Viola Industries

National Labor Relations Board - Board Decisions

Feb 23, 1995

316 N.L.R.B. 424 (N.L.R.B. 1995)

424
316 NLRB No. 88
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 286 NLRB 306.
2 979 F.2d 1384.
3 Sec. 102.56(b) provides in pertinent part that:
As to all matter within the knowledge of the respondent, includ-
ing but not limited to the various factors entering into the com-
putation of gross backpay, a general denial shall not suffice. As
to such matters, 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 applicable premises and furnishing the appropriate sup-
porting figures.
4 The Respondent also reiterates its denial that the employees re-
ferred to in pars. 2, 3, and 4, as well as in other paragraphs of the
compliance specification, are ‘‘discriminatees.’’ We agree that the
term is a misnomer for the Respondent’s bargaining unit employees
who are claimants in this proceeding as a result of the Respondent’s
violations of Sec. 8(a)(5) and (1) of the Act. This incorrect reference
to the claimants as discriminatees, however, has no substantive effect
on the matters at issue.
Viola Industries-Elevator Division, Inc. and its alter
ego Viola Industries, Inc. and International
Union of Elevator Contractors. Case 5–CA–
15990 (formerly 3–CA–11918)
February 23, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On September 30, 1987, the National Labor Rela-
tions Board issued its Decision and Order in the instant
case,1 directing the Respondent to honor and apply to
bargaining unit employees the terms and conditions
contained in the collective-bargaining agreement
agreed to by the Respondent and the Union, which was
effective from December 14, 1982, to July 8, 1987.
That decision also ordered the Respondent to make
whole, with interest, unit employees for any resulting
loss of wages and benefits they may have suffered, in-
cluding contributions to employee benefit trust funds.
On November 2, 1992, the United States Court of Ap-
peals for the Tenth Circuit enforced the Board’s
Order.2
On March 31, 1994, the Regional Director for Re-
gion 5 issued a compliance specification and notice of
hearing because a controversy had arisen over the
amount of backpay due under the terms of the Board’s
and the Tenth Circuit Court of Appeals’ Orders. On
April 27, 1994, the Respondent filed a timely answer
that denied generally paragraphs 2, 3, and 4 of the
compliance specification. Those paragraphs addressed
the formula for computing gross backpay, the defini-
tion of interim wages, and the formula for computing
net backpay, respectively. Noting the Respondent’s
failure to set forth alternative formulas, definitions, or
computations in its denial, as required by Section
102.56(b) of the Board’s Rules and Regulations,3 the
General Counsel filed a Motion for Partial Summary
Judgment on September 2, 1994. That motion re-
quested that the Board strike the Respondent’s answer
to paragraphs 2, 3, and 4 of the compliance specifica-
tion, deem those paragraphs to be admitted as true, and
to be so found, and issue a Decision and Order grant-
ing partial summary judgment concerning the matters
covered by paragraphs 2, 3, and 4. Subsequently, on
September 8, 1994, 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 a timely response and the General
Counsel filed an answer to that response.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
On the entire record in this case, the Board makes
the following
Ruling on Motion for Summary Judgment
The Respondent’s answer to the Notice to Show
Cause contends that certain categories of individuals
are not covered by the Board’s make-whole remedy
and denies specific amounts of money listed in the
compliance specification for those individuals.4 The
General Counsel’s Motion for Partial Summary Judg-
ment, however, states in paragraph 5 that the specific
identification of individuals to be covered by the
Board’s Order is not part of the motion. The Respond-
ent does note in its response to the Notice to Show
Cause that it is merely denying the calculations of
gross backpay, interim earnings, and calendar quarter
net backpay, and not the definition of those items or
the method by which the calculations were made. The
Respondent’s bare denials concerning the backpay
issues covered in the General Counsel’s Motion for
Partial Summary Judgment do not contain the requisite
specificity or alternatives as required by Section
102.56 of the Board’s Rules and Regulations. Con-
sequently, we find that the portions of the answer con-
cerning the definitions and formulas to be used in
computing gross backpay, interim earnings, and net
backpay in paragraphs 2 through 4 of the specification
are insufficient under Section 102.56, and we grant the
General Counsel’s motion to strike those portions of
the answer. Pursuant to Section 102.56(c), we deem
those allegations of the specification to have been ad-
mitted to be true. Accordingly, we grant the General
Counsel’s Motion for Partial Summary Judgment.
ORDER
It is ordered that the General Counsel’s motion to
strike the portions of Respondent Viola Industries-Ele-
vator Division, Inc. and its alter ego Viola Industries,
Inc.’s answer to the compliance specification in Case
5–CA–15990 concerning the definitions of gross back-
425VIOLA INDUSTRIES
pay, interim earnings, and net backpay and the for-
mulas for computing those items is granted.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Partial Summary Judgment in Case 5–CA–
15990 against Respondent Viola Industries-Elevator
Division, Inc. and its alter ego Viola Industries, Inc. is
granted.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 5 for the
purpose of arranging a hearing before an administra-
tive law judge on the remaining issues in the compli-
ance specification for Case 5–CA–15990.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a decision
containing findings of fact, conclusions of law, and
recommendations based on all the record evidence.
Following service of the administrative law judge’s de-
cision on the parties, the provisions of Section 102.46
of the Board’s Rules shall be applicable.