Metro Demolition Co., Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 21 272 Metro Demolition Co., Inc., Phantom Demolition Corp., Circle Interior Demolition, Inc., World Class Demolition Corp., Alter Egos and Local 813, International Brotherhood of Teamsters. Cases 29–CA–27317, 29–CA–27375, and 29–CA– 27472 September 27, 2006 ORDER DENYING MOTION BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The General Counsel seeks a partial default judgment against Respondents Metro Demolition Company Incor- porated and Circle Interior Demolition Incorporated (Metro and Circle, respectively) on the ground that they failed to file timely answers to the consolidated com- plaint.1 Upon charges filed by Local 813, International Brotherhood of Teamsters (the Union) on December 13, 2005, January 17, and February 27, 2006,2 the General Counsel issued a consolidated complaint on March 28 against Metro, Circle, Phantom, and World Class, alleg- ing that they violated Section 8(a)(1), (3), and (5) of the Act. The consolidated complaint notified the Respon- dents that answers were due on or before April 11 and warned that “[i]f no Answer is filed, the Board may find, pursuant to a Motion for Default Judgment, that the alle- gations in the Consolidated Complaint are true.” Pursuant to a request from Respondent World Class, the Regional Director extended the due date for filing answers from April 11 to April 28. Later, pursuant to a second request from Respondent World Class, he ex- tended the due date from April 28 to May 5. On May 5, Respondent World Class filed a timely answer to the consolidated complaint.3 Respondents Metro, Circle, and Phantom failed to file answers by May 5. On May 9, 4 days after the second-extended due date, Circle sent an email to counsel for the General Counsel. Electronically attached to this email was an answer that was unsigned, undated, and which lacked a signature block. This answer contained asterisks in place of cer- tain omitted information. On June 7, Circle filed a signed answer, which was dated June 6. This answer 1 The General Counsel does not seek a default judgment against Re- spondents World Class Demolition Corporation or Phantom Demolition Corporation (World Class and Phantom, respectively). 2 All dates are in 2006 unless noted otherwise. 3 We take administrative notice of World Class’ timely filed answer. See Westwood One Broadcasting Services, 323 NLRB 1002 fn. 2 (1997) (taking administrative notice of an initial complaint and a re- spondent’s answer to that complaint); Farmer Bros. Co., 303 NLRB 638 fn. 1 (1991) (“The Board may take administrative notice of its own proceedings.”). We encourage the General Counsel to bring such an answer directly to our attention in the future. differed slightly from the answer attached to Circle’s May 9 email. On June 19, the General Counsel filed a Motion for Partial Default Judgment with the Board against Respon- dents Metro and Circle.4 On June 22, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On July 10, Respondent Circle filed a document entitled “Opposition to NLRB’s Motion to Dismiss.” Respondent Metro did not file a response to the Notice to Show Cause. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Partial Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the consolidated complaint affirma- tively stated that, unless an answer was filed by April 11, all the allegations in the complaint could be considered admitted. As stated above, although the Regional Director ex- tended the due date for the filing of answers until May 5, Metro did not file an answer, and Circle failed to estab- lish “good cause” for its failure to file a timely answer. 5 Nonetheless, we deny the General Counsel’s motion for partial default judgment on the basis that World Class’ timely filed answer serves to preclude the entry of default judgment against Circle and Metro. The Board has declined to enter default judgment against a nonanswering respondent in circumstances where its alleged liability was derivative and stemmed from its alleged status as a single employer with (or alter ego of) another respondent who filed a timely answer.6 The consolidated complaint here alleges that Metro, Cir- cle, World Class, and Phantom together constitute a sin- gle employer. It also alleges that World Class is an alter ego of Phantom and that Phantom and Circle are alter 4 For unexplained reasons, no motion was filed as to Phantom. 5 Respondent Circle’s answers of May 9 and June 7 were late. Re- spondent Circle did not establish good cause for failing to file a timely answer. Circle argues that its attorney had prepared a timely answer, but that someone in the attorney’s office committed an unspecified error which prevented the answer from being filed prior to the due date. “‘Inadvertent inattention of counsel’ is not sufficient to establish good cause.” King Courier, 344 NLRB 485 (2005); see also South Atlantic Trucking, Inc., 327 NLRB 534 (1999). 6 Kline Mechanical Contracting, Inc., 306 NLRB 30 (1992); West Fork Energy, Inc., 305 NLRB 870 fn. 2 (1991); Nick & Bob Partners, 345 NLRB 1092, 1092 fn. 4 (2005); Imac Energy, Inc., 322 NLRB 892, 893 (1997); Media One Inc., 313 NLRB 876 fn. 4 (1994); TPS/Total Property Services, 306 NLRB 633 fn. 2 (1992); Caribe Cleaning Ser- vices, 304 NLRB 932, 933 fn. 3 (1991). METRO DEMOLITION CO. 273 egos of Metro. World Class filed a timely answer to the consolidated complaint. Under the precedent cited above, World Class’ timely filed answer serves to pre- clude default judgment against Metro and Circle. Ac- cordingly, we deny the General Counsel’s motion. ORDER IT IS ORDERED that the General Counsel’s motion for partial default judgment is denied and the proceeding is remanded to the Regional Director for Region 29 for further appropriate action.