Lipsey, Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1971

192 N.L.R.B. 827 (N.L.R.B. 1971)

LIPSEY, INC 827
Lipsey, Inc. and Pipeliners Local No. 798 of the United
Association of Journeymen and Apprentices of the
Plumbing and ' Pipefitting , Industry ' of the United
Stites _and.'Canada, AFL-CIO. Case 26-CA-2911
August 19, 1971
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 15, 1968, the National Labor Relations
Board issued its Decision and Order in the above-
entitled, - proceeding, fading , that Respondent had
discriminated against certain named individuals by
refusing to hire -them in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act, as
amended.' The Board's Order directed, among other
things, Respondent, its officers, agents, successors,
and assigns, to make 'six applicants for employment
with Lipsey, Inc., whole for the period of, time from
which they were discriminatorily denied employment
until Respondent offered to employ them or until the
job. for which they ,were denied employment was
completed, whichever first occurred. On November
14, 1969, the Court, of Appeals for the Fifth Circuit
entered as consent judgment enforcing the Board's
Order in full. -
On, October 20, 1970, the Regional Director for
Region 26 issued and served on the parties a backpay
specification and notice of hearing. Respondent filed
an answer to the,backpay specification on November
3, 1970. On November 16,1970, the General Counsel
filed a motion' to transfer and continue the case
before the Board and for judgment on the pleadings.
On November 19, 1970, the Board issued an order
transferring the matter to the Board and a notice that
ordered Respondent to .show cause why the General
Counsel's motion- for judgment, on the pleadings
should not,be granted. I
On January 18, 1971, Respondent filed an answer
to- the Board's Notice To -Show Cause requesting that
the General Counsel's motion be remanded to the
Regional Director for hearing on' certain affirmative
defenses. It set out these, defenses in an amended
answer to backpay specification, a copy of which it
tendered for filing. On January 29, 1971, the General
Counsel filed a reply opposing Respondent's request
for a hearing and renewing his motion for judgment
on the pleadings.
Thereafter, on March 15, 1971, the Board denied
the General Counsel's motion for judgment on the
pleadings. It, further granted Respondent's request to
file -an amended answer and ordered that a hearing
be held "limited to issues raised with respect to the
first and second affirmative defenses set forth in
Respondent's amended answer." Upon appropriate
notice issued by the Regional Director a hearing was
held before Trial Examiner Ivar H., Peterson.
On June 14, 1971, the Trial Examiner issued the
attached Supplemental Decision and Recommenda-
tion in which he found that the claimants were
entitled to specific amounts ofbackpay. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Supplemental Decision and the General-,Counsel
filed a brief in support= thereof.
Pursuant to the provisions of -Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the. Trial
Examiner made at the hearing - and finds that no
prejudicial error was committed:, The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's- Supplemental Decision and Recommen-
dation, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and, recommendations - of the Trial
Examiner, as modified herein.
SUPPLEMENTAL ORDER
Pursuant to Section 10(p) of 'the,,National Labor
Relations Act, as , amended, the ' National Labor
Relations Board hereby orders that Respondent,
Lipsey, Inc., Lexington, Mississippi, its officers,
agents, successors, and assigns, shall pay to the
employees involved, in this proceeding, as net
backpay herein determined to be due, the amounts
set forth opposite their names in the Supplemental
Decision and Recommendation of the Trial Examin-
er, plus interest accrued to the' date of payment in
accordance with the formula set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
SUPPLEMENTAL DECISION AND
RECOMMENDATION
Ivan H. PETERSON, Trial Examiner: Pursuant to the
Board's Order dated March 15, 1471, _1 opened a hearing
on May 18, 1971; on_the backpay specification issued by
the Regional Director for Region 26, on October 20, 1970.
The Board's Order directed that I receive evidence "limited
to issues raised with respect to the first ' and second
affirmative defenses set forth in Respondent 's` amended
answer" The first affirmative defense is that "All the
Discnnunatees who are the subject of this backpay
specification joined the strike which was in'progress and
continued the entire period of time which this backpay
specification covers"' and that _ they - "would not have
worked even had they -been " offered' work." The second
affirmative defense is that "Each of the Disc iminatees
1 172 NLP.B No. 171.
192 NLRB No. 140
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have obtained employment at all times material" by
applying,-for referral from the Union, and, that such
employment "would have mitigated or completely, relieved
the Respondent from'backpay liability to these `Discrimi-
natee's." -At the 'opening of `the hearing counsel for the
Respondent made "a plea to the jurisdiction" of the Trial
Examiner, contending that a proceeding pending in the
Court of Appeals for the Fifth Circuit;'in which the Board
sought. to ' cite the Respondent in contempt of a decree
entered by that Court enforcing the Order of the Board,
precluded me from proceeding.' I denied the motion.
Thereupon, counsel for the Respondent;in effect requested
that the hearing be postponed for the reason that although
he had requested .and received subpenas duces tecurn for
each of the discriminatees he had not been furnished by
the Regional Office, although requested, with the addresses
of'- the discriminatees. These subpenas called for the
discriminatees to produce various books and papers, all
intended to "explorer their interim earnings and efforts
individually or with' then aid of the Union to obtain interim
employment. After argument, I granted the motion of
counsel" for the' General Counsel to 'revoke these, subpenas
inasmuch °,as they sought to go into matters outside the
scope of the Board's. Order directing a tearing. However,
the subpenas were handed to each of the discriminatees,
who were present in the courtroom. Counsel for the
General Counsel declined to go forward with any testimo-
ny, stating that in his view the hearing was limited to the
Respondent's, ,two affirmative defenses. Thereupon, coun-
sel for the Respondent stated he would rest his case on the
pleadings as he , did not feel that he had "any burden to
bring forth an affirmative defense,"' being of the view that
the ' Board's_ Order directing" a' hearing "directed General
Counsel . to make, -its affirmative case' anyway." I then
closed the ` hearing and 'fixed, with-the agreement of
counsel, June 8 . as the date for filing briefs with me.
Counsel for the Respondent and counsel for the General
Counsel submitted briefs, received on June71,
The sole, point- made, by the Respondent in its brief is
that the provision in the Administrative Procedures Act (5
U.S.C. Sec.,556(d)) which provides as follows.: "Except as
otherwise provided by ''statute,"the proponent ^of a'rule or
order has the burden of proof" made it incumbent upon
counsel for . the - General Counsel to -adduce proof in
support of the backpayspecification. Accordingly, counsel
for the Respondent concludes in his brief that administra-
tive due process was denied the Respondent at the hearing
and in consequence it is incumbent upon me to find that
the Government has failed to'sustain the burden of proof
and '' dismiss; the proceeding in its entirety..
Upon the°' entire record, I conclude and find that the
Respondent has in substance and effect abandoned its ` two
affirmative, defenses, and that it is appropriate to proceed
on the basis of the backpay specification-to determine th e
amount of-, backpay_due each of the discriminatees.
The ' backpay specification issued by the Regional
Director fully complied with the Board's Rules (Section
1 Counsel for the General Counsel also moved that the transcript of
record be corrected in three respects . This motion 'is hereby, granted.. -
1 In the event noexceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
102.53) which provides in, subsection (a) that `!the specifi-
cation shall `specifically,, and in'kydetail show, fors each
employee, the backpayperiodsf broken down `by ' calendar
quarters, the specific fi, a es and basis`of computation as to
gross backpay and interim earnings,` the expenses^foreach
quarter, the net backpay, due, and, any other pertinent
information." Section 102.54 of the' Board's Rules pro-
vides, in subparagraph (b), that a respondent in response to
a backpay specification "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 fairlyy 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 a matters within.'-"the ,knowledge &Ithe
respondent, including but not limited to the various factors
entered into-the computation 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 specifications-or the premises on which-they are;based,
he , shall _ specifically state the basis for his disagreement,
setting" forth in detail hisposition'as to applicablepremises
and furnishing "the appropriate supporting figures."-Sub-
section (c)' continues by proyidingy that if a respondent
"files an answer to the specification but'fails'to deny any
allegation of the 'specification iii'the'manner required' by
subsection ^(b) of this section, and the failure so"to denyis
not adequately explained , suchallegations shall be deemed
to be" admitted to be, true; and ' may be, sofound by the
Board without the taking of evidence supporting such
allegation, and the respondent 'shall be precluded,from
introducing any, evidence controverting, 'said,, allegation."
Typically, the Respondent's answer with respect to each
discriminatee contained, the following:, An admission as to
the backpayperiod and the exclusion therefromof a,period
when they' job was shut` down; a -statement that the
Respondent could neither admit''nor denythe allegations
with respect to the rates' of pay, -the amount of interim
employment; and a ' statement that the Respondentt had
insufficient information to meet the allegation summariz=
ing gross backpay, net interim earnings, and;'net backpay.
It - is true, of, course,), that the `burden, is on the General,
Counsel to show gross backpay; however, thee burden is ,'
a, respondent to show diminution, 'such as willful lossi,,
unavailability for work. SeerMastro Plastics,, 136 NLRB
1342; MontaukIron, ,135,NLRB 181; Ozark Hardwood 19
NLRB 1130; TLS` Air Co„ 1 41 NLRB 1278. The reason for
the Rule is that explicated in J. H. Rutter-Rex, 158 NLRB
1414 -(TXD p.' 1429). As l stated`ubove,` the- Respondent at
the outset of the hearing abandonedw'its'two 'affirmative
defenses on which th e -Board hadorder`edfhearing, Tamely,
that the discriminatees had joined a strike and " would `not
have responded, to an of€erto return to employment, and
had failed individually or through the aid of$theUnion to
,secure interim employment in order,to mitigate damages.
findings , c o n c l u s i o n s , a n d recommended O r d e r herein s h a l l , as provided in
Section 102 .48, of,,the Rules and .Regulations,,,) 'adopted by the- Board
and become its ,findings, conclusions,-,and Order,° and^all objections
thereto shall be deemed waived for all purposes.
„
i
LIPSEY, INC. 829
In these circumstances, I , adopt the allegations in the Ralph Parker 1,184
backpay specification and find and recommend that the Ted Poole 324
following discriminatees be paid the amounts set opposite Jerry Reece 188
their names:
It is further recommended that the Board adopt the
George L . Burnett $2,306 foregoing findings and conclusions ahd order the Respon-
Ciaude Byrd 1,275 dent to pay to the discriminatees the amounts recommend-
Jack Ladner 1,932 ed above.