Meilman Food Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1981

255 N.L.R.B. 70 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meilman Food Industries, Inc. and Amalgamated
Meat Cutters and Butcher Workmen of North
America, Local 304, AFL-CIO. Cases 18-CA-
4479 and 18-CA-4859
March 19, 1981
SUPPLEMENTAL DECISION AND
ORDER
On February 6, 1978, the National Labor Rela-
tions Board issued a Decision and Order' against
Respondent in which the Board ordered Respond-
ent, inter alia, to make whole certain employees
named in Appendix A of the Board's Decision and
Order and other bargaining unit employees for
their losses resulting from Respondent's unfair
labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act. Subsequently, on April 25,
1979, the United States Court of Appeals for the
District of Columbia entered its judgment enforc-
ing in full the backpay provision of the Board's
Order. A controversy having arisen over the back-
pay owed the discriminatees, the Regional Director
for Region 18 issued and caused to be served on
the parties a backpay specification and notice of
hearing alleging the amount of backpay due the in-
dividual discriminatees. Subsequently, on Novem-
ber 11, 1980, Respondent filed an answer to the
backpay specification.
On December 31, 1980, the General Counsel
filed with the Board a motion to strike Respond-
ent's answer to the backpay specification as to
gross backpay computations and for Summary
Judgment on backpay computations. Thereafter on
January 7, 1981, the Board issued an order transfer-
ring proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted. On
January 22, 1981, the Respondent filed an answer
to the General Counsel's motion to strike Respond-
ent's answer to the backpay specification as to
gross backpay computations and for Summary
Judgment as to the gross backpay specifications.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.54(b) of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, provides in relevant part:
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
234 NLRB 698
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 appropriate supporting fig-
ures.
In its motion to strike Respondent's answer to
the backpay specification as to the gross backpay
computations and for Summary Judgment as to the
gross backpay computations, the General Counsel
submits, in effect, that paragraphs 2, 3, 4, 7-17, 18-
243, 245, 246, 248, 249, and 250 of Respondent's
answer constitute general denials that the method
and elements involved in the Regional Director's
gross backpay computations are correct, that Re-
spondent's answer fails to set forth any alternative
formula or figures for any of the gross backpay
computations or the elements involved therein, and
that the total number of hours worked, rates of
pay, vacation benefits, and other applicable fringe
benefits available during the backpay period are all
matters specifically within the knowledge of Re-
spondent. He, therefore, moves that the Board
strike Respondent's answer to the backpay specifi-
cation of gross backpay, for summary judgment as
to the computation of gross backpay and that the
Board order that the backpay hearing herein be
limited to a determination of the interim earnings
of the discriminatees, which has been raised by Re-
spondent as an affirmative defense.
Respondent, in both its answer to the backpay
specification and the General Counsel's motion to
strike, generally denied various allegations of the
specification, without setting forth alternative for-
mulas or figures for any of the backpay computa-
tions and thus the denials were not sufficient under
Section 102.54(b) to raise any issues warranting a
hearing. Since this data is within Respondent's
knowledge its failure to set forth fully its position
as to the applicable premises or to furnish appropri-
ate supporting figures is contrary to the specificity
requirements of Section 102.54(b) of the Board's
Rules and Regulations. Accordingly, we shall
strike Respondent's answer to those allegations of
the backpay specification and, accordingly, deem
such allegations to be admitted as true.
Respondent, however, alleges that several of the
discriminatees named in Appendix A of the Board's
Order in 234 NLRB 698 did not diligently seek to
mitigate losses during the backpay period, that the
total figures offered by the General Counsel should
not be accepted and that, in the alternative, a hear-
ing is at least in order regarding these alleged inter-
im earnings. Inasmuch as the Board has held that a
255 NLRB No. 8
70
MEILMAN FOOD INDUSTRIES, INC.
general denial is sufficient to place interim earnings
into issue as the information is generally not within
the knowledge of Respondent,2 we find Respond-
ent's general assertion of the discriminatees' failure
to seek and retain available interim employment to
be sufficient under the Board's Rules and Regula-
tions to put into issue the general question of the
interim earnings. We also note that the General
Counsel does not oppose Respondent's right to
pursue this avenue at the hearing. Therefore, we
shall grant only the General Counsel's motion to
strike Respondent's answer to the backpay specifi-
cation as to the gross backpay computations.
Accordingly, we shall order a hearing limited to
the determination of the discriminatees' interim
earnings including the availability to discriminatees
2 Dews Construction Corp.. a subsidiary of The Aspin Group, Inc., 246
NLRB 946 (1979).
of interim employment, and the discriminatees' fail-
ure to seek and/or retain such interim employment.
ORDER
It is hereby ordered that the General Counsel's
motion to strike Respondent's answer to the back-
pay specification as to the gross backpay computa-
tions and Summary Judgment as to the gross back-
pay computations is hereby granted.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Direc-
tor for Region 18, for the purpose of arranging a
hearing before an administrative law judge, limiting
such proceeding to the determination of the avail-
ability of interim employment, the discriminatees'
failure to seek or retain interim employment, and
the interim earnings of employees listed in Appen-
dix A to the Board's Decision and Order in 234
NLRB 698, and that the Regional Director be, and
he hereby is, authorized to issue notice thereof.
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