King Manor Care Center

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 986 (N.L.R.B. 1994)

986
313 NLRB No. 155
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 308 NLRB 884. Member Devaney did not participate in the un-
derlying case.
2 In the underlying case, the Respondent argued that it was not lia-
ble to make any contributions, because it had overpaid the funds; the
Union argued that the Respondent had not overpaid and was in fact
in arrears. In his decision, the administrative law judge stated that
‘‘[a]lthough it appears that eventually Respondent may have paid
about $2,000 over the amount owed through December 1990, this is
a circumstance not fully explained.’’ (Emphasis added.) See 308
NLRB at 886–887.
3 Six months prior to the date the charge was filed in the case.
4 On that date a Second Supplemental Decision and Certification
of Representative issued in Case 22–RC–9913 which certified Dis-
trict 1115, Nursing Home and Hospital Employees Union as the rep-
resentative of a unit which includes the nursing aides and dietary
workers who were formerly represented by District 6 and who are
the subject of the Board’s Order.
King Manor Care Center and District 6, Inter-
national Union of Industrial, Service, Trans-
port and Health Employees. Case 22–CA–16834
March 3, 1994
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On September 18, 1992, the National Labor Rela-
tions Board issued its Decision and Order1 in Case 22–
CA–16834, which, inter alia, directed the Respondent
to reimburse the Union’s welfare plan for any interest
lost as a result of the Respondent’s failure to make
timely contributions to the plan pursuant to the terms
of the February 19, 1988, to February 19, 1991 collec-
tive-bargaining agreement with the Union, and to make
whole unit employees for any expenses they incurred
as a result of the Respondent’s failure to make timely
payments. The Board left to compliance the determina-
tion of whether the Respondent’s failure to make time-
ly payments resulted in a delinquency in the pay-
ments.2 On December 31, 1992, the Respondent en-
tered into a stipulation with the General Counsel which
stated, in pertinent part,
2. Respondent hereby waives its right under
Section 10(e) and (f) of the Act (29 U.S.C. 160
(e) and (f)[)] to contest either the propriety of the
Board’s Order issued on September 18, 1992[,] or
the findings of fact and conclusions of law under-
lying that Order.
On January 27, 1993, the Regional Director issued
a compliance specification and notice of hearing (spec-
ification) alleging the amount of money owed by the
Respondent to the Union’s welfare plan for the period
beginning on September 1, 1989,3 through December
30, 1991, when the Union was decertified,4 and notify-
ing the Respondent that it must file a timely answer
complying with the Board’s Rules and Regulations. On
February 8, 1993, the Respondent filed its answer to
the compliance specification. Subsequently, by letter
dated February 17, 1993, the General Counsel advised
the Respondent that its answer was deficient, and that
the General Counsel would file a Motion for Summary
Judgment if a proper answer was not filed by February
24, 1993. By letter dated February 22, 1993, the Re-
spondent filed an amended answer.
Thereafter, on May 21, 1993, the General Counsel
filed a Motion to the Board for Summary Judgment,
with exhibits attached. In support of the motion, the
General Counsel submits that the Respondent’s answer
and amended answer to the compliance specification
‘‘leave no issues which can be litigated’’ because the
paragraphs of the specification either are admitted or
are not answered in compliance with Section 102.56(b)
and (c) of the Board’s Rules and Regulations. On May
26, 1993, 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. On July 2, 1993, the Respondent filed its re-
sponse to the Notice to Show Cause.
On the entire record in this case, the Board makes
the following
Ruling on Motion for 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 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 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 fails to file any
answer to the specification within the time pre-
scribed by this section, the Board may, either with
or without taking evidence in support of the alle-
gations of the specification and without further
notice to the respondent, find the specification to
987KING MANOR CARE CENTER
5 This formula was agreed to by the parties during the hearing in
the underlying case. 308 NLRB 885 and fn. 2.
6 We reject the Respondent’s contention that its liability to the
fund is litigable because the Board left to compliance the determina-
tion of whether the Respondent owed ‘‘any additional payments and
interest to District 6’s welfare plan.’’ The Respondent argued on ex-
ception to the Board in the underlying case that, not only did it not
owe any contributions, but that it had overpaid the plan. The Union,
on the other hand, argued that the Respondent’s contributions were
still in arrears. The judge found that the Respondent, though consist-
ently late in making payments to the fund, ‘‘eventually . . . may
have paid about $2,000 over the amount owed through December
1990[,]’’ but that the circumstances were not fully explained. 308
NLRB at 886. It was, therefore, the amount of the contributions, if
any, not the liability of the Respondent to make the contributions,
that the Board left to compliance.
7 For the same reasons, we reject the Respondent’s argument that
it is not liable for any payments after the contract expired in Feb-
ruary 1991. In addition, we note that the Respondent’s answer ad-
mits par. 1 of the specification, which states that the backpay period
runs until December 30, 1991, and also par. 3 of the specification,
which in its three subsections explains the calculations made on ap-
pendixes A-1 through A-28 that are attached to the specification.
be true and enter such order as may be appro-
priate. 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 re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
Paragraph 2 of the specification alleges that the Re-
spondent is liable for contributions to the Union’s wel-
fare plan for all nursing aides and dietary workers who
worked at least 136 hours in a calendar month, at the
rate of $45 per month per eligible employee.5 Para-
graph 5 summarizes the quarterly amounts of welfare
contributions due, which are alleged to total
$38,286.68. Paragraph 6 alleges that the Respondent is
also liable for interest on the late payments and unpaid
amounts, and paragraph 7 summarizes the facts and
calculations alleged in the previous paragraphs and al-
leges that the Respondent’s total obligations will be
discharged by a payment to the plan in the amount of
$38,386.68, plus interest to the date of payment. The
Respondent’s answer and amended answer denies para-
graph 2 asserting that ‘‘liability cannot be measured in
terms of the contract . . . in these circumstances.’’ It
does not describe the ‘‘circumstances’’ or set forth an
alternative calculation. Thus, the answers do not com-
ply with the specificity requirements of the Board’s
Rules. The Respondent’s answer and amended answer
deny paragraphs 5, 6, and 7 without explanation except
for the following affirmative defense:
The Respondent is not liable for contributions in
these circumstances. Liability cannot be measured
in terms of the contract. Making these payments
will result in a windfall to the Union funds and
a penalty to the Respondent. Interest is also inap-
propriate in this context. Moreover, the contract
expired in February 1991.
The Respondent’s answers to these allegations are
similarly deficient because they do not set forth in de-
tail its position as to the applicable premises nor fur-
nish the appropriate supporting figures. See Best Roof-
ing Co., 304 NLRB 727, 728 (1991).
We find no merit in the Respondent’s argument,
made in response to the Board’s Notice to Show
Cause, that it is not liable for any contributions to the
fund because the Union has been decertified and the
employees no longer have an interest in the continued
viability of the fund. Cf. Manhattan Eye, Ear &
Throat Hospital v. NLRB, 942 F.2d 151 (2d Cir. 1991),
denying enf. of 300 NLRB 201 (1990). The Respond-
ent failed to raise this argument in its exceptions to the
Board in the underlying case. Moreover, in the Decem-
ber 31, 1992 stipulation, the Respondent has clearly
and unmistakably waived its right to contest the
Board’s Order or the facts underlying the Order.6
Thus, the only issue at compliance is the amount of
contributions owed the plan, not whether the contribu-
tions are owed, the latter issue having been settled by
the Board’s Order.7
Finally, paragraph 4 of the specification explains ap-
pendix B, which shows that the Respondent was given
credit for two welfare plan payments it made in the
amounts of $5000 each on August 16 and December
4, 1990, and the amounts due after the credits. The Re-
spondent’s answer denies this paragraph and in its af-
firmative defense states that the appendix is incorrect
because the calculation ‘‘arbitrarily prorates [one of]
the $5,000 payment[s] . . . so that a balance is due
and Respondent does not reap a $5,000 credit on pay-
ments made.’’ In its amended answer, the Respondent
reiterates its affirmative defense and asserts that
‘‘[o]bviously giving full credit for the $5,000 payment,
would not be an erroneous formula.’’
In its response to the Notice to Show Cause the Re-
spondent further contends that
For no apparent reason a $5,000 payment made
on August 16, 1990 was credited for the period
July 1989–December 1989 into six equal parts.
Accordingly since the back-pay period com-
menced in September 1989 only $3332 of the
$5,000 payment is being credited to Respondent.
Rather, the Respondent argues, the entire $5000 pay-
ment should be applied during the backpay period,
thereby reducing the amount owed for the period an
additional $1668.
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 308 NLRB at 886 fn. 3.
9 See, e.g., J. Huizinga Cartage Co., 308 NLRB 106 (1992);
Heck’s Inc., 282 NLRB 263 (1986). We note that the denials also,
with respect to pars. 5–7, conflict with the Respondent’s admission
of par. 3 of the specification containing the basis for the welfare
payments calculated in appendixes A-1 through A-28, which calcula-
tions are summarized in pars. 5, 6, and 7 of the specification.
The Respondent has failed to explain why the pay-
ment should be credited in its entirety to the backpay
period. Moreover, even assuming that the Respond-
ent’s answer and amended answer to paragraph 4 as
elaborated in its response to the Notice to Show Cause
is adequate, we find that the General Counsel acted
reasonably in applying the August 16, 1990 payment
to amounts due for the period July through December
1989. The judge found that the period covered by the
check was either written on the check itself or based
on the testimony of the Respondent’s own witness8 and
that such evidence indicated that the August 16 check
covered the exact period for which it was credited in
appendix B. As we discussed, the Respondent has pro-
vided no basis to support an alternative application of
the payment.
We find, therefore, that the answer and amended an-
swer are deficient insofar as they deny the appropriate-
ness of the formula and the allocation of $5000 pay-
ments set forth in paragraphs 2 and 4, respectively, of
the specification, and the calculations set forth in para-
graphs 5, 6, and 7 of the specification. Those denials
are insufficient because they do not set forth any alter-
native formula for computing the amount owed to the
Union’s welfare plan and do not provide any appro-
priate alternative figures.9 Thus, we agree with the
General Counsel that the Respondent’s answer to para-
graphs 2, 4, 5, 6, and 7 do not comply with the re-
quirements of Section 102.56(b) and (c), and that they
are insufficient to raise any litigable issues.
Accordingly, we deem the Respondent to have ad-
mitted the allegations of paragraphs 2, 4, 5, 6, and 7
of the specification to be true, and because the Re-
spondent has admitted all other allegations in the spec-
ification, we grant the General Counsel’s Motion for
Summary Judgment.
ORDER
The National Labor Relations Board orders that the
Respondent, King Manor Care Center, Neptune, New
Jersey, its officers, agents, successors, and assigns,
shall pay into the welfare plan the amounts stated in
the compliance specification.