J&D Masonry, Inc.

351 NLRB No. 52 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. J&D Masonry, Inc., Pyramid Masonry Construction Co., LLC, and Bear Construction Co., LLC, al- ter egos and Local 9, International Union of Bricklayers and Allied Craftworkers, AFL– CIO. Cases 7–CA–47407 and 7–CA–47547 October 25, 2007 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER The General Counsel seeks a default judgment in this case on the ground that the Respondent has withdrawn its answer to the compliance specification. On February 28, 2005, the Board issued a Supplemen- tal Decision and Order,1 that, among other things, or- dered alter egos J&D Masonry, Inc. and Pyramid Ma- sonry Construction Co., LLC (the Respondent), to make unit employees whole for lost earnings and benefits re- sulting from the Respondent’s unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. On Sep- tember 26, 2005, the United States Court of Appeals for the Sixth Circuit entered its judgment enforcing the Board’s Order.2 A controversy having arisen over the amount of back- pay due the discriminatees under the Board’s Order, on January 29, 2007, the Regional Director for Region 7 issued a compliance specification and notice of hearing specifying the amount of backpay due, and further alleg- ing that Bear Construction Co., LLC is an alter ego of the Respondent. On July 18, 2007, J&D Masonry, Pyramid Masonry Construction, and Bear Constuction (the Re- spondent) filed an answer to the specification. On Au- 1 344 NLRB 336 (2005). This decision supersedes the Decision and Order reported at 343 NLRB 627 (2004), in which the Board denied default judgment with respect to the allegation that J&D Masonry and Pyramid Masonry (the Respondent) violated Sec. 8(a)(5) by failing to make “fringe benefit contributions” as required by the collective- bargaining agreement, on the grounds that the pleadings did not allege that the funds involved were mandatory subjects of bargaining. In her partial dissent, Member Liebman would have granted default judgment on this issue, as she would have found that the Respondent’s failure to file an answer constituted an admission of all allegations, including that the “fringe benefit contributions” in the collective-bargaining agree- ment were mandatory subjects of bargaining, unless the Respondent demonstrated in the compliance proceeding that the funds involved were permissive subjects of bargaining. Id., 628 fn. 2. 2 No. 05-1608. gust 3, 2007, the Respondent withdrew its answer to the compliance specification.3 On August 13, 2007, the General Counsel filed with the Board a Motion for Default Judgment, with exhibits attached. On August 15, 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 did not file a response. The allegations in 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 Default Judgment Section 102.56(a) of the Board’s Rules and Regula- tions provides that a 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. Here, according to the uncontroverted allegations of the Motion for Default Judgment, although the Respon- dent initially filed an answer to the compliance specifica- tion, the Respondent, by counsel, subsequently withdrew its answer on August 3, 2007. The withdrawal of an an- swer has the same effect as a failure to file an answer, i.e., the allegations in the compliance specification must be considered to be true.4 Accordingly, based on the withdrawal of the Respon- dent’s answer to the compliance specification, and in absence of good cause being shown otherwise, we deem the allegations in the compliance specification to be ad- mitted as true, and we grant the General Counsel’s Mo- tion for Default Judgment. Accordingly, we conclude that the net backpay due the discriminatees is as stated in the compliance specification and we will order the Re- spondent to pay those amounts to the discriminatees, plus interest accrued to the date of payment. ORDER The National Labor Relations Board orders that the Respondent, J&D Masonry, Inc., Pyramid Masonry Con- struction Co., LLC, and Bear Construction Co., LLC, alter egos, Holt, Michigan, its officers, agents, succes- sors, and assigns, shall make whole the individuals 3 The Respondent’s Withdrawal of Answer to Compliance Specifica- tion stated that the Respondent would not object to summary disposi- tion of the case. 4 See Maislin Transport, 274 NLRB 529 (1985). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 named below, by paying them the amounts following their names, plus interest accrued to the date of payment, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax withholdings required by Federal and State laws: Thomas Narsesian $ 50,977.55 Richard Romwalter $ 129,331.42 James Parker $ 2,039.67 Ron Corr $ 15,754.18 Jason Williams $ 7,965.53 Basil Shattuck $ 1,225.20 Darren Roberts $ 1,994.38 TOTAL $ 209,287.93 Dated, Washington, D.C., October 25, 2007 Robert J. Battista, Chairman Wilma B. Liebman, Member Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD