ITAL General Construction, Inc.

331 NLRB No. 64 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. ITAL General Construction, Inc., and its alter ego LATI Development, Inc. and Bricklayers & Al- lied Craftsmen, Local 11, AFL–CIO. Case 3– CA–20225 June 22, 2000 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND BRAME On March 25, 1998, the National Labor Relations Board issued a Decision and Order,1 inter alia, ordering the Respondents, ITAL General Construction, Inc., and its alter ego LATI Development, Inc., to apply the terms of the Non-Association Employer Agreement to the unit employees of LATI Development, Inc., and to make whole those employees for loss of earnings and other benefits resulting from the Respondents’ failure to honor the Agreement, including contributions and payments the Union and the contractual trust funds would have re- ceived. On August 26, 1998, the United States Court of Appeals for the Second Circuit entered its judgment en- forcing in full the provisions of the Board’s Order.2 A controversy having arisen over the amount of back- pay due employees and contributions and payments owed the funds, on March 22, 2000, the Regional Direc- tor for Region 3 issued a compliance specification and notice of hearing alleging the amounts due under the Board’s Order, and notifying the Respondents that they should file a timely answer complying with the Board’s Rules and Regulations. Although properly served with copies of the compliance specification,3 the Respondents failed to file an answer. By letter dated April 13, 2000, the General Counsel advised the Respondents that no answer to the compli- ance specification had been received and that unless an appropriate answer was filed by April 21, 2000, sum- mary judgment would be sought. The Respondents filed no answer. On May 8, 2000, the General Counsel filed with the Board a Motion for Summary Judgment, with exhibits attached. On May 11, 2000, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondents again filed no response. The allegations in 1 325 NLRB 503. 2 Case No. 98–4284. 3 Copies of the compliance specification served on the Respondents by certified and regular mail were returned to the Regional Office by the Post Office marked “refused” and “Return to sender; moved, left no address; unable to forward.” The Respondents’ failure or refusal to accept certified mail cannot defeat the purposes of the Act. See, e.g., Michigan Expediting Service, 282 NLRB 210 fn. 6 (1986). the motion and in the compliance specification are there- fore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on the Motion for Summary Judgment Section 102.56(a) of the Board’s Rules and Regula- tions provides that the Respondents shall file an answer within 21 days from service of a compliance specifica- tion. Section 102.56(c) of the Board’s Rules and Regula- tions states: If the respondent fails to file any answer to the specifi- cation within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allegations of the specification and with- out further notice to the respondent, find the specifica- tion to be true and enter such order as may be appropri- ate. According to the uncontroverted allegations of the Mo- tion for Summary Judgment, the Respondents, despite having been advised of the filing requirements, have failed to file an answer to the compliance specification. In the absence of good cause for the Respondents’ failure to file an answer, we deem the allegations in the compli- ance specification to be admitted as true, and grant the General Counsel’s Motion for Summary Judgment. Ac- cordingly, we conclude that the amounts due the em- ployees and the funds are as stated in the compliance specification and we will order payment by the Respon- dents of those amounts, plus interest accrued on the amounts to the date of payment. ORDER The National Labor Relations Board orders that the Respondents, ITAL General Construction, Inc., and its alter ego LATI Development, Inc., East Rochester, New York, their officers, agents, successors, and assigns, shall make whole the individuals and funds named below, by paying them the amounts set forth below, plus interest on the backpay owed as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), and any additional amounts accruing on the fund contributions as prescribed in Merryweather Optical Co., 240 NLRB 1213 (1979), minus tax withholdings required by Federal and state laws: Shaun Alianell $1,666.00 James Barberio 2,244.00 John Calderon Jr., 978.00 David Cummings 781.00 Leland Davis 1,372.00 Johnathan Esparza 967.00 Luis Fernandez 4,176.00 Tim Freeman 3,316.00 Luis Gonzalez 3,574.00 Patrick Goode 63.00 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Carmelo Gulino 31.00 Giuseppe Gulino 803.00 Leonardo Gulino 2,647.00 Darren Lay 6,563.00 Robert Mateer 1,364.00 Samuel Morales 652.00 Douglas Morey 218.00 Francis Trippi 210.00 Bienvenido Valdez 852.00 Mohammed Yasin 63.00 Richard Zimmer 1,429.00 Bricklayers and Allied Craftsmen Health-Welfare Fund: $26,179.92 Bricklayers and Allied Craftsmen Local Pension Fund: 15,439.44 Bricklayers and Allied Craftsmen International Pen- sion Fund: 1,678.20 Bricklayers and Allied Craftsmen Administration & Safety Fund: 1,832.59 Bricklayers and Allied Craftsmen Annuity Fund: 20,138.40 Bricklayers and Allied Craftsmen Training Fund: 5,370.24 TOTAL BACKPAY AND CONTRIBUTIONS: $104,607.79 Dated, Washington, D.C. June 22, 2000 Wilma B. Liebman, Member Peter J. Hurtgen, Member J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD