Dunn Bindery, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1998

325 N.L.R.B. 720 (N.L.R.B. 1998)

720
325 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In an unpublished decision, the Board adopted the administrative
law judge’s findings in the absence of exceptions.
2 The Board’s Order was enforced in Case 95-6600, an unpub-
lished decision.
3 All dates are in 1997, unless stated otherwise.
4 The amounts owed are set forth in attachment 20 and schedule
‘‘C,’’ respectively, of the amended specification.
Dunn Bindery, Inc. and Local 289M (Detroit To-
ledo-Lansing) Graphic Communications Inter-
national Union AFL–CIO. Case 7–CA–34830
April 30, 1998
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
On May 25, 1994, the National Labor Relations
Board issued its Decision and Order1 directing the Re-
spondent, Dunn Bindery, Inc., its officers, agents, suc-
cessors, and assigns, inter alia, to restore the unit em-
ployees’ terms and conditions of employment as they
existed on July 25, 1993; and make whole, with inter-
est, the unit employees for any loss of wages and ben-
efits they may have suffered as a result of the unlawful
changes to those terms and conditions of employment,
including making any contractually required contribu-
tions to the fringe benefit funds of Local 289M (De-
troit Toledo-Lansing) Graphic Communications Inter-
national Union, AFL–CIO. On March 28, 1996, the
United States Court of Appeals for the Sixth Circuit
entered its judgment enforcing the Board’s Order.2
A controversy having arisen over the Respondent’s
failure to make payments toward satisfying the Board’s
Order, as enforced, the Regional Director for Region
7 issued an Amended Compliance Specification and
Notice of Hearing on May 14, 1997,3 asserting that the
Respondent owed $120,044.77, plus interest, to the af-
fected employees, and $128,397.42, plus interest, to
the fringe benefit funds.4
On October 29, the Respondent filed its Revised
Answer to the Amended Compliance Specification ad-
mitting the allegations in paragraphs 1 through 12 of
the amended compliance specification, but reserving
the right to challenge any inadvertent or mathematical
errors in paragraphs 4(a) through (e), 5(a) through (c),
6, 8 through 11, and 12. The Respondent also asserts
that any obligation it may have had pursuant to the
Board’s Order, as enforced, no longer legally exists be-
cause of the liquidation of its assets.
On November 13, the General Counsel filed with
the Board a Motion for Summary Judgment on the
Pleadings. In his motion, the General Counsel submits
that the Respondent’s assertion that it may challenge
any errors contained in the specification fails to spe-
cifically set forth the Respondent’s position as to the
applicable premises for its assertion and fails to furnish
appropriate supporting figures as required by Section
102.56(b) of the Board’s Rules and Regulations. Thus,
the General Counsel submits that the Respondent’s re-
vised answer does not constitute a denial within the
meaning of the Rules, but constitutes an admission.
Accordingly, the General Counsel moves that the alle-
gations be deemed to be admitted to be true and that
the Respondent be liable for the amounts set forth in
the amended compliance specification.
On November 17, the Board issued an Order Trans-
ferring the Proceeding to the Board and a Notice to
Show Cause why the General Counsel’s Motion for
Summary Judgment on the pleadings should not be
granted. The Respondent did not file a response. The
allegations in the motion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on the Motion for Summary Judgment
Section 102.56(b) of the Board’s Rules and Regula-
tions provides:
(b) . . . The answer 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. Deni-
als shall fairly meet the substance of the allega-
tions of the specification at issue. When a re-
spondent 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 respond-
ent, including but not limited to the various fac-
tors entering into the computation of gross back-
pay, a general denial shall not suffice. As to such
matters, if the respondent disputes either the accu-
racy of the figures in the specification or the
premises on which they are based, the answer
shall specifically state the basis for such disagree-
ment, setting forth in detail the respondent’s posi-
tion as to the applicable premises and furnishing
the appropriate supporting figures.
Section 102.56(c) provides, in pertinent part:
(c) . . . 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.
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721DUNN BINDERY, INC.
We agree with the General Counsel that the Re-
spondent’s revised answer does not meet the require-
ments of Section 102.56. The allegations as set forth
in the amended compliance specification explain the
basis for the backpay owed to the affected employees
and the contributions owed to the fringe benefit funds.
Section 102.56(b) states that if the Respondent disputes
the accuracy of the figures contained in the specifica-
tion, the Respondent must state the basis for the dis-
agreement and furnish the relevant supporting figures.
Here, the Respondent’s revised answer admits the alle-
gations of paragraphs 1 through 12 of the amended
specification, but reserves the right to challenge any
inadvertent or mathematical errors. The Respondent’s
answer fails to specify the basis for disputing the accu-
racy of the figures, and does not set forth ‘‘in detail
the [R]espondent’s position as to the applicable prem-
ises.’’ Nor has the Respondent furnished any alter-
native figures in support of its position. Because the
Respondent’s revised answer does not satisfy the re-
quirements of Section 102.56(b) of the Board’s Rules,
we deem the Respondent to have admitted to be true
all of the allegations in the amended compliance speci-
fication.
In regard to the allegation that the Respondent has
insufficient assets to satisfy the claims made in the
amended compliance specification, we find that the
Respondent’s claim is irrelevant to this proceeding. It
is well settled that the issue in a compliance proceed-
ing is the amounts due, not whether the Respondent is
able to pay. Pallazola Electric, 312 NLRB 569, 570
(1993).
Accordingly, having found the allegations of the
amended compliance specification to be true, we grant
the General Counsel’s Motion for Summary Judgment.
ORDER
The National Labor Relations Board orders that the
Respondent, Dunn Bindery, Inc., Detroit, Michigan, its
officers, agents, successors, and assigns, shall pay a
total of $120,044.77 to the individuals as set forth in
attachment 20 of the amended compliance specifica-
tion, with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), minus tax withholdings required by Fed-
eral and state laws. The Respondent shall also pay
$128,397.42 to the fringe benefit funds of Local 289M
(Detroit Toledo-Lansing) Graphic Communications
International Union, AFL–CIO as set forth in schedule
‘‘C’’ of the amended compliance specification, plus
any additional amounts owed to the funds in accord-
ance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979), accrued to the date of payment. In
sum, the total amount owed by the Respondent under
the Board’s Order is $248,442.19, plus interest on the
backpay due and any additional amounts due the
funds, minus tax withholdings required by Federal and
state laws.
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