Gateway Service Co.

National Labor Relations Board - Board Decisions

Apr 8, 1974

209 N.L.R.B. 1166 (N.L.R.B. 1974)

1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gateway Service Co. and Public Service , Production
& Maintenance Employees ' Local Union No. 1057.
Case 23-CA-3780
April 8, 1974
SUPPLEMENTAL DECISION AND
ORDER
On August 11, 1971, the National Labor Relations
Board issued its Decision and Order' in the above-
entitled proceeding in which it ordered, inter alia,
that the Respondent make whole certain of its
employees for any loss of pay they may have suffered
as a result of the Respondent's unlawful conduct.
Thereafter, on July 25, 1972, the United States Court
of Appeals for the Fifth Circuit entered its judgment
enforcing the Board's Order.2 A controversy having
arisen as to the amounts of backpay due under the
terms of the Board's Order, as enforced by the court,
the Regional Director for Region 23, on November
1, 1973, issued and duly served on the Respondent a
backpay specification and notice of hearing alleging
the amounts of backpay due the employees under the
Board's Order and notifying the Respondent that it
shall file a timely answer which must comply with the
Board's Rules and Regulations. Thereafter, on
November 13, 1973, Respondent filed its answer to
the specification in which it made a general denial of
the allegations in the specification.
On November 21, 1973, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment. Subsequently, on December 3,
1973, the Board issued an order transferring the
proceeding to the Board and a notice to show cause
why the General Counsel's motion for summary
judgment should not be granted. On December 5,
1973, the Respondent filed a response to the notice to
show cause entitled "Respondent's Reply to Motion
for Summary Judgment."
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions, Series 8, as amended, provides, in pertinent
part, as follows:
(b) 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 affixed, and shall
i Palomar Corporation and Gateway Service Co, 192 NLRB 592
2 465F2d731
S The backpay specification alleged that Respondent continued to pay
its employees at an unlawfully reduced rate through the first calendar
quarter of 1971, and computed the net backpay due employees by
contain the post office address of the respondent.
The respondent shall specifically admit, deny, or
explain each and every allegation of the specifica-
tion, 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 denied. When a respondent intends
to deny only a part of an allegation, 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,
including but not limited to the various factors
entering into the computation of gross backpay, 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 disagreement,
setting forth in detail his position as to the
applicable premises and furnishing the appropri-
ate supporting figures.
(c) . . . If the respondent files an answer to the
specification but fails to deny any allegation of
the specification 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 introducing
any evidence controverting said allegation.
The backpay specification duly issued, served, and
received by the Respondent states that, to the extent
that the answer denies, without adequate explana-
tions, the allegations of the specification in the
manner required by the Board's Rules and Regula-
tions, such allegations shall be deemed to be
admitted to be true and the Respondent is precluded
from introducing any evidence controverting them.
Thus, as Respondent's answer contained only a
general denial, the General Counsel accordingly
moved for summary judgment.
In its response, Respondent asserted that some
matters alleged in the specification3 were not within
its knowledge on the grounds that "there was a
transfer of stock of Gateway Service Co., as well as a
transfer of the assets of that company, and the
purchaser of both the stock and the assets did not
purchase the then existing employment contract
multiplying the number of hours worked during the backpay period by 30
cents The sole issue in controversy , therefore, is the number of hours each
employee worked at the unlawfully reduced rate of pay, a matter ordinarily
within the knowledge of an employer.
209 NLRB No. 178
GATEWAY SERVICE CO. 1167
from Gateway and had nothing to do with that
contract." Accordingly, the Respondent asserts that
"a general denial may suffice where respondent does
not possess personal knowledge of the facts." We
find no merit in the Respondent's position.
With respect to Respondent's defense, the Board
has consistently held that mere change of stock
ownership does not absolve a continuing corporation
of responsibility under the Act.4 It necessarily
follows that this contention is also insufficient to
excuse Respondent from replying with the required
specificity to the backpay specification, particularly
where, as here, the number of hours employees
worked for the Respondent is, or should be, a matter
within the knowledge of the corporation.
As the response of Respondent does not provide an
adequate explanation for the failure of its answer to
comply with the requirements of Section 102.54 of
the Board's Rules and Regulations, the allegations of
the backpay specification are deemed to be admitted
as true and the Board so finds.5
Accordingly. on the basis of the allegations of the
specification which are accepted as true, the Board
finds the facts as set forth therein, concludes the net
backpay due each of the employees, whose names are
set forth in the attached Appendix, is as stated in the
computations of the specification, and orders that
payment thereof be made by the Respondent to each
named employee.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Gateway Service Co., Corpus Christi, Texas, its
officers, agents, successors, and assigns, shall make
whole each of the employees named in the attached
Appendix, by payment to them of the amounts set
forth adjacent to their names, plus interest accrued at
the rate of 6 percent per annum to be computed in
the manner specified in Isis Plumbing & Heating Co.,
138 NLRB 716, until payment of all backpay due,
less tax withholdings required by Federal and state
laws.
Miller Trucking Service, Inc, 176 NLRB 556, affd. in relevant part 445
F 2d 927 (C A. 10); Dixie Highway Express, Inc, 153 NLRB 1224, at In. 2,
Johnson Readv Mix Co. 142 NLRB 437.442
5 Barrv Industries, Inc, 202 NLRB 650; Southland Manufacturing Corp,
193 NLRB 1036, Lipse_v, Inc, 192 NLRB 827 , Interstate Equipment Co,
Inc, 186 NLRB 121.
APPENDIX
Manuel Abrego $267.60
Remedios Alvarez 265.65
Mario Cavazos 262.50
Manuel Cruz 267.75
Juan L. Garcia 44.85
Manuel Garcia 271.65
Oscar Garcia 224.10
Roberto Garcia 268.80
Hector Garza 266.40
Juan Jasso 280.95
Marcos Juarez 280.95
Enrique Martinez 248.55
Salvador Martinez 267.75
Rudolfo Moreno 186.30
Santiago Paez 264.30
Magdaleno Rodriquez 93.15
Jose Segovia, Jr. 205.05
Sergio Trevino 269.10
Vidal Valdez 272.10
Pascual Cruz 57.45
Ernesto Salinas 178.95