Aquatech, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1991

306 N.L.R.B. 975 (N.L.R.B. 1991)

975
306 NLRB No. 195
AQUATECH, INC.
1 297 NLRB 711.
2 926 F.2d 538 (6th Cir. 1991).
3 The Respondent’s motion sought dismissal of discriminatee
Cottrell Glaze’s backpay claim on the grounds that the Board should
defer, under Independent Stave Co., 287 NLRB 740 (1987), to a
non-Board settlement. The Board ruled that the motion raised factual
issues best resolved in a hearing.
4 The General Counsel recognizes that any hearing will also ad-
dress the deferral issue as previously ordered by the Board.
5 The Respondent submits that the General Counsel’s Motion for
Partial Summary Judgment should be denied. The Respondent argues
that: (1) granting the motion would be ‘‘grievously prejudicial’’ be-
cause the motion was not filed until 6 months after the filing of its
answer; (2) it received no notice from the Region that its answer was
defective before the motion was filed; and (3) certain of its
prespecification communications with the Region’s compliance offi-
cer, as recited in its response to the Notice to Show Cause, consid-
ered together with its answer as filed constitute an ‘‘amended’’ an-
swer sufficient to defeat the instant motion. In the alternative, the
Respondent moves for leave to file an amended answer at this time.
6 The counsel for the General Counsel alleges, in sum, that the re-
sponse is actually an untimely attempt to amend the Respondent’s
answer. With respect to his specific arguments, we note, in agree-
ment, that (1) the Respondent has not substantiated its claim of prej-
udice and, in light of the several postponements of the hearing date
from August 20, 1991, to eventually, February 12, 1992 (obtained
both by the Respondent and by the General Counsel) the General
Counsel’s motion was timely filed under Rule 102.24(b); and (2)
neither the Board’s Rules and Regulations nor our decisions require
the Region to grant a respondent an opportunity to amend a defec-
tive answer before the General Counsel files for summary judgment.
We deny the Respondent’s motion for leave to file an amended an-
swer, but see our ruling on the General Counsel’s motion, infra.
Aquatech, Inc. and United Steelworkers of America,
AFL–CIO–CLC. Cases 8–CA–21428 and 8–CA–
21539
March 31, 1991
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 31, 1990, the National Labor Relations
Board issued a Decision and Order in this proceeding.1
On February 25, 1991, the United States Court of Ap-
peals for the Sixth Circuit enforced the Board’s
Order.2 A controversy having arisen over the amount
of backpay due the discriminatees under the Board’s
Order, the Regional Director for Region 8 on May 21,
1991, issued a compliance specification and notice of
hearing alleging the amount of backpay due. Subse-
quently, the Respondent timely filed an answer to the
compliance specification.
On November 8, 1991, the Respondent filed a Mo-
tion for Summary Judgment. On December 6, 1991,
the Board issued an Order Denying Motion.3
On December 23, 1991, the General Counsel filed a
Motion to Strike Respondent’s Answer in Part and for
Partial Summary Judgment, with exhibits attached. The
General Counsel’s motion contends that the Respond-
ent’s answer to the compliance specification, with the
exception of its general denial of the allegation as to
interim earnings, does not conform to the requirements
of Section 102.56(b) of the Board’s Rules and Regula-
tions. The General Counsel moved that the Board
strike portions of the Respondent’s answer to the back-
pay specification, deem those portions not specifically
denied to be admitted as true, and limit the hearing to
the issue of interim earnings.4
On December 30, 1991, the Board issued an order
transferring the proceeding to the Board and Notice to
Show Cause why the General Counsel’s motion should
not be granted. On January 27, 1992, the Respondent
filed a response to the Notice to Show Cause.5 On
February 3, 1992, counsel for the General Counsel
filed a reply to the Respondent’s response to the No-
tice to Show Cause.6 On February 7, 1992, the Re-
spondent filed a surreply to the counsel for the General
Counsel’s reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel. On the entire record, the Board makes the fol-
lowing
Ruling on the 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
specifications.—If the respondent fails to file any
answer to the specification within the time pre-
scribed by this section, the Board may, either with
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Bentley’s Lounge, 265 NLRB 632 (1982); Standard Materials,
252 NLRB 679 (1989).
8 The Respondent’s amended answer with respect to the amount of
gross backpay owed discriminatee Michael McAlpine and the
amount of overtime pay owed Charles and Robert Naujoks remains
inadequate because it does not set forth the alternative formulas or
figures required by Sec. 102.56(b). Specifically, the Respondent’s
claim as to the wage earned by McAlpine after his reinstatement
does not sufficiently join the issue of what his wage would have
been at various stages of his backpay period as set forth in the speci-
fication.
or without taking evidence in support of the alle-
gations of the specification and without further
notice to the respondent, find the specification to
be true and enter such order as may be appro-
priate. If the respondent files an answer to the
specification but fails to deny any allegation of
the specification in the manner required by para-
graph (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.
In its answer to the original backpay specification,
the Respondent averred that the specification fails to
give it credit for all ‘‘set-offs’’ to which it is entitled.
The Respondent further averred that the specification’s
calculation of the backpay period for ‘‘some or all’’ of
the discriminatees does not take account of ‘‘valid of-
fers of reinstatement.’’ The Respondent also generally
denied the following: the formula used to compute
gross backpay, the computation of gross backpay, the
amount of interim earnings, the method of computing
net backpay, and the computation of net backpay.
Based on this answer, the General Counsel filed a
motion to strike that portion of the Respondent’s an-
swer which offered a general denial to each of the alle-
gations concerning the backpay periods for the five
discriminatees, the formula used to compute gross
backpay, the computation of gross backpay, and the
method of computing net backpay. We find that the
original answer is substantially deficient insofar as it
contains general denials concerning those matters with-
in the Respondent’s knowledge. These denials are in-
sufficient because they do not fairly meet the substance
of the allegations of the specification, nor do they re-
veal any basis, cognizable under Section 102.56(b), for
disagreement with the specification’s allegations. Spe-
cifically, the Respondent failed to offer or set forth in
detail any figures or alternative premises in support of
the general claim of ‘‘offsets’’ not credited. Further,
the bare assertion that valid offers of reinstatement
were made is deficient because the Respondent did not
set out the specific date on which any particular
discriminatee’s backpay period should be tolled.
In its response to the Notice to Show Cause, how-
ever, the Respondent recites certain information which
it claims it had provided to the Region’s compliance
officer before the specification was filed. Specifically,
the Respondent states that discriminatees Charles
Naujoks and Robert Naujoks were offered reinstate-
ment on October 7, 1988, and that therefore their back-
pay periods should be tolled as of that date.
The Board has held that, even in the absence of an
amended backpay specification, a respondent may
amend its answer prior to the hearing in the matter.7
In this case, we construe the Respondent’s response to
the Notice to Show Cause as an amended answer. Fur-
ther, although the Respondent’s original answer, which
amounted to a general denial of the entire backpay
specification, would have been inadequate under the
Board’s Rules to the extent urged by the General
Counsel, in the response we here construe as an
amended answer we find that the Respondent’s spe-
cific reference to the length of the backpay period for
discriminatees Charles and Robert Naujoks suffices to
raise an issue which can best be resolved by a hearing.
See generally Dews Construction Corp., 246 NLRB
945 (1979).8
Accordingly, we shall grant the General Counsel’s
Motion for Partial Summary Judgment in all respects
except the duration of the backpay period for Charles
Naujoks and Robert Naujoks and shall direct a hearing
limited to issues concerning the tolling of the backpay
period for those two discriminatees and the interim
earnings for all discriminatees. Because we have found
that the Respondent’s general denials as to other alle-
gations in the specification are insufficient under Sec-
tion 102.56(b) and (c) of the Board’s Rules and Regu-
lations, we deem the Respondent to have admitted
those allegations, as well as the allegations it has spe-
cifically admitted to be true.
ORDER
It is ordered that the General Counsel’s Motion to
Strike Respondent’s Answer in Part and for Partial
Summary Judgment is granted with respect to all alle-
gations in the backpay specification except as to in-
terim earnings for all discriminatees and the duration
of the backpay period for Charles Naujoks and Robert
Naujoks.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 8 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
for all discriminatees and tolling of the backpay
977AQUATECH, INC.
period for discriminatees Charles Naujoks and Robert
Naujoks. The judge shall prepare and serve on the par-
ties a decision containing findings of fact, conclusions
of law, and recommendations based on all the record
evidence. Following service of the judge’s decision on
the parties, the provisions of Section 102.46 of the
Board’s Rules and Regulations shall be applicable.