J. Huizinga Cartage Co.

National Labor Relations Board - Board Decisions

Jul 31, 1992

308 N.L.R.B. 106 (N.L.R.B. 1992)

106
308 NLRB No. 23
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 298 NLRB 965 (reissued Aug. 23, 1990).
2 941 F.2d 616.
J. Huizinga Cartage Co., Inc. and Simpson Motor
Transportation, Inc., single employer and/or
joint employers and Floyd Richardson and
David Toles and Leonard Atkins. Cases 13–
CA–26223, 13–CA–26255, and 13–CA–26274
July 31, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 28, 1990, the National Labor Relations
Board issued a Decision and Order in this proceeding.1
On August 28, 1991, the United States Court of Ap-
peals for the Seventh Circuit entered a judgment en-
forcing in full the backpay provisions of the Board’s
Order.2 A controversy having arisen over the amount
of backpay due the discriminatees under the Board’s
Order, the Regional Director for Region 13 on Novem-
ber 27, 1991, issued and caused to be served on the
parties a compliance specification and notice of hear-
ing alleging the amount of backpay due under the
terms of the Board’s Order, and notifying the Re-
spondent that it must file a timely answer complying
with the Board’s Rules and Regulations. On March 5,
1992, the Respondent filed its answer to the compli-
ance specification, and on March 20, 1992, the Re-
spondent filed its amended answer.
Thereafter, on May 21, 1992, the General Counsel
filed a Motion to Strike Portions of Respondent’s An-
swer to Backpay Specification and for Partial Sum-
mary Judgment, with exhibits attached. The General
Counsel submits that portions of the Respondent’s
amended answer to the compliance specification are
not in compliance with Section 102.56(b) and (c) of
the Board’s Rules and Regulations. Therefore, the
General Counsel moved that paragraph IV of the Re-
spondent’s amended answer be stricken and that partial
summary judgment be granted. On May 28, 1992, the
Board issued an order transferring the proceeding to
the Board and Notice to Show Cause why the General
Counsel’s motion should not be granted. The Respond-
ent has not filed a response to the Notice to Show
Cause.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this case, the Board makes
the following
Ruling on the Motion to Strike and for Partial
Summary Judgment
Section 102.56(b) and (c) of the Board’s Rules and
Regulations states:
(b) Contents of answer to specification.—The
answer shall specifically admit, deny, or explain
each and every allegation of the specification, un-
less the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. Denials shall fair-
ly meet the substance of the allegations of the
specification at issue. When a respondent intends
to deny only a part of an allegation, the respond-
ent 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 re-
spondent disputes either the accuracy of the fig-
ures 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 applica-
ble premises and furnishing the appropriate sup-
porting figures.
(c) Effect of failure to answer or to plead spe-
cifically and in detail to backpay allegations of
specification.— . . . If the respondent files an an-
swer to the specification but fails to deny any al-
legation of the specification in the manner re-
quired by paragraph (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 with-
out the taking of evidence supporting such allega-
tion, and the respondent shall be precluded from
introducing any evidence controverting the allega-
tion.
The specification duly served on the Respondent
states that, pursuant to Section 102.56 of the Board’s
Rules and Regulations,
the Respondent shall, within 21 days from the
date of the Specification, file . . . an answer to
the Specification. To the extent that such Answer
fails to deny allegations of the Specification in the
manner required under the Board’s Revised 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.
In paragraph IV the specification alleges that an ap-
propriate measure of the quarterly gross backpay for
the discriminatees is the quarterly earnings of Joseph
Boroczk, a representative employee, who worked in a
driver position similar to those of the discriminatees
during the backpay period. The amended answer states
that the Respondent is unaware of Joseph Boroczk and
107J. HUIZINGA CARTAGE CO.
3 See, e.g., Robincrest Landscaping & Construction, 303 NLRB
377 (1991); Heck’s Inc., 282 NLRB 263 (1986).
demands proof that he represents the appropriate meas-
ure of the quarterly gross backpay due the
discriminatees.
As indicated above, the General Counsel filed a mo-
tion to strike the Respondent’s answer to paragraph IV
of the compliance specification on the basis of alleged
deficiencies. We find that the answer is deficient inso-
far as it contains general denials concerning the com-
putation of gross backpay, a matter within the Re-
spondent’s knowledge. Those denials are insufficient
because they do not fairly meet the substance of the
allegations of the specification, nor do they reveal any
specific basis for disagreement with the specification’s
allegations, or offer or set forth in detail supporting
figures, and an alternative formula for computing the
backpay amount with appropriate alternative figures.3
Thus, we agree with the General Counsel that para-
graph IV of the Respondent’s answer fails to comply
with the requirements of Section 102.56(b) and (c). We
therefore grant the General Counsel’s motion to strike
this paragraph from the answer.
With the exception of the amount of the
discriminatees’ interim earnings, and the dental ex-
penses and backpay period for David Toles, the Re-
spondent has either admitted all other allegations in the
specification or denied them in a manner insufficient
under Section 102.56(b) and (c) of the Board’s Rules
and Regulations. Therefore, we deem the Respondent
to have admitted those other allegations to be true. Ac-
cordingly, we shall grant the General Counsel’s Mo-
tion for Partial Summary Judgment and shall direct a
hearing limited to determining the amount of the
discriminatees’ interim earnings, and to the dental ex-
penses and backpay period for David Toles.
ORDER
It is ordered that the General Counsel’s motion to
strike the Respondent’s answer to paragraph IV is
granted.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Partial Summary Judgment is granted ex-
cept with regard to the allegations concerning the
amount of the discriminatees’ interim earnings, and to
the dental expenses and backpay period for David
Toles.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 13 for the
purpose of issuing a notice of hearing and scheduling
a hearing before an administrative law judge for the
purpose of taking evidence concerning the amount of
the discriminatees’ interim earnings, and concerning
the dental expenses and backpay period for David
Toles. The judge shall prepare and serve on the parties
a decision containing findings of fact, conclusions of
law, and recommendations based on all the record evi-
dence. Following service of the judge’s decision on the
parties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.