United Hydraulic Services, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1987

282 N.L.R.B. 645 (N.L.R.B. 1987)

UNITED HYDRAULIC SERVICES
United Hydraulic Services, Inc. chidPerry W`Hi s
and James O. Mills. Cases 9-CA-17643, 9-
CA-17962, and 9-CA-19166
8 January 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 29 June 1984 the National Labor Relations
Board issued a Decision and Order' in this pro-
ceeding in which the Board, inter alia, ordered the
Respondent to reinstate and to make whole the dis-
criminatees for any loss of pay suffered by reason
of the Respondent's discrimination against them.
On 21 January 1986 the United States Court of Ap-
peals for the Fourth Circuit entered its judgment
enforcing the Board's Order. 2 A controversy
having arisen over the amount of backpay due
under the Board's Order, as enforced by the court,
the Regional Director for Region 9 about 3 April
1986 issued a backpay specification and notice of
hearing alleging the amounts of backpay due, the
diiscriminatees under the Board's Order. Subse-
quently, the Respondent filed an answer to the
backpay specification.
Thereafter, on 9 May 1986 the General Counsel
filed with the Board in Washington, D.C., a motion
to Strike Portions of Respondent's Answer and
Motion for Summary Judgment. On 21 May 1986
the Board issued an Order Transferring Proceeding
to the Board and Notice to Show Cause why the
General Counsel's motion should not be granted.
On about 2 June 1986 the Respondent filed a docu-
ment with the Board and requested that the docu-
ment be incorporated by reference into its answer.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in the proceeding, the
Board makes the following
Ruling on the Motion for Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions provides in pertinent part:
(b)... The answer to the specification shall be
in writing .... The respondent shall specifi-
cally admit, deny, or explain each and every
allegation of the specification, unless the re-
spondent is without knowledge, in which case
the respondent shall so state, such statement
operating as a denial. Denials shall fairly meet
1 271 NLRB 107.
2 755 F.2d 955.
645
the substance of the allegations of the specifi-
cation denied. When a respondent intends to
deny only 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....
(c)... 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 section, and the failure so
to deny is not adequately explained, such alle-
gation shall be deemed to be admitted to be
true, and may be so, found by the Board with-
out the taking of evidence supporting such al-
legation, and the respondent shall be precluded
from introducing any evidence, controverting
said allegation.
The backpay specification, issued and served on
the Respondent about 3 April 1986, specifically
states that the Respondent shall, within 15 days
from the date of the specification, file with the Re-
gional Director for Region 9 an answer to the
specification and that, if the answer fails to deny
the 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 the Respondent shall be precluded
from introducing any evidence controverting them.
In the instant case, the Respondent filed an
answer to the backpay specification which admit-
ted all of the backpay specification's allegations
with respect to four of the six discriminatees.3 Ac-
cordingly, we,, shall grant the General Counsel's
Motion for Summary Judgment as to those four
discriminatees. ,Regarding the other two discrimina-
tees, the answer admitted certain allegations and
denied others. Specifically, with respect to discri-
minatee Perry Williams, the Respondent denied
that the backpay period ended on the date alleged
by the General Counsel because, according to the
Respondent, Williams was offered reinstatement at
least 2 weeks prior to the date he returned to
work. The Respondent also disputed the General
Counsel's computation'of gross backpay for a part
of the backpay period, alleging that Williams "did
not possess the skills, training, and experience nec-
essary to perform the same work performed by
those individuals utilized by the Board as `repre-
3 The backpay specification alleged that no backpay was due one of
the four discriminatees, Ricky Tackett.
282 NLRB No. 95
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative replacement employees doing comparable
work."' The Respondent further denied that Wil-
liams would have received the overtime or the
wage increase alleged by the General Counsel. In
addition, the Respondent's answer disputed the
General Counsel's. computation of Williams ' interim
earnings.
With respect to discriminatee James Mills, the
Respondent 's answer denied the allegations con-
tained in the backpay specification only with
regard to Mills' interim earnings.
Finally, the answer stated that the Respondent
would not introduce evidence at the hearing then
scheduled and concluded:
[I]n support of its answer to the backpay speci-
fication, United Hydraulic Services, Inc. re-
spectfully requests that the Board consider all
materials in its possession including , but not
limited to, those documents provided to the
Regional Director and Compliance Officer of
Region 9 by counsel for the respondent which
materials include documents which United Hy-
draulic Services, Inc. believes support its con-
tentions.
As noted above, after the Board issued the Order
Transferring Proceeding to the Board and Notice
to Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted, the
Respondent filed a document with the Board and
requested that the document be incorporated by
reference into the answer. We construe the docu-
ment to be an amendment to the answer permissi-
ble under Section 102.57 of the Board's Rules and
Regulations . In addition to making various argu-
ments and assertions regarding the interim earnings
of Mills and Williams, the amended answer states
that the Respondent "has instructed its counsel to
aggressively defend any back-pay award."
The General Counsel's motion to strike requests
the Board to strike from the original answer the
above-quoted sentence, which requested the Board
to consider documents previously submitted to the
compliance officer. We shall deny the motion to
strike that portion of the answer, in' view of our
finding that the aforementioned document is an
amendment to the answer. Further, in light of the
statement in the amended answer indicating that
the Respondent intends to "aggressively defend" its
position in this backpay proceeding, we find that
the Respondent has changed its position with re-
spect to whether it will appear at any hearing in
this matter and that it will present its own evi-
dence.
With respect to the Motion for Summary Judg-
ment, we agree with the General Counsel that
there are no issues remaining with respect to the
gross backpay of discriminatee Mills. Thus, the
answer, as amended, does not deny any of the alle-
gations contained in the backpay specification re-
garding Mills ' gross backpay. As for the gross
backpay alleged in the backpay specification for
discriminatee Williams, we fmd that the only alle-
gation denied with the specificity required by Sec-
tion 102.54(b) of the Board's Rules and Regulations
is the date on which the backpay period ended.
Accordingly, we will grant the General Counsel's
Motion for Summary Judgment insofar as it con-
cerns the gross backpay of Mills and all of the alle-
gations regarding Williams' backpay except for the
alleged date on which the backpay period ended.
We deny the General Counsel's Motion for Sum-
mary Judgment insofar as it concerns the interim
earnings of Mills and Williams. It is well settled
that although a general denial does not constitute a
sufficient answer to the gross backpay allegations
of a backpay specification, a general denial of the
backpay specification's- allegations regarding inter-
im earnings does suffice to place in issue all ques-
tions concerning interim earnings . In view of ' the
Respondent's amendment to the part of the original
answer which stated that it would not appear at
the hearing, we find that the Respondent should
have an opportunity to present evidence regarding
the interim earnings of Mills and Williams.
ORDER
The National Labor Relations Board orders that
the Respondent, United Hydraulic Services, Inc.,
Micco, West Virginia, its officers, agents, succes-
sors, and assigns, shall make whole Ricky Bradley,
Melvin Lowe, and Charles Smith by paying them
the amounts of backpay set forth in the backpay
specification, plus interest at the appropriate rate
minus tax withholdings required by Federal and
state laws, subject to the accrual of additional in-
terest until payment is effected.
IT IS FURTHER ORDERED that the General Coun-
sel's Motion for Summary Judgment is granted
with respect to the gross backpay of James Mills as
set forth in the backpay specification, and with re-
spect to the gross backpay allegations regarding
Perry Williams except for the alleged date on
which his backpay period ended.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 9
for the purpose of issuing a notice of hearing and
scheduling such hearing before an administrative
law judge, which hearing shall be limited to taking
evidence concerning the interim earnings of James
Mills and Perry Williams, and the date on which
Williams' backpay period ended.
UNITED HYDRAULIC SERVICES 647
IT IS FURTHER ORDERED that ' he" admiiuistrafive the record `evidence . Following service of the
law judge shall prepare and serve on the parties a administrative law judge's decision on the parties,
supplemental decision containing findings of fact, the provisions of Section 102.46 of, the Board's
conclusions of law , and recommendations based on Rules shall be applicable.