Proper Steel Erectors, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352 NLRB No. 113 892 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 July 25, 2008 ORDER GRANTING MOTION FOR RECONSIDERATION BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN On February 8, 2008, the National Labor Relations Board1 issued a Supplemental Decision and Order2 granting in part and denying in part the General Coun- sel’s motion seeking default judgment on allegations regarding the Respondent’s backpay obligations and con- tributions owed to union benefit funds set forth in the March 26, 2007 amended compliance specification. The Board granted default judgment with regard to the back- pay allegations and certain of the benefit funds allega- tions. However, it remanded to Region 3 for a hearing the remaining benefit funds allegations, which the Re- spondent had denied in its answer to the original specifi- cation, On March 7, 2008, the General Counsel filed a Motion for Reconsideration requesting that the Board reconsider its refusal to grant default judgment on all of the benefit funds allegations. The General Counsel contends that (1) the Respondent does not deny the allegations that were remanded for a hearing; (2) “upon information and be- lief” the Respondent is not a solvent entity, and did not file an answer to the amended compliance specification because it is without financial resources to participate in a hearing; and (3) a hearing would be a waste of the Board’s resources, as it is unlikely that the Respondent will appear. In support of the motion, the General Counsel submit- ted a letter from the Respondent’s counsel dated March 21, 2007, stating that the Respondent did not contest the backpay figures or unpaid benefit funds as alleged in the 1 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 Kirsanow and Walsh on December 31, 2007. Pursuant to this delega- tion, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice cases and representa- tion cases. See Sec. 3(b) of the Act. 2 352 NLRB 74. March 2, 2007 amendment to the compliance specifica- tion. The General Counsel also submitted an e-mail from the Respondent’s counsel, dated the same day as the let- ter, stating that the Respondent would file an answer ad- mitting the allegations when it was served with the amended compliance specification. However, when the amended specification issued on March 26, 2007, the Respondent filed no answer. The Respondent did not oppose the General Counsel’s motion. Section 102.48(d)(1) of the Board’s Rules and Regula- tions permits a party in “extraordinary circumstances” to move for reconsideration of a Board decision. Having duly considered the Motion for Reconsideration, the Board, on May 20, 2008, issued a Notice to Show Cause why the motion should not be granted. The Respondent failed to file a timely response to the Notice to Show Cause. Accordingly, the allegations in the motion are uncontested.3 Based on the evidence presented by the General Coun- sel, we find that the Respondent does not contest any of the allegations set forth in the March 26 amended com- pliance specification. We therefore deem those allega- tions to be admitted, and we grant the General Counsel’s motion for default judgment in its entirety. ORDER The General Counsel’s Motion for Reconsideration is granted. Accordingly, the Board’s Supplemental Deci- sion and Order is modified, and default judgment is granted with respect to all allegations in the March 26, 2007 amended compliance specification. It is ordered that the Respondent, Proper Steel Erec- tors, Inc., and its alter ego B & M Steel Erectors, Inc., Pompey and Central Square, New York, its officers, 3 The General Counsel has not explained why the March 21, 2007 letter and e-mail from the Respondent’s counsel were not submitted in support of the motion for default judgment. Typically, the Board refus- es to find extraordinary circumstances where a party submits evidence that is not newly discovered or previously unavailable in support of a motion for reconsideration. See, e.g., Superior Protections Inc., 341 NLRB 614 (2004), enfd. 401 F.3d 282 (5th Cir. 2005). Here, however, a refusal to consider that evidence could result in unnecessary expendi- tures of the Board’s resources. Given these unusual circumstances, and the Respondent’s failure to respond to the Notice to Show Cause, we have decided to reopen the record and accept the March 21 letter and e- mail in support of the General Counsel’s motion. In doing so, we find that the General Counsel has established that the proffered evidence requires a different result from that reached in the Supplemental Deci- sion and Order. See Sec. 102.48(d)(1) of the Board’s Rules and Regu- lations. PROPER STEEL ERECTORS, INC. 893 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 benefit funds by paying them a total amount of $24,317.65, as set forth in attachment 2, in the manner specified in the Board’s underlying Decision and Order. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894 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 $0.00 $4,219.89 $1,068.00 $16,505.15 PROPER STEEL ERECTORS, INC. 895 Proper Steel Erectors, Inc. and B & M Steel Erectors, Inc. Case 3–CA–24700 ATTACHMENT 2 Local 12 Welfare WNY Pension Supp Pension Annuity Train/Ed Total Quarter 05-1 $85.05 $69.30 $480.69 $213.30 $ - $848.34 Windham Quarter 05-2 218.40 194.40 1,134.72 469.50 2,017.02 Windham 209.30 105.30 614.64 208.50 1,137.74 Jiminy 832.65 247.05 1,442.04 443.25 2,964.99 22 Century Quarter 05-3 86.45 74.25 433.40 124.50 718.60 Windham 591.50 271.35 1,583.88 528.00 2,974.73 Jiminy 671.13 199.13 1,162.30 261.00 2,293.55 22 Century Quarter 06-1 254.80 75.60 441.28 169.50 941.18 20 Century Quarter 06-2 546.00 162.00 945.60 358.50 2,012.10 20 Century Totals $3,495.28 $1,398.38 $8,238.55 $2,776.05 $ - $15,908.25 Local 33 Welfare Pension Annuity Training Total Offset Net Total Quarter 05-3 $220.00 $262.50 $1,700.50 $ - $2,183.00 $898.70 $1,284.30 Riverside Quarter 05-4 334.40 334.40 benefits paid in check Riverside Totals $220.00 $262.50 $2,034.90 $ - $2,517.40 $898.70 $1,284.30 Local 60 Welfare Pension Annuity Education Total Offset Net Total Quarter 05-3 $105.60 $3,682.80 $6,690.00 $148.00 $10,626.40 benefits paid in check Seneca Quarter 05-4 369.60 3,205.40 7,187.50 16.00 10,778.50 benefits paid in check Seneca 46.20 279.00 505.00 - 830.20 $ - $830.20 Cayuga Quarter 06-1 363.00 1,664.70 1,342.50 59.25 3,429.45 benefits paid in check Seneca 518.10 1,562.40 2,772.50 53.50 4,906.50 4,906.50 Cayuga Totals $1,402.50 $10,394.30 $18,497.50 $276.75 $30,571.05 $ - $5,736.70 Local 440 Welfare Pension Medical Annuity App/Train Total Quarter 04-1 $444.00 $565.20 $61.20 $318.00 $ - $1,388.40 Totals $444.00 $565.20 $61.20 $318.00 $ - $1,388.40 Local 12 $15,908.25 Local 33 1,284.30 Local 60 5,736.70 Local 440 1,388.40 Grand Total $24,317.65