Watt Electric Co. And Its Alter Ego, Watt Plumbing, Air Conditioning & Electric, Inc.

National Labor Relations Board - Board Decisions

May 9, 1986

279 N.L.R.B. 915 (N.L.R.B. 1986)

WATT ELECTRIC CO
Watt Electric Company and its alter ego, Watt
Plumbing, Air Conditioning & Electric , Inc. and
John O . Watt and International Brotherhood of
Electrical Workers, Local No . 584, AFL-CIO-
CLC. Case 16-CA-11434
9 May 1986
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 14 December 1984 the National Labor Rela-
tions Board issued a Decision and Order in this
proceeding 1 in which it ordered the Respondent,
inter alia, to make whole Donald J. Andrews,
Robert L. Silver, Johnny F. Taylor, and Jerry W.
Wallace for any loss of earnings and other benefits
resulting from their discharge in violation of Sec-
tion 8(a)(3) and (1) of the Act and to make whole
unit employees for any losses resulting from the
Respondent's failure to maintain existing contrac-
tual wages and benefits in violation of Section
8(a)(5) and (1) of the Act. On 1 July 1985 the
United States Court of Appeals for the 10th Circuit
granted enforcement of the Board's Order.2
On 27 August 1985 the Regional Director for
Region 16 issued and caused to be served on the
parties a backpay specification and notice of hear-
ing alleging the amounts of backpay due under the
terms of the Board's Order. On 6 September 1985
the Regional Director issued and served on the
parties an amendment to the backpay specification
and notice of hearing.
On 10 September 1985 the Respondent filed an
answer to the backpay specification. The answer
asserts that the Respondent owes no backpay be-
cause : it allegedly offered its former employees
substantially equivalent employment on 24 August
1983; it would have ceased doing business from 23
August 1983 if the then-prevailing rates of pay and
benefits had continued; the Union allegedly refused
to bargain with Respondent; and the Board's Order
is vague and ambiguous. The answer does not,
however, dispute the accuracy of the formula or
figures utilized by the Regional Director, or pro-
vide any specific alternative formula and/or figures
for computing backpay. On 27 September 1985 the
Respondent filed a motion to reopen the record,
citing the Union's alleged refusal to bargain with
the Respondent or to negotiate future wage rates
for reinstated employees.
On 15 October 1985 the General Counsel filed
with the Board a "Motion to Transfer to the Board
' 273 NLRB 655
2 No 85-1656 (10th Cir 1985)
915
and for Summary Judgment." The General Coun-
sel alleges that the Respondent 's answer fails to
conform to the requirements of Section 102.54(b)
and (c) of the Board' s Rules and Regulations, in
that it fails specifically to deny any allegation of
the specification, or to explain this failure, and
merely asserts defenses which are not entitled to
further consideration. On 25 October 1985 the
Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. The Board thereafter ex-
tended the time for the Respondent to respond to
the Notice to Show Cause from 8 November to 29
November 1985.3
On 26 November 1985 the Respondent filed with
the Board an amended answer to the Regional Di-
rector's amended backpay specification. The cover
letter to the amended answer indicates that the Re-
spondent had recently retained new counsel in this
matter, and that the amended answer is intended
also as a response to the Board's Notice to Show
Cause. The amended answer contests the backpay
and fund moneys due for the four discriminatees;
the wage difference amounts due the four discri-
minatees ; the amounts due other employees of the
Respondent; and the amount due to the Union as
union dues. The amended answer explains that its
calculation of backpay and fund moneys due for
the discriminatees is based on the Respondent's
own computation of the hours worked by the dis-
criminatees. In all the above contested categories,
other than fund moneys, the Respondent bases its
calculation on a $12.11 wage rate, rather than the
$16.15 wage rate utilized by the Regional Director.
The General Counsel has filed no response to the
Respondent's amended answer.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this case, the Board
makes the following
Ruling on the Motion for Summary Judgment
Section 102.54(b) and (c) of the National Labor
Relations Board Rules and Regulations states:
2 On 12 November 1985 the General Counsel filed a Supplemental
Motion for Summary Judgment and Response to Respondent's Answer
and Motion for Continuance According to the Supplemental Motion, the
Respondent filed an answer on 15 October which merely adopted the
original answer The General Counsel further alleged , inter alia , that both
answers were deficient under Sec 102 54(b) of the Board's Rules for fail-
ure to be "signed and sworn to by the Respondent or by a duly author-
ized agent with appropriate power of attorney affixed " We note, in this
regard, that the purported 15 October answer was not appended to the
General Counsel 's motion , nor does it otherwise appear in the record
before the Board
279 NLRB No. 129
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Contents of the answer to specification.-
The answer to the specification shall be in
writing , the original being signed and sworn to
by the respondent or by a duly authorized
agent with appropriate power of attorney af-
fixed, and shall contain the post office address
of the respondent. The respondent shall specif-
ically 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
the substance of the allegations of the specifi-
cation denied. 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 mat-
ters within the knowledge of the respondent,
including but not limited to the various factors
entering into the computation of gross back-
pay, a general denial shall not suffice. As to
such matters, 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) Effect of failure to answer or to plead spe-
cifically and in detail to the specification.-If the
respondent fails to file any answer to the speci-
fication within the time prescribed by this sec-
tion , the Board may, either with or without
taking evidence in support of the allegations of
the specification and without notice to the re-
spondent, 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 specifi-
cation in the manner required by subsection
(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
respondent shall be precluded from introduc-
ing any evidence controverting said allegation.
Both the original backpay specification and its
amendment duly served on the Respondent state
that, pursuant to Section 102.54 of the Board's
Rules and Regulations , "Respondent shall, within
15 days from the date of the Specification, file with
the Regional Director for the Sixteenth Region,
acting in this matter as agent of the National Labor
Relations Board , an original and four (4) copies of
an answer to the Specification. To the extent that
such answer fails to deny allegations of the Specifi-
cation in the manner required under the Board's
Rules and Regulations , and the failure so to do is
not adequately explained, such allegations shall be
deemed to be admitted to be true and the Respond-
ent shall be precluded from introducing any evi-
dence controverting them."
We agree with the General Counsel that the Re-
spondent's 10 September answer fails to satisfy the
requirements of Section 102.54(b) and (c). This
answer does not specifically dispute the accuracy
of the gross backpay figures contained in the speci-
fication or provide any specific alternative formula
for computing the amounts of gross backpay due.
The answer only raises issues which were the sub-
ject of the underlying unfair labor practice pro-
ceeding and were litigated and expressly deter-
mined in that proceeding. These issues are preclud-
ed from further litigation .4 For these reasons, we
conclude that the 10 September answer does not
conform to the requirements of Section 102.54(b).
Respondent's second answer of 26 November
presents an initial procedural issue concerning its
acceptability. When, as here, the Regional Director
has amended the backpay specification, Section
102.57 of the Rules permits the respondent to
amend its answer. Moreover, the Board has viewed
attempts to cure technical defects in an original
answer as timely. E.g., Victoria Medical Group, 274
NLRB 1006, 1007 (1985). Mindful of the admoni-
tion in Section 102.121 that the Rules "shall be lib-
erally construed to effectuate the purposes and pro-
visions of the act," we deem timely Respondent's
26 November answer, and proceed to consideration
of its merits as an answer to the amended backpay
specification.
The 26 November answer raises only two issues
not raised by the initial 10 September answer. Its
backpay calculations are based on a $12.11 hourly
wage rate , rather than the $16.15 rate used by the
General Counsel, and Respondent's figures for the
number of hours worked by each discriminatee are
substantially less than the figures in the backpay
specification. In the underlying unfair labor prac-
tice proceeding, the Board expressly found that Re-
spondent negotiated this $12.11 rate directly with
its unit employees during the term of the collec-
tive-bargaining agreement, in violation of Section
8(a)(5) and (1) of the Act.5 The calculations de-
4 E.g, Ricks Construction Co, 272 NLRB 424 at 425 (1984) For this
reason, the Respondent 's motion to reopen the record must be denied
6 The amended answer explicitly derives the $12 11 wage rate from the
Jobs Target Program in an attached 3 June 1983 letter The same letter
was introduced into evidence in the underlying case The Respondent's
attempt to negotiate the Jobs Target Program at midterm directly with
its unit employees in July 1983 violated Sec 8(a)(5) and (1) 273 NLRB
655, 656, 659
WATT ELECTRIC CO. 917
rived from this wage rate therefore are unaccept-
able as a matter of law because they represent an
attempt to relitigate an issue already decided.6 Re-
spondent's bare recitation of an alternative compu-
tation of the discriminatees' hours is likewise insuf-
ficient. At no point does the Respondent expressly
dispute the General Counsel's gross backpay for-
mula used to compute the number of hours each
discriminatee would have worked, nor does the
Respondent adequately explain the basis for its dis-
agreement with the General Counsel's figures. We
have recently concluded that answers to backpay
specifications deficient in the same respects as Re-
spondent's answer failed to conform with the re-
quirements of Section 102.54(b) and (c). Victoria
Medical Group, supra; Ricks Construction Co.,
supra. On careful consideration, we conclude that
Respondent's 26 November amended answer falls
short of the above requirements. We therefore
6 Ricks Construction Ca, supra
deem every allegation in the amended specification
to be admitted as true, and grant the General
Counsel's Motion for Summary Judgment.'
ORDER
The National Labor Relations Board orders that
the Respondent, Watt Electric Company, and its
alter ego, Watt Plumbing, Air Conditioning &
Electric, Inc. and John O. Watt, Tulsa, Oklahoma,
its officers, agents, successors, and assigns, shall
pay the amounts set forth in the backpay specifica-
tion, as amended, plus interest at the appropriate
rate, minus tax withholdings required by Federal
and state laws, subject to the accrual of additional
interest until payment is effected.
' The Respondent does not contest the Regional Director 's calcula-
tions of the discrimmatees' interim earnings
Member Babson, in joining his colleagues in granting the General
Counsel's Motion for Summary Judgment , additionally relies on the fact
that neither the 10 September answer nor the 26 November amended
answer were sworn to by the Respondent or its attorney as required by
Sec 102 54(b) of the Board's Rules