AAA Fire Sprinkler, Inc.

NOTICE: This opinion is subject to formal revision before publication in the bound 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. I.W.G., Inc., d/b/a AAA Fire Sprinkler, Inc.; Con– Bru, Inc., d/b/a AAA Fire Sprinkler, Inc.; Robert B. Gordon; Arlene, Inc., d/b/a AAA Fire Supression, Inc. and Road Sprinkler Fitters Lo­ cal Union No. 669, U.A., AFL–CIO. Cases 27– CA–11771 and 27–CA–11870 November 23, 2001 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH The National Labor Relations Board’s original Deci­ sion and Order in this case issued on August 27, 1996.1 The Board’s August 27, 1996 Decision and Order di­ rected I.W.G., Inc., d/b/a AAA Fire Sprinkler, Inc. (Re­ spondent I.W.G.), Con–Bru, Inc., d/b/a AAA Fire Sprin­ kler, Inc. (Respondent Con–Bru), and Arlene, Inc., d/b/a AAA Fire Suppression, Inc. (Respondent Arlene), their officers, agents, successors, and assigns, and Robert B. Gordon (Respondent Gordon), an individual, his agents, successors, and assigns, jointly and severally to take cer­ tain affirmative actions, including: (1) making whole all former I.W.G., Con–Bru, and Arlene employees for any loss of earnings and other benefits suffered as a result of the Respondents’ unfair labor practices in violation of Section 8(a)(3) and (5) of the National Labor Relations Act; (2) making all delinquent contributions to employee benefit funds, including any additional amounts due the funds; and (3) mailing copies of the notice attached to the Board’s Order to the Union and the last known address of all former employees. On April 10, 2000, the U.S. Court of Appeals for the Tenth Circuit entered its judgment enforcing the Board’s Order.2 A controversy having arisen over the amount of back- pay due discriminatees and on other compliance matters, on April 11, 2001, the Regional Director for Region 27 issued an amended 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 1 322 NLRB 69. On May 18, 1998, the United States Court of Ap­ peals for the Tenth Circuit issued a decision in which it enforced in part and denied enforcement in part of the Board’s decision, and remanded the case to the Board for further proceedings. 144 F.3d 685. On Feb­ ruary 12, 1999, the Board issued an unpublished Order remanding the proceeding to the administrative law judge for further hearing. There- after, on July 9, 1999, the administrative law judge issued a Supple- mental Decision recommending that the Board’s Order of August 27, 1996, be sustained and affirmed. No exceptions were filed to the judge’s decision, and on August 25, 1999, the Board sustained and affirmed its earlier Decision and Order. 2 No. 00–9509. and Regulations. Although properly served with copies of the amended compliance specification, none of the Respondents filed an answer.3 On September 10, 2001, the Ge neral Counsel filed with the Board a Motion to Transfer Case to the Board and for Summary Judgment, with exhibits attached. On September 17, 2001, the Board issued an order transfer- ring 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 the motion and in the amended compliance specification are therefore undisputed. Ruling on the Motion for Summary Judgment Section 102.56(a) of the Board’s Rules and Regula­ tions provides that the Respondent 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 amended compliance speci­ fication. In the absence of good cause for the Respon­ dents’ failure to file an answer, we deem the allegations in the amended compliance specification to be admitted as true, and grant the General Counsel’s Motion for Summary Judgment. Accordingly, we conclude that the net backpay due the discriminatees and the benefit funds is as stated in the amended compliance specification, and 3 Respondent Arlene informed the General Counsel that the amended compliance specification had been received and that no an­ swer would be filed on its behalf. The return receipt from Respondent Con–Bru indicates that Respondent Con–Bru received the amended compliance specification. Copies of the amended compliance specifi­ cation served on Respondent I.W.G. at a post office address by certified and regular mail were returned to the Regional Office by the United States Postal Service marked “Box Closed—Unable to Forward— Return to Sender,” but the copies served on Respondent I.W.G. at a street address by certified and regular mail have not been returned, although the return receipt for the certified mailing has not been re­ ceived. Copies of the amended compliance specification served on Respondent Gordon at his last known addresses by certified and regular mail were returned to the Regional Office by the United States Postal Service. Respondent Gordon’s and Respondent I.W.G.’s failure to provide for receiving appropriate service cannot defeat the purposes of the Act. See, e.g., National Automatic Sprinklers, 307 NLRB 481 fn. 1 (1992). In addition, the fact that certain Respondents may no longer be in business does not constitute good cause for their failure to file an answer and is not a basis for denying the Motion for Summary Judg­ ment. See, e.g., Beaumont Glass Co., 316 NLRB 35 fn. 1 (1995). 336 NLRB No. 106 2 AAA SPRINKLER we will order payment by the Respondents of said amounts to the discriminatees and funds, plus interest accrued on said amounts to the date of payment. ORDER The National Labor Relations Board orders that the Respondents, I.W.G., Inc., d/b/a AAA Fire Sprinkler, Inc., Con–Bru, Inc., d/b/a AAA Fire Sprinkler, Inc., and Arlene, Inc., d/b/a AAA Fire Suppression, Inc., their of­ ficers, agents, successors, and assigns, and Respondent Robert B. Gordon, an individual, his agents, successors, and assigns, shall, jointly and severally, make whole the individuals and funds as set forth in Appendix No. 37 in the amended compliance specification, by paying them the amounts following their names, with 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 on the backpay due the individu- Todd Morton $ 17,374 Kent Pierceall $ 27,759 Jeffrey Schleusner $ 40,765 William Stanek $ 19,303 Gerald Urquidez $ 14,284 Rick Vancenbrock $ 831 Benjamin Wildeman $ 27,534 TOTAL BACKPAY: $482,923 National Automatic Sprinkler $179,388 Industry Welfare Fund National Automatic Sprinkler $119,704 Industry Pension Fund NASI–Local 669 Industry $ 10,777 Education Fund Sprinkler Industry Supple- $ 28,802 mental Defined Contribution Pension Fund TOTAL FUND PAYMENTS: $338,671 GRAND TOTAL: $821,5944 Dated, Washington, D.C., November 23, 2001 Peter J. Hurtgen, Chairman Wilma B. Liebman, Member Dennis P. Walsh, Member als as required by Federal and State laws: Daniel Anderson $ 10,892 John Arguello $ 18,917 Donald Blair $ 21,240 Gary Blair $ 12,226 Robert Clark, Jr. $ 11,029 William Collins $ 44,778 Terry Cooper $ 30,593 Paul Crowley $ 8,337 John Elliott $ 171 Michael Flis $ 4,825 Darrell Grieser $ 5,887 Troy Hartman $ 8,826 Mike Hernandez $ 2,179 Dean Highland $ 10,828 Richard Hudson $ 1,956 Justin Jones $ 16,291 William Kolb $ 9,456 Duane Kopp $ 47,423 Kory Koralewski $ 5,732 Ken Levosky $ 28,227 Tim Martinez $ 17,506 Ronnie Metter $ 12,800 Thomas Monroe $ 4,953 (SEAL) NATIONAL LABOR RELATIONS BOARD 4 Without delving into the underlying amounts and calculations set forth in the 37 appendices to the amended compliance specification, we have amended the amounts set forth in the summary in appendix 37 to accurately reflect the following numbers: The sum of the backpay owed is $482,923, not $482,924, and the grand total owed is $821,594, not $821,593. These minor errors do not provide a basis on which to deny the General Counsel’s uncontested Motion for Summary Judgment.