Robincrest Landscaping & Construction

National Labor Relations Board - Board Decisions

Jun 12, 1991

303 N.L.R.B. 377 (N.L.R.B. 1991)

377
303 NLRB No. 59
ROBINCREST LANDSCAPING & CONSTRUCTION
1 Case 90–2010 (unpublished).
Robincrest Landscaping & Construction, Inc. and
Joaquin Lopez. Case 13–CA–27857
June 12, 1991
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On November 27, 1989, the National Labor Rela-
tions Board issued an unpublished Order directing the
Respondent, inter alia, to make whole employee Carlos
Serpa for any loss of earnings and other benefits re-
sulting from the Respondent’s unfair labor practices in
violation of Section 8(a)(1) of the Act. On June 13,
1990, the United States Court of Appeals for the Sev-
enth Circuit granted enforcement of the Board’s
Order.1 A controversy having arisen over the amount
of backpay due Serpa under the Board’s Order, on No-
vember 1, 1990, the Regional Director for Region 13
issued and duly served on the Respondent a compli-
ance specification and notice of hearing alleging the
amount of backpay due this discriminatee.
Subsequently, the Respondent filed an answer to the
backpay specification admitting certain paragraphs,
generally denying certain paragraphs, and denying cer-
tain other paragraphs by disputing the accuracy of the
formula and the figures used in the computation of
gross backpay. In this regard, the Respondent asserts
that the gross backpay formula, which uses the average
daily rate Serpa would have earned, is erroneous be-
cause there was no such rate. Rather, it contends Serpa
was paid based on the type and number of loads he
would haul per day. The Respondent—without offering
supporting evidence—further asserts that the formula is
erroneous because it is based on Serpa working 6 days
per week, and it contends that Serpa did not normally
work 6 days per week and typically hauled fewer loads
than other employees. The Respondent does not set
forth an alternative formula with appropriate sup-
porting figures. The Respondent further denies the
specification paragraph concerning interim earnings,
submitting affirmative defenses.
Thereafter, on March 22, 1991, the General Counsel
filed with the Board a motion to strike portions of the
Respondent’s answer and for partial summary judg-
ment, with exhibits attached. The General Counsel es-
sentially alleges that, except as to the issue of interim
earnings, the Respondent’s answer denying certain
paragraphs does not comply with the substantive re-
quirements of Section 102.56(b) and (c) of the Board’s
Rules and Regulations. Accordingly, the General
Counsel essentially requests that paragraphs III, IV,
VI, and VII of the backpay specification be stricken as
deficient insofar as they do not conform to the Board’s
requirements as to these compliance matters within the
Respondent’s knowledge, and that these paragraphs be
deemed to be admitted as true without taking evidence.
The General Counsel also moves that a partial sum-
mary judgment be granted. On April 1, 1991, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the Gen-
eral Counsel’s motion should not be granted. The Re-
spondent has not filed a response.
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 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 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
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
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Challenge-Cook Bros. of Ohio, 295 NLRB 435, 436 (1989).
3 See, e.g., Unico Replacement Parts, 286 NLRB 738 (1987); Heck’s Inc.,
282 NLRB 263 (1986); and East Belden Corp., 267 NLRB 262 (1983).
of evidence supporting such allegation, and the re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
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 extent that such Answer fails to
deny allegations of the Specification in the manner re-
quired under the Board’s Revised Rules and Regula-
tions, and the failure to do so is not adequately ex-
plained, such allegations shall be deemed to be admit-
ted to be true, and the Respondent shall be precluded
from introducing any evidence controverting them.’’
As indicated above, the General Counsel filed a mo-
tion to strike in part the Respondent’s answer on the
basis of alleged substantive deficiencies. We find that
the answer is substantively deficient insofar as it con-
tains general denials concerning those matters within
the Respondent’s knowledge. Those denials are insuffi-
cient 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 specifica-
tion’s allegations, or offer or set forth in detail sup-
porting figures, and alternative premises.2 Additionally,
as to the Respondent’s denials concerning the com-
putation of gross backpay, we find these denials simi-
larly insufficient because they fail to offer an alter-
native formula for computing the backpay amount with
appropriate alternative figures, including an alternative
to the use of daily rates and an alternative number of
days which would have been worked by the
discriminatee involved.3 Thus, we agree with the Gen-
eral Counsel that paragraphs III, IV, VI, and VII (ex-
cept with respect to interim earnings) of the Respond-
ent’s answer fail to comply with the requirements of
Section 102.56(b) and (c). We therefore grant the Gen-
eral Counsel’s motion in effect to strike these para-
graphs from the answer.
Accordingly, we shall grant the General Counsel’s
Motion for Partial Summary Judgment and shall direct
a hearing limited to determining the amount of Serpa’s
interim earnings. Because we have found that 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, we deem the Respondent to have ad-
mitted all other allegations to be true.
ORDER
It is ordered that the General Counsel’s motion to
strike the Respondent’s answer to the backpay speci-
fication in part is granted as to paragraphs III, IV, VI,
and VII (insofar as par. VII involves gross backpay).
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 interim earnings.
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
interim earnings. The judge shall prepare and serve on
the parties a decision containing findings of fact, con-
clusions of law, and recommendations based on all the
record evidence. Following service of the judge’s deci-
sion on the parties, the provisions of Section 102.46 of
the Board’s Rules and Regulations shall be applicable.