Endicott Forging & Mfg. Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1998

327 N.L.R.B. 322 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 300
Endicott Forging & Manufacturing, Inc. and Local
Lodge DS-190, District Lodge 58, International
Association of Machinists and Aerospace Work-
ers, AFL–CIO and International Brotherhood of
Boilermakers, Iron Ship Builders, & Helpers,
AFL–CIO, Local Union No. 1101. Cases 3–CA–
18477, 3–CA–19050, 3–CA–19024, and 3–CA–
19889
December 28, 1998
SECOND SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
BRAME
On September 19, 1995, the National Labor Relations
Board issued a Decision and Order in Cases 3–CA–
18477 and 3–CA–19050,1 in which it ordered the Re-
spondent, inter alia, to pay all delinquent Pension Fund
contributions to the IAM National Pension Fund, to re-
store the health and dental insurance coverage to bargain-
ing unit employees represented by Local Lodge DS-190,
District Lodge 58, International Association of Machin-
ists and Aerospace Workers, AFL–CIO (IAM), and to
make the employees whole by reimbursing them for any
expenses, with interest, ensuing from the Respondent’s
failure to maintain insurance coverage. On April 16,
1996, the United States Court of Appeals for the Second
Circuit entered a judgment enforcing in full the make-
whole provisions of the Board Order.2
On September 29, 1995, the Board issued a Decision
and Order in Case 3–CA–19024,3 ordering the Respon-
dent, inter alia, to restore the medical and dental insur-
ance coverage to bargaining unit employees represented
by International Brotherhood of Boilermakers, Iron Ship
Builders & Helpers, AFL–CIO, Local Union No. 1101
(Boilermakers). The Board also ordered the Respondent
to make those employees whole by reimbursing them for
any losses or expenses they incurred during the period in
which the Respondent failed to maintain contractually
required medical and dental coverage and failed to pay
medical claims under a program of self-insurance. On
April 16, 1996, the United States Court of Appeals for
the Second Circuit entered a judgment enforcing in full
the make-whole provisions of the Board Order.4
On August 29, 1996, the Board issued a Decision and
Order in Case 3–CA–19889,5 in which it ordered the
Respondent, inter alia, to make all required payments and
remit any loan repayments into the contractual 401(k)
pension plan that have not been made or remitted since
August 20, 1995, and reimburse the employees employed
in the bargaining unit represented by the Boilermakers
for any expenses incurred, with interest. In addition, the
Board directed the Respondent to make annual and quar-
terly contractual bonus payments, and make whole the
unit employees represented by the Boilermakers for any
loss of earnings as a result of the Respondent’s failure to
do so since November 20, 1995, with interest. On April
1, 1997, the United States Court of Appeals for the Sec-
ond Circuit entered a judgment enforcing in full the pro-
visions of the Board’s Order.6

1 319 NLRB 1.
2 96–4054 (unpublished).
3 319 NLRB 180.
4 96–4056 (unpublished).
5 322 NLRB No. 4 (not reported in Board volumes).
A controversy having arisen over the amounts of
backpay due under the terms of the Board’s Orders of
September 19 and 29, 1995, the Regional Director for
Region 3, pursuant to authority conferred by the Board,
issued an order consolidating cases, consolidated com-
pliance specification and notice of hearing in Cases 3–
CA–18477, 3–CA–19050, and 3–CA–19024, on Decem-
ber 31, 1996. An amendment to the order consolidating
cases, consolidated compliance specification and notice
of hearing, was issued on February 20, 1997. The
amendment alleges that the IAM National Pension Fund
and employees John Avery, Douglas T. Bronson, Tho-
mas J. Duffy, George B. Gelatt, and Robert S. Warriner
were due certain sums of money as a result of their losses
occasioned by the Respondent’s unfair labor practices.
On April 17, 1997, the General Counsel filed a Motion
for Summary Judgment.
On May 13, 1997, the Board issued a Supplemental
Decision and Order in Cases 3–CA–18477, 3–CA–
19050, and 3–CA–19024 granting the General Counsel’s
motion.7 On December 9, 1997, the Regional Director
for Region 3 issued an order further consolidating cases,
amended consolidated compliance specification and no-
tice of hearing (compliance specification) seeking addi-
tional amounts for medical expenses not encompassed in
the Board’s Supplemental Decision and Order in Cases
3–CA–18477, 3–CA–19050, and 3–CA–19024. The
compliance specification also seeks 401(k) loan repay-
ments and annual and quarterly bonus payments due un-
der the terms of the Board’s Decision and Order in Case
3–CA–19889 and notifies the Respondent that it must
file a timely answer complying with the Board’s Rules
and Regulations. The Respondent subsequently filed an
answer to the compliance specification.
On July 17, 1998, the Acting General Counsel filed
with the Board a Motion for Summary Judgment con-
tending that the Respondent’s answer to the compliance
specification fails to meet the requirements of Sections
102.56(b) and (c) of the Board’s Rules and Regulations.
On July 21, 1998, 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. The Respondent did not file a response to the
Notice to Show Cause.
6 97–4024 (unpublished).
7 323 NLRB No. 128 (not reported in Board volumes).
327 NLRB No. 66
ENDICOTT FORGING & MFG. 301
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 to Transfer Cases to and Continue
Proceedings Before the Board and for Summary Judg-
ment and Issuance of a Supplemental Decision and Order
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. . . . As to
all matters within the knowledge of the respondent,
including 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 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 respondent shall
be precluded from introducing any evidence contro-
verting the allegation.

Cases 3–CA–18477, 3–CA–19050, and 3–CA–19024
1. (a) The Respondent’s answer does not dispute that,
as alleged in paragraph 1(a) of the compliance specifica-
tion, the backpay period regarding employees in the
IAM-represented bargaining unit begins as early as June
1993 and ends on or about April 1995. We, therefore,
grant summary judgment regarding this allegation.
(b) Paragraph 1(b) of the compliance specification
states that Exhibit 1, attached thereto, sets forth the
amounts owing to employees in the IAM-represented
bargaining unit for reimbursement of medical expenses.
Exhibit 1 lists only one employee, Robert Warriner. The
Respondent in its answer to paragraph 1(b) states that
Warriner has requested in writing that the Respondent
stop reimbursement payments to him. We find that the
Respondent’s answer is sufficient to warrant a hearing on
this allegation.
2. (a) The Respondent does not dispute that, as alleged
in paragraph 2(a) of the compliance specification, the
backpay period for employees in the bargaining unit rep-
resented by the Boilermakers begins as early as May
1993 and ends on March 19, 1995. We, therefore, grant
summary judgment as to this allegation.
(b) Paragraph 2(b) of the compliance specification al-
leges that the amounts set forth in Exhibits 2(a)-(r) at-
tached thereto are owed to employees in the bargaining
unit represented by the Boilermakers for reimbursement
of medical expenses during the backpay period. In its
answer the Respondent states that the amount listed for
Donald Stewart in Exhibit 2(q) has been paid directly to
him. The Respondent does not otherwise dispute the
gross amount of the employees’ medical expenses.
Therefore, we shall grant summary judgment regarding
the gross amounts of medical expenses owed to these
employees. We find, however, that the Respondent’s
answer is sufficient to warrant a hearing as to whether
Donald Stewart has already been paid the amount listed
for him in Exhibit 2(q).8
(c) Paragraph 2(c) of the compliance specification al-
leges that the amounts set forth in Exhibit 3, attached
thereto, constitute the total additional amounts owed for
unpaid medical bills in Cases 3–CA–18477, 3–CA–
19050, and 3–CA–19024 that were not included in the
Board’s Supplemental Decision and Order, dated May
13, 1997, because of the Respondent’s failure to disclose
their unpaid status. The Respondent in its answer argues
that it is responsible for only 80 percent of these amounts
in accord with the major medical copay provision of
commercial insurance. The Respondent further alleges
that it has a right to negotiate amounts due to medical
providers and has done so in several instances. In addi-
tion, as noted in paragraph 2(b) above, the Respondent
states that Donald Stewart has already been paid the
amount listed in Exhibit 2(q). We find that the Respon-
dent, by providing a formula by which it contends its
liability should be computed, and by alleging that certain
money has been paid, has raised issues warranting a
hearing. Thus, although we have granted summary
judgment on the total amount of medical expenses al-

8 The Respondent also states that it has already paid or is presently
paying certain amounts “listed on page 3” of the compliance specifica-
tion as owed to Douglas Bronson, George Gelatt, and Thomas Duffy.
The medical expense amounts to which the Respondent and the cited
portion of the specification refer were found to be due by the Board in
an earlier decision, granting summary judgment on a prior compliance
specification. 323 NLRB No. 128 (May 13, 1997) (not reported in
Board volumes). Whether or not the Respondent has paid those
amounts, they are not at issue in the present proceeding. The Respon-
dent does not owe Bronson anything more for medical expenses under
par. 2(b) of the specification at issue here. However, par. 2(b) alleges
additional amounts due Gelatt and Duffy for unpaid medical expenses.
Regarding those additional amounts, the Respondent’s answer does not
raise any issue warranting a hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 302
leged in paragraph 2(b) above, we deny summary judg-
ment on the actual amount of the Respondent’s liability
for those expenses and remand that issue for hearing.
Case 3–CA–19889
3. Paragraph 3 of the compliance specification alleges
that Exhibit 4, attached thereto, shows the quarterly bo-
nuses that the Respondent failed to pay since November
20, 1995, and that were due bargaining unit employees
represented by the Boilermakers who worked on the pro-
jects during the quarters between May 1995 and May 31,
1996, when the bonus program ended. The Respondent
does not controvert these amounts, but states only that
they “are accurate to the best of my recollection provid-
ing they are consistent with the information previously
provided.” The Respondent does not specifically deny
the accuracy of the figures in the specification nor does it
state any basis for disagreement as required by Section
102.56(b) and (c). We find that the Respondent has
raised no issue warranting a hearing, and we grant the
General Counsel’s Motion for Summary Judgment on
bonuses alleged to be due in paragraph 3 of the compli-
ance specification.
4. (a) Paragraph 4(a) of the compliance specification
alleges that Exhibit 5 sets forth the amount of the annual
bonuses that the Respondent failed to pay since Novem-
ber 20, 1995, and that were due all employees in the bar-
gaining unit represented by the Boilermakers during the
Respondent’s 1995 fiscal year. The Respondent does not
deny this allegation. We grant the General Counsel’s
Motion for Summary Judgment regarding the amounts
owed each employee for the 1995 annual bonus.
(b) Paragraph 4(b) of the compliance specification al-
leges that, as shown on Exhibit 5, there is a total of
$3,937.17 owing to bargaining unit employees for the
1996 annual bonus. The paragraph further states that the
Region has been unable to calculate the 1996 bonus due
each employee because the Respondent has not provided
the necessary figures concerning hours worked by each
employee. The Respondent’s answer states that the
amounts for 1996 “would be payable based on atten-
dance and who is still employed as of the date payable.
Therefore, the amounts due are unknown at this time.” It
is not clear that the answer contests any aspect of para-
graph 4(b) and supporting Exhibit 5. Assuming that it
does dispute either the gross amount of bonuses due for
1996 or the failure of the specification to allege the
amounts due each employee, the necessary figures for
computing the amounts in question are within the Re-
spondent’s knowledge and control. Its failure to set forth
fully its position concerning the applicable premises or to
furnish appropriate supporting figures is therefore con-
trary to the specificity requirements of Section 102.56(b)
and (c). United States Service Industries, 325 NLRB 485
(1998). We shall, therefore, grant the General Counsel’s
Motion for Summary Judgment and order that the total of
$3,937.17 owed for 1996 annual bonuses shall be paid to
the Regional Director for Region 3 to be held in escrow
until the amount to be paid to each individual employee
can be ascertained by the Regional Director.9
5. Paragraph 5 of the compliance specification alleges
that the amounts owing to employees in the bargaining
unit represented by the Boilermakers as a result of the
Respondent’s failure to remit their loan repayments to
the 401(k) pension plan are set forth in Exhibit 6 to the
compliance specification. The Respondent in its answer
does not contest the amount, but states that it “appears
correct, providing it is based on information supplied by
Endicott Forging.” This answer is not sufficient to raise
issues warranting a hearing. The Respondent does not
specifically deny the accuracy of the figures in the speci-
fication nor does it state any basis for disagreement as
required by Section 102.56(b) and (c). We find that the
Respondent has raised no issue warranting a hearing, and
we grant the General Counsel’s Motion for Summary
Judgment as to the amounts owed bargaining unit em-
ployees as shown on Exhibit 6.
ORDER
It is ordered that the General Counsel’s Motion for
Summary Judgment is granted as to paragraphs 1(a),
2(a)–(b) except regarding Donald Stewart, paragraphs 3,
4(a)–(b), and 5 of the compliance specification. The
General Counsel’s Motion for Summary Judgment is
denied regarding paragraphs 1(b), 2(b) regarding Donald
Stewart, and 2(c).
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 3 for the
purpose of arranging a hearing before an administrative
law judge limited to the issues of the percentage of the
total medical expenses set forth in Exhibit 3 to the com-
pliance specification for which the Respondent is liable,
whether employee Robert Warriner has requested that
payments to him be stopped, and whether Donald Stew-
art has been paid the money owed him for medical ex-
penses.
IT IS FURTHER ORDERED that the 1996 annual bo-
nus money found due the employees in Exhibit 5 to the
compliance specification shall be paid to the Regional
Director for Region 3 to be held in escrow until the Re-
gional Director determines the specific amount due each
individual employee who is entitled to the bonus.
IT IS FURTHER ORDERED that the Respondent,
Endicott Forging & Manufacturing, Inc., Endicott, New
York, its officers, agents, successors, and assigns, shall
make whole the following individuals by paying them
the amounts set forth below, plus interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
Additional amounts due these employees for medical

9 Cf. Starlite Cutting, 280 NLRB 1071 (1986), supplemented by 284
NLRB 620 (1987).
ENDICOTT FORGING & MFG. 303
expenses and 1996 annual bonuses shall be determined at
a later date as prescribed in this decision.
Group A: The amounts set forth below are in addition
to any amounts later determined to be due these employ-
ees for 1996 bonuses.

Employee Amount

Allard, Bruce $ 740.50
Bronson, Douglas 1,559.41
Carrico, Ira 883.06
Decker, Fred 1,567.69
Harrington, Douglas 2,373.35
Hoag, Kenneth 3,857.78
Kelly, Harold 1,923.39
Lewis, David 353.73
McRorie, Wayne 424.53
Miller, Edward 1,343.23
Nalepa, Robert 965.84
Patterson, Russ 334.07
Pickens, Russell 219.60
Rudolph, Claude 957.94
Seeley, William 288.00
Taber, Gilbert 373.16
Williamson, Jack 975.76

TOTAL GROUP A $19,141.04

Group B: The amounts set forth below are in addition
to any amounts later determined to be due these employ-
ees for 1996 bonuses and for medical expenses.

Employee Name Amount

Avery, John $1,374.62
Belon, Steve —
Carrico, Martin —
Delaney, James 410.57
Duffy, Thomas J. —
Garringer, Thomas —
Gelatt, George 201.60
Maciotok, Edward 1,045.45
McFadden, Thomas 2,073.92
Merwin, Robert 3,381.20
Minnich, Charles 2,073.29
Morton, Thomas 2,352.79
Nalepa, Leon 345.60
Reh, Joseph 2,197.59
Rogers, Roy 2,286.25
Sechrist, Gene 300.60
Stewart, Donald —
Warriner, Robert —
Wood, Robert 322.20

TOTAL GROUP B $18,365.68

Regional Director
in Escrow $3,937.17

TOTAL $41,443.89