Proer Steel Erectors, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 353 NLRB No. 11 74 Proper Steel Erectors, Inc. and its alter ego B & M Steel Erectors, Inc. and Iron Workers Upstate Locals of New York and Vicinity, Consisting of International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local Union Nos. 60, 33, 9, 440, 6 and 12. Case 3–CA–24700 February 8, 2008 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS LIEBMAN AND SCHAUMBER The General Counsel seeks default judgment in this case on the ground that the Respondent has failed to file an answer to the amended compliance specification. For the reasons that follow, we grant the motion in part and deny it in part. On September 19, 2005, the Board issued a Decision and Order1 that, among other things, ordered the Re- spondent to make whole both the bargaining unit em- ployees and the benefit funds of the local unions for losses suffered as a result of the Respondent’s violations of Section 8(a)(5) and (1) of the Act. On March 16, 2006, the United States Court of Appeals for the Second Circuit summarily enforced in full the Board’s Order. A controversy having arisen over the amount of back- pay due discriminatees and contributions due the funds on December 15, 2006, the Regional Director issued a compliance specification and notice of hearing alleging the amounts due under the Board’s Order, and notifying the Respondent that it should file a timely answer com- plying with the Board’s Rules and Regulations. On January 5, 2007, the Respondent filed an answer. Subse- quently, on March 2, 2007, the Regional Director issued an amendment to the compliance specification, and on March 26, 2007, the Regional Director issued an amended compliance specification and notice of hearing, again notifying the Respondent of its obligation to file an answer. Although properly served with copies of the amendment and amended compliance specifications, the Respondent failed to file an answer. By letter dated April 19, 2007, sent through regular mail and facsimile, counsel for the General Counsel me- morialized a telephone conversation with the Respon- dent’s counsel, in which the Respondent’s counsel was informed that no answer to the amended compliance specification had been received and that unless an appro- priate answer was filed by April 23, 2007, default judg- ment would be sought. The Respondent’s counsel ac- knowledged that he had received the amended compli- ance specification and that the Respondent did not an- 1 345 NLRB 906. ticipate filing an answer. The Respondent did not there- after file an answer. On May 1, 2007, the General Counsel filed with the Board a Motion for Default Judgment, with exhibits at- tached. On May 7, 2007, 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 Respondent again filed no response. The allegations in the motion are therefore undisputed. On the entire record, the National Labor Relations Board2 makes the following Ruling on the Motion for Default 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) provides that if the respondent fails to file an answer to the specification 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 without further notice to the re- spondent, find the specification to be true and enter such order as may be appropriate. According to the uncontroverted allegations of the mo- tion for default judgment, the Respondent, despite having been advised of the filing requirements, has failed to file an answer to the amended specification. Because the Respondent has not shown good cause for its failure to file a timely answer, we grant the General Counsel’s mo- tion for default judgment, but only in part. In the original compliance specification, the General Counsel alleged that the Respondent owed backpay for work performed on the following projects: Windham Ski Center, Jiminy Peak Ski Lodge, 20 Century Hill, 22 Cen- tury Hill, Cayuga Medical Center, and Faxton St. Luke Hospital. The specific amounts owed each employee were alleged in exhibits 2–24, which were attached to the compliance specification. The General Counsel also alleged that the Respondent owed contributions to vari- ous union benefit funds with regard to the above projects, as well as the Riverside Elementary School, Seneca County Correctional Facility, and Century Hill (Phase 1) projects, and set forth the alleged amounts owed in ex- hibits 26–30. 2 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Members Liebman and Schaumber constitute a quorum of the three- member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. PROPER STEEL ERECTORS, INC. 75 The Respondent filed an answer to the original com- pliance specification, admitting in part and denying in part the allegations. In paragraph 2 of the answer, the Respondent denied that any employee was owed backpay for work performed on the Century Hill Phase 1, River- side Elementary School, or Seneca County Correctional Facility projects. However, the General Counsel did not allege, in either the original or amended compliance specification, that any backpay is owed for those pro- jects. The Respondent did not contest any other backpay claims contained in the original specification. With regard to the specification’s claims for amounts owed to the funds, the Respondent admitted the amounts claimed for work performed on the Faxton St. Luke Hos- pital project. However, in paragraph 5 of its answer, the Respondent generally denied liability to the funds for work on other projects “for any hours . . . for which con- tributions were paid by other contractors out of monies that contractor [sic] owed to Proper Steel or B & M Steel.” In paragraph 6, the Respondent denied liability to the union benefit funds for work performed on the Cen- tury Hill Phase 1 project, contending that “no such work was performed.” In paragraphs 7 and 8, the Respondent denied liability to the funds for work performed on the Riverside Elementary School and Seneca County Correc- tional Facility projects “on the basis that these contribu- tions were paid or have otherwise been settled with the funds.” The Respondent either explicitly or implicitly admitted the other allegations of the specification, except for the total amounts claimed. In the amended compliance specification, the General Counsel revised many of the original claims, abandoning some and recomputing others. With regard to the Seneca County and Century Hill Phase 1 projects, the General Counsel abandoned all claims for amounts owed to the benefit funds. With regard to the Riverside project, the abandonment of claims resulted in approximately a 75 percent reduction in the total amount allegedly owed to the funds. As stated above, the Respondent filed no an- swer to the amended compliance specification. The Backpay Claims The Respondent admitted all claims for backpay in the original compliance specification and failed to answer the amended specification. (The Respondent denied ow- ing backpay for the Century Hill Phase 1, Riverside Ele- mentary School, or Seneca County Correctional Facility projects, although neither the original nor the amended specification claimed backpay for those projects.) Be- cause the Respondent has never denied any of the Gen- eral Counsel’s actual claims for backpay, we shall deem the backpay claims contained in the amended specifica- tion to be admitted, and we shall grant the motion for default judgment with regard to those claims. Claims for Amounts Owed to the Funds As stated above, the Respondent has admitted the amounts claimed as owing the funds for work on the Faxton St. Luke project. Accordingly, we shall grant the General Counsel’s motion for default judgment concern- ing those claims. The General Counsel has dropped from the amended specification all claims for amounts owing the funds arising out of the Century Hill Phase 1 and Seneca County projects. As for the remaining allega- tions, the Respondent in its answer to the original speci- fication generally denied liability for any sums contrib- uted to the funds by other contractors out of monies owed to the Respondent. The Respondent also denied all claims concerning contributions owed to the funds for the Riverside project, contending that those claims have either been paid or settled.3 Although the Respondent failed to answer the amended specification, the Board will not grant default judgment on an allegation denied in a timely-filed an- swer to a compliance specification, even though the re- spondent later fails to timely answer an amended specifi- cation repeating the allegation, provided that the repeated allegation is not substantively changed from the original. Kolin Plumbing Corp., 337 NLRB 234, 235 (2001). Here, we find that the allegations in the amended specifi- cation regarding the amounts owed to the union benefit funds for work on the Riverside project were not sub- stantively changed from those in the original: the General Counsel simply abandoned certain claims, leaving the others unchanged. And the changes in the amended specification do not affect the Respondent’s contention that it should not be liable to the funds for any contribu- tions made by other contractors with monies owed the Respondent—in effect, that the Respondent should not have to make the funds whole twice. Cf. RFS Ecusta, Inc., 342 NLRB 920, 921 (2004) (finding no substantive change where original complaint alleging refusal to fur- nish information was amended to include the specific information that had been requested, but was not other- wise altered). In these circumstances, the Respondent may be excused from filing an amended answer that would have been unchanged from its initial answer. We shall therefore deny the General Counsel’s request for default judgment as to the allegations concerning contri- butions to the funds (except those owed for the Faxton 3 The General Counsel does not contend that the Respondent’s an- swers fail to conform to the Board’s specificity requirements under Rule 102.56(b) and (c). Accordingly, that issue is not before us. James Michael Shull, 291 NLRB 342, 343 (1988). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76 St. Luke project), and we shall remand those portions of the proceeding to the Region for further appropriate ac- tion. ORDER The National Labor Relations Board orders that the General Counsel’s motion for default judgment against the Respondent, Proper Steel Erectors, Inc. and its alter ego B & M Steel Erectors, Inc., Pompey and Central Square, New York, is granted insofar as it concerns all claims for backpay, and also the claims for amounts owed the industry benefit funds for work on the Faxton St. Luke Hospital project, contained in the General Counsel’s amended compliance specification. The mo- tion is otherwise denied. It is ordered that the Respondent, its officers, agents, successors, and assigns, shall make whole the individuals listed in Attachment 1, by paying them a total amount of $16,505.15, as set forth in attachment 1, plus interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax withholdings required by Federal and State laws. The Respondent shall also make whole the Local 440 benefit funds by paying them the amounts set forth in Attachment 2, totaling $1,388.40, in the man- ner specified in the Board’s underlying Decision and Order. It is further ordered that this proceeding is remanded to the Regional Director for Region 3 for the purposes of issuing a notice of hearing and scheduling the hearing before an administrative law judge, for the limited pur- pose of taking evidence to determine the Respondent’s liability for other contributions to union benefit funds. It is further ordered that the administrative law judge shall prepare and serve on the parties a supplemental decision containing findings of fact, conclusions of law, and recommendations based on all of the record evi- dence. Following service of the administrative law judge’s decision on the parties, the provisions of Section 102.46 of the Board’s Rules shall be applicable. PROPER STEEL ERECTORS, INC. 77 ATTACHMENT 1 Proper Steel Erectors, Inc. and B & M Steel Erectors, Inc. Case 3-CA-24700 Backpay Backpay Local 12 Local 33 Local 60 Local 440 Total 1. Beckman, Duane $ 1,064.50 $0.00 $ 302.50 $ 1,367.00 2. Beyea, Ray 0.00 - 3. Commer, Jacques 579.50 819.88 1,399.38 4. Dieffenbach, Trevor 2,136.50 677.00 2,813.50 5. Drury, Bruce 0.00 - 6. Dupree, Christopher 328.00 328.00 7. Gabriel, Raun 919.13 0.00 919.13 8. Jaconski, Vincent 891.50 691.88 1,583.38 9. Lazore, John 0.00 0.00 - 10. Lazore, Shawn 1,087.50 0.00 60.00 1,147.50 11. Lorete, Kevin 0.00 - 12. Lute, Russell 66.00 143.00 209.00 13. Moon, Ricky 58.00 44.00 102.00 14. O’Connor, John 801.00 28.00 829.00 15. Papineau, Kent 0.00 - 16. Scudo, Sean 598.75 0.00 598.75 17. Sendel, Frederick 508.00 751.63 1,259.63 18. Spencer, Ray $1,068.00 1,068.00 19. Spencer, Roger 84.00 52.00 136.00 20. Stone, Guy 0.00 - 21. Urbaniak, Shawn 836.63 0.00 836.63 22. Williams, Jason 148.00 148.00 23. Woodworth, Colin 1,110.25 0.00 650.00 1,750.25 TOTALS $11,217.26 - $4,219.89 $1,068.00 $16,505.15 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 78 ATTACHMENT 2 Local 440 Welfare Pension Medical Annuity App/train Total Quarter -04-1 $444.00 $565.20 $61.20 $318.00 $0 $1,388.40 Totals $444.00 $565.20 $61.20 $318.00 $0 $1,388.40