S E Fire Apparatus

National Labor Relations Board - Board Decisions

Jul 22, 1994

314 N.L.R.B. 511 (N.L.R.B. 1994)

511
314 NLRB No. 88
HAHN MOTORS
1 283 NLRB 901.
2 No. 90-3065 (unpublished).
3 If the allegations of the specification are correct, Respondent
Stavin would be liable for the make-whole remedy imposed on
Hahn. See Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973);
Perma Vinyl Corp., 164 NLRB 968 (1967), enfd. sub nom. United
States Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968).
Hahn Motors, Inc. and Hahn Truck Sales & Serv-
ice Corp. & Stavin Enterprises, Inc., d/b/a S E
Fire Apparatus, Successor and United Steel-
workers of America, AFL–CIO–CLC
Stavin Enterprises, Inc., d/b/a S E Fire Apparatus
and United Steelworkers of America, AFL–
CIO–CLC. Cases 4–CA–13275 and 4–CA–20082
July 22, 1994
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On May 6, 1987, the National Labor Relations
Board issued a decision in Case 4–CA–13275 in which
it ordered Respondents Hahn Motors, Inc. and Hahn
Truck Sales & Service Corp., a single employer (to-
gether, Hahn), their officers, agents, successors, and
assigns, to, inter alia, make whole their employees for
any loss of pay or benefits incurred because of the Re-
spondents’ failure to apply the terms of the collective-
bargaining agreement covering employees in the bar-
gaining unit.1 On March 26, 1990, the United States
Court of Appeals for the Third Circuit entered a judg-
ment enforcing the Board’s Order.2
On January 31, 1992, the Regional Director for Re-
gion 4 issued a complaint and notice of hearing in
Case 4–CA–20082 against Respondent Stavin Enter-
prises, Inc., d/b/a S E Fire Apparatus, alleging that Re-
spondent Stavin is the successor to Hahn and that it
had failed and refused to recognize and bargain with
the Union as the representative of employees in the
bargaining unit, in violation of Section 8(a)(5) and (1)
of the Act. Respondent Stavin filed an answer in
which it denied that it is an employer engaged in com-
merce within the meaning of the Act, that it is the suc-
cessor to Hahn, that the Union is the exclusive bar-
gaining representative of employees in the unit, and
that it had failed and refused to bargain with the
Union.
A controversy having arisen over the amounts of
backpay due under the terms of the Board’s Order in
Case 4–CA–13275, the Regional Director on July 30,
1993, issued a compliance specification and notice of
hearing which alleged, inter alia, that Respondent
Stavin is the successor to Hahn and that it took over
Hahn’s operations with notice of Hahn’s unfair labor
practices and of its liability under the Board’s Order
to make whole its employees.3 Respondent Stavin filed
an answer to the specification, signed by its president,
Robert Stavin, in which it again denied that it is the
successor to Hahn, and in which it further denied that
it had notice of Hahn’s unfair labor practices. Con-
cerning the specification’s backpay formula and com-
putations, the answer stated, ‘‘Deemed denied. It is
specifically denied Respondent has continued a[s] an
employing entity and is the legal successor in interest
to Hahn Motors and Hahn Trucks and has no way of
knowing the truth of facts presented.’’ No answer was
filed on behalf of Hahn.
On October 8, 1993, the Regional Director issued an
order consolidating Cases 4–CA–13275 and 4–CA–
20082.
On May 9, 1994, the General Counsel filed with the
Board a motion to transfer proceedings to the Board;
for summary judgment regarding Hahn in Case 4–CA–
13275; to strike portions of Respondent Stavin’s an-
swer to the compliance specification; and for partial
summary judgment concerning Respondent Stavin in
Case 4–CA–13275, with exhibits attached. In the mo-
tion, the General Counsel alleges that by letter dated
December 23, 1993, counsel for the Acting General
Counsel informed Respondent Stavin’s president, Rob-
ert Stavin, that Respondent Stavin’s answer to the
compliance specification was deficient under Section
102.56 of the Board’s Rules and Regulations in that it
was not sworn to; failed to explain certain admissions
and denials; was unresponsive to the allegation that
Respondent Stavin knew of Hahn’s unfair labor prac-
tices when it became the successor to Hahn; and failed
to answer the details of the portions of the specifica-
tion containing the backpay formula and computations.
The letter also informed Stavin that the ‘‘assertion that
Respondent has no way of knowing the truth of the
facts presented is not a denial of knowledge, and espe-
cially requires explanation given your prior status with
Hahn,’’ the latter presumably referring to the fact that
Robert Stavin had been president of both Hahn Motors
and Hahn Truck Sales, as well as of Respondent
Stavin. The letter further informed Stavin that if Re-
spondent Stavin did not file an amended answer by
January 14, 1994, the General Counsel would move to
strike portions of the answer and/or for summary judg-
ment. The letter concluded by noting that no answer
to the compliance specification had been filed on be-
half of Hahn, and stated that if no answer on behalf
of those Respondents was received by January 14,
1994, the General Counsel would move for summary
judgment against them. The General Counsel alleges
that Respondent Stavin did not respond to the letter
and did not file an amended answer, and that Hahn did
not file an answer. The General Counsel therefore
moves that the Board find the allegations of the com-
pliance specification to be true concerning Hahn and
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Sec. 102.56(a) states that
The answer to the specification shall be in writing, the original
being signed and sworn to by the respondent or by a duly au-
thorized agent with appropriate power of attorney affixed, and
shall contain the mailing address of the respondent.
5 The Board has held that general denials of allegations concerning
successorship and interim earnings, such as those contained in Re-
spondent Stavin’s answer, are sufficient to raise issues requiring a
hearing. See, e.g., Lobster Trap, 287 NLRB 1322, 1323 (1988).
order Hahn to pay the amounts set forth in the speci-
fication.
The General Counsel further asserts that Respondent
Stavin’s answer to the portions of the specification
containing the backpay formula and computations is
deficient under Section 102.56(b) and (c) of the
Board’s Rules and Regulations, and moves that the
Board strike those portions of the answer and find the
corresponding portions of the specification to be true
regarding Respondent Stavin. Finally, the General
Counsel moves that the Board order a hearing regard-
ing Respondent Stavin limited to the issues of (1)
whether Respondent Stavin is the successor to Hahn,
and (2) determining the discriminatees’ regular ex-
penses, medical expenses, interim earnings, and net
backpay.
On May 12, 1994, the Board issued an order trans-
ferring the proceeding to the Board and Notice to
Show Cause why the General Counsel’s motion should
not be granted. The Respondents did not file a re-
sponse. The allegations of the motion are therefore un-
disputed.
The Board has delegated its authority in this pro-
ceeding 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 Concerning Respondent
Stavin, and for Summary Judgment Concerning
Respondents Hahn Motors and Hahn Truck Sales
Section 102.56 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 repondent’s position as to the applicable
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
of evidence supporting such allegation, and the re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
Concerning Respondent Stavin, we observe initially
that, although in his letter to Robert Stavin, counsel for
the Acting General Counsel cited Respondent Stavin’s
failure to file a sworn answer as required by Section
102.56(a) of the Board’s Rules and Regulations,4 the
General Counsel has not moved to strike the entire an-
swer on that procedural ground. Also, although the let-
ter noted Respondent Stavin’s failure to answer para-
graph 1 of the compliance specification (which con-
tains the allegations concerning Respondent Stavin’s
status as the alleged Golden State successor to Hahn)
in the manner prescribed in Section 102.56(b), the
General Counsel does not rely on those alleged short-
comings in his Motion for Partial Summary Judgment
against Respondent Stavin. Instead, the General Coun-
sel urges the Board to strike only the portions respond-
ing to paragraphs 2 through 5 of the specification,
which concern the formula for and computation of
gross backpay, and to grant partial summary judgment
concerning those matters. As noted above, the General
Counsel has not moved for summary judgment on the
issues of Respondent Stavin’s successor status or the
amounts of the backpay claimants’ interim earnings,
regular expenses, medical expenses, or net backpay.5
Turning to Respondent Stavin’s ‘‘deemed’’ denial of
the allegations in paragraphs 2 through 5 of the speci-
fication, we find, in agreement with the General Coun-
sel, that the Respondent’s answer is deficient under
Section 102.56. Section 102.56(b) states that ‘‘The an-
513HAHN MOTORS
6 See Schnabel Associates, 286 NLRB 630, 631 (1987).
7 A possible reason is that those companies are out of business,
as Respondent Stavin alleges in its answer to the complaint in Case
4–CA–20082.
8 See Transportation by La Mar, 281 NLRB 508, 510 (1986). Re-
spondents Hahn Motors and Hahn Truck Sales, if they still exist,
shall not be allowed to participate in the hearing. Id. at fn. 6.
swer shall specifically admit, deny, or explain each and
every allegation of the specification, unless the re-
spondent is without knowledge, in which case the re-
spondent shall so state, such statement operating as a
denial.’’ Section 102.56(b) also makes plain that a gen-
eral denial of matters within the Respondent’s knowl-
edge, including factors entering into the computation
of gross backpay, is insufficient. Despite the latter pro-
vision, Respondent Stavin asserts that it is not the suc-
cessor to Hahn, and that it has ‘‘no way of knowing’’
whether the gross backpay allegations in the specifica-
tion are accurate. As the General Counsel argues, and
as counsel for the Acting General Counsel noted in his
letter to Robert Stavin, that assertion requires expla-
nation, especially because Robert Stavin was president
of both Hahn Motors and Hahn Truck Sales, and is
president of Respondent Stavin. However, in its an-
swer, Respondent Stavin avers that
[a]ll of the general intangibles of Hahn Motors
and Hahn Truck, including without limitation the
corporate names and logos, the goodwill, the
mechanicals, shop and engineering drawings, cus-
tomer lists, vendor lists and records were sold by
Meridian Bank to a third party believed to be
American La France. Respondent has no right to
use these intangibles. [Emphasis added.]
The quoted material may imply, but does not clearly
state, that the personnel records and collective-bar-
gaining agreements pertaining to the computation of
gross backpay were among those ‘‘records’’ assertedly
sold to a third party and to which Respondent Stavin
assertedly has no right of access. In its answer, how-
ever, the Respondent does not rely directly on those
assertions in claiming that it has ‘‘no way of know-
ing’’ the truth of the allegations in the specification.
Nor did Respondent Stavin file an amended answer or
a response to the Notice to Show Cause, asserting any
basis for its claimed lack of knowledge. Moreover, the
specification refers to both the collective-bargaining
agreements and the Respondent’s payroll records as
sources on which the backpay formula and computa-
tions were based. Apparently, then, the Regional Of-
fice possessed copies of those documents, even if Re-
spondent Stavin did not. Yet there is no indication that
Respondent Stavin asked the Regional Office for cop-
ies, or even for access to the documents in its posses-
sion. We thus find no merit to Respondent Stavin’s as-
sertion that it had ‘‘no way of knowing’’ whether the
allegations in the specification were true.6 Con-
sequently, we find that the portions of the answer con-
cerning the gross backpay allegations in paragraphs 2
through 5 of the specification are insufficient under
Section 102.56, and we grant the General Counsel’s
motion to strike those portions of the answer. Pursuant
to Section 102.56(c), we deem those allegations of the
specification to have been admitted to be true. Accord-
ingly, we grant the General Counsel’s Motion for Par-
tial Summary Judgment concerning those allegations
about Respondent Stavin .
Respondents Hahn Motors and Hahn Truck Sales
failed to file an answer to the specification and have
not shown good cause for their failure to do so.7 We
therefore deem the allegations of the specification to
have been admitted to be true in their entirety as to
those Repondents. However, because Respondent
Stavin, the alleged Golden State successor to Hahn,
has filed an answer containing a general denial of
amounts claimed for interim earnings, and because the
General Counsel has not moved for summary judgment
on the issues of the backpay claimants’ interim earn-
ings, regular expenses, and medical expenses, we shall
not make a determination of final backpay liability.
Rather, as the General Counsel urges in the motion, we
shall remand this proceeding for a hearing on those is-
sues and on Respondent Stavin’s status as Hahn’s suc-
cessor, and for a final computation of backpay liability.
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment regarding Hahn, except to the
extent the issues of interim earnings, regular expenses,
and medical expenses must be resolved at a hearing.8
ORDER
It is ordered that the General Counsel’s motion to
strike the portions of Respondent Stavin’s answer to
the compliance specification in Case 4–CA–13275
concerning the formula for, and computation of, gross
backpay, and for partial summary judgment on those
issues against Respondent Stavin, is granted.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Summary Judgment in Case 4–CA–13275
against Respondents Hahn Motors, Inc. and Hahn
Truck Sales & Service Corp. is granted, except insofar
as the issues of interim earnings, regular expenses, and
medical expenses are remanded to be decided at a
hearing.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 4 for the
purpose of arranging a hearing before an administra-
tive law judge, limiting such proceeding to a deter-
mination, in Case 4–CA–13275, of whether Respond-
ent Stavin Enterprises, Inc., d/b/a S E Fire Apparatus,
is the successor to Respondents Hahn Motors and
Hahn Truck Sales and liable for remedying their unfair
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor practices, and of the amounts of interim earnings,
regular expenses, medical expenses, and net backpay
of the backpay claimants; and in Case 4–CA–20082, of
whether Respondent Stavin unlawfully refused to rec-
ognize and bargain with the Union as the exclusive
representative of employees in the bargaining unit.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a decision
containing findings, conclusions, and recommendations
based on all the record evidence. Following the service
of the judge’s decision on the parties, the provisions
of Section 102.46 of the Board’s Rules and Regula-
tions shall apply.