Carib Inn Tennis Club & Casino

National Labor Relations Board - Board Decisions

Mar 29, 1996

320 N.L.R.B. 1113 (N.L.R.B. 1996)

1113
320 NLRB No. 135
CARIB INN TENNIS CLUB & CASINO
1 312 NLRB 1212.
2 Docket Nos. 94-1294 and 94-1303.
Horizons Hotel Corporation d/b/a Carib Inn Tennis
Club and Casino and/or Hotel Associates, In-
corporated and Union de Trabajadores de la
Industria Gastronomica de Puerto Rico, Local
610, Hotel Employees and Restaurant Employ-
ees International Union, AFL–CIO. Case 24–
CA–5423
March 29, 1996
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On November 22, 1993, the National Labor Rela-
tions Board issued a Decision and Order in this pro-
ceeding1 in which it ordered Respondent Horizons
Hotel Corporation d/b/a Carib Inn Tennis Club and
Casino (Horizons), inter alia, to make whole its prede-
cessor’s former employees in both the service and the
casino bargaining units for the loss of earnings they
suffered by reason of the Respondent’s discriminatory
failure to hire them and the Respondent’s unlawful
unilateral changes on commencing operations. On
March 3, 1995, the United States Court of Appeals for
the First Circuit entered a judgment enforcing the
Board’s Order.2
A controversy having arisen over the amount of
backpay due the discriminatees under the Board’s
Order, the Regional Director for Region 24 issued a
compliance specification and notice of hearing on July
13, 1994, alleging that Respondent Hotel Associates,
Incorporated is a successor, a joint employer, a single
employer, and/or an alter ego of Respondent Horizons
and that they are jointly and severally liable for the
amounts of backpay owed to the individual discrim-
inatees which are set forth in that document. The com-
pliance specification also notified both Respondents
that they must file a timely answer complying with the
Board’s Rules and Regulations. On August 19 and
September 10, 1994, respectively, Respondent Hotel
Associates and Respondent Horizons separately filed
answers to the compliance specification.
On November 2, 1995, the General Counsel filed a
Motion to Transfer Case to and Continue Proceeding
before the Board and for Partial Summary Judgment,
with exhibits attached. The General Counsel’s motion
contended that the Respondents’ separate answers to
paragraphs 12 through 14 of the compliance specifica-
tion fail to meet the requirements of Section 102.56(b)
and (c) of the Board’s Rules and Regulations because
they constitute ‘‘general denials’’ to matters which are
within each of the Respondent’s knowledge. The Gen-
eral Counsel moved that the Board deem paragraphs
12 through 14 of the compliance specification to be
admitted as true and grant the General Counsel’s Mo-
tion for Partial Summary Judgment on these allega-
tions.
On November 13, 1995, the Board issued on order
transferring the proceeding to the Board and a Notice
to Show Cause why the General Counsel’s motion
should not be granted. The Respondents have not filed
a response to the Notice to Show Cause.
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 the Motion for Partial
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 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 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 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 evi-
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We disagree, however, with the General Counsel’s contention
that the Respondents’ separate answers are deficient with respect to
all the allegations claimed in par. 14. Because par. 14 alleges, in ad-
dition to the amounts claimed, that Respondent Hotel Associates is
liable for the amounts due, and because this Respondent has gen-
erally denied any backpay liability here under the theories advanced
by the General Counsel, we shall grant the General Counsel’s mo-
tion regarding par. 14 only with respect to the specific amounts
claimed in that paragraph. See Pallazola Electric, 312 NLRB 569
(1993).
4 See Pallazola Electric, supra; Scotch & Sirloin Restaurant, 287
NLRB 1318 (1988). Respondent Hotel Associates’ answer states that
it ‘‘[l]acks sufficient information to form an opinion as to the allega-
tions contained in paragraphs ‘12,’ ‘13,’ ‘14.’’’ Although the Board
ordinarily presumes that the various factors entering into the com-
putation of gross backpay are within the knowledge of a respondent
employer, at this stage of the proceeding Respondent Hotel Associ-
ates has not been shown to be an ‘‘employer’’ of the discriminatees.
Rather, as indicated in fn. 3, supra, Respondent Hotel Associates’
denial that it is a successor, a joint employer, a single employer, or
an alter ego of Respondent Horizons raises issues that must be re-
solved at a hearing.
We need not decide the question of the adequacy of Respondent
Hotel Associates’ answer to the gross backpay allegations of the
specification. Resolution of the derivative liability issue will nec-
essarily resolve that question as well. If Respondent Hotel Associates
is not a successor, a joint employer, a single employer, or an alter
ego of Respondent Horizons, then it will not be liable for any back-
pay. If, on the other hand, the General Counsel establishes that such
a relationship exists between the Respondents, then Respondent
Hotel Associates will be bound by the failure of Respondent Hori-
zons to provide an adequate answer to the gross backpay computa-
tions of the specifications. See Denart Coal Co., 301 NLRB 391,
392 (1991).
5 Carib Inn of San Juan, 312 NLRB 1212 at fn. 4 (1993).
6 See, e.g., Dews Construction, 246 NLRB 945, 947 (1979), where
the Board held that a general denial, as here, was sufficient to place
interim earnings into issue.
7 See NLRB v. Continental Hagen Corp., 932 F.2d 828 (9th Cir.
1991).
dence supporting such allegation, and the respond-
ent shall be precluded from introducting evidence
supporting the allegation.
We agree with the General Counsel that the Re-
spondents’ separate answers are not sufficient to raise
any litigable issue regarding paragraphs 12 and 13 of
the compliance specification and paragraph 14 to the
extent it sets out gross backpay totals.3 Paragraph 12
alleges that the backpay period for the service employ-
ees began on June 1, 1986, and ends on the date that
they either are reinstated or reject a valid reinstatement
offer; that the applicable rate of pay is their earnings
immediately before Respondent Horizons committed
the unfair labor practices; and that the service unit em-
ployees worked an average of 40 hours immediately
before the violations occurred. Paragraph 13 alleges
that the backpay period for the casino unit employees
began on June 1, 1986, and terminated on June 23,
1986, when Respondent Horizons ceased casino oper-
ations; that the applicable rate of pay is their earnings
immediately before the unfair labor practices com-
menced; and that they also worked an average of 40
hours per week. Paragraph 14 summarizes the facts
and calculations regarding the gross backpay and rein-
statement obligation of Respondent Horizons and/or
Respondent Hotel Associates.
Respondent Horizons’ answer generally denies para-
graphs 13 and 14 of the specification but fails to either
admit or deny paragraph 12. These matters regarding
gross backpay computations are within Respondent
Horizons’ knowledge and control and its failure to set
forth fully its position as to the applicable premises or
to furnish appropriate supporting figures or alternative
calculations is contrary to the specificity requirements
of Section 102.56(b) of the Board’s Rules and Regula-
tions.4
Although the Respondents also raise various affirm-
ative defenses in their respective answers, these de-
fenses also are insufficient to warrant a hearing, be-
cause they do not raise any issue with respect to para-
graphs 12 and 13, and paragraph 14 as it relates to
gross backpay. Thus, Respondent Horizons is improp-
erly attempting to relitigate issues previously decided
in the unfair labor practice case by arguing that the
Board’s make-whole remedy is inappropriate because
‘‘it is based on the salaries and/or benefits which the
employees earned prior to the commencement of oper-
ations by Horizons.’’ As the counsel for the General
Counsel stresses in her motion, the Board previously
decided that, as part of its remedy, the Respondent was
required to rescind the unilateral changes it made on
commencing operations and to reinstate the unit em-
ployees’ prior terms and conditions of employment.5
Respondent Horizons’ other affirmative defenses in-
volve the discriminatees’ interim earnings and their ef-
forts to mitigate damages which the Respondent is en-
titled to litigate fully at the compliance hearing di-
rected below.6 Finally, contrary to Respondent Hotel
Associates’ argument, the bankruptcy petition that it
purportedly filed in the United States Bankruptcy
Court does not stay this proceeding because the Board
is exempt from the automatic stay provision of the
Federal Bankrupcy Code.7
Therefore, pursuant to Section 102.56(b) and (c) of
the Board’s Rules, we find that Respondent Horizons
has admitted to be true paragraphs 12 and 13, and
paragraph 14 of the compliance specification regarding
gross backpay. Accordingly, we grant the General
Counsel’s Motion for Partial Summary Judgment and
shall direct a hearing limited to the remaining para-
graphs of the specification.
ORDER
It is ordered that the General Counsel’s Motion to
the Board for Partial Summary Judgment is granted
with respect to the compliance specification’s para-
1115CARIB INN TENNIS CLUB & CASINO
graphs 12 and 13, and paragraph 14 regarding gross
backpay.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 24 for the
purposes of issuing a notice of hearing and scheduling
the hearing before an administrative law judge, which
shall be limited to taking evidence concerning para-
graphs 1 through 11 of the compliance specification.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a supple-
mental 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 shall be appli-
cable.