Jerome Fink & Sons, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1113 (N.L.R.B. 1981)

JEROME FINK & SONS. INC.
Jerome Fink & Sons, Inc. and Amalgamated Food
and Allied Workers, District Union 626, United
Food and Commercial Workers International
Union, AFL-CIO. Cases 8-CA-11188 and 8-
CA-11709
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 4, 1979, the National Labor Relations
Board issued an Order' in the above-entitled pro-
ceeding adopting, in the absence of exceptions, Ad-
ministrative Law Judge Almira A. Stevenson's De-
cision, which found that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by instituting unilat-
eral changes in wages and in the amount of its con-
tributions to the employees' health and welfare and
pension plans. The Board ordered, inter alia, that
Respondent make the unit employees whole by
paying them the wages they would have earned in
the absence of the violations, and by making appro-
priate contributions to the employees' health and
welfare and pension plans. On January 23, 1981,2
the United States Court of Appeals for the Sixth
Circuit entered its judgment enforcing in full the
Board's Order, including its backpay provisions. A
controversy having arisen over the amount of
backpay due under the terms of the Board's Order
as enforced by the court, the Regional Director for
Region 8, on March 31, issued and duly served on
Respondent a backpay specification and notice of
hearing, setting forth certain allegations with re-
spect to the amounts of backpay due the employees
under the Board's Order, and notifying Respondent
that it must file a timely answer pursuant to the
Board's Rules and Regulations, Series 8, as amend-
ed. Respondent failed to file a timely answer to the
specification.
The General Counsel submits that on June 24
Respondent was informed by counsel for the Gen-
eral Counsel by telephone that it had failed to file
an answer to the backpay specification as required
by Section 102.54 of the Board's Rules and Regula-
tions, and that unless an answer was filed with the
Regional Director for Region 8 by the close of
business on July 8 a motion for summary judgment
would be filed with the Board. On June 29, counsel
for the General Counsel sent a letter to Respondent
confirming this conversation and noting that Re-
spondent had acknowledged having received a
copy of the backpay specification. When no answer
was submitted, counsel for the General Counsel on
' Not reported in volumes of Board Decisions
2 Unless otherwise specified. all dates herein refer to 1981.
258 NLRB No. 146
July 9 filed with the National Labor Relations
Board a Motion for Summary Judgment, with ex-
hibits attached.
On July 20, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted. On
July 31, the Board extended until August 24 the
filing date for a response to the Notice To Show
Cause, but Respondent has not filed such a re-
sponse.
Counsel for the General Counsel filed a memo-
randum with the Board on August 31, which noted
that Respondent's counsel had telephoned the Re-
gional Office on August 7 and had indicated that
he would immediately submit an answer to the
backpay specification which would set forth a gen-
eral denial of all of the allegations. The memoran-
dum further states that counsel for the General
Counsel informed Respondent's counsel that such
an answer would be insufficient under the Board's
Rules and Regulations. On August 10, counsel for
the General Counsel received Respondent's
answer, which was attached to the memorandum
submitted to the Board.
We agree with counsel for the General Counsel
that Respondent's answer constitutes a general
denial which does not comply with Section 102.54
of the Board's Rules and Regulations, which pro-
vides in pertinent part:
(b) . . . The respondent shall specifically
admit, deny, or explain each and every allega-
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 .... 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 gen-
eral denial shall not suffice. As to such mat-
ters, if the respondent disputes either the accu-
racy of the figures in the specification or the
premises on which they are based, he shall
specifically state the basis for his disagreement,
setting forth in detail his position as to the ap-
plicable premises and furnishing the appropri-
ate supporting figures.
Respondent's answer denies most of the allegations
of the backpay specification "for lack of informa-
tion and belief." The answer also states that Re-
spondent "has no information to admit or deny" an
additional allegation that certain named employees
are not entitled to any backpay. Respondent's
answer concludes by denying "all remaining allega-
tions of the specification." The answer fails to set
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth the basis for Respondent's disagreement with
both the figures and the premises on which the fig-
ures are based. It also fails to set forth Respond-
ent's position concerning the applicable premises,
and it does not furnish appropriate supporting fig-
ures. Since the wages and working hours of em-
ployees are ordinarily within the knowledge of a
respondent, 3 we find that Respondent's general
denial of the allegations of the backpay specifica-
tion is insufficient to comply with the requirements
of Section 102.54. 4
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 Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions further provides, in pertinent part:
(a) . . . The respondent shall, within 15 days
from the service of the specification, if any,
file an answer thereto ....
** *
(c) . . . If the respondent fails to file any
answer to the specification within the time
prescribed by this section, the Board may,
either with or without taking evidence in sup-
port of the allegations of the specification and
without notice to the respondent, find the
specification to be true and enter such order as
may be appropriate. If the respondent files an
answer to the specification but fails to deny
any allegation of the specification in the
manner required by subsection (b) of this sec-
a See Gateway Service Co., 209 NLRB 1166, fn. 3 (1974).
Our finding in this regard is not inconsistent with our decision in
Dews Construction Corp.. a ubsidiary of the Aspin Group, Inc., 246 NLRB
945 (1979). In that case, we found that the interim earnings of a discri-
minatee would generally not be within the knowledge of a respondent
and that a general denial with respect to that issue is sufficient to defeat a
Motion for Summary Judgment as to interim earnings. We note that the
employee whose backpay was disputed in that case had been discharged
in violation of Sec. 8(a)(3) and (I). Here, Respondent has been found to
have violated Sec. 8(a)(5) and (I) by, inter alia, unilaterally changing the
wages of employees. The backpay specification is concerned only with
the difference between the wages which the employees should have re-
ceived under the applicable contract and the wages which the employees
actually received. Interim earnings are not involved in this case.
On September 9. the Board denied Respondent's request for leave to
file an untimely response to the order transferring the proceeding to the
Board and Notice To Show Cause, but permitted Respondent to file a
response to the General Counsel's memorandum. On September 16 Re-
spondent filed a document, which was styled as a response to the Motion
for Summary Judgment. in which it contended essentially that its answer
was not a general denial which was insufficient under the Board's Rules
and Regulations. In view of our above discussion and findings, we reject
this contention.
tion, and the failure so to deny is not adequate-
ly 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 respondent
shall be precluded from introducing any evi-
dence controverting said allegation.
The backpay specification, issued and served on
Respondent on or about March 31, specifically
states that Respondent shall, within 15 days from
the date of service, file an answer to the specifica-
tion. The specification further states that, to the
extent that such answer fails to deny allegations of
the specification in the manner required under the
Board's Rules and Regulations, and the failure to
do so is not adequately explained, such allegations
shall be deemed to be admitted to be true and Re-
spondent shall be precluded from introducing any
evidence controverting them.
Respondent has failed to respond to the Notice
To Show Cause and therefore the allegations of the
General Counsel's motion stand uncontroverted.
As Respondent has not filed a sufficient answer to
the specification, nor offered any explanation for its
failure to do so, the allegations of the specification,
in accordance with the rules set forth above, are
deemed to be admitted as true and are so found by
the Board.
Accordingly, on the basis of the allegations of
the backpay specification, the Board finds the facts
as set forth therein to be true, concludes that the
net backpay due to the employees is as stated in
the computations of the specification, and herein-
after orders that payment be made by Respondent
to the employees named below.
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,
Jerome Fink & Sons, Inc., Toledo, Ohio, its offi-
cers, agents, successors, and assigns, shall make
whole each of the employees named below by pay-
ment to each of them the amount set forth adjacent
to his name, plus interest thereon to be computed
in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977), 5 until payment of all
backpay is made, less tax withholdings required by
Federal and state law:
Harold Fisher
Lary Peske
$862.16
642.00
"See. generally, liv Plumbing &d leating Co., 138 NLRB 716 (19h2) In
accordance with his dissent in Olvnpic M edical Corporation. 250 NL.RB
146 (1980). Member Jenkins would award interest on the backpay due
based on the formula set firth therein.
1114
JEROME FINK & SONS. INC
Sam Moccabee
Ed Fisher
Joseph Kovacs
Juan Garcia
Estate of Alphonse Webber
James Hughes
Stanley Okinka
8.00
568.00
704.00
587.10
84.00
153.00
11.25
Jose Perez
Guadalupe Lopez
Louis Sharfman
Orlie Boggs
Douglas Van Notta
Allen Miller
Dale Williams
I 1 5
122.40
76.50
480.(X)
7.95
6.51
2 1.(X)
19.25