Urban Constructors, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1220 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1220
Urban Constructors, Inc. and Urban Organization
and Laborers’ International Union of North
America, Local 478, AFL–CIO. Case 12–CA–
16562
March 31, 1999
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On April 19, 1996, the National Labor Relations Board
issued a Decision and Order in this case1 directing the
Respondent, Urban Constructors, Inc. and Urban Organi-
zation, to take certain affirmative action, including mak-
ing whole Willie Louis and Anele Stanisclas for any loss
of earnings they may have suffered as a result of the Re-
spondent’s discharge of them in violation of Section
8(a)(3) and (1) of the Act.
On April 29, 1997, the United States Court of Appeals
of the Eleventh Circuit entered its judgment enforcing
the Board’s Order.2
A controversy having arisen over the amount of back-
pay due the discriminatees under the terms of the
Board’s Order, the Regional Director for Region 12 is-
sued and served on the Respondent a compliance specifi-
cation and notice of hearing on August 4, 1998, notifying
the Respondent that it must file a timely answer comply-
ing with the Board’s Rules and Regulations. On Sep-
tember 2, 1998, the Respondent filed an answer to the
compliance specification.
On December 4, 1998, counsel for the General Coun-
sel filed with the Board a Motion to Strike Respondent’s
Answer in Part and for Partial Summary Judgment, with
attachments. The General Counsel’s motion alleges that
the Respondent failed to meet the requirements of Sec-
tion 102.56 of the Board’s Rules and Regulations, spe-
cifically with respect to paragraphs 1(a) and (b), 2(a)
through (f), and 3(a) through (c) of the specification re-
garding the duration of the backpay periods, the premises
and backpay formulas used, and the computation of gross
backpay. The General Counsel contends that these are
matters within the knowledge of the Respondent. The
General Counsel alleges that the Respondent, in its deni-
als and claims of insufficient knowledge to form a belief
regarding the truth or falsity of all but four allegations of
the specification, gave only vague explanations, and that
the Respondent provided no backpay periods or formulas
or figures for the computation of gross and net backpay
as alternatives to those used by the Regional Director.
The General Counsel further contends that the Respon-
dent’s first affirmative defense in its answer should be
struck because it involves both matters within the Re-
spondent’s knowledge as to which it has offered no sup-
porting argument and matters litigated and resolved in
the underlying unfair labor practice proceeding.

1 320 NLRB 1166.
2 No. 97–4067 (unpublished).
On December 14, 1998, the Board issued an Order
Transferring Proceedings to the Board and Notice to
Show Cause why the General Counsel’s motion should
not be granted.
On the entire record in this proceeding, the Board
makes the following
Ruling on the Motion to Strike Portions of the Respon-
dent’s Answer and for Partial Summary Judgment
Sections 102.56(b) and (c) of the National Labor Rela-
tions Board’s Rules and Regulations state in pertinent
part:

(b) Contents of answer to specification—The an-
swer shall specifically admit, deny, or explain each
and every allegation of the specification, unless the
respondent is without knowledge, in which case the
respondent shall so state, such statement operating as
a denial. Denials shall fairly meet the substance of
the allegations of the specification at issue. When a
respondent intends to deny only a part of an allega-
tion, the respondent shall specify so much of it as is
true and shall deny only the reminder. As to all mat-
ters within the knowledge of the respondent, includ-
ing but not limited to the various factors entering
into the computation of gross backpay, a general de-
nial shall not suffice. As to such matters, if the re-
spondent disputes either the accuracy of the figures
in the specification or the premises on which they
are based, the answer shall specifically state the ba-
sis for such disagreement, setting forth in detail the
respondent’s position as to the applicable premises
and furnishing the appropriate supporting figures.
(c) Effect of failure to answer or to plead specifi-
cally and in detail to backpay allegations of specifi-
cation.—If the respondent files an answer to the
specification but fails to deny any allegation of the
specification in the manner required 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 without the taking of evidence
supporting such allegation, and the respondent shall
be precluded from introducing any evidence contro-
verting the allegation.

We agree with the General Counsel that the Respon-
dent’s answers to paragraphs 1(a) and (b) and 2(a)
through (f) of the specification are substantially deficient
insofar as the Respondent’s answers contain only general
denials concerning matters within the Respondent’s
knowledge relating to the duration of the backpay peri-
ods and computation of gross backpay for the discrimina-
tees, and the Respondent gives no alternative backpay
periods, wage rates, or alternative gross backpay totals.
We also agree with the General Counsel that the Re-
spondent’s answers neither admitting nor denying para-
graphs 3(a) through (c) of the specification, which state
327 NLRB No. 200
URBAN CONSTRUCTORS 1221
the arithmetic formulas for the computation of quarterly
net backpay, are substantially deficient because the Re-
spondent offered no alternative formulas or any explana-
tion of the alleged defects in the Regional Director’s
formulas.
Thus, because the Respondent has failed to deny, in a
manner prescribed in Section 102.56(b), the allegations
concerning the duration of the backpay periods, the
premises and formulas used to compute gross and net
backpay, and the computations of gross backpay due, or
to explain its failure to do so, Section 102.56(c) requires
that such allegations be deemed to be admitted to be true.
In its answer, the Respondent offers five affirmative
defenses3 to the allegations of the specification. In its
first affirmative defense, the Respondent contends that
the discriminatees are not entitled to backpay for any and
all periods of time in which they would have otherwise
been terminated from their jobs because of legitimate
nondiscriminatory business reasons, including layoffs of
their positions, or termination for poor performance. We
agree with the General Counsel that the first affirmative
defense should be struck, because the Respondent did not
provide any specifics as to legitimate nondiscriminatory
business reasons which would have resulted in the termi-
nation of either discriminatee during the alleged backpay
period. Nor does the Respondent provide any alternative
backpay periods for either discriminatee premised upon
this portion of its first affirmative defense. Further, the
Respondent’s argument, in its first affirmative defense,
that the backpay periods may be tolled because it would
have terminated the discriminatees for poor performance
has been fully litigated in the underlying unfair labor

3 The other four affirmative defenses relate to the discriminatees' in-
terim earnings and alleged failures to mitigate losses. On those sub-
jects, which are not matters necessarily within the knowledge of the
Respondent, a simple denial is sufficient to warrant a hearing. E.g.,
Baumgardner Co., 298 NLRB 26, 27–28 (1990). The General Counsel
accordingly did not seek summary judgment on these.
practice proceeding. The Board adopted the administra-
tive law judge’s finding that this reason asserted by the
Respondent for discharging the discriminatees was pre-
textual. Urban Constructors, Inc., 320 NLRB at 1166 fn.
1, 1169–1170. The Eleventh Circuit enforced the Board’s
Order.
Accordingly, for the reasons stated above, we shall
grant the General Counsel’s Motion to Strike Respon-
dent’s Answer in Part and for Partial Summary Judg-
ment. As a result, we shall strike the Respondent’s an-
swer with respect to paragraphs 1(a) and (b), 2(a)
through (f), and 3(a) through (c) of the specification, and
its first affirmative defense and grant summary judgment
with respect to all allegations in the specification except
paragraphs 3(e), (f), and (g) and 4. We shall direct a
hearing limited to determining the amount of interim
earnings attributable to the discriminatees, and related
matters, and, hence, the Respondent’s net backpay liabil-
ity.
ORDER
It is ordered that the General Counsel’s Motion to
Strike Respondent’s Answer in Part and for Partial
Summary Judgment be granted.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 12 for the
purpose of scheduling a hearing before an administrative
law judge limited to the allegations in the specification
contained in paragraphs 3(e), (f), and (g) and 4 concern-
ing the amount of interim earnings, and related matters,
and net backpay liability.
IT IS FURTHER ORDERED that an administrative
law judge prepare and serve upon the parties a decision
containing findings, conclusions, and recommendations
based on all of the record evidence. Following the ser-
vice of the administrative law judge’s decision on the
parties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall apply.