Yerger Trucking, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1995

319 N.L.R.B. 5 (N.L.R.B. 1995)

5
319 NLRB No. 2
YERGER TRUCKING, INC.
1 307 NLRB 567.
Yerger Trucking, Inc. and Yerger Landscaping and
Paving, Inc. and Teamsters Local Union No.
429 a/w International Brotherhood of Team-
sters, AFL–CIO. Case 4–CA–19810
September 19, 1995
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On May 15, 1992, the National Labor Relations
Board issued a Decision and Order1 in this proceeding
in which the Board ordered the Respondent, inter alia,
to make whole employees for their losses resulting
from the Respondent’s unfair labor practices. On July
25, 1994, the United States Court of Appeals for the
Third Circuit entered its judgment enforcing the
Board’s Order.
A controversy having arisen over the amounts due
under the terms of the Board’s Order, the Regional Di-
rector for Region 4 issued a compliance specification
and notice of hearing on March 30, 1995, alleging the
amounts due and notifying the Respondent that it must
file a timely answer complying with the Board’s Rules
and Regulations. On April 27, 1995, the Respondent
filed an answer to the compliance specification, admit-
ting in part and denying in part the allegations in the
compliance specification. By letter dated May 12,
1995, counsel for the General Counsel informed the
Respondent that its answer did not appear to comply
with Section 102.56 of the Board’s Rules and Regula-
tions, provided a copy of Section 102.56, advised the
Respondent that it should file an amended answer by
May 25, 1995, to correct the deficiencies in its answer,
and further advised the Respondent that a Motion for
Partial Summary Judgment would be filed if the Re-
spondent failed to file an amended answer that com-
ported with Section 102.56. The Respondent has not
filed an amended answer and did not respond to the
letter. On or about June 5, 1995, the Respondent was
again advised, by telephone, of the deficiencies in its
answer and of the General Counsel’s intention to file
a Motion for Partial Summary Judgment. The Re-
spondent has not responded.
On August 9, 1995, the General Counsel filed with
the Board a Motion to Strike Portions of Answer and
for Partial Summary Judgment, with exhibits attached.
On August 15, 1995, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the General Counsel’s motion should
not be granted. The Respondent has failed to file a re-
sponse. The allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
Ruling on Motion to Strike Portions of Answer
and for Partial Summary Judgment
Section 102.56(b) and (c) of the Board’s Rules and
Regulations provides, inter alia,
(b) Contents of answer to specification. The an-
swer shall specifically admit, deny, or explain
each and every allegation of the specification, un-
less the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. Denials shall fair-
ly meet the substance of the allegations of the
specification at issue. . . . As to all matters with-
in the knowledge of the respondent, including but
not limited to the various factors entering into the
computation of gross backpay, a general denial
shall not suffice. As to such matters, if the re-
spondent disputes either the accuracy of the fig-
ures in the specification or the premises on which
they are based, the answer shall specifically state
the basis for such disagreement, setting forth in
detail the respondent’s position as to the applica-
ble premises and furnishing the appropriate sup-
porting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to backpay allegations of
specification. . . . If the respondent files an an-
swer to the specification but fails to deny any al-
legation of the specification in the manner re-
quired by paragraph (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 with-
out the taking of evidence supporting such allega-
tion, and the respondent shall be precluded from
introducing any evidence controverting the allega-
tion.
The General Counsel alleges that the Respondent’s
answer is insufficient to raise any litigable issues re-
garding paragraphs 1 through 5 of the compliance
specification. Paragraphs 1 and 2 concern the length of
the discriminatees’ backpay periods, and paragraphs 3
and 4 set forth the formula for calculating the
discriminatees’ gross backpay. Paragraph 5 sets forth
the method for calculating the discriminatees’ net
backpay. The General Counsel does not seek summary
judgment concerning interim earnings and the appro-
priate interest rate to be assessed.
In paragraph 1 of its answer, the Respondent denies
that it is liable for backpay for G. Wartzenluft from
July 4, 1991, ‘‘since both parties worked for Respond-
ent during that time.’’ The General Counsel contends
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6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 United Enviro Systems, 314 NLRB 1130 (1994).
3 In par. 7 of its answer the Respondent contends that the interest
rate charged is confiscatory.
that this answer is insufficient because the Respondent
does not explain who both parties are and does not fur-
nish supporting figures. We agree with the General
Counsel that this answer does not comport with Sec-
tion 102.56 of the Board’s Rules. Accordingly, we
shall strike the Respondent’s answer to paragraph 1
and deem that allegation to be true.
In its answer to paragraph 2 of the compliance spec-
ification, the Respondent admits that the dates of the
backpay periods are correct, but contends that ‘‘the
weekly amount allegedly earned by individuals from
Respondent is excessive.’’ The Respondent further
maintains that it is without sufficient knowledge ‘‘to
determine if the amounts earned by the individuals
during the periods stated are accurate.’’ The General
Counsel argues that this answer does not comport with
Section 102.56 of the Board’s Rules because it does
not set forth in detail the Respondent’s position as to
the applicable premises and is not supported by any al-
ternative figures. To the extent that the Respondent is
arguing that it is without knowledge of the amounts set
forth in the gross backpay calculations, the General
Counsel submits that such a contention is not credible
because the Respondent’s payroll records are within its
possession. The Respondent has not explained why it
could not support its position with the necessary fig-
ures. We agree with the General Counsel that the Re-
spondent’s answer to paragraph 2 is insufficient be-
cause it does not set forth in detail the Respondent’s
position as to the applicable premises and does not fur-
nish the appropriate supporting figures. Accordingly,
we find the allegations in paragraph 2 to be true and
the Respondent shall be precluded from introducing
evidence controverting them.
The Respondent’s answer to paragraph 3 of the
compliance specification disputes the premise on
which the gross backpay calculation is based. The Re-
spondent states that the determination should have
been based on the individuals’ July 1990 earnings,
rather than their June 1991 earnings. The Respondent
also notes that the Wartzenlufts received pay for the
holiday. The General Counsel contends that this an-
swer is insufficient because it is not supported by any
records, specific alternative figures, or calculations.
The Respondent also failed to establish any amounts of
holiday pay allegedly received by the Wartzenlufts.
We agree with the General Counsel that this answer is
insufficient under Section 102.56 of the Board’s Rules
because the Respondent failed to provide details about
the application of its alternative method of backpay
calculation and failed to furnish any appropriate sup-
porting figures. The Board has held that respondents
are required to do more than simply criticize the bases
for the specification, and must affirmatively provide an
alternative formula and supporting figures.2 Because
the Respondent has failed to provide supporting figures
for its alternative formula we find the Respondent’s
answer to be inadequate under Section 102.56 of the
Board’s Rules. Accordingly, we shall strike the Re-
spondent’s answer to paragraph 3 of the compliance
specification and shall deem that allegation to be true.
In its answer to paragraph 4 of the compliance spec-
ification, the Respondent contends that the appropriate
measure of weekly earnings should have been based on
an entire year period rather than the 6-month period
contained in the specification. The Respondent failed
to support this contention with any specific figures or
alternative calculations. For the reasons set forth above
with regard to paragraph 3, we shall strike the Re-
spondent’s answer to paragraph 4 and deem the allega-
tion true.
Paragraph 5 of the compliance specification sets
forth the method of calculating net backpay, i.e., the
difference between gross backpay and interim earnings
for each calendar quarter. The Respondent’s answer
admits ‘‘as to how the calculations were made, but de-
nied as to the method used’’ and states that the Re-
spondent is without knowledge to determine the accu-
racy of the discriminatees’ interim earnings. The Gen-
eral Counsel does not seek to preclude the Respondent
from presenting defenses concerning issues of interim
earnings or the applicable interest rate.3 We grant the
General Counsel’s motion to strike the Respondent’s
answer to paragraph 5 of the compliance specification
to the extent that it contests the method of calculating
net backpay. The Respondent will not, however, be
precluded from presenting evidence concerning the
amount of interim earnings and the applicable interest
rate.
For these reasons, we grant the General Counsel’s
Motion for Partial Summary Judgment and shall re-
mand this proceeding for a hearing limited to the
issues of the discriminatees’ interim earnings and the
resulting net backpay, and the applicable interest rate
to be assessed.
ORDER
It is ordered that the Respondent’s answers to para-
graphs 1 through 5 of the compliance specification are
stricken, those allegations are deemed to be true and
the General Counsel’s Motion for Partial Summary
Judgment is granted with respect to all issues except
interim earnings and the appropriate interest rate to be
assessed.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 4 for the
purpose of arranging a hearing before an administra-
tive law judge limited to the issues of interim earnings
and the appropriate interest rate to be assessed. The
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7YERGER TRUCKING, INC.
administrative law judge shall prepare and serve on the
parties a decision containing findings of fact, conclu-
sions of law, and recommendations based on all the
record evidence. Following service of the administra-
tive law judge’s decision on the parties, the provisions
of Section 102.46 of the Board’s Rules and Regula-
tions shall be applicable.
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