Ybarra Construction Co.

National Labor Relations Board - Board Decisions

Jul 31, 2006

347 N.L.R.B. 856 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 79
856
Ybarra Construction Company and D&P Drywall,
Inc., a Single Employer and District Council 22,
International Union of Painters and Allied
Trades, AFL–CIO, CLC. Case 7–CA–44842
July 31, 2006
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
On September 29, 2004, the National Labor Relations
Board issued a Decision in Ybarra Construction Co., 343
NLRB No. 5 (2004). It ordered the Respondent to make
employee Alan Kirk whole for lost earnings and benefits
resulting from the Respondent’s reduction of his hourly
wages, diminution in his hours, and his subsequent
unlawful constructive discharge.
A controversy having arisen regarding the backpay due
to Kirk, the Regional Director for Region 7, on Decem-
ber 9, 2005, issued a compliance specification and notice
of hearing specifying the amount of backpay due to Kirk
under the Board’s Order. On December 30, 2005, the
Respondent filed an answer to the specification. In a
letter dated January 3, 2006,1 counsel for the General
Counsel advised the Respondent that its answer was in-
sufficient and that failure to file a proper answer by
January 10 would result in the filing of a Motion for
Summary Judgment.
The Respondent states that it did not receive this letter
until January 6 and that it mailed a copy of its amended
answer to the General Counsel on January 10. Counsel
for the General Counsel states that she never received the
amended answer. On January 12, the General Counsel
filed a Motion to Transfer Case to and Continue Proceed-
ings before the Board and for Partial Summary Judg-
ment.
On January 20, the Board issued an Order transferring
the proceeding to the Board and a Notice to Show Cause.
The Respondent filed a response to the General Coun-
sel’s Motion for Partial Summary Judgment and resub-
mitted its amended answer on January 24. On February
3, the General Counsel filed a reply. The same day the
Respondent filed a response to the Notice to Show
Cause. On February 14, the General Counsel filed a re-
ply.
The Board has delegated its authority in this proceed-
ing to a three-member panel.2
On the entire record, the Board makes the following

1 All dates below are in 2006, unless otherwise specified.
2 This decision is based upon the Respondent’s response and answer
of January 24, and the subsequent documents from both parties.
Ruling on Motion for Partial Summary Judgment
Section 102.56(b) and (c) of the National Labor Re-
lations Board’s Rules and Regulations states, in perti-
nent 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 allegations 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 matters, if the respon-
dent 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 supporting 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 answer
to the specification but fails to deny any allegation
of the specification in the manner required 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 without the taking of
evidence supporting such allegation, and the re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
The Respondent denies the specification’s use of
base period hours to calculate projected backpay pe-
riod hours, and the specification’s method for deter-
mining Kirk’s base period hours, wage rates, and in-
terim earnings figures. It also asserts that the specifi-
cation improperly includes vacation pay in gross back-
pay and improperly fails to deduct, from gross back-
pay, unemployment benefits, and earnings Kirk may
have lost by voluntarily quitting interim employment.
The General Counsel argues that the Respondent’s
denials are general and hence insufficient under Sec-
tion 102.56(b), and that the allegations should be
deemed admitted to be true by the Board.
YBARRA CONSTRUCTION CO. 857
1. The specification’s use of base period hours to
calculate projected backpay period hours
The specification includes the following formula for
calculating gross backpay:
An appropriate measure of gross backpay can be
determined by obtaining the hours Kirk worked in a
one-year period before his hours were reduced, mul-
tiplied by the appropriate wage rate and by the num-
ber of weeks in each calendar quarter.3
Applying this formula, the specification uses hours that Kirk
worked during the 1-year base period to project the hours
that Kirk would have worked for the Respondent during the
backpay period, absent the unfair labor practices.4
The Respondent argues that this method is inappropri-
ate due to fluctuations in the availability of work in the
construction industry. It argues that the 1-year period
cannot be used to project Kirk’s backpay period hours
due to changes in the availability of work.
Although the Respondent’s denial is specific, it is not
supported by an alternative formula for calculating gross
backpay and therefore does not meet the requirements of
Board Rules and Regulations, Section 102.56(b).5 Ac-
cordingly, we grant partial summary judgment regarding
the specification’s use of the 1-year base period hours to
calculate projected backpay period hours.
2. Method for calculating base period hours
The Respondent also challenges the specification’s
method for calculating Kirk’s base period hours.6 Kirk
worked in only 27 weeks of the base year. The specifica-
tion lists the number of hours that Kirk worked in each of
those 27 weekly pay periods. It then totals the hours
worked in these 27 pay periods (1023.5), and divides the
total hours worked by 27 to yield a figure of 37.91 hours
per week.7 The Respondent argues that base period
hours should be calculated by dividing Kirk’s total hours
worked (1023.5) by the total number of weeks in the
base period (52). This approach yields a figure of 19.69
hours per week.

3 Specification par. 4(a). This formula is similar to “Formula One”
of the Board’s Casehandling Manual (Part 3), Compliance Proceedings,
Sec. 10532.2, which calculates gross backpay based on the “discrimina-
tee’s average hours and/or earnings from an appropriate period prior to
the unlawful action.”
4 See specification par. 4(b) and schedule B. Par. 5 and schedule C
compute the earnings Kirk lost in the period after his hours were re-
duced; par. 6(a) and schedule D compute the earnings Kirk lost after his
constructive discharge.
5 We reject the Respondent’s argument that it cannot submit support-
ing figures for this denial without records from Kirk. The amount of
work available to the Respondent’s employees during the backpay
period is a matter within the Respondent’s knowledge, not Kirk’s.
6 See specification par. 4(b); schedule B.
7 See specification schedule B.
The Respondent specifically denies the specifica-
tion’s method for calculating Kirk’s base period hours,
and provides an alternative method to arrive at a base
period hours figure of 19.69 hours per week. Because
the Respondent’s denial fulfills the requirements of
Section 102.56(b), we deny summary judgment on the
specification’s method for calculating base period
hours.8
3. Wage rates9
The Respondent disputes the wage rates used in the
specification’s gross backpay formula.10 Although this
is a matter within the Respondent’s knowledge, it pro-
poses no alternative figures to the wage rates found in
the specification. Because the Respondent’s denial
does not fulfill the requirements of Section 102.56(b),
we grant summary judgment on the specification’s
wage rates.
4. Vacation pay
The specification, in alleging gross backpay, adds
$2-per-hour vacation pay to Kirk’s wage rate.11 The
Respondent does not dispute that Kirk would have
received this vacation pay but contends that the vaca-
tion pay should be excluded in computing gross back-
pay. We disagree. Paid vacations that a discriminatee
would have received during the backpay period are
part of gross backpay. See Continental Insurance Co.,
289 NLRB 579, 584 (1988); Casehandling Manual
(Part Three), Compliance Proceedings, Section
10535.5.12 We therefore grant summary judgment as

8 The General Counsel seeks summary judgment regarding net
backpay alleged in the specification for the hours-reduction backpay
period, using the 37.91 figure for projected base period hours. As
explained above, we deny the General Counsel’s Motion for Sum-
mary Judgment regarding this 37.91 figure and we accordingly also
deny the General Counsel’s Motion for Summary Judgment regard-
ing the net backpay for the hours-reduction backpay period. For this
same reason, and because the General Counsel does not seek sum-
mary judgment regarding net backpay for the discharge backpay
period, we do not reach the Respondent’s other contentions regard-
ing net backpay issues—that is, interim earnings, self-employment
interim earnings, and voluntary quitting of comparable interim em-
ployment.
9 The issues of wage rates, vacation pay, and unemployment com-
pensation (see secs. 3, 4, and 5 herein) relate to the remedies for the
pay reduction, the hours reduction, and the discharge.
10 See specification pars. 4(a), 5, 6(a) and (b), schedule C, and
schedule D.
11 See specification schedules C and D.
12 We find no merit in the Respondent’s contention that the speci-
fication would allow Kirk to “double dip” by receiving vacation pay
from both the Respondent and interim employers. Vacation pay
from interim employment is deducted from gross backpay. Case-
handling Manual (Part Three), Compliance Proceedings, Sec.
10535.5.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD858
to the specification’s inclusion of vacation pay in gross
backpay.
5. Unemployment compensation benefits
We also reject the Respondent’s contention that the
specification erred by not deducting unemployment
compensation from backpay. State unemployment com-
pensation payments are collateral benefits, not interim
earnings, and are not deducted from backpay. Gullett
Gin Co. v. NLRB, 340 U.S. 361 (1951).
ORDER
It is ordered that the General Counsel’s Motion for
Partial Summary Judgment is granted as to (1) the speci-
fication’s use of the base period hours to calculate pro-
jected backpay period hours; (2) wage rates; (3) inclu-
sion of vacation pay in gross backpay; and (4) nonde-
duction of unemployment benefits from gross backpay.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 7 for the
purpose of arranging a hearing before an administra-
tive law judge on the remaining issues.