Carnival Carting, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 2005

345 N.L.R.B. 910 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 63
910
Carnival Carting, Inc. and Local 813, International
Brotherhood of Teamsters.1 Cases 29–CA–20586
and 29–CA–22552
September 20, 2005
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 16, 2000, the National Labor Relations
Board issued an Order2 that, among other things, ordered
Respondent Carnival Carting, Inc., its officers, agents,
successors, and assigns, to make whole discriminatee
Frank Mendez for any loss of earnings and other benefits
suffered as a result of his discharge in violation of the
National Labor Relations Act. On April 24, 2001, the
United States Court of Appeals for the Second Circuit
issued its judgment enforcing in full the Board’s Order.3
A controversy having arisen over the amount of back-
pay due the discriminatee, on April 28, 20054 the Re-
gional Director for Region 29 issued a compliance speci-
fication and notice of hearing identifying the amounts of
backpay due under the Board’s Order, and notifying the
Respondent that it must file a timely answer complying
with the Board’s Rules and Regulations. The Respon-
dent failed to file a timely answer to the compliance
specification.
By letter dated May 24, the General Counsel notified
the Respondent that no answer to the compliance specifi-
cation had been received and that unless an answer was
filed by June 7, a motion for summary judgment would
be filed. On June 7, the Respondent filed an answer gen-
erally denying the allegations in the compliance specifi-
cation.
On July 7, the General Counsel filed with the Board a
Motion for Partial Summary Judgment. The General
Counsel argues that the Respondent’s answer fails to
meet the specificity requirements of Section 102.56(b)
and (c) of the Board’s Rules and Regulations.
On July 13, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the General Counsel’s motion should not be
granted. On August 10, after receiving an extension of
time, the Respondent filed an Opposition to the General
Counsel’s Motion for Partial Summary Judgment, con-

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 The unpublished Order adopted, in the absence of exceptions, the
decision of Administrative Law Judge Eleanor MacDonald issued on
September 18, 2000 (JD(NY)–N62–00).
3 01–4034.
4 All dates are 2005 unless otherwise indicated.
tending that the General Counsel’s motion was proce-
durally defective.
On the entire record, the Board makes the following
Ruling on Motion for Partial Summary Judgment
Section 102.56(b) and (c) of the National Labor Rela-
tions Board’s Rules and Regulations states, in pertinent
part:
(b) Contents of answer to specification. The an-
swer shall specifically admit, deny, or explain each
and every allegation of the specification, unless the
respondent 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 specification at issue. When a
respondent intends to deny only a part of an allega-
tion, 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 enter-
ing 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 figures
in the specification or the premises on which they
are based, the answer shall specifically state the ba-
sis for such disagreement, setting forth in detail the
respondent’s position as to the applicable premises
and furnishing the appropriate supporting figures.
(c) Effect of failure to answer or to plead specifi-
cally and in detail to backpay allegations of specifi-
cation. If the respondent fails to file any answer to
the specification within the time prescribed by this
section, the Board may, either with or without taking
evidence in support of the allegations of the specifi-
cation and without further notice to the respondent,
find the specification to be true and enter such order
as may be appropriate. If the respondent files an an-
swer to the specification but fails to deny any allega-
tion of the specification in the manner required 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 without the taking of evi-
dence supporting such allegation, and the respondent
shall be precluded from introducing any evidence
controverting the allegation.
In its answer to the Regional Director’s compliance
specification, the Respondent has offered general denials
to the General Counsel’s allegations in paragraph I,
which pertains to the backpay period, and the allegations
in paragraphs II, VII, and VIII, which pertain to the
amount of backpay due discriminatee Frank Mendez.
CARNIVAL CARTING, INC. 911
The General Counsel contends that such general denials
do not comply with the requirements of section
102.56(b) and (c). We agree.
A general denial of allegations regarding the backpay
period and gross backpay calculations is insufficient to
comply with the specificity requirements of section
102.56(b) and (c). See United States Service Industries,
325 NLRB 485 (1998). A general denial of allegations
regarding the pension fund contribution and severance
plan contribution amounts is also insufficient to comply
with the specificity requirements of Section 102.56(b)
and (c). These amounts enter into the computation of
total gross backpay, and are clearly within the Respon-
dent’s knowledge. See Mining Specialists, Inc., 330
NLRB 99, 101 (1999). Because the Respondent failed to
furnish supporting figures or fully set forth its position
regarding the applicable premises as required by section
102.56(b) and (c), we find the Respondent’s answer to be
inadequate under that section. Accordingly, we grant the
General Counsel’s motion and deem that the allegations
in paragraphs I, II, VII, and VIII of the compliance speci-
fication are admitted as true, and the Respondent is pre-
cluded from introducing evidence challenging them.5

5 As noted above, the Respondent filed an Opposition to the General
Counsel’s Motion for Partial Summary Judgment. The Respondent
contends that the General Counsel’s motion should be denied because it
ORDER
It is ordered that the General Counsel’s Motion for
Partial Summary Judgment is granted as to paragraphs I,
II, VII, and VIII of the compliance specification, and that
those allegations are deemed to be true.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 29 for the
purpose of arranging a hearing before an administrative
law judge limited to the issues of interim earnings and
expenses, net backpay, and medical expenses.

is procedurally defective. The Respondent argues that the original
Board Order in this case is not an Order because it is not signed, and
that the Order and motion are defective because a copy of the judge’s
decision and recommended Order were not attached to them. The
Respondent further argues that the judgment of the United States Court
of Appeals for the Second Circuit is similarly defective because it relies
on the Board’s Order. We reject these contentions as lacking in merit.
First, the Respondent was served, by certified mail, with a copy of
the decision and recommended order of the judge on September 25,
2000. Second, the Respondent was served, by certified mail, with a
copy of the signed Board order adopting the decision and recommended
order of the judge on November 27, 2000. Moreover, under Sec. 10(e)
of the Act, the Board does not have jurisdiction to modify an Order that
has been enforced by a court of appeals because, upon filing of the
record with the court of appeals, the jurisdiction of that court is exclu-
sive and its judgment and decree final, subject to review only by the
Supreme Court. See Grinnell Fire Protection Systems Co., 337 NLRB
141, 142 (2001).