V & J Cleaners Co.

National Labor Relations Board - Board Decisions

Feb 25, 1993

310 N.L.R.B. 525 (N.L.R.B. 1993)

525
310 NLRB No. 74
V & J CLEANERS CO.
1 301 NLRB 1152.
2 Unpublished judgment (Docket No. 91–3373).
3 Except where otherwise indicated, all dates are in 1992.
V & J Cleaners Co. and Frank Kimbrough, a Sole
Proprietor d/b/a Touch of Magic Cleaners, and
Frank Kimbrough, an Individual; Single Em-
ployers and/or Alter Egos and Local 25, Serv-
ice Employees International Union, AFL–CIO.
Case 13–CA–27139
February 25, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On February 28, 1991, the National Labor Relations
Board issued its Decision and Order in the above-cap-
tioned matter, directing among other things, that the
Respondent offer immediate reinstatement to
discriminatees Mary Williams and Veneta Allen and
make them whole for losses suffered as a result of the
Respondent’s unfair labor practices.1 On November 8,
1991, the United States Court of Appeals for the Sev-
enth Circuit issued its judgment enforcing in full the
backpay provisions of the Board’s Order.2 A con-
troversy having arisen over the amount of backpay due
the discriminatees, on September 30, 1992,3 the Re-
gional Director for Region 13 issued and served on the
parties a compliance specification and notice of hear-
ing alleging the amount due under the Board’s Order,
and notifying the Respondent that it should file a time-
ly answer complying with the Board’s Rules and Reg-
ulations. The Respondent filed its answer on October
19, which, the Region informed it on October 22, was
not in compliance with the Board’s Rules and Regula-
tions. On November 12, the Respondent filed its
amended answer.
On December 14, the General Counsel filed a Mo-
tion to Strike Portions of the Respondent’s Answer to
the Backpay Specification and for Partial Summary
Judgment. The General Counsel’s motion contends that
portions of the Respondent’s answer to the specifica-
tion fail to conform to the requirements of Section
102.56 of the Board’s Rules and Regulations. The
General Counsel moves that the Board strike such por-
tions of the Respondent’s answer to the specification,
and that all allegations of the specification should be
found to be true with the exception of the amount of
interim earnings and offsets and those regarding the
single-employer and alter ego status of the Respondent.
On December 16, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this case, the Board makes
the following
Ruling on Motion to Strike and 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
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 files an an-
swer to the specification but fails to deny any al-
legation of the specification in the manner re-
quired by paragraph (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 with-
out the taking of evidence supporting such allega-
tion, and the respondent shall be precluded from
introducing any evidence controverting the allega-
tion.
Although the amended answer admits that the Re-
spondent has failed to make an unconditional offer of
reinstatement to Williams and Allen and admits the
definition of a calendar quarter, it denies allegations of
the specification that the backpay period for each
discriminatee began on July 2, 1987, i.e., the date of
the discriminatory discharges, and allegations regarding
the quarterly gross pay formulas, hourly rates for each
quarter, and hours that the discriminatees would have
worked in each quarter, all on the basis that the
discriminatees are not entitled to backpay. By these an-
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
swers, the Respondent not only seeks improperly to re-
litigate the underlying unfair labor practice—a matter
previously decided by the Board and the court, but it
also has failed to comply with the Board’s Rules by
specifically stating the basis for its disagreement with
the computation of gross backpay and offering an al-
ternative method of computation or supporting figures.
Insofar as the amended answer seeks to relitigate mat-
ters that have already been resolved and that are there-
fore inappropriate for compliance proceedings, and in-
sofar as the amended answer generally denies allega-
tions concerning the computation of gross backpay, the
answer is deficient and thus the allegations are deemed
to be true. We therefore grant the General Counsel’s
motion to strike the corresponding paragraphs from the
Respondent’s answer, and we shall grant the General
Counsel’s Motion for Partial Summary Judgment.
The remaining allegations of the specification, i.e.,
those pertaining to the interim earnings of each
discriminatee and the offsets from gross backpay of
each and the Respondent’s single-employer and alter
ego status, having been answered in accordance with
the Board’s Rules and in large part denied, the Re-
spondent is entitled to a hearing in the instant compli-
ance proceeding as to them.
ORDER
It is ordered that the General Counsel’s Motion to
Strike Portions of the Respondent’s Answer to the
Backpay Specification and for Partial Summary Judg-
ment is granted with respect to all allegations in the
compliance specification except as to interim earnings
and offsets for the discriminatees and the issue regard-
ing the single-employer and alter ego status of the Re-
spondent.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 13 for the
purpose of issuing a notice of hearing and scheduling
a hearing before an administrative law judge for the
purpose of taking evidence concerning interim earnings
and offsets of the discriminatees, and the issue of the
single-employer and alter ego status of the Respondent.
The judge shall prepare and serve on the parties a de-
cision containing findings of fact, conclusions of law,
and recommendations based on all the record evidence.
Following service of the judge’s decison on the parties,
the provisions of Section 102.46 of the Board’s Rules
and Regulations shall be applicable.