NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Shane Steel Processing, Inc. and J&J Land,
LLC, a single employer and Local 771,
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO. Cases 7–CA–47710
and 7–CA–48016
November 28, 2008
SUPPLEMENTAL DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On April 1, 2008, Administrative Law Judge Keltner W. Locke issued the attached supplemental decision. Respondent J&J Land, LLC (J&J) filed exceptions and a supporting brief, and the General Counsel and the Charging Party each filed an answering brief. The General Counsel and the Charging Party each filed cross-exceptions and a supporting brief.
The National Labor Relations Board has considered the supplemental decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings,[1] and conclusions and to adopt the recommended Order as modified[2] and set forth in full below.[3]
The judge found that Respondents Shane Steel Processing, Inc. (Shane) and J&J constitute a single employer, making J&J jointly and severally liable for Shane’s unfair labor practices. We agree, but modify the judge’s analysis in two respects.
First, the judge initially found single employer status under the Board’s established analytical framework, which considers four factors: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership. See, e.g., RBE Electronics of S.D., 320 NLRB 80 (1995). The General Counsel and the Charging Party agree with that finding, but argue that the judge erroneously failed to find that the fourth factor, common ownership, is present and supports a single employer finding. We find merit in that argument, inasmuch as John Hartley held an 80-percent ownership interest in Shane and a 50-percent ownership interest in J&J. See Cimato Bros., Inc., 352 NLRB No. 99, slip op. at 2 (2008).
Second, although the judge found single employer status under
the Board’s traditional four-factor test, he then analyzed that issue under
what he described as “the alternate one-factor test, concerning the presence or
absence of an arm’s length relationship.”
The judge derived this alternate test from a footnote in Lebanite Corp., 346 NLRB 748
(2006). In that footnote, the Board
observed that “[v]iewing the single employer analysis more globally,” certain
Board decisions describe single employer status as being characterized by, or
synonymous with, the absence of an arm’s-length relationship among unintegrated
companies.
Rather, we think the Board in Lebanite was merely acknowledging
its occasional use of a generalized description for the traditional four-factor
test. Significantly, the Board pointed
out that evidence indicating the absence of an arm’s-length relationship is
often treated as bearing on the traditional factor of interrelation of operations,
and expressly endorsed that approach.
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondents, Shane Steel Processing, Inc. and J&J Land, LLC, a single employer, Fraser, Michigan, its officers, agents, successors, and assigns, shall make whole the individuals named below, by paying them the amounts following their names,[4] plus interest accrued to the date of payment, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax withholdings required by Federal and State laws:
|
Discriminatee |
Total |
|
Discriminatee |
Total |
|
Jackie Davis |
$ 832.68 |
|
Patrick Randazzo |
$ 9,430.99 |
|
Gary Engle |
2,724.79 |
|
Richard Regelin |
10,304.90 |
|
Robert Hayes |
10,062.66 |
|
Robert Rochner |
12,486.98 |
|
William Koch |
11,636.96 |
|
William Silew |
8,899.17 |
|
Kenneth LaFleur |
8,697.29 |
|
Joseph Sliwinski |
4,457.65 |
|
Nick Maltese |
13,191.35 |
|
Julio Vargas |
12,132.31 |
|
William Martin |
10,318.33 |
|
Mirko Vitanoski |
7,486.31 |
|
Mark Moore |
802.42 |
|
Frederick Wendt |
12,799.74 |
|
Terry Poore |
$ 2,358.95 |
|
Howard Wucetich |
7,425.77 |
|
TOTAL
BACKPAY |
$146,049.25 |
|||
Dated,
Peter C. Schaumber Chairman
Wilma
B. Liebman,
Member
(seal) National
Labor Relations Board
Michael
P. Silverstein, Esq., for the General Counsel.
Robert
A. Clearly, Esq. (Clark Hill, PLC), for the Respondent Shane Steel Processing, Inc.
David
A. Lawrence, Esq. (Couzens, Lansky, Fealk, Ellis, Roeder & Lazar, P.C.), for the Respondent J
& J Land, LLC.
Lisa
M. Smith, Esq. (Klimist, McKnight,
SUPPLEMENTAL
DECISION AND ORDER
Keltner W.
Locke, Administrative
Law Judge. A principal issue in this
case concerns the status of
Procedural
Matters
After the
compliance hearing closed, the General Counsel sought to introduce into
evidence certain documents which had been subpoenaed but not previously
produced. The General Counsel sought and
obtained a written stipulation regarding these records and then moved for the
admission of both the stipulation (marked as General Counsel’s Exhibit 39) and
the documents (marked as General Counsel’s Exhibits 40, 41, 42). In view of the parties’ stipulation, I grant
the General Counsel’s motion and receive these documents into the record. Because the exhibit numbers proposed by the
General Counsel already have been used, and because all parties have agreed
that these documents should be admitted into the record, the documents will be
received as Joint Exhibits 39, 40, 41, and 42, rather than as General
Counsel’s exhibits.
Also, after close
of the hearing, the General Counsel sought an order requiring Respondents “to
pay 401(k) money owed through March 22, 2007 to the employees listed in the
amended compliance specification, dated June 7, 2007.” This motion will be addressed later in the decision, after the discussion
of background facts needed to place it in context.
Background
Respondent Shane
manufactured and processed steel bars at its plant in
The last
collective-bargaining agreement expired in March 2002. The terms and conditions of employment
continued in effect without change for about two years. Then, beginning in May 2004, Respondent began
changing certain terms and conditions of employment without first notifying and
bargaining with the employees’ exclusive representative. More specifically, Respondent Shane violated
Section 8(a)(5) and (1) of the Act by making the following changes:
1. On about May
21, 2004, Shane discontinued its practice of making a contribution to each
employee’s 401(k) plan account to match the contribution which the employee had
made.
2. On about May
31, 2004, Shane reduced employees’ wages by 10 percent and eliminated dental
and optical benefits.
3. On about June
1, 2004, Shane changed medical benefits and eliminated the following benefits: Perfect attendance bonus; providing employees
visiting the medical clinic either with rides to the clinic or mileage
reimbursement; providing employees with prescription co-pay reimbursement.
4. On August 3,
2004, Shane changed its attendance policy.
5. On October 8,
2004, Shane eliminated the 401(k) program.
The
After the parties
appeared to have reached a (non–Board) settlement, the Regional Director for
Region 7 issued an order conditionally approving the withdrawal of charges and
dismissing the consolidated amended complaint.
When Shane failed to comply with the terms of that agreement, the
Regional Director reinstated that complaint by a May 24, 2005 Order.
In June 2005,
Shane’s president and majority shareholder, John Hartley, formed a limited liability
company with his fiancée, Jane McNamara.
(The initials in this company’s name—
Hartley and
McNamara each owned a 50–percent interest in the limited liability
company. Each held the title of “member,”
which is roughly analogous to “partner” in a partnership.
On July 27, 2005,
Shane sold its plant and grounds to
The mortgage
lender required Hartley and McNamara to execute an “Affidavit of Property Use
(Commercial),” stating what
Hartley later
testified, during the compliance hearing, that checking the “Owner Operated”
box had been, in effect, a mistake, “an omission on our part that we signed it
without correcting it to investment property.”
However, Hartley admitted that he had never advised the mortgage lender
of this “mistake.”
As mentioned
above, in May 2005, the Regional Director had reinstated the consolidated
amended complaint because Shane had not satisfied the terms of the settlement
agreement. Shane had filed an answer to
this complaint after it issued the first time.
However, 9 days after Shane sold its property to
Under the Board’s
Rules, a withdrawn answer has the same effect as no answer at all. The General Counsel filed a Motion for
Default Judgment which the Board granted in a Decision and Order dated May 31,
2006. In it, the Board ordered Shane to
restore the terms and conditions of employment which were in effect before the
unlawful unilateral changes, and to make the employees whole for losses they
suffered because of those unfair labor practices.
On November 21,
2006, the United States Court of Appeals for the Sixth Circuit enforced the
Board’s Decision and Order.
On May 7, 2007,
the Regional Director issued a Compliance Specification and Notice of Hearing
which named both Shane and
Respondent Shane
filed an Answer to the Compliance Specification on May 24, 2007, and an Amended
Answer on June 4, 2007. Respondent J
& J filed an Answer on May 25, 2007.
The Regional
Director issued an Amended Compliance Specification and Notice of Hearing on
June 7, 2007. A hearing opened before me
on June 11, 2007 in
The
Single Employer Issue
In their Answers
to the Compliance Specification, both Respondent Shane and
At the outset, it
may be noted that a single-employer analysis is appropriate only where two
ongoing businesses are coordinated by a common master. Cadillac Asphalt Paving Co., 349 NLRB 6,
8 (January 16, 2007), citing APF Carting, Inc., 336 NLRB 73, fn. 4
(2001), enfd. mem. 60 FedApps 832 (D.C. Cir. 2003); NYP Acquisition Corp.,
332 NLRB 1041, fn. 1 (2000), affd. sub nom. Newspaper Guild of New York
Local 3 v. NLRB, 261 F.3d 291 (2d Cir. 2001). After
Credibility
The discussion below,
concerning the status of J and J Land, relies on the testimony of the company’s
two owners, John Hartley and Jane McNamara.
On occasion during her cross–examination, McNamara didn’t provide
totally responsive answers to the questions posed. To the extent that Hartley’s testimony
conflicts with McNamara’s, I credit Hartley.
Legal Principles
In determining
whether two ostensibly separate entities really constitute a single employer,
the Board applies a four–factor test.
However, a recent decision suggests that an alternative test may be used
in appropriate cases. First, I will
describe the standard test and then the alternative.
The Board’s basic
test entails consideration of these four factors: (1) interrelation of operations; (2) common
management; (3) centralized control of labor relations; and (4) common ownership
or financial control. Central Mack
Sales, 273 NLRB 1268, 1271–1272 (1984).
No single aspect is controlling, and all four factors need not be
present to find single-employer status.
Instead, the ultimate determination turns on the totality of the
evidence in a given case. Dow Chemical Co., 326 NLRB 288, 288 (1998).
The Board doesn’t
give all four factors equal weight. In a
number of cases, the Board has attached particular importance to the third
factor, centralized control of labor relations.
For example, in Mercy Hospital of Buffalo, 336 NLRB 1282 (2001),
the Board stated that “the most critical factor is centralized control over
labor relations.” Accord: Gerace Construction, Inc., 193 NLRB
645 (1971). See also Beverly
Enterprises, 341 NLRB 296, 306 (2004),
However, in Viking
Industrial Security, Inc., 327 NLRB 146 (1998), when the Board discussed
its four-factor test, it explained that “The fundamental inquiry is whether
there exists overall control of critical matters at the policy level.” Presumably, such critical matters may concern
more than labor relations.
Moreover, the
Board also has stated that the absence of an arm’s-length relationship is “essentially
synonymous” with single-employer status.
See, e.g., Lebanite Corp., 346 NLRB 7 at fn. 5 (March 31,
2006). Similarly, in Bolivar-Tees,
Inc., 349 NLRB 720 (April 12, 2007), the Board stated that the “hallmark of
a single employer is the absence of an arm’s-length relationship among
seemingly independent companies.” See
also Screen Creations LTD., 349 NLRB 720 (April 12, 2007); Hydrolines,
Inc., 305 NLRB 416, 417 (1991).
Likewise, in AG
Communication Systems Corp., 350 NLRB 168 (June 29, 2007), the Board,
citing RBE Electronics of South Dakota, 320 NLRB 80 (1995), stated: “In summing up the essence of a single-employer
relationship, the Board has observed that “[s]ingle employer status is characterized
by the absence of an arm’s-length relationship found among unintegrated
companies.” On the other hand, in Lebanite
Corp., 346 NLRB 748 at fn. 5 (March 31, 2006), discussed further below, the
Board criticized a judge for according too much importance to the absence of an
arm’s-length relationship.
It certainly
implies no criticism of the Board to observe that the various precedents cited
above point to different factors as being especially significant. In some cases, the Board has identified
centralized control of labor relations as the alpha factor heading the pack,
but in at least one case, the Board has attached particular importance to
control of critical matters at the policy level or to the absence of an arm’s-length
relationship. As noted above, in some
cases, the Board has called the absence of an arm’s-length relationship the “hallmark”
or “essence” of single-employer status but in another case, the Board held that
a judge erred by giving this consideration weight equal to that accorded a
factor in the Board’s four-factor test.
Perhaps the Board’s
invocation of different determinative criteria in different cases merely
reflects that individual circumstances make one factor more important in some
cases but render some other consideration more significant in other cases. By analogy, a golfer regards one club as more
appropriate for one shot and a different club better for another shot. Far from being irrational, such choices
result from skill, experience, and insight.
The real problem is that those of us with high handicaps need explicit
guidance regarding why the pro preferred one particular club on one occasion
but selected another club for a seemingly similar shot later.
The present case
illustrates how specific circumstances can affect which factor becomes most
important in the Board’s analysis. As
noted above, if the employment practices of two ostensibly separate companies
really are under common control, the Board accords significant weight to that
fact. Likewise, if each company has a
separate and autonomous labor relations policy, unaffected by the other company,
the Board regards that fact as particularly probative. However, if one of the two companies has no
employees, then the Board gives less weight to the “centralized control of
labor relations” factor. Bolivar-Tees,
Inc., above.
The Bolivar-Tees
decision provides clear guidance applicable to the present case. Because
Another matter to
be considered—the presence or absence of an “arm’s-length” relationship—presents
a greater challenge. It is important to
avoid the error discussed by the Board in Lebanite Corp., above. Doing so requires a clear understanding of
exactly what the Board meant.
In Lebanite
Corp., the Board stated that the absence of an arm’s-length relationship
between two entities can be “essentially synonymous” with single-employer
status. Those words, “essentially
synonymous,” would seem to mean the same thing as “tantamount to” or “for all
practical purposes identical with
. . .” That would make the presence or
absence of an arm’s-length relationship pathognonomic: If an arm’s-length relation is absent then,
ipso facto, single-employer status must be present.
The Board’s Lebanite
Corp. decision seems to endorse this equivalence principle. It strongly suggests that a judge could, in
an appropriate case, ignore the four-factor test and decide the single-employer
issue based solely on whether or not an arm’s-length relationship existed.
So far, this
equation of single employer status with the absence of an arm’s-length
relationship causes no conceptual problem.
However, in Lebanite Corp. the Board further stated that the
judge had erred by treating the absence of an arm’s-length relationship “as
neither synonymous with his single-employer finding nor as an aspect of
interrelation of operations within the four-factor analysis, but [instead] as
an independent fifth factor. . .” 346
NLRB 748 at fn. 5. In other words, the
judge had chosen to use the four-factor test rather than opting to decide the
single-employer issue solely on the absence of an arm’s-length
relationship. Having made this choice,
the judge should only have treated the absence of an arm’s-length relationship
as one consideration to be taken into account while evaluating the “interrelation
of operations” factor.
Here is the
conceptual difficulty: If the presence
or absence of an arm’s-length relationship is practically the same thing as (“essentially
synonymous” with) single-employer status, then how can it also be less
important than one of the factors in the four-factor test?
Stated another
way, in algebra, if A=B and B=C, then A=C.
Two quantities each equal to a third are equal to each other. By similar logic, two separate tests for the
same condition should be equivalent, or at least consistent. If the “hallmark” of single-employer status—the
absence of an arm’s-length relationship—weighs as heavily as an elephant in one
test, how can it weigh as lightly as a mouse in another test for the same
thing?
The difference
between these two tests seems even more pronounced when it is noted that Lebanite
Corp. views the absence of an arm’s-length relationship as a consideration
relevant to the “interrelation of operations” factor, but this factor isn’t even the most important in the Board’s
four-factor analysis. That distinction
usually goes to “centralized control over labor relations.”
It appears clear
that, in Lebanite Corp., the Board indeed is offering the judge a choice
of which test to use. Thus, it stated that “the
Board sometimes treats single employer status and absence of an arm’s-length
relationship as essentially synonymous.
In some cases, however, the Board has treated absence of arm’s-length
relationship within the traditional four-factor test as bearing on the factor
of interrelation of operations. . .” 346 NLRB 748 at fn. 5.
It isn’t quite so
clear, however, which test the Board would deem more appropriate in the present
case. Accordingly, I will evaluate the
evidence using each of the tests so that the Board may choose the one it deems
preferable. The four–factor test will be
applied first.
Factor 1: Interrelation of Operations
The record leaves
no doubt that John Hartley and his fiancée, Jane McNamara, created
Hartley and his
fiancée, Jane McNamara, established
Hartley’s
credible, poignant testimony made clear that he and McNamara had created
Other facts
support the conclusion that Hartley and McNamara had established
It appears
reasonable that if Hartley and McNamara had created
In the testimony
quoted above, Hartley admitted that he and McNamara created
In sum, Hartley
set out to obtain a loan Shane needed to survive. After “first tier” lending institutions
rebuffed him, Hartley turned to the subprime market. Even there, the only financing Hartley could
find came with serious strings attached.
To meet those conditions, Hartley and his fiancée, with help from Shane’s
accountant, established
Factor 2: Common Management
As already
mentioned, at the time Shane conveyed its property to
Hartley only held
a 50 percent interest in
In sum, the
record establishes that Hartley managed the daily operations of Shane as its
chief executive and owner, and that he performed about 50 percent of the quite
negligible management duties associated with
Factor 3: Centralized control of labor relations
Hartley, as Shane’s
president and majority stockholder, fully controlled that corporation’s labor
relations policies and actions. However,
neither Hartley nor McNamara controlled
The record does
not establish that
As already noted,
when one of the two entities has no employees, the Board gives less weight to
the “centralized control of labor relations” factor. Bolivar-Tees, Inc., above. To the extent this factor is entitled to
weight, I conclude that it weighs in favor of finding single-employer status.
Factor 4: Common Ownership or Financial Control
As discussed
above, at all material times, Hartley held at least an 80-percent interest in
Shane and had plenary control of Shane’s operations. Hartley also owned a 50 percent interest in
In crediting this
testimony, I note that Hartley and McNamara have been engaged to each other at
all material times and that they live together.
Additionally, I note that McNamara is president and chief executive
officer of a not-for-profit corporation not involved in this proceeding, serves
on the boards of other organizations, holds a master’s degree, and has experience
in commercial leasing. Particularly
considering McNamara’s experience in commercial leasing, it seems likely that
she contributed not only capital but also business acumen to
Accordingly, I
find that Hartley and McNamara did discuss and reach agreement before Hartley
signed the documents on behalf of
The record does
not establish that
As to Shane’s
control of
Discussion
The first of the
four factors—interrelation of operations—clearly weighs in favor of single-employer
status. To the extent that
The second
factor—common management—also militates towards a finding of single–employer
status. Although the two entities did
not have identical management, Hartley managed Shane and participated in the
management of
The third factor—centralized
control of labor relations—weighs only minimally, if at all, in favor of
single-employer status because one of the two entities had no employees and,
therefore, no labor relations. As
discussed above, the Board typically views centralized control of labor
relations to be a critical factor in assessing single-employer status, AG
Communication Systems Corp., 350 NLRB 168 (June 29, 2007), but accords that
factor less importance when one of the entities has no employees. Bolivar-Tees, Inc., above, citing Three
Sisters Sportswear Co., 312 NLRB 853, 863 (1993) (where some companies have
no employees, factor of centralized control of labor relations becomes less
important).
In accordance
with Bolivar-Tees, I will not accord the third factor the weight it
usually receives. Although I find that
this factor does not weigh substantially in favor of single-employer status, it
does not preclude reaching that conclusion based on other evidence.
The fourth
factor—common ownership or financial control—does not add much weight on either
side of the scale. In Mercy Hospital
of Buffalo, above, the Board stated that common ownership, “while
significant, is not determinative in the absence of centralized control over
labor relations” and that common ownership alone does not establish a single-employer
relationship.
Also in Mercy
Hospital of Buffalo the Board, citing Dow Chemical Co., 326 NLRB 288
(1998) stated that a single-employer relationship will be found only if one of
the entities exercises actual or active control over the day-to-day operations
or labor relations of the other. However,
as discussed above, the Board has stated that it will not give so much weight
to “centralized control of labor relations” where one of the entities has no
employees. Bolivar-Tees, Inc.,
above; Three Sisters Sportswear Co., above.
Reducing the
weight given to “centralized control of labor relations” increases the
importance of “interrelation of operations.”
That factor strongly points towards single-employer status. Based on the increased weight given to this
factor, and noting that the “common management” factor also favors such a
finding, I conclude that Shane and J and J Land constitute a single employer.
The evidence now
will be evaluated using the alternate one-factor test, concerning the presence
or absence of an arm’s-length relationship.
For the following reasons, this test strongly militates in favor of
finding single-employer status.
As discussed
above, the evidence establishes that Hartley and McNamara created
Although Shane
had agreed to pay
The evidence
clearly indicates the absence of an arm’s length relationship and, in this
case, that absence certainly constitutes the hallmark of a single-employer
relationship.
In sum, I
conclude that the General Counsel has proven that Shane Steel and
Undisputed
Allegations
Because Shane and
Specification
paragraph 1(a) alleges that at all material times, Respondent Shane has been a
Michigan corporation with an office and place of business located at 17495
Malyn Boulevard, Fraser, Michigan, and has been engaged in the manufacture and
processing of commercial steel bars. In
its Answer, Shane admitted this allegation.
Specification
paragraph 1(b) alleges that at all material times,
Based on the
admission in
Specification
Paragraph 4 alleges that the gross backpay due the discriminatees is the amount
of earnings they would have received but for the unilateral changes implemented
by Respondent Shane. In its Answer,
Shane admits this allegation.
Because Shane and
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 disputes either
the accuracy of the figures 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 applicable premises
and furnishing the appropriate supporting figures.
Section 102.56(c) provides that if a respondent’s answer fails to comply
with this requirement, “the Board may, either with or without taking evidence
in support of the allegations of the specification and without further notice
to the respondent, find the specification to be true and enter such order as
may be appropriate.”
In its Answer to paragraph 4 of the Specification,
Specification paragraph 5 alleges that “Respondents’ liability for
backpay for the discriminatees commenced on June 1, 2004, the date that
Respondent Shane unilaterally reduced their wages. Respondents’ liability for backpay is continuing
to accrue.” Shane’s Answer admits this
allegation but
Specification
paragraph 5 alleges, in effect, that the backpay period began June 1,
2004.
Computation
of Make–Whole Remedy
Discriminatees’
Backpay
Specification
paragraph 6(a) alleges that an appropriate measure of the gross backpay for
each discriminatee is the product of the number of hours each discriminatee
worked multiplied by the rate differential from their hourly rate immediately
prior to June 1, 2004, and their hourly rate after June 1, 2004, for each
calendar quarter until December 31, 2006.
Shane’s Answer admits this allegation but
Thus, rather than
disputing the central allegation in Specification paragraph 6(a)—the
appropriate measure for determining gross backpay for each discriminate—and
rather than offering an alternate method, J & J Land did not take a
position on this issue but instead left “the Regional Director to his proofs.” That response, neither admitting nor denying
the central allegation, fails to satisfy Section 102.56(b). Therefore, I deem
Specification
paragraph 6(b) alleges that “Based on Respondent Shane’s records, the
discriminatees worked regular and overtime hours and were paid for vacation and
holiday hours each calendar quarter, as set forth in Attachment 1. The appropriate regular rate and overtime
rate differentials were applied and appear opposite the discriminatees’ names
in Attachment 1 and in Schedule A.”
Shane’s Answer admits this allegation but
J & J Land
answered the allegations in Specification paragraph 6(b) much the same as its
response to Specification paragraph 6(a), neither admitting nor denying “the
appropriateness of the measure of damages alleged or the calculations and
amounts alleged, because it lacks the information necessary to do so, and
leaves the Regional Director to his proofs.”
For reasons
discussed above,
Paragraph 6(c) in
the amended Specification alleges that “The amount of wages due each
discriminatee from June 1, 2004 until February 25, 2007 is summarized in
Schedule A below.” Shane’s Amended
Answer admits this allegation. Again,
Specifically, I
find that for the period alleged in the Amended Specification, Respondents must
make the discriminatees whole for lost wages by paying the following amounts,
plus interest:
|
Discriminatee |
Amount |
|
Discrimnatee |
Amount |
||
|
Jackie
Davis |
$ 77.68 |
|
Patrick
Randazzo |
$7,213.50 |
||
|
Gary
Engle |
$2,493.58 |
|
Richard
Regelin |
$5,729.10 |
||
|
Robert
Hayes |
$8,224.20 |
|
Robert
Rochner |
$8,758.85 |
||
|
William
Koch |
$8,592.45 |
|
William
Silew |
$6,399.90 |
||
|
Kenneth
LaFleur |
$8,028.80 |
|
Joseph
Sliwiniski |
$ 120.96 |
||
|
Nick
Maltese |
$6,947.91 |
|
Julio
Vargas |
$8,217.11 |
||
|
William
Martin |
$7,281.36 |
|
Mirko
Vitanoski |
$7,136.15 |
||
|
Mark
Moore |
$ 523.90 |
|
Frederick
Wendt |
$8,226.00 |
||
|
Terry
Poore |
$2,153.45 |
|
Howard
Wucetich |
$7,342.00 |
||
|
|
|
|
|
|
||
|
TOTAL |
|
|
|
$103,466.90 |
|
|
|
|
|
|
|
|
||
Reimbursement for
out–of–pocket expenses
Specification
paragraph 7(a) alleges that “An appropriate measure of medical, dental,
optical, and prescription drug expenses incurred by the discriminatees can be
found by applying relevant provisions in the collective bargaining agreement
and insurance coverages, co-pays, deductibles, and co-insurance payments in
effect immediately prior to June 1, 2004.”
Shane’s Answer admits this allegation but
The government
alleged in Specification paragraph 7(a) the method for calculating how much
money each discriminatee should receive as reimbursement for that individual’s
out-of-pocket medical, dental, optical and prescription drug expenses. Using this method, the General Counsel
calculated these amounts and set them out at the following places in the Specification: Paragraph 7(b), Attachments 2 through 19, and
Schedule B.
The allegations
in Specification paragraph 7(b) differ in a fundamental way from those in
paragraph 7(a), and this difference should be discussed. In describing how the reimbursement amounts
should be calculated, paragraph 7(a) referred to provisions in the collective-bargaining
agreement and in the insurance documents which established coverage. Because Shane was a party to these contracts,
Shane obviously had knowledge of their provisions. So did
Under Rule
102.56(b), the extent of a respondent’s knowledge affects how specifically he
must answer a particular allegation. The
Rule requires a respondent to admit, deny, or explain each and every allegation
of the specification, unless the respondent is without knowledge. . .”
(Italics added) The Rule further states
that “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.”
In this instance,
because of Respondents’ presumed knowledge of their agreements with the
However,
answering Specification paragraph 7(b) does not require the same
specificity. Unlike the allegations
raised in Specification paragraph 7(a), those in paragraph 7(b) do not rest on
facts which the Respondents necessarily would know. These latter allegations reflect the medical,
dental, optical and prescription drug expenses which employees or their dependents
incurred at various times. Respondents
might not be aware of when an employee, or a family member, actually went to
the doctor, dentist, optician or pharmacist.
Similarly, Respondents may have even less knowledge of how much the employee
or dependent had to pay out of pocket on a particular occasion for a particular
health-related service.
Thus, should the
Specification allege that, on a particular date, Employee X spent $5 out-of-pocket
for a prescription, the Respondents need not explain in their answers why they
doubt it. Likewise, if Respondents wish
to deny the obligation to reimburse Employee Y $500 for back surgery, they do not
have to plead that Employee Y actually was running in a marathon on the day in
question. A simple denial places the
matter in issue and places it before the judge.
The General Counsel then bears the burden of proof.
Answering
Specification paragraph 7(b),
Shane also did
not admit these allegations either in its original Answer or in its Amended
Answer. However, during the hearing,
Shane entered into a stipulation which admitted all the allegations raised in
Specification paragraph 7(b) except for some of those pertaining to two of the
discriminatees, Jackie Davis and Joseph Sliwinski.
Based on the
stipulation, I conclude that the General Counsel has proven that the
discriminatees listed in the table below are entitled to receive reimbursement
in the stated amounts for out-of-pocket medical, dental, optical and
prescription drug expenses: