of law and recommenda
tions based on all the record evidence Following
service of the judge s decision on the parties the
provisions of Section 102 46 of the Boards Rules
and Regulations will be applicable
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