United Plasterers, LLC

National Labor Relations Board - Board Decisions

Jul 29, 2009

354 N.L.R.B. 394 (N.L.R.B. 2009)

354 NLRB No. 55
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
United Plasterers, LLC and Laurie Skinner.
Dun-Rite Drywall and Finish Systems, Inc. and Susan
Grievo. Cases 7–CA–50844 and 7–CA–50845
July 29, 2009
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks a partial default judgment
in this case on the ground that the Respondents have
failed to file an adequate answer to certain allegations in
the compliance specification.1 For the reasons that fol-
low, we grant the motion in part and deny it in part.
On October 31, 2008, the National Labor Relations
Board issued a Decision and Order2 finding that Respon-
dent United Plasterers, LLC (United) violated Section
8(a)(3) and (1) of the Act by discharging Charging Party
Laurie Skinner, and that Respondent Dun-Rite Drywall
and Finish Systems, Inc. (Dun-Rite) violated Section
8(a)(3) and (1) by discharging Charging Party Susan
Grievo. The Board ordered, inter alia, that the Respon-
dents, respectively, make Skinner and Grievo whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them. On March 20,
2009, the United States Court of Appeals for the Sixth
Circuit entered a judgment enforcing the Board’s Order.3
A controversy having arisen regarding the amounts of
backpay due under the Order, the Regional Director for
Region 7, on February 26, 2009, issued and served sepa-
rately upon Respondent United and Respondent Dun-
Rite, by certified mail, a compliance specification and
notice of hearing, alleging the amounts due Skinner and
Grievo, and informing the Respondents of their obliga-
tion to file an answer. Neither Respondent filed an an-
swer.
On March 20, 2009, the Regional Director for Region
7 wrote and served separately upon Respondent United
and Respondent Dun-Rite, by certified and regular mail,
a letter advising them that they had not filed an answer,

1 We shall treat the General Counsel’s motion, which argues that the
Respondents’ answer is not legally sufficient under Sec. 102.56(b) of
the Board’s Rules and Regulations, as a motion for summary judgment.
“Summary judgment is appropriate when a respondent does not raise a
genuine issue of material fact.” Positive Electrical Enterprises, 353
NLRB No. 27, slip op. at 2 fn. 7 (2008), quoting Nick & Bob Partners,
345 NLRB 1092, 1093 (2005).
2 353 NLRB No. 44 (2008).
3 No. 09-1084 (unpublished).
timely or otherwise, to the compliance specification. The
letter further advised the Respondents that unless they
filed an answer by March 27, 2009, default judgment
would be sought.
On March 27, 2009, the Respondents, by their attorney
Heather Miserlian, filed a joint response to the compli-
ance specification, generally denying the allegations in
the specification. The response also asserted that, in any
event, United would have laid off Skinner by February
25, 2008, and Dun-Rite would have laid off Grievo by
July 1, 2008.
On March 31, 2009, the Regional Attorney for Region
7 sent a letter to Miserlian stating that the response was
insufficient under Section 102.56(b) of the Board’s Rules
and Regulations because it failed to admit, deny, or ex-
plain each allegation of the compliance specification or
provide alternate calculations. The letter further advised
Miserlian that the General Counsel would file a motion
for summary or default judgment if the Respondents did
not file a legally sufficient answer by April 7, 2009. On
April 8, 2009, the Respondents filed a first amended re-
sponse to the compliance specification admitting some of
the allegations, denying others, and stating that Respon-
dents lacked sufficient information to form a belief with
respect to those remaining.
On May 11, 2009, the General Counsel filed with the
Board a Motion for Partial Default Judgment, asserting
that the Respondents had failed to file sufficient answers
to certain allegations of the compliance specification.4
On May 13, 2009, the Board issued a Notice to Show
Cause why the General Counsel’s motion should not be
granted.
On May 27, 2009, the Respondents filed an “Objec-
tion” to the General Counsel’s motion, which we shall
treat as a response to the Notice to Show Cause.
On the entire record, the Board makes the following

4 The General Counsel does not seek default judgment with respect
to the interim earnings and expenses of discriminatees Skinner and
Grievo or the “effective dates of backpay” for either Skinner or Grievo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Ruling on Motion for Partial Default Judgment5
In his motion, the General Counsel asserts that Re-
spondent United’s answers to paragraphs 4(a), 4(b), 4(c),
4(d), 5(c), 6(a), and 6(b) of the compliance specification,
“except with respect to the effective dates of backpay,”
and Respondent Dun-Rite’s answers to paragraphs 10(a),
10(b), 12(a), and 12(b), “except with respect to the effec-
tive dates of backpay,” fail to comply with Section
102.56(b) of the Board’s Rules and Regulations.6 In
particular, the General Counsel asserts that the answers
to the enumerated allegations, which concern the calcula-
tion of gross backpay, fail to provide appropriate detail
or alternative calculations. Accordingly, the General
Counsel moves that the foregoing allegations “be
deemed to be admitted to be true,” “except with respect
to the effective dates of backpay.”
In order to avoid default judgment, the answer to a
compliance specification must be “sufficiently specific to
raise a litigable issue of fact.” Aneco, Inc., 330 NLRB

5 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petitions for rehearing denied Nos. 08-1162, 08-1214
(July 1, 2009).
6 Sec. 102.56(b) of the Board’s Rules and Regulations states, in per-
tinent part:
(b) Contents of answer to specification.—The answer shall
specifically admit, deny, or explain each and every allegation of
the specification, unless the respondent 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 allega-
tions of the specification at issue. When a respondent intends to
deny only a part of an allegation, the respondent 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 mat-
ters, if the respondent disputes either the accuracy of the figures
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 supporting figures.
If the respondent files an answer that does not satisfy the foregoing
requirements with respect to any one or more of the allegations, Sec.
102.56(c) of the Rules provides that those allegations “shall be deemed
to be admitted as true,” and the respondent “shall be precluded from
introducing any evidence” challenging them.
969, 971 (2000). With respect to the calculation of gross
backpay in particular, Section 102.56(b) provides that if
a respondent disputes the General Counsel’s computation
or the premises on which the computation is based, the
respondent must “state the basis for such disagreement,
setting forth in detail the respondent’s position as to the
applicable premises and furnishing the appropriate sup-
porting figures.” See Eldeco, Inc., 336 NLRB 899, 900
(2001). In determining whether these requirements have
been satisfied, we shall construe the pleadings “in the
light most favorable to the nonmoving party,” in this
case, the Respondents. Id.
The Board has long held that “a respondent in a com-
pliance proceeding may properly cure defects in its an-
swer before a hearing by an amended answer or a re-
sponse to a Notice to Show Cause.” Consolidated Deliv-
ery & Logistics, Inc., 344 NLRB 544, 545 (2005), quot-
ing Daufuskie Island Club & Resort, Inc., 341 NLRB
595, 596 (2004). Thus, in the present case, in determin-
ing whether the Respondents’ denial of the allegations in
the compliance specification is sufficient to avoid default
or summary judgment, we shall consider together the
Respondents’ March 27, 2009 initial response, their
April 8, 2009 first amended response, and their May 27,
2009 Objection to the General Counsel’s motion.
A. Respondent United (Charging Party Skinner)
Paragraph 4(a) of the compliance specification alleges
that the appropriate measure of Skinner’s gross backpay
is the number of hours per week Skinner customarily
worked when she was employed by United, multiplied
by the number of weeks she was not employed after No-
vember 9, 2007, multiplied by her wage rate.7 Paragraph
4(b) alleges that Skinner worked an average 38.91 regu-
lar hours and 9.92 hours of overtime per week. Para-
graphs 4(b) and (c) allege that Skinner’s regular wage
rate was $20 per hour, but that she would have worked at
a prevailing wage job in December 2007 and January
2008 at a rate of $30.88 per hour.
In response, United asserts that (1) it “ceased opera-
tions on the job that the complainant was working on or
about January 31, 2008” (Objection par. 7) and that
Skinner would have been laid off at that time because
that was “the ONLY job she was working on for United
at the time the company was thrown off the job” (Objec-
tion par. 12(a)); (2) United “closed its doors for good” on
September 30, 2008 (Objection par. 12(a) and (c)); (3)
during the months of December 2007 and January 2008,
Skinner “would only have worked approximately two (2)

7 Para. 3 of the specification alleges that Skinner’s backpay period
commences on November 9, 2007, and is ongoing for computational
purposes through February 26, 2009.
UNITED PLASTERERS, LLC 3
weeks” and “would not have worked at all the other two
weeks” (Objection par. 8); and (4) “the average work-
week was forty (40) hours per week” (Objection par. 8).
Construing the pleadings in the light most favorable to
United, we find that United sufficiently stated the basis
for its disagreement with the specification’s gross back-
pay formula and calculations, and provided an alternative
formula, when it asserted that Skinner would have
worked only 2 of the 4 weeks in December 2007 and
January 2008, and that Skinner’s hours should be based
on an average work week of 40 hours rather than the
number of hours set forth in the compliance specifica-
tion.8 Accordingly, we shall grant the General Counsel’s
motion for default judgment as to Skinner’s applicable
wage rates, including the prevailing wage rate, none of
which United contests, and deny the motion as to the
remaining gross backpay allegations pertaining to Skin-
ner. We shall also direct a hearing to determine the ef-
fective dates of Skinner’s backpay period, as well as
Skinner’s interim earnings and expenses, issues on which
the General Counsel did not seek default judgment.
B. Respondent Dun-Rite (Charging Party Grievo)
There are no contested default issues with respect to
Dun-Rite and Grievo. In its pleadings, Dun-Rite con-
cedes the accuracy of the compliance specification ex-
cept for the allegation that Grievo’s backpay continues to
accrue. Dun-Rite asserts that, even in the absence of any
unfair labor practices, it would have laid off Grievo on or
before July 15, 2008 (Objection par. 9, 12; amended an-
swer par. 12(b)). The General Counsel does not seek
default judgment on that issue or with respect to Grievo’s
interim earnings and expenses. Thus, we shall grant the
General Counsel’s Motion for Partial Default Judgment

8 Cf. Robincrest Landscaping & Construction, 303 NLRB 377, 378
(1991) (partial summary judgment granted because respondent, while
contending that the discriminatee did not work 6 days per week as
alleged in specification, “fail[ed] to offer an alternative formula for
computing the backpay amount with appropriate alternative figures,
including . . . an alternative number of days which would have been
worked by the discriminatee involved”); Baumgardner Co., 298 NLRB
26, 27–28 (1990), enfd. 972 F.2d 1332 (3d Cir. 1992) (partial summary
judgment granted where respondent disputed the number of hours the
discriminatee would have worked, but did “not set forth alternatives
with supporting figures”); Harding Glass Co., 337 NLRB 1116, 1117
(2002) (partial summary judgment granted where respondent denied the
hours worked by the employees, but provided “neither an alternative
formula nor alternative figures”).
against Dun-Rite, and we shall direct a hearing to resolve
the remaining issues, namely, the effective dates of
Grievo’s backpay and her interim earnings and expenses.
ORDER
IT IS ORDERED that the General Counsel’s Motion for
Partial Default Judgment is granted with respect to the
allegations set forth in paragraph 4(b) and (c) of the com-
pliance specification pertaining to the wage rate and pre-
vailing wage rate of Charging Party Skinner, and Para-
graph 10(a) and (b), pertaining to the method of calculat-
ing Charging Party Grievo’s backpay, except with re-
spect to the effective dates of Grievo’s backpay period,
and that those allegations are deemed to be true.
IT IS FURTHER ORDERED that the General Counsel’s
motion is denied in all other respects. A hearing is di-
rected as to the effective dates of the backpay periods of
Charging Parties Skinner and Grievo, the number of
hours and weeks that Skinner would have worked for
United after its unlawful termination of her, and the in-
terim earnings and expenses of Skinner and Grievo.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 7 for the
purpose of issuing a notice of hearing and scheduling a
hearing before an administrative law judge, which shall
be limited to taking evidence concerning the paragraphs
of the compliance specification as to which default judg-
ment was not granted.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a supplemen-
tal decision containing findings of fact, conclusions of
law, and recommendations based on all the record evi-
dence. Following service of the administrative law
judge’s decision on the parties, the provisions of Section
102.46 of the Board’s Rules shall be applicable.
Dated, Washington, D.C. July 29, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD