Bardaville Electric Co.

National Labor Relations Board - Board Decisions

Dec 15, 1994

315 N.L.R.B. 759 (N.L.R.B. 1994)

759
315 NLRB No. 124
BARDAVILLE ELECTRIC CO.
1 309 NLRB 337.
2 In this letter, counsel for the General Counsel ‘‘apologize[d] for
the past confusion regarding the Answer to the Backpay Specifica-
tion.’’ We note in this regard that the Respondent in its January 19
and 28, 1994 answers stated that after corresponding with the Re-
gion’s supervisory compliance officer, the Respondent ‘‘was lead to
believe that [it] would be unable to disprove the Board’s backpay
amount.’’ The letters further stated that the Respondent was there-
after advised of its ‘‘right to argue . . . incorrect calculations.’’
3 These exhibits include an affidavit dated March 4, 1994, from the
Regional Director for Region 7. He avers that no appropriate answer
has been filed and the failure to do so has not been explained.
4 This letter is addressed to the Board’s Regional Office, but bears
the same zip code as all parties to this matter except the Board. We
note that the Respondent’s February 25 letter would have been time-
ly in light of the Region’s February 11 reminder that the Respondent
needed to file a second amended answer.
Bardaville Electric Co., Inc. and Local 498, Inter-
national Brotherhood of Electrical Workers,
AFL–CIO. Case 7–CA–32667
December 15, 1994
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On October 26, 1992, the National Labor Relations
Board issued a Decision and Order1 in which it or-
dered the Respondent to make whole discriminatee
David Fashbaugh for any loss of earnings, with inter-
est, that he may have suffered as a result of the Re-
spondent’s unlawful conduct. On August 8, 1993, the
Respondent executed a stipulation waiving its rights
under Section 10(e) and (f) of the Act to contest either
the propriety of the Board’s Order or the findings of
fact and conclusions of law underlying that Order.
A controversy has arisen over the amount of back-
pay due under the Board’s Order. On September 22,
1993, the Regional Director for Region 7 issued a
compliance specification and notice of hearing alleging
the amount of backpay due and notifying the Respond-
ent that it must file a timely answer complying with
the Board’s Rules and Regulations. On October 22,
1993, the Regional Attorney for Region 7 wrote the
Respondent advising that it had not filed a timely an-
swer to the compliance specification. The Respondent
was further advised that unless it filed an answer by
November 5, 1993, a Motion for Summary Judgment
would be filed with the Board. Thereafter, the Re-
spondent was granted an extension of time until No-
vember 23, 1993, to file an answer. On January 20,
1994, the Acting Regional Attorney for Region 7
wrote the Respondent again advising that it had not
filed an answer and that unless an answer was filed by
February 3, 1994, a Motion for Summary Judgment
would be filed with the Board.
On January 19, 1994, the Respondent, acting pro se,
filed a letter and an answer. By letter dated January
28, 1994, the Respondent, pro se, filed an amended an-
swer. By letter dated January 31, 1994, the Regional
Director for Region 7 advised the Respondent that its
initial answer did not comply with the requirements of
Section 102.56(b) of the Board’s Rules and Regula-
tions. The requirements of Section 102.56 were ex-
plained in the Region’s letter, a copy was enclosed,
and the Respondent was advised that unless an appro-
priate amended answer was filed by February 3, 1994,
a Motion for Summary Judgment would be filed.
Also on January 31, 1994, counsel for the General
Counsel further advised the Respondent, both tele-
phonically and by letter sent by facsimile transmission
and regular mail, that its answer and its amended an-
swer did not satisfy the requirements of Section 102.56
of the Board’s Rules and Regulations, which were
again enclosed.2 Thereafter on February 11, 1994,
counsel for the General Counsel orally advised the Re-
spondent of the need to file a second amended answer.
On March 7, 1994, the General Counsel filed with
the Board a Motion for Summary Judgment, with at-
tached exhibits.3 The General Counsel requests that all
the allegations of the backpay specification be deemed
admitted to be true, that the Respondent be precluded
from adducing evidence controverting these allega-
tions, and that the Board issue a decision and appro-
priate remedial Order.
On March 10, 1994, 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. On March 24, 1994, the Respondent
timely filed a pro se response to the Board’s Notice to
Show Cause. This response consists of a letter dated
February 25, 1994, that is styled an amended answer.4
Attached to the Respondent’s response and amended
answer are copies of the Board agent’s January 31,
1994 letter to the Respondent; copies of the Respond-
ent’s January 19 and January 28, 1994 answers, and a
letter from the Respondent to the Board agent dated
January 19, 1994, which specifically places in issue
the gross backpay calculation for the month of Novem-
ber 1991, and the method of calculating backpay.
The Respondent’s February 25, 1994 response and
amended answer requests that the Board disregard the
previous answers filed because the Region advised the
Respondent that the Board’s Rules required more spec-
ificity. The Respondent also submits that it is acting
pro se; that an officer of the Board incorrectly in-
formed the Respondent about the ‘‘proper procedure’’
for answering the specification; that the Respondent
has submitted its answer three times to date; and that
due to incorrect information given by the Board, the
Respondent was unable to meet the Board’s time re-
quirements for answering the specification.
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Respondent’s original answers were valid insofar as they
pertain to interim earnings.
6 By contrast, where a discriminatee obtains other employment
after the discharge, it is not clear that he/she would have left the
original employer in the absence of the discharge. Indeed, it is likely
that the employee would have stayed with the original employer, ab-
sent the discharge. Thus, the backpay period continues to run even
after the other employment is obtained.
7 We do not find it dispositive that Fashbaugh told an employee
rather than Respondent, of his intention to leave Respondent’s em-
ploy. This factor may be germane to the clarity and finality of
Fashbaugh’s plans, but it is not necessarily dispositive of the issue.
Thus, we would hold a hearing on the issue.
8 As noted, this case, like Vibra-Screw, involves an effort to
amend a partially valid answer that was filed prior to hearing.
9 The Respondent claims that the gross quarterly backpay com-
putation for the fourth quarter of 1991 is incorrect because it in-
cludes all wages earned or that would have been earned by
discriminatee David Fashbaugh during November 1991, even though
his discharge did not occur until November 11, 1991. In addition,
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 for Summary Judgment
Section 102.56(b) and (c) of the Board’s Rules and
Regulations states:
(b) Contents of answer to specification.—The
answer 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. 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 matters within
the knowledge of the respondent, including but
not limited to the various factors entering 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 fails to file any
answer to the specification within the time pre-
scribed by this section, the Board may, either with
or without taking evidence in support of the alle-
gations of the specification and without further
notice to the respondent, find the specification to
be true and enter such order as may be appro-
priate. If the respondent files an answer to the
specification but fails to deny any allegation of
the specification in the manner required by para-
graph (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 re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
In its original January 19, 1994 answer to the com-
pliance specification, the Respondent answered either
‘‘Deny,’’ ‘‘Incorrect,’’ ‘‘Neither admit or deny,’’ or
Disagree’’ to the allegations of the specification. In its
January 28, 1994 first amended answer, the Respond-
ent pled either ‘‘Deny,’’ or ‘‘Neither admit or deny’’
to the allegations of the specification. We find that the
Respondent’s answer and first amended answer are de-
ficient to the extent they contain general denials con-
cerning those matters within the Respondent’s knowl-
edge.5
We respectfully disagree with our dissenting col-
league’s position that the Respondent has failed to
raise a litigable issue of material fact concerning the
appropriateness of the backpay period. In order to rem-
edy the Respondent’s unfair labor practice, we must
restore the status that would have obtained if Respond-
ent had committed no unfair labor practice. There is
some evidence that discriminatee Fashbaugh would
have terminated his employment with Respondent even
if there had been no unfair labor practice. Fashbaugh
allegedly told a coemployee, prior to the unfair labor
practice, of his plans to do precisely that. If that was
Fashbaugh’s plan, backpay would toll as of the date of
his planned departure.6 Accordingly, we would hold a
hearing on this issue.7
In this case, however, the Respondent has filed a
more specific pro se response to the Notice to Show
Cause that is styled an amended answer. The Board
has held that, even in the absence of an amended back-
pay specification, a respondent may amend its answer
prior to hearing in the matter. Toledo 5 Auto/Track
Plaza, 306 NLRB 842, 843 (1992). We treat the Re-
spondent’s response to the Notice to Show Cause as a
proper and timely second amended answer. Vibra-
Screw, Inc., 308 NLRB 151, 152 (1992).8
Having construed the Respondent’s response to the
Notice to Show Cause as a second amended answer,
we find that it raises litigable issues of fact concerning
gross backpay calculations, the appropriate backpay
period, and, interim earnings, which are best resolved
by a hearing. In its second amended answer and re-
sponse to the Notice to Show Cause, the Respondent
sets forth an alternative date and basis for determining
the backpay period and alternative figures for calculat-
ing gross backpay.9 Accordingly, we deny the General
761BARDAVILLE ELECTRIC CO.
the Respondent contends that the gross backpay calculation based on
the sum of the average monthly wage of two comparable employees
for each quarter of the backpay period is incorrect because the entire
month of November 1991 was used to calculate their average month-
ly wage. Further, the Respondent asserts that these employees were
not actually comparable to discriminatee Fashbaugh because they
were employed longer and were earning 25 cents per hour more than
Fashbaugh. Finally, the Respondent contends that the backpay period
should run only from the date of Fashbaugh’s November 11, 1991
discharge until the date of his hire with another electrical contractor,
which the Respondent claims was within 1 week of his discharge.
In this regard, the Respondent points out that Fashbaugh admitted
in his testimony in the underlying case that he had a ‘‘job lined up
at Alpine Electric’’ but ‘‘didn’t have a definite starting date.’’ We
find that this latter claim states with requisite specificity an alter-
native backpay period. We do not pass on the merits of any of the
Respondent’s arguments.
10 Moreover, in denying summary judgment, we note the Region’s
January 31, 1994 letter acknowledging that confusion existed when
various Regional Office personnel communicated with the Respond-
ent concerning its obligations to file a timely and appropriate an-
swer. We also note, in particular, the letter dated January 19, 1994,
from the Respondent to the Board agent that is attached to the Re-
spondent’s response to the Board’s Notice to Show Cause. This Jan-
uary 19, 1994 letter (which is distinct from its answer of the same
date addressed to the Regional Director) is not cited in the General
Counsel’s motion. As indicated, it specifically places in issue the
gross backpay computation for the month of November 1991 and it
places in issue the basis for computing backpay. In these cir-
cumstances, we will not penalize the Respondent’s apparent good-
faith efforts to resolve this controversy with the Region.
1 309 NLRB 337, 338 (1992).
2 All subsequent dates are in 1991.
Counsel’s Motion for Summary Judgment and order a
hearing on issues raised by the Respondent’s response
to the Board’s Notice to Show Cause which we con-
strue as a proper and timely second amended answer
to the compliance specification.10
ORDER
It is ordered that the General Counsel’s Motion for
Summary Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 7 for the
purpose of issuing a notice of hearing and scheduling
a hearing before an administrative law judge for the
purpose of taking evidence concerning the issues
raised in the compliance specification. The judge shall
prepare and serve on the parties a decision containing
findings of fact, conclusions of law, and recommenda-
tions based on the relevant evidence. Following service
of the judge’s decision on the parties, the provisions
of Section 102.46 of the Board’s Rules and Regula-
tions shall be applicable.
MEMBER BROWNING, dissenting in part.
I am in substantial agreement with my colleagues,
but I would grant summary judgment on paragraphs 1
and 2 of the backpay specification.
In the underlying unfair labor practice proceeding,1
the discriminatee in this case, David Fashbaugh, testi-
fied that on November 9, 1991,2 2 days before his dis-
criminatory discharge, he told fellow employee Mike
Michaels that he (Fashbaugh) had a ‘‘job lined up at
Alpine Electric,’’ but that he did not have a definite
starting date and that he was quite undecided about
whether to try to organize the Respondent’s employ-
ees.
Fashbaugh also testified that on November 11, just
prior to being discharged, he told Michaels that he was
not going to try to organize the Respondent’s employ-
ees, but ‘‘was just going to quit and go to work for
Alpine when they called.’’ In fact, however,
Fashbaugh did not quit, because immediately there-
after, he was called into the office of the Respondent’s
president. There, in the words of the administrative
law judge, as affirmed by the Board, Fashbaugh was
‘‘summarily fired . . . because the Employer had be-
come aware of his activities on behalf of the Union.’’
Paragraph 1 of the backpay specification alleges:
The amount of backpay due to David Fashbaugh
is the amount of backpay he would have received,
but for the discrimination against him.
The Respondent denies the allegation, asserting:
It became necessary, financial[ly], for my com-
pany to lay off Mr. Fashbaugh and during the
hearing, Mr. Fashbaugh admitted to finding em-
ployment with another company and was working
for that company within days of his layoff. Mr.
Fashbaugh was not guaranteed earning the amount
of backpay specified.
Paragraph 2 of the backpay specification alleges:
The backpay period for David Fashbaugh is from
November 11, 1991, when he was discriminatorily
discharged, until December 31, 1992, when he
would have been laid off.
The Respondent denies this allegation, asserting:
If Mr. Fashbaugh is due any backpay, it should be
from the date that he was laid off until the date
of hire to the company that he had sought em-
ployment with prior to his layoff.
The Respondent appears to make two related argu-
ments in support of an alternative backpay period.
First, the Respondent contends that the backpay period
should end approximately 1 week after the discharge
when Fashbaugh began working for another employer.
Second, the Respondent argues that Fashbaugh’s testi-
mony in the underlying unfair labor practice proceed-
ing establishes that, prior to his discharge, he was
planning to leave the Respondent’s employ.
My colleagues find that the Respondent’s above as-
sertions state with requisite specificity an alternative
backpay period and thus raise a litigable issue of fact
concerning the appropriateness of the backpay period
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Daniel Construction Co., 276 NLRB 1093 fn. 3 (1985). Accord:
Iron Workers Local 15, 298 NLRB 445, 467 (1990).
4 The net backpay amount would, of course, be affected by such
interim earnings.
5 See Transport Service Co., 314 NLRB 458 (1994).
6 To the extent that language in Mastro Plastics Corp., 136 NLRB
1342, 1349–1350 (1962), enfd. in part 354 F.2d 170 (2d Cir. 1965),
is ambiguous and can be construed as supporting the Respondent’s
position, I would disavow such a construction.
alleged in paragraph 2 of the specification, thus war-
ranting a hearing on that issue. I disagree.
The Board has held that an employer’s obligation to
make an employee whole for losses suffered as a result
of an unlawful discharge is not terminated even if the
employee obtains substantially equivalent employment
elsewhere; instead, the backpay obligation continues
without regard to the employee’s new employment.3 In
light of that precedent, the Respondent’s assertion that
Fashbaugh obtained other employment after being dis-
charged by the Respondent does not raise a material
issue of fact about the appropriateness of the alleged
backpay period.4
The Respondent’s ‘‘he-would-have-quit-anyway’’ ar-
gument fares no better. If Fashbaugh had given this
Respondent notice on November 11 that he would be
terminating his employment on a certain future date,
and if the Respondent had subsequently discharged
Fashbaugh because of his union activities, then it
might well be appropriate to limit the backpay period
to the period between the notice and the planned termi-
nation date, because it could be said with relative as-
surance that Fashbaugh would only have worked that
period in any event. Those, however, are not the facts
of this case.
As stated above, the findings in the underlying un-
fair labor practice case, which may not be relitigated
in the present backpay proceeding,5 establish that on
November 11 Fashbaugh did not quit his employment
or give the Respondent notice that he would be quit-
ting his employment on a date certain. Rather, the
record shows that on November 11 Fashbaugh told a
fellow employee that he was ‘‘going to quit’’ his job.
Whether and when Fashbaugh would have actually
quit work is highly speculative. By abruptly terminat-
ing him on November 11 because of his union sym-
pathies, the Respondent has made it impossible to de-
termine what might have happened absent the dis-
charge. Where, as here, there are uncertainties or ambi-
guities, it is a well-established remedial principle that
‘‘the backpay claimant should receive the benefit of
any doubt rather than the Respondent, the wrongdoer
responsible for the existence of any uncertainty and
against whom any uncertainty must be resolved.’’
United Aircraft Corp., 204 NLRB 1068 (1973). For
these reasons, I would find that the Respondent’s
‘‘quit’’ argument fails to raise a material issue con-
cerning the appropriateness of the backpay period.6
Accordingly, I would grant the motion for summary
judgment as to backpay specification paragraphs 1 and
2, and find the allegations therein to have been estab-
lished.