Apex Electric Services, Inc. and Apex Industrial Services, Inc., as a single employer and/or alter e

356 NLRB No. 172 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. Apex Electric Services, Inc. and Apex Industrial Ser- vices, Inc. and Apex Industrial Services, as a disguised continuance and alter ego of Apex In- dustrial Services, Inc. and International Broth- erhood of Electrical Workers, Local Union No. 177, AFL–CIO. Cases 12–CA–24200 and 12– CA–24237 June 2, 2011 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES The Acting General Counsel seeks a default judgment in this case on the ground that the Respondents have failed to file an answer to the compliance specification. On June 21, 2007, the Board issued a Decision and Order1 that, among other things, found that the Respon- dents Apex Electric Services, Inc. and Apex Industrial Services, Inc. were alter egos and a single employer and violated Section 8(a)(5), (3), and (1) of the Act. The Board ordered the Respondents, among other things, to make whole discriminatees Ervin A. Paden, Steve Gibbs, Edward J. Cromedy, and Arthur F. Tierney II, for any loss of earnings and other benefits they may have suf- fered as a result of the Respondents’ unfair labor prac- tices. On May 15, 2008, the United States Court of Ap- peals for the Eleventh Circuit entered its judgment en- forcing in its entirety the Board’s Decision and Order.2 A controversy having arisen over the amount of back- pay due, the Acting Regional Director issued a compli- ance specification and notice of hearing on October 29, 2010, alleging the amounts due under the Board’s Order. Although not a party to the original unfair labor practice litigation, Respondent Apex Industrial Services was added to the compliance specification and was alleged to have derivative liability for the Respondents’ unfair labor practices, as a single employer, an alter ego and dis- guised continuance of Respondent Apex Industrial Ser- vices, Inc. The compliance specification notified the Respondents that they should file a timely answer complying with the Board’s Rules and Regulations. Although properly served with a copy of the compliance specification, the Respondents failed to file an answer. By letter dated November 29, 2010, counsel for the Acting General 1 350 NLRB 40 (2007). 2 No. 08-11563-H. Counsel reminded the Respondents of the need to file an answer to the compliance specification, and indicated that if no answer was received by December 6, 2010, a motion for default judgment would be filed. The Re- spondents again failed to file an answer. The compliance specification set forth the following allegations. As stated above, the compliance specifica- tion alleges that Apex Industrial Services is and has been a disguised continuation of Respondent Apex Industrial Services, Inc., one of the entities previously found liable for the unfair labor practices involved herein. The com- pliance specification also alleges that: on February 7, 2005, the corporate status of Respondent Apex Electric Services, Inc. was voluntarily dissolved; on July 9, 2005, the corporate status of Respondent Apex Industrial Ser- vices, Inc. was administratively revoked by the State of Georgia; and since July 9, 2005, Respondent Apex In- dustrial Services has operated as a sole proprietorship doing business under the name Apex Industrial Services, with Kenneth B. Holmes Sr. as president and principal officer and director; and that Apex Industrial Services remains in business and continues to operate in an essen- tially unchanged manner the business of Respondent Apex Industrial Services, Inc. The compliance specification further alleges that at all material times, Respondent Apex Industrial Services, Inc. and Apex Industrial Services have been affiliated business enterprises with common officers, ownership, directors, management, and supervision; have formulated and administered a common labor policy; have shared common premises and facilities; have provided services for each other; have interchanged personnel with each other; and have held themselves out as a single integrated business enterprise. On March 1, 2011, the Acting General Counsel filed with the Board a Motion for Default Judgment, with ex- hibits attached.3 On March 4, 2011, the Board issued an order transferring the proceeding to the Board and Notice to Show Cause why the motion should not be granted. On April 12, 2011, a revised Notice to Show Cause is- 3 The Acting General Counsel’s Motion for Default Judgment and attached exhibits indicate that the compliance specification and notice of hearing was served by certified mail on the Respondents and by regular mail on the Respondents’ president, Kenneth Holmes Sr., at his home address. The copy of the compliance specification sent by certi- fied mail was returned unclaimed. There is no indication that the documents sent by regular mail were returned. It is well settled that a respondent’s failure or refusal to accept certified mail or to provide for receiving appropriate service cannot serve to defeat the purposes of the Act. See, e.g., I.C.E. Electric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited therein. Further, the failure of the Postal Service to return documents served by regular mail indicates actual receipt of those documents by the Respondent. Id.; Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. 843 F.2d 1392 (6th Cir. 1988). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 sued, noting that the original Notice had not been served on Respondent Apex Industrial Service. The Revised Notice was served on this Respondent. The Respondents failed to file a response. The allegations in the motion and in the compliance specification are therefore undis- puted. 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. According to the uncontroverted allegations of the mo- tion for default judgment, the Respondents, despite hav- ing been advised of the filing requirements, have failed to file an answer to the compliance specification. In the absence of good cause for the Respondents’ failure to file an answer, we deem the allegations in the compliance specification to be admitted as true, and grant the Acting General Counsel’s Motion for Default Judgment. Based on the above, the compliance specification al- leges, and we find, that Apex Industrial Services was established by Kenneth B. Holmes Sr. for the purpose of evading the Respondent’s responsibilities under the Act, and that at all material times Apex Industrial Services is and has been a disguised continuation of Respondent Apex Industrial Services, Inc. Accordingly, we conclude that Apex Industrial Services is a single integrated enter- prise with, an alter ego of, and a single employer with Respondent Apex Industrial Services, Inc., and is a dis- guised continuation of Respondent Apex Industrial Ser- vices, Inc. As such, Apex Industrial Services is jointly and severally liable for remedying the Respondents’ un- fair labor practices. We further conclude that the net backpay due the discriminatees is as stated in the com- pliance specification, and we will order the Respondents to pay the amounts to the discriminatees, plus interest accrued to the date of payment. ORDER The National Labor Relations Board orders that the Respondents, Apex Electric Services, Inc., Apex Indus- trial Services, Inc., and Apex Industrial Services, as a disguised continuance and alter ego of Apex Industrial Services, Inc., Sanford and Jacksonville, Florida, its offi- cers, agents, successors, and assigns, shall make whole the discriminatees 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 with- holdings required by Federal and State laws:4 DISCRIMINATEE/ CLAIMANTS NET BACKPAY FICA MATCH SUM TOTAL Ervin A. Paden $5,280.00 $403.92 $5,683.92 Steve Gibbs $3,712.00 $283.97 $3,995.97 Edward J. Cromedy $ 512.00 $ 39.17 $ 551.17 Arthur F. Tierney II $ 384.00 $ 29.38 $ 413.38 TOTAL AMOUNT DUE: $10,644.44 Dated, Washington, D.C. June 2, 2011 ______________________________________ Wilma B. Liebman, Chairman ______________________________________ Mark Gaston Pearce, Member ______________________________________ Brian E. Hayes, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 4 The Board has declined to apply its new policy, announced in Ken- tucky River Medical Center, 356 NLRB No. 8 (2010), of daily com- pounding of interest on backpay awards, in cases such as this, that were already in the compliance stage on the date that decision issued. Three Rivers Electrical, Inc., 356 NLRB No. 38, slip op. at 1 fn. 2 (2010).