Emsing'S Supermarket, Inc., Rocky'S Supermarket, Inc., A Single Employer

National Labor Relations Board - Board Decisions

Aug 27, 1990

299 N.L.R.B. 569 (N.L.R.B. 1990)

EMSING'S SUPERMARKET 569
Emsing's Supermarket, Inc„ Rocky's Supermarket,
Inc., a Single Employer and United Food and
Commercial Workers Union, Local 1460, AFL-
CIO, CLC. Case 13-CA-24609
August 27, 1990
SUPPLEMENTAL DECISION AND
ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 18, 1987, the National Labor Relations
Board issued a Decision and Order' against the
Respondents, Emsmg's Supermarket, Inc and
Rocky's Supermarket, Inc, m which the Board,
inter aim, ordered the Respondents to make -whole
unit employees of Erasing's Supermarket, Inc for
any loss of pay they might have suffered as a result
of Respondent Emsmg's violations of Section
8(a)(5) and (1) of the Act The Respondents were
also ordered to pay all unit employees entitled to
vacations in 1984 the payments due them, and to
pay all delinquent contributions to the pension trust
fund and health and welfare trust fund On April
17, 1989, the Court of Appeals for the Seventh Cir-
cuit entered a judgment enforcmg the Board's
Order 2 A controversy having arisen over the
amount of backpay due under the Board's Decision
and Order, the Regional Director for Region 13
issued a backpay specification and notice of hearing
alleging the amount of backpay due the employees
and the trust funds and notifying the Respondents
that they must file a timely answer complying with
the Board's Rules and Regulations An extension of
time to file an answer was granted until August 21,
1989
The Respondents' answer, filed August 23, 1989,
is not alleged to be untimely The Respondents'
answer denies that the backpay period was to begin
August 11, 1984, and denies that the backpay
period was to encompass 17 6 weeks 3 The Re-
spondents specifically aver that the backpay period
was not to exceed 2 weeks The Respondents also
generally deny the following the backpay formula,
figures relating to quarterly gross backpay calcula-
tions and net backpay calculations, mtenm earn-
' 284 NLRB 302
2 872 F 2d 1279 (1989)
3 To measure the backpay period, the backpay specification calculates
backpay using a beginning date of June 23, 1987, which is 5 days after
the date of the Board's Order, and an ending date of October 22, 1987,
when a bona fide impasse in bargaining was alleged to have been
reached, a 17 6-week penod The specification then starts the actual back-
pay period on August 11, 1984, the date Emsing's Supermarket, Inc
closed and the employees were terminated The answer generally denies
that the backpay period begins on August Ii, 1984, and asserts that this
date is factually and legally incorrect, but does not supply an alternative
date for the beginning of the backpay period
mgs, and liability for liquidated damages On
August 29, 1989, the Regional Director issued and
caused to be served on the parties an erratum to
the backpay specification The Respondents have
failed to file an amended answer or other response
to the erratum to the backpay specification
On October 20, 1989, the General Counsel filed
with the Board a Motion to Strike Portions of Re-
spondents' Answer to Backpay Specification and
for Partial Summary Judgment, with exhibits at-
tached The General Counsel alleged that portions
of the Respondents' answer failed to comply with
Section 102 54 of the Board's Rules and Regula-
tions The General Counsel moved that the Board
stnke portions of the Respondents' answer to the
backpay specification, deem those portions not spe-
cifically denied to be admitted as true, and limit the
hearmg to the issue of interim earnings
On October 26, 1989, the Board issued an order
transferring the proceeding to the Board and
Notice to Show Cause why the General Counsel's
Motion to Strike and for Partial Summary Judg-
ment should not be granted On November 29,
1989, the Respondents filed a response to the Gen-
eral Counsel's motion 4 On December 14, 1989,
counsel for the General Counsel filed an opposition
to the Respondents' response to Order to Show
Cause 5
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
On the entire record in this proceeding, the
Board makes the following
Rulmg on the Motion to Strike and for Partial
Summary Judgment
Section 102 56(b) and (c) of the National Labor
Relations Board Rules and Regulations states
(b) Contents of answer to specification —The
answer shall specifically admit, deny, or ex-
plain each and every allegation of the specifi-
cation, unless the respondent is without knowl-
edge, in which case the respondent shall so
state, such statement operating as a denial De-
4 The Respondents alleged that the General Counsel's motion to strike
was defective because It erroneously relied on Sec 102 54 of the Board's
Rules and Regulations In fact, Sec 102 54 of the current Rules and Reg-
ulations concerns "Initiation of formal compliance proceedings, Issuance
of compliance specification and notice of hearing" The Board amended
the Rules effective November 13, 1988 The substance of former Sec
102 54 has been Incorporated into Sec 102 56 as revised Thus, although
counsel for the General Counsel relied on a section of the Rules that has
been revised under a new section number, the substance of the Rule re-
mains unchanged and we will accept the General Counsel's motion
5 Counsel for the General Counsel alleges, Inter alia, that the response
is actually an untimely attempt to amend the Respondents' answer to
properly dispute the accuracy of the period of time in which backpay
to be calculated
299 NLRB No 81
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mals shall fairly meet the substance of the alle-
gations of the specification at issue When a re-
spondent intends to deny only a part of an al-
legation, the respondent shall specify so much
of it as is true and shall deny only the remain-
der As to all matters within the knowledge of
the respondent, including but not limited to
the vanous factors entering into the computa-
tion of gross backpay, a general denial shall
not suffice As to such matters, if the respond-
ent disputes either the accuracy of the figures
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 applicable premises and furnishing the ap-
propnate supporting 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
prescribed by this section, the Board may,
either with or without taking evidence in sup-
port of the allegations of the specification 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 answer to the specification but fails to
deny any allegation of the specification in the
manner required by paragraph (b) of this sec-
tion, 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 evidence
supporting such allegation, and the respondent
shall be precluded from introducing any evi-
dence controverting the allegation
The backpay specification duly served on the
Respondents states that
pursuant to Section 102 54 of the Board's
Rules and Regulations, Respondent shall,
within 21 days from the date of the Specifica-
tion, file with the undersigned Regional Direc-
tor, acting in this matter as an agent of the Na-
tional Labor Relations Board, an original and
four (4) copies of an Answer to the Specifica-
tion To the extent that such Answer fails to
deny allegations of the Specification in the
manner required under the Board's Rules and
Regulations, and the failure to do so is not
adequately explained, such allegations shall be
deemed to be admitted to be true, and the Re-
spondent shall be precluded from introducing
any evidence controverting them
The General Counsel submits in his motion that
the answer filed by the Respondents to the back-
pay specification is deficient in that it merely states
a general denial of specification paragraphs I, IV,
and VII Paragraph I sets forth the formula for cal-
culating the backpay period, based on the Board's
Decision and Order Paragraph IV states that the
backpay period is to begin on August 11, 1984, for
each "discnmmatee " Paragraph VII sets forth a
formula for determining gross backpay The Gen-
eral Counsel urges that a general denial is not suffi-
cient to raise any litigable issue regarding these
paragraphs, rather, the General Counsel contends
that to raise issues warranting a heanng, the Re-
spondents must set forth in detail the basis for dis-
agreement and/or must assert an alternative formu-
la for determining the backpay period, an alterna-
tive date for beginning the backpay period, and an
alternative formula for determining gross backpay
We agree The matters denied concern the vari-
ous factors entenng into the computation of gross
backpay As to these matters, the rules require
more than a general denial The Respondents must
specifically state the basis for disagreement, setting
forth in detail their position as to the applicable
premises and furnishing the appropnate supporting
figures This they have not done Without stating
what the correct date should be, the answers to
paragraphs I and IV generally deny that backpay
to run from August 11, 1984, and claim that the
Board's Decision and Order and the subsequent
court enforcement did not provide for this result
Likewise, in regard to the formula for calculating
the discnmmatees' backpay, the Respondents'
answer to paragraph VII disputes the appropriate-
ness of treating the pay periods from March 11
through August 12, 1984, as comprising the repre-
sentative penod for developing the gross backpay
calculations to be used in determining amounts due
the discnmmatees during the actual backpay period
that begins on June 23, 1987 The answer does not
offer any alternative representative period The Re-
spondents' failure to deny paragraphs I, IV, and
VII of the specification as prescribed by Section
102 56(b), or explain adequately their failure to do
so, requires that those allegations of the specifica-
tion be deemed admitted under Section 102 56(c)
and the Respondents are precluded from introduc-
ing any evidence controverting them
The General Counsel also moves to strike those
answers by Rocky's to paragraphs II, IX through
XVI, subparagraph (b), XVIII through XXII, and
XXIV, in which Emsmg's admits, and Rocky's
denies, these paragraphs (Rocky's allegedly lacking
sufficient information to admit or deny the allega-
tions) The General Counsel asserts that the Re-
EMSING'S SUPERMARKET 571
spondents, by their answer, are trying to raise
issues concerning the single-employer status of
Emsmg's and Rocky's
The Respondents' status as a single employer
was fully litigated in the underlying unfair labor
practice proceeding The Seventh Circuit enforced
the Board's finding that Rocky's is jointly and sev-
erally liable for remedying the unfair labor prac-
tices committed by Emsing's The Respondents are
barred from raising such a defense at the compli-
ance stage of the case Ihysota Fuel Go, 287 NLRB
1 (1987) Under the particular circumstances of this
case, Rocky's actual knowledge concerning the al-
legations in the backpay specification is irrelevant
Rocky's imputed knowledge is sufficient to charge
Rocky's with liability for those answers that Ems-
mg's admits Accordingly, we shall grant the Gen-
eral Counsel's motion to strike Rocky's answers to
these paragraphs
The General Counsel further moves to strike the
Respondents' answer to paragraph XVII, asserting
that the Respondents are trying again to raise the
single-employer issue Paragraph XVII of the back-
pay specification states that "[t]he total net back-
pay due each discrimmatee is the sum of the calen-
dar quarter amounts of net backpay due" The Re-
spondents make only a general demal with respect
to this paragraph Although the General Counsel
erroneously stated the basis for stnkmg this answer
(i e, the Respondents' answer to par XVII does
not raise the single-employer issue), we find that
under Section 102 56(b) of the Board's Rules and
Regulations, a general denial is insufficient to raise
any litigable issue regarding this paragraph Ac-
cordingly, we shall grant the General Counsel's
motion regarding paragraph XVII
The General Counsel further avers in paragraph
III(b) of the specification that an impasse was
reached m effects bargaining on October 22, 1987
Emsing's denies and affirmatively asserts that im-
passe was actually reached in February 1984 The
date of impasse is one of the conditions that tolls
the backpay period The General Counsel moves to
strike this assertion as without merit because the
Board found in the underlying proceeding that
Emsmg's did not even decide to close its store until
August 1984 and could not, therefore, have bar-
gained over the effects of the closing pnor to
malung the decision We find ment in the General
Counsel's position on this issue and grant the
motion to strike the answer to paragraph III(b) to
the extent that Emsmg's is asserting a February
1984 impasse date To hold otherwise would be
contrary to the court-enforced finding that Re-
spondent unlawfully failed to bargain over the ef-
fects in August
The General Counsel asserts in paragraph III(c)
that the length of the backpay period is from June
23, 1987, 5 days after the date of the Board's
Order, to October 22, 1987, the date a bona fide
impasse in bargaining was reached, or 17 6 weeks,
except for those employees who secured equivalent
employment within a shorter period of time Ems-
mg's denies that the Union requested bargaining
within 5 days of the Board's Order and that the
Union commenced bargaining within 5 days of
Emsmg's' offer to bargain Making a request to bar-
gain within 5 days 6 of the Board's Decision and
Order is a condition that begins the period of liabil-
ity for backpay If this precondition is not timely
met, backpay liability may have to be established
by resorting to the alternative 2-week liability pro-
vided for in the Board's remedy Likewise, a fail-
ure on the Union's part to request bargaining
within 5 days of Emsmg's' offer to bargain may de-
crease the period of backpay liability We find that
a general denial that either of these preconditions
was met is sufficient to require a hearing on these
issues
Emsmg's further demes that the Union met and
negotiated in good faith from the outset of bargain-
ing Emsmg's asserts that the Union thereby unlaw-
fully forestalled the reaching of an impasse To the
extent that Emsing's asserts that impasse was
reached sometime prior to October 22, 1987, be-
cause of bad-faith bargammg by the Union after
the Board's Decision and Order (i e, after June 18,
1987, but before October 22, 1987), we find that a
hearing is warranted
The Respondents each deny paragraph V(a),
which ends the backpay period for Blanche Harsh-
barger, Bertha Enks, Jackie Jansen, John Hadjuch,
Cathy Encks, and Mary Smith on December 12,
1984, based on the length of the backpay period as
computed in paragraph III(c) As we are ordering
a hearing on the issues raised in paragraph III(c),
we shall include in the hearing the issue raised in
paragraph V(a) as well 7
The General Counsel has moved that the allega-
tions in paragraph V(b) be deemed admitted as
true Paragraph V(b) of the specification calls for
the minimum 2 weeks' backpay for certain discn-
mmatees as set forth in paragraph I of the specifi-
cation The Respondents have denied these allega-
tions but have failed to state alternative dates for
8 By making reference to the 5-day notice prerequisite, we do not pass
on whether the 5 days begin to run from the date of Issuance of the
Board's Order or from the date of receipt by the Union or its counsel
7 See, e g, Papenvorkers Local 1575 (Scott Paper), 291 NLRB 72 (1988)
We emphasize, however, that at the hearing the burden is on the Re-
spondents to establish facts that would warrant altering the backpay
period advanced by the General Counsel See, e g, Workroom for Design-
ers, 289 NLRB 1437 (1988)
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
determining backpay for the discnmmatees in-
volved Inasmuch as the contested backpay penod
of paragraph III(c) is not implicated here, we shall
grant the General Counsel's motion and deem as
admitted paragraph V(b)
The Respondents also deny subparagraph (a) of
paragraphs IX through XVI Each subparagraph
computes the average weekly hours worked by
each "discnmmatee" based on the formula ad-
vanced in paragraph VII The answer states that
"Respondent Emsmg's denies subparagraph (a) for
the reaosns [sic] described in its answer to Para-
graph VII" Because the Respondents' general
denial of paragraph VII was insufficient to require
a hearing on whether the pay periods from March
11 through August 12, 1984, constitute the appro-
priate measure on which to predicate gross back-
pay calculations, any subsequent answer that relies
on that general demal will not be sufficient to re-
quire a hearing on the actual calculations derived
from that formula Accordingly, under Section
102 56(c) of the Board's Rules and Regulations, we
shall deem to be admitted as true subparagraph (a)
of paragraphs IX through XVI of the backpay
specification because the Respondents have not of-
fered an alternative premise for calculating the
gross backpay period
Emsing's admits subparagraph (b) of paragraphs
IX through XVI and we have previously found
Rocky's demal to be ineffective in raising any liti-
gable issue
The Respondents also deny subparagraphs (c)
and (e) of paragraphs IX through XVI These para-
graphs respectively concern the calculation of
quarterly gross backpay and quarterly net backpay
for each "discnmmatee" Emsmg's admits was em-
ployed by Emsmg's in August 1984 The calcula-
tion of quarterly gross and net backpay necessarily
relies on the contested backpay period in comput-
ing the backpay due each employee To the extent
that we have allowed a hearing on the issue of the
length of the backpay period, the affirmative
amount of gross and net backpay is not capable of
determination at this time and will be the subject of
further inquiry at the hearing
In addition, the Respondents have generally
denied subparagraph (d) of paragraphs IX through
XVI in which the General Counsel has alleged that
there are no interim earnings for any of the em-
ployees The Board has held that a general denial
is sufficient to place interim earnings into issue be-
cause that information is generally not within the
knowledge of the respondent Dews Construction
Corp. 246 NLRB 945 (1979) Accordingly, we find
the Respondents' general denials concerning inter-
im earnings are sufficient to require a hearing on
that issue as well
Fmally, the Respondents generally deny para-
graphs XXIII and XXV, which concern the al-
leged applicability of the liquidated damages provi-
sions of the trust agreements for the health and
welfare and pension plans, respectively The Re-
spondents assert that the trust agreements were not
admitted into evidence in the underlying proceed-
ing and the Board made no reference to liquidated
damages in its Decision and Order The Board's
Order conformed to the administrative law judge's
remedy (284 NLRB at 316), which left "to the
compliance stage the question of whether the re-
spondent must pay any additional amounts into the
benefit funds in order to satisfy the 'make-whole'
remedy Howard Barthelmass Painting Co, 269
NLRB 346 fn 2 (1984), Merryweather Optical Co,
240 NLRB 1213 (1979) " On review of the trust
documents, the General Counsel has determined
that liquidated damages are required by the benefit
funds and must be paid However, we consider the
Respondents' general denial regarding the liquidat-
ed damages sufficient to require the General Coun-
sel to prove the matter in issue
ORDER
It is ordered that the General Counsel's Motion
to Strike Portions of Respondents' Answer to
Backpay Specification and for Partial Summary
Judgment is granted with respect to all allegations
in the backpay specification, except as to the length
of the backpay period, the amount of gross and net
backpay e, only to the extent that they are af-
fected by the length of the backpay period), inter-
im earnings, and the amount of liquidated damages,
if any
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 13
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 the length of the backpay penod, inter-
im earnings, gross and net backpay, and liquidated
damages if any owed to the trust funds and health
and welfare funds
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a
supplemental decision containing findings of fact,
conclusions of law, and recommendations based on
all the record evidence Following service of the
administrative law judge's decision on the parties,
the provisions of Section 102 56 of the Board's
Rules shall be applicable