Fishback/Lord Electric Co..

National Labor Relations Board - Board Decisions

Sep 21, 1988

290 N.L.R.B. 1165 (N.L.R.B. 1988)

FISHBACH/LORD ELECTRIC CO 1165
Fishbach/Lord Electric Company and Jack L.
Marsh
International Brotherhood of Electrical Workers,
Local Union 112, AFL-CIO and Michael S.
June and Robert L. Albert Knapp, and Thomas
E. McKenzie and Jack L. Marsh, and Jimmy
M. Scott. Cases 19-CA-15220,1 19-CB-4486,
19-CB-4496, 19-CB-4501, 19-CB-4636, and
19-CB-4650
September 21, 1988
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 23, 1984, the National Labor Relations
Board issued a Decision and Order in this proceed-
mg2 in which the Board , inter alia, ordered the Re-
spondent, International Brotherhood of Electrical
Workers, Local Union 112, AFL-CIO (Local 112)
to make whole Charging Parties June , Knapp,
McKenzie, and Scott for any losses suffered as a
result of Local 112's discrimination against them in
hiring hall dispatch decisions On September 4,
1987 , the U S Court of Appeals for the Ninth Cir-
cuit affirmed the Board 's fmdmg that Local 112
thereby violated Section 8(b)(1)(A) and (2), and on
November 13, 1987, the court entered a judgment
enforcing, in relevant part, the Board 's Orders A
controversy having arisen over the amount of
backpay due under the Board's Order, as enforced
by the court, the Regional Director for Region 19
issued and duly served on Local 112 a backpay and
an amended backpay specification and notice of
hearing alleging the amount of backpay due the
discri ninatees Local 112 filed a timely answer to
the amended backpay specification generally deny-
ing each allegation of the specification and, in addi-
tion, stating several affirmative defenses
On June 20, 1988 , the General Counsel filed with
the Board a motion to strike answer of Local 112
and for summary judgment in favor of the General
Counsel , with exhibits attached On June 23, 1988,
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the General Counsel 's motion should not be grant-
ed On July 6, 1988, Local 112 filed a response to
the Notice to Show Cause
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
' About May 11, 1988, the parties mutually resolved the issues in dis-
pute in Case 19-CA-15220
° 270 NLRB 856, affd in relevant part 827 F 2d 530 (9th Cu 1987)
No 84-7556
On the entire record in this case , the Board
makes the following
Ruling on the Motion for Summary Judgment
Section 102 54(b) and (c) of the Board's Rules
and Regulations states
(b) Contents of the answer to specification -
The answer to the specification shall be in
writing, the original being signed and sworn to
by the respondent or by a duly authorized
agent with appropriate power of attorney af-
fixed , and shall contain the post office address
of the respondent The respondent shall specif-
ically admit, deny, or explain each and every
allegation of the specification , unless the re-
spondent 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 specifi-
cation denied When a respondent intends to
deny only a part of an allegation , the respond-
ent shall specify so much of its as is true and
shall deny only the remainder As to all mat-
ters within the knowledge of the respondent,
including but not limited to the various factors
entering into the computation of gross back-
pay, a general denial shall not suffice As to
such matters, if the respondent disputes either
the accuracy of the figures in the specification
or the premises on which they are based, he
shall specifically state the basis for his dis-
agreement, setting forth in detail his position
as to the applicable premises and furnishing
the appropriate supporting figures
(c) Effect of failure to answer or to plead spe-
cifically and in detail to the specification -If the
respondent fails to file any answer to the speci-
fication within the time prescribed by this sec-
tion, the Board may, either with or without
taking evidence in support of the allegations of
the specification and without notice to the re-
spondent, 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 specifi-
cation in the manner required by subsection
(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 introduc-
ing any evidence controverting said allegation
In its answer to the backpay specification, Local
112 offered a general denial to each of the allega-
290 NLRB No 153
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions of the specification. Thus, Local 112 has gen-
erally denied the accuracy of the General Coun-
sel's allegations concerning the backpay periods for
each discriminatee, the formula used to compute
gross backpay (including benefits owned both to
individual discriminatees and to various benefit
funds), the computation of gross backpay for each
discriminatee, the amount of interim earnings for
each discriminatee, the method of computing net
backpay, and the computation of net backpay for
each discriminatee. The General Counsel asserts
that information regarding each of these matters is
within Local 112's knowledge, and that it has
failed to state the basis for its disagreement with
any of the allegations in the specification. Accord-
ingly, the General Counsel contends that Local
112's general denials do not comply with the re-
quirements of Section 102.54(b), the answer should
be stricken and the allegations of the specification
be deemed admitted as true, and summary judg-
ment should be granted regarding the backpay
specification in its entirety.
We agree with the General Counsel regarding all
allegations of the backpay specification involving
the formula for gross backpay and the resulting
computations as well as the formula for net back-
pay. Because all data at issue concerning gross
backpay is within Local 112's knowledge and con-
trol, its failure to set forth fully its position as to
the applicable premises or to furnish appropriate
supporting figures is contrary to the specificity re-
quirements of Section 102.54(b). We find, however,
that Local 112's general denial is sufficient to place
interim earnings into issue for all the discriminatees
because that information is generally not within the
knowledge of a respondent.4
Accordingly, concerning all allegations in the
backpay specification except as to amounts of inter-
im earnings, we grant the General Counsel's
motion to strike Local 112's answer and we deem
4 Tiffany Handbags, 271 NLRB 621 (1984); Dews Construction Corp.,
246 NLRB 945 (1979).
such allegations to be admitted as true.5 Therefore,
we shall grant the General Counsel's Motion for
Summary Judgment only in part and shall direct a
hearing limited to the determination of a discrimin-
atees' interim earnings, including the availability to
the discriminatees of interim employment and their
efforts to seek and retain such interim employment.
ORDER
It is ordered that the General Counsel's motion
to strike the Respondent's answer to the amended
backpay specification is granted, except regarding
the allegation concerning the amounts of interim
earnings by the discriminatees.
IT IS FURTHER ORDERED that the General Coun-
sel's Motion for Summary Judgment is granted
except concerning the allegation concerning the
amounts of interim earnings by the discriminatees.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 19
for the purpose of issuing a notice of hearing and
scheduling a hearing before an administrative law
judge for the purpose of taking evidence as to the
alleged interim earnings of Michael June, Robert
Knapp, Thomas McKenzie, and Jimmy Scott. The
judge shall prepare and serve on the parties a sup-
plemental decision containing findings of fact, con-
clusions of law, and recommendations based on all
the record evidence. Following service of the
judge's supplemental decision on the parties, the
provisions of Section 102.46 of the Board's Rules
and Regulations shall be applicable.
5 In its answer , Local 112 states two "affirmative defenses " not directly
related to the issue of interim earnings in addition to its general denials.
First, it argues that discriminatees Knapp and McKenzie were not enti-
tled to hiring hall referrals in the first instance because they did not pos-
sess electrician licenses required under state law. However , this issue has
been fully litigated, see 270 NLRB 856 at fn . 3, and the court enforced
the Board's Order as to all four discriminatees. Second, regarding Local
112's assertion that it is financially unable to satisfy the backpay order, it
is well settled that "the issue in a backpay proceeding is the amount due
and not whether [the Respondent is] able to pay ." Columbia Engineers,
268 NLRB 337 (1983); Star Grocery Co., 245 NLRB 196, 197 (1979). Ac-
cordingly, we grant the General Counsel 's motion to strike these "de-
fenses" from the answer to the backpay specification.