Vibra-Screw, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1992

308 N.L.R.B. 151 (N.L.R.B. 1992)

151
308 NLRB No. 29
VIBRA-SCREW, INC.
1 301 NLRB 371.
2 The General Counsel cited Sec. 102.54 instead of Sec. 102.56.
The Board amended the Rules effective November 13, 1988. This
inadvertent error does not affect our decision in this case.
3 The Respondent submits that the General Counsel’s Motion for
Partial Summary Judgment should be denied because: (1) the Re-
spondent’s previous counsel did not show the Respondent the answer
submitted on its behalf; and (2) the Respondent has now retained
counsel for the purpose of representing it in the compliance proceed-
ing. The Respondent also requests leave to file an amended answer.
We grant the Respondent’s motion for leave to file an amended an-
swer to the extent that we deem the response to the Notice to Show
Cause to be an amended answer. See discussion, infra.
4 The General Counsel contends that his Motion for Partial Sum-
mary Judgment should be granted because the Respondent was ad-
vised that its original answer was deficient and subsequently failed
to file a timely amended answer. The General Counsel asserts that
while the Board has allowed a respondent to amend an answer after
a Notice to Show Cause has issued, as in Aquatech, Inc., 306 NLRB
975 (1991), that case involved a special factual situation and should
not be interpreted as standing for the proposition that a respondent
may substitute an entirely new answer at any time before the hear-
ing. The General Counsel argues that allowing the Respondent to
submit a new answer to the specification at this time renders the re-
quirements of Sec. 102.56 meaningless.
5 The Charging Party, the International Ladies’ Garment Workers’
Union, concurs with the General Counsel’s position and additionally
alleges that the Respondent has protracted this case over 3 years, has
employed at least four separate law firms to represent it during those
3 years, and should not be allowed to prevail on a claim of incom-
petent counsel at this stage of the proceedings.
Vibra-Screw, Incorporated and International La-
dies’ Garment Workers’ Union, AFL–CIO.
Cases 22–CA–16137, 22–CA–16203, 22–CA–
16259, 22–CA–16267, 22–CA–16278, 22–CA–
16285, 22–CA–16335, and 22–CA–16428
August 10, 1992
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On January 25, 1991, the National Labor Relations
Board issued a Decision and Order in this proceeding1
in which it ordered the Respondent, inter alia, to make
whole six named discriminatees for any loss of earn-
ings suffered by reason of the Respondent’s discrimi-
nation against them. A controversy having arisen over
the amount of backpay due the discriminatees under
the Board’s Order, the Regional Director for Region
22 on January 31, 1992, issued a compliance specifica-
tion and notice of hearing alleging the amounts of
backpay due and notifying the Respondent that it must
file a timely answer complying with the Board’s Rules
and Regulations. After an extension of time, the Re-
spondent filed an answer to the compliance specifica-
tion.
After reviewing the Respondent’s answer and find-
ing that it did not comply with Section 102.56(b) and
(c) of the Board’s Rules and Regulations, the compli-
ance supervisor for Region 22 sent the Respondent a
letter advising it that its answer was deficient and pro-
vided a copy of the applicable rules and regulations
and a relevant case citation. The letter advised that if
a proper answer was not filed by March 18, 1992, the
Region would file a Motion for Partial Summary Judg-
ment. The Respondent failed to file a proper answer by
March 18.
On April 6, 1992, the General Counsel filed with the
Board a Motion for Partial Summary Judgment, with
exhibits attached. The General Counsel’s motion con-
tends that the Respondent’s answer to the compliance
specification leaves only the issue of interim earnings
to be litigated, and that the remaining paragraphs of
the specification have either been admitted or the deni-
als do not conform to the requirements of Section
102.56(b) and (c) of the Board’s Rules and Regula-
tions.2 The General Counsel moved that the Board
deem those portions not properly denied to be admitted
as true, grant its request for partial summary judgment
as to the admitted allegations, and limit the hearing to
the issue of interim earnings.
On April 9, 1992, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the General Counsel’s motion should
not be granted. On April 22, 1992, the Respondent
timely filed a ‘‘Response to the Regional Director’s
Motion for Partial Summary Judgment and the Board’s
Order to Show Cause’’ (also entitled ‘‘Statement in
Opposition to Motion for Partial Summary Judg-
ment’’).3 On April 30, 1992, the General Counsel filed
a reply to the Respondent’s response.4 On May 4,
1992, the Charging Party filed a letter in support of the
General Counsel’s reply.5
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
Ruling on Motion 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
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Respondent admitted to certain specified backpay periods for
several discriminatees. It also acknowledged that it granted wage in-
creases to certain employees, but denied it would have necessarily
granted those increases to the discriminatees. It admitted that it
granted bonuses to some employees but denied it would have grant-
ed bonuses to the discriminatees in the amounts specified.
7 Bentley’s Lounge, 265 NLRB 632 (1982); Standard Materials,
252 NLRB 679 (1980).
8 Aquatech, Inc., supra at 976.
9 Because of this, the General Counsel filed a Motion for Partial
Summary Judgment.
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
of evidence supporting such allegation, and the re-
spondent shall be precluded from introducing any
evidence controverting the allegation.
In its answer to the original compliance specification
the Respondent generally denied the majority of the al-
legations of the specification.6 As an affirmative de-
fense, the Respondent contended it was entitled to
‘‘setoffs’’ and ‘‘credits’’ for discriminatee interim
earnings, for the failure of certain discriminatees to
mitigate their damages, and for interest which accrued
because of unreasonable delay in calculating backpay
for the discriminatees.
Based on this original answer, the General Counsel
filed his Motion for Partial Summary Judgment. We
find the Respondent’s original answer is deficient inso-
far as it contains general denials concerning those mat-
ters within the Respondent’s knowledge. The denials
are insufficient because they do not fairly meet the
substance of the allegations of the specification, nor do
they reveal the basis on which the Respondent dis-
agrees with the specification’s allegations, as required
by our rules. Additionally, the Respondent failed to
offer or set forth in detail any figures or alternatives
in support of its general claim for ‘‘setoffs’’ and
‘‘credits.’’ Further, the mere contention that the Re-
spondent would not have granted wage increases or
bonuses is deficient as the Respondent failed to supply
any alternative figures or supporting information. If we
were faced only with the original answer to the com-
pliance specification, we would grant the General
Counsel’s Motion for Partial Summary Judgment.
In this case, however, the Respondent has filed a re-
sponse to the Notice to Show Cause and in opposition
to the Motion for Partial Summary Judgment that is
sufficiently specific under our Rules fairly to join the
issues. The Board has held that, even in the absence
of an amended backpay specification, a respondent
may amend its answer prior to the hearing in the mat-
ter.7 The Board has also treated a response to a Notice
to Show Cause as an amended answer.8
We do so here. Thus, while the Respondent’s origi-
nal answer was deficient in certain respects, we shall
construe the Respondent’s response to the Notice to
Show Cause as an amended answer. We find that this
amended answer suffices to raise issues which can best
be resolved by a hearing.
Our decision in this case is well grounded in prece-
dent as evidenced by Aquatech, Bentley’s Lounge, and
Standard Materials. In support of its decision in Bent-
ley’s, the Board quoted with approval the language of
Standard Materials, at 632, that ‘‘even in the absence
of an amended backpay specification, a respondent
may amend its answer prior to a hearing in the matter.
In this case, we construe Respondent’s response to the
Notice to Show Cause as an amended answer.’’ That
is this case. The Respondent here has amended its an-
swer prior to hearing and has raised issues best re-
solved before an administrative law judge.
In response to our dissenting colleague, we note
that, contrary to his suggestion, the instant case does
not involve an original answer that was wholly defi-
cient. That answer was partially valid and partially de-
ficient.9 Hence, this case, like the others cited, involves
an effort to amend a partially valid answer that was
previously filed. In addition, we note that the attorney
who filed the previous answer is no longer Respond-
ent’s counsel, and Respondent never saw that answer.
Respondent’s new counsel filed a timely response to
the General Counsel’s Motion for Partial Summary
Judgment. In these circumstances, we would not penal-
ize Respondent by granting the General Counsel’s mo-
tion.
Accordingly, we deny the General Counsel’s Motion
for Partial Summary Judgment and order a hearing on
the issues raised by the amended answer to the compli-
ance specification.
153VIBRA-SCREW, INC.
ORDER
It is ordered that the General Counsel’s Motion for
Partial Summary Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 22 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 issues
raised in the compliance specification. The judge shall
prepare and serve on the parties a decision containing
findings of fact, conclusions of law, and recommenda-
tions based on all the record evidence. Following serv-
ice of the judge’s decision on the parties, the provi-
sions of Section 102.46 of the Board’s Rules and Reg-
ulations shall be applicable.
MEMBER OVIATT, dissenting.
I do not agree with my colleagues’ disposition of
this case and their reliance on Aquatech, Inc., 306
NLRB 975 (1991). In Aquatech, in which I did not
participate, the Board decided to construe the respond-
ent’s response to the Notice to Show Cause as an
amended answer. By its amendment, the Aquatech re-
spondent provided a date for the tolling of backpay
based on alleged offers of reinstatement. The amend-
ment involved one issue of backpay for two
discriminatees. The respondent had allegedly spoken to
the Region’s compliance officer about the reinstate-
ment of the discriminatees and the backpay cutoff date.
From this limited factual situation, the Aquatech
Board broadly stated that, even in the absence of an
amended backpay specification, a respondent may
amend its answer prior to a hearing in the matter. In
support of its decision in Aquatech the Board cited
Bentley’s Lounge, 265 NLRB 632 (1982), and Stand-
ard Materials, 252 NLRB 679 (1980).
I believe the Board took a leap in relying on these
cases to support Aquatech, and an even greater leap in
using Aquatech to justify the result in the present case.
In Bentley’s, the Board permitted a respondent’s re-
sponse to the Notice to Show Cause to clarify the an-
swer’s general denial by referring specifically to one
matter (i.e., employee tips) not within the respondent’s
knowledge. In Standard Materials, the Board merely
allowed a respondent’s response to a Notice to Show
Cause to correct an answer’s being unsworn and its
failure to provide the respondent’s address. Bentley’s
Lounge and Standard Materials obviously involved
more limited amendments than that permitted in
Aquatech. Thus, those cases plainly were no support
for the Board’s permitting the Aquatech respondent to
use its response to the Notice to Show Cause substan-
tially to amend its answer by changing the substance
of its response, in derogation of the Board’s Rules. If
those Rules were to have any meaning at all, they
should have been followed in Aquatech, not ignored.
In my view, Aquatech was incorrectly decided, and I
would now overrule it.
But even assuming for argument’s sake that
Aquatech is good law, I would distinguish this case
from Aquatech rather than to proceed any farther down
the dangerous path charted by Aquatech. The Board in
this case, rather than permitting a minor amendment to
the deficient answer, is permitting the Respondent to
substitute its response to the Notice to Show Cause as
an entirely new answer. The Respondent has made no
good cause showing of why it earlier failed to file a
timely amended answer to the specification. Addition-
ally, the information supplied in the ‘‘amended an-
swer’’ has always been within the Respondent’s
knowledge. Thus, the Respondent’s amendment in this
case is far broader even than that permitted in
Aquatech.
What we have here is a Respondent who originally
filed a deficient answer to the specification, was ad-
vised by the Region that the answer was deficient, and
then failed to file a timely amended answer. The Re-
spondent then delayed until the Notice to Show Cause
issued and filed a completely new answer. Such a cav-
alier attitude toward the Board’s processes and such
dilatory conduct by the Respondent, and the Board’s
subsequent acceptance of it, makes meaningless the
Board’s Rules and Regulations. I would grant the Gen-
eral Counsel’s Motion for Partial Summary Judgment.