Fugazy Continental Corp.

National Labor Relations Board - Board Decisions

Mar 26, 1982

260 N.L.R.B. 1225 (N.L.R.B. 1982)

FUGAZY CONTINENTAL CORP.
Fugazy Continental Corp. and Aldo Capella, Albert
Shiffman, Eugene Ritter, Thomas P. Green,
Lloyd Lipoff, Joseph Aquila, and Paul Osit.
Cases 29-CA-4773, 29-CA-4817, 29-CA-
4825, 29-CA-4391, 29-CA-4391-2, 29-CA-
4391-3, and 29-CA-4391-4
March 26, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 14, 1977, the National Labor Re-
lations Board issued its Decision and Order' in the
above-entitled proceedings in which it directed,
inter alia, that Respondent, Fugazy Continental
Corp., its officers, agents, successors, and assigns,
reinstate and make whole certain employees for
losses2 resulting from Respondent's unfair labor
practices, violations of Section 8(a)(1), (3), and (4)
of the National Labor Relations Act, as amended.
On March 20, 1979, the United States Court of Ap-
peals for the Second Circuit entered its judgment3
enforcing in full the Board's Order, including its
backpay provisions. A controversy having arisen
over the amounts of backpay due under the terms
of the Order, the Regional Director for Region 29,
on May 30, 1980, issued and duly served on Re-
spondent a backpay specification and notice of
hearing, alleging the amounts of backpay due
under the Board's Order and notifying Respondent
that it should file a timely answer complying with
the Board's Rules and Regulations, Series 8, as
amended.
On July 28, 1980, Respondent filed an answer
which contained general denials of the allegations
in the enumerated paragraphs of the backpay speci-
fication without explaining the basis therefor. The
General Counsel thereupon informed Respondent
that its answer was not in conformity with applica-
ble Board Rules and Regulations, and that, absent
conformity, the General Counsel would file a
Motion for Summary Judgment. Respondent on
December 2, 1980, filed an amended answer which,
except for paragraphs 1, 5, 8, and 10, and 7 and 13
to the extent specified infra, still did not conform
with the applicable rules, and which contains af-
firmative general assertions that the claimants
(without specifying which) continued to utilize
their vehicles during the month of December 1975,
thereby causing further expenses which must be
'231 NLRB 1344 (1977)
2 The Administrative Law Judge also ordered Respondent to complete
the sale of a limousine to David Miller, as it had previously contracted to
do.
' 603 F.2d 214
260 NLRB No. 168
taken into account in reducing the total amount
due each affected claimant.
Thereafter, on December 22, 1980, the General
Counsel filed directly with the Board a motion to
strike portions of Respondent's answer, with ap-
pendixes attached, and a Motion for Partial Sum-
mary Judgment. 4 The General Counsel submits that
Respondent has failed to: state the basis for its dis-
agreement with respect to certain matters alleged
in the backpay specification and within its knowl-
edge; set forth in detail its position as to the appli-
cable premises; and furnish the appropriate sup-
porting figures. She therefore moves that the por-
tions of paragraphs 2, 3, 4, 6, 7, 9, 11, 12, and 13 of
Respondent's answer and first amended answer be
stricken. The General Counsel further moves the
Board to grant partial summary judgment with re-
spect to those allegations of the backpay specifica-
tion to which assertedly no adequate answer has
been submitted; i.e., paragraphs II (the backpay
period), III (computation of moneys due and owing
discriminatees prior to the strike), IV (computation
of gross backpay), VI (net backpay), VII (franchise
equity), and IX (reimbursement of car downpay-
ment), and all appendixes thereto. 5 She also moves
that Respondent be precluded from adducing evi-
dence with respect to issues not properly raised in
its answer. Subsequently, on January 21, 1981, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Partial Summary
Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Partial Summary
Judgment
Section 102.54 of the Board's Rules and Regula-
tions, Series 8, as amended, provides, in pertinent
part, as follows:
(b) . . . The respondent shall specifically
admit, deny, or explain each and every allega-
'On December 27, 1980, Respondent filed a second amended answer
"to correct deficiencies in typographical transmission" pertaining to its
answer, which acknos ledges that the "General Counsel is in no respect
prejudiced by the amendments herein."
' The General Counsel does not seek partial summary judgment for
those discriminatees listed in the backpay specification concerning whom
information regarding gross hackpay, interim earnings, and other infor-
mation is as yet unknown
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the specification, unless the respondent
is without knowledge, in which case the re-
spondent shall so state, such statement operat-
ing as a denial. Denials shall fairly meet the
substance of the allegations of the specification
denied. 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, in-
cluding but not limited to the various factors
entering into the computation of gross back-
pay, a general denial shall not suffice. As to
such matter, if the respondent disputes either
the accuracy of the figures in the specification
or the premises on which they are based, he
shall specifically state the basis for his dis-
agreement, setting forth in detail his position
as to the applicable premises and furnishing
the appropriate supporting figures.
(c) . . . If the respondent files an answer to
the specification but fails to deny any allega-
tion of the specification in the manner required
by subsection (b) of this section, and the fail-
ure 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
allegations, and the respondent shall be pre-
cluded from introducing any evidence contro-
verting said allegation.
Our examination of the pleadings herein reveals
that paragraphs 2, 3, 4, 5, 6, 9, 11, and 12 of Re-
spondent's answer and amended answer either deny
generally or fail to explain adequately allegations
of the specification. In addition, in its denials of
paragraphs II, III, VI, and IX of the backpay spec-
ification, Respondent does not state the basis for its
disagreement with the allegations contained there-
in, or offer or set forth in detail with supporting
figures, any alternative premises. Further, in its
denial of paragraph IV, Respondent alleges it has
"insufficient information as to the accuracy of the
amounts calculated as owing to the discriminatees,"
but has not proffered any alternative position nor
submitted evidence, with supporting documentation
of these matters, which clearly are within Re-
spondent's possession and control. Although the
General Counsel does not seek partial summary
judgment as to paragraph V (interim earnings), she
does seek partial summary judgment as to para-
graph VI (net backpay). As noted supra, Respond-
ent's answers made general denials to those para-
graphs of the backpay specification, and inasmuch
as the general denial on the issue of interim earn-
ings is directly related to the computation and ac-
curacy of net backpay, which, in turn, is dependent
upon the data derived from interim earnings, these
general denials are sufficient to require a hearing
on the issue.6 Accordingly, we shall deny the Gen-
eral Counsel's motion to strike paragraph 6 of Re-
spondent's answers and her Motion for Partial
Summary Judgment as to paragraph VI of the
backpay specification and appendixes B (except for
subsec. I, gross backpay) and C. We grant the Gen-
eral Counsel's motion to strike paragraphs 2, 3, 4,
9, 11, and 12, and any appendixes thereto of Re-
spondent's answers because they are nonresponsive
and not in conformity with the Board's Rules and
Regulations, supra.7 We also grant the General
Counsel's Motion for Partial Summary Judgment
with respect to the allegations contained in para-
graphs II, III, IV, and IX and Appendix A and
subsection I of Appendix B of the backpay specifi-
cation because Respondent's answers thereto are
general denials and not adequately explained, and,
therefore, are deemed to be admitted as true. In ad-
dition, Respondent shall be precluded from intro-
ducing into evidence any controverting issues not
properly raised in its answers.8
As to paragraph VII of the backpay specifica-
tion, the Board affirmed Administrative Law Judge
Silberman's Decision wherein he discussed the
franchise agreement that had existed between the
franchise drivers, herein the discriminatees, and Re-
spondent, and wherein he ordered that:
If between the date on which each franchise
driver should have been offered reinstatement
and the date on which Respondent does offer
him unconditional reinstatement the value of
his franchise has fallen, that is a capital loss
which the franchise driver will suffer due to
no fault on his part. Accordingly, in order to
make the franchise drivers whole for all losses
suffered by reason of Respondent's discrimina-
tion against them, I shall also recommend that
Respondent pay to each franchise driver the
difference between the value of his franchise
as of the date on which Respondent should
have offered that driver reinstatement to his
former position and the date on which Re-
spondent does offer him reinstatement.
6 Dews Construction Corp a subsidiary of the Aspin Group. Inc., 246
NLRB 945 (1979); Marnhe Machine Works, Inc. 256 NLRB 15 (1980).
Aricraft ,'pholstering Company, Inc and Its General SManager, William
Cohen, 228 NLRB 462 (1977).
' Allegations concerning depreciation of vehicles owned and operated
by discriminatees Lipoff, Manzione, Miller, Richer, Ritter, Roane, E, and
H. Seltzer, and Shiffman are based in part of information not in Respond-
ent's possession; i.e., the drivers' own tax records Therefore, the General
Counsel does not seek partial summary judgment as to their gross/net
backpay.
1226
FUGCAZY CONTINENTAL CORP.
Respondent, in paragraphs 7 to 13 of its answer
to paragraph VII, submits that the franchises have
appreciated in value; that the Administrative Law
Judge's ruling is limited to a capital loss situation;
that his recommendation that Respondent repur-
chase or liquidate the franchises is inconsistent with
his further requirement that Respondent restore the
discriminatees to their former positions; and that
the Board is not empowered, under Section 10(c)
of the Act, to effect a "make whole" relief by or-
dering reimbursement of a "franchise equity." The
General Counsel contends that Respondent is chal-
lenging a remedy already decreed, and that Re-
spondent has an obligation, under judgment of the
court of appeals, to make the discriminatees whole
for this aspect of the losses suffered by virtue of
Respondent's unlawful termination of their fran-
chise. The General Counsel contends further that
Respondent's answer should be stricken because it
lacks substantial specificity and therefore summary
judgment should be granted on this issue.
The judgment of the court has no immediate rel-
evancy to the issues raised by the General Coun-
sel's motion. Moreover, we find paragraphs 7 and
13 of Respondent's answer to be sufficiently specif-
ic to constitute a denial of specification paragraph
VII.
Accordingly, we find that Respondent's conten-
tions regarding the value of the franchises and the
Administrative Law Judge's ruling which nar-
rowed the scope of the issue of franchise equity to
"capital loss situations" raise sufficient controversy
to warrant a hearing on paragraph VII of the back-
pay specification and, consequently, we shall deny
the General Counsel's motion to strike paragraphs
7 and 13 of the answer.
In summary, the Board finds that the allegations
set forth in paragraphs II, III, IV, and IX of the
backpay specification and Appendix A and subsec-
tion I of Appendix B are deemed to be admitted to
be true, and grants the General Counsel's Motion
for Partial Summary Judgment with respect to
those paragraphs. We further find that the net
amounts due employees for work performed during
the months of November and Decemeber 1975 and
the reimbursement of David Miller's car downpay-
ment are as stated in the computations of the speci-
fication and as set forth in the Order herein, and
that payment thereof be made by Respondent to
each named employee.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Fugazy Continental Corp., Queens, New York, its
officers, agents, successors, and assigns, shall make
whole each of the employees named below by pay-
ment to each of them the amounts herein specified
as due for November and December 1975, with in-
terest thereon accrued at the rate of 6 percent per
annum, 9 until payment is made of all such amounts
due as provided in our original Order, less tax
withholdings required by Federal and state laws:
Due For
Nov/Dec
Aquila, J. $ 359.89
Capella, A. 575.64
Doca, F. 230.92
Evans, C. -0-
Feinstein, H. -0-
Gans, M. 1,010.76
Grady, A. -0-
Green, T. -0-
Knotti, E. 1,397.32
LeGrady, S. 778.30
Lewis, E. 274.48
Lipoff, L. 1,279.36
Manzione, L. 720.76
McCann, D. 1,521.97
Meyer, G. 306.43
Miller, D. Unknown
Monahan, T. 1,320.62
Moore, E. 932.68
Osit, P. Unknown
Osteerhoudt, M. -0-
Pepper, S. 360.86
Richter, A. 3,207.21
Ritter, E. 1,457.11
Roa, C. 487.48
Roane, E. 1,410.47
Salamone, A. 442.60
Sanguedolce, N. 233.81
Scalavino, F. 141.47
Seltzer, E. 976.68
Seltzer, H. 845.21
Shiffman, A. 1.775.46
Tusa, M. 771.62
Vieto, J. 1,692.83
Wall, M. Unknown
IT IS FURT'IHER ORDEREI) that the above-named
Respondent pay to David Miller the sum of $5,000
(par. IX), which may be adjusted downward by the
General Counsel to reflect a reasonable use charge
for the period beginning July 1975 and ending Jan-
uary 1976.
q Inasmuch as Ihe courl of appeal, enforced Ihc IBo ard's ()rdcr proi ld
ing for inrterest t) he paid a( I(he rate ,f th percent. Ihat ratre hall he used
Im computir g inttrest dut on hanckpa See IoridU Steel ( Copourl,)nu. 214
NlRIB lo(8) ( 19781
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Direc-
tor for Region 29 for the purpose of arranging a
backpay hearing before an administrative law judge
on all such allegations in the backpay specification
and all appendixes thereto that remain in issue, and
that said Regional Director shall be, and he hereby
is, authorized to issue notice thereof.
1228