John Succi General Contractors

JOHN SUCCI GENERAL CONTRACTORS 357 NLRB No. 1 1 John Succi Contracting, Inc. d/b/a John Succi Gen- eral Contractors a/k/a Succi, John General Con- tractors and JS Contractors and Builders, Inc. t/a Succi Contractors and Builders and Metro- politan Regional Council of Carpenters, South- eastern Pennsylvania, State of Delaware and Eastern Shore of Maryland. Case 04–CA–036427 June 29, 2011 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS BECKER, 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 30, 2009, the Board issued a Decision and Order1 that, among other things, found that Respondent John Succi Contracting, Inc. d/b/a John Succi General Contractors a/k/a Succi, John General Contractors (Re- spondent Succi) violated Section 8(a)(3) and (1) of the Act. The Board ordered Respondent Succi to, among other things, make whole discriminatees Joseph Perri,2 Kenneth Whittaker, and Matthew Whittaker for any loss of earnings and other benefits they may have suffered as a result of Respondent Succi’s unfair labor practices. On June 9, 2010, the United States Court of Appeals for the Third Circuit entered its judgment3 enforcing the Board’s Order. A controversy having arisen over the amount of back- pay due, the Regional Director issued a compliance spec- ification and notice of hearing on February 24, 2011, alleging the amounts due through the fourth quarter of 2010, under the Board’s Order. Although not a party to the original unfair labor practice litigation, Respondent JS Contractors and Builders, Inc. t/a Succi Contractors and Builders (Respondent JS) was added to the compli- ance specification and was alleged to be jointly and sev- erally liable for Respondent Succi’s unfair labor practic- es, as an alter ego and disguised continuance of Re- spondent Succi, with substantially identical ownership, management, supervision, business purpose, operation, equipment, and customers. 1 354 NLRB No. 38 (not reported in Board volumes). 2 Perri’s surname was misspelled as “Perry” in the Board’s Decision and Order. 3 No. 10-1570. 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 and granted two extensions of time in which to file an an- swer, the Respondents failed to file an answer. By letter dated April 7, 2011, the Region reminded the Respond- ents of the need to file an answer to the compliance spec- ification and indicated that if no answer was received by April 14, 2011, a motion for default judgment would be filed. The Respondents again failed to file an answer. The compliance specification sets forth the following allegations in support of the allegation that Respondent JS is a disguised continuation of Respondent Succi, the entity previously found liable for the unfair labor practic- es involved herein. At all material times, and continuing until in or around January 2009, Respondent Succi was engaged in business as a general contractor providing construction services primarily for residential customers in the greater Bucks County, Pennsylvania area. About January 26, 2009, Respondent JS began engaging in business as a general contractor providing construction services primarily for residential customers in the greater Bucks County, Pennsylvania area. At all material times, John Succi has been the president, sole manager, and supervisor of Respondent Succi, owning 100 percent of its stock and exercising exclusive control of its opera- tions and finances. Since the inception of Respondent JS, John Succi has been the vice president, sole supervi- sor for work performed, and a 49 percent stockowner of Respondent JS. At all material times, Corey Scott has been the president of Respondent JS and the owner of 51 percent of its stock. Since the inception of Respondent JS, John Succi has exercised control over its operations and finances, in- cluding its bank accounts, collection and disbursement of all business-related revenue, day-to-day interactions and business relationships with customers, hiring, supervis- ing and managing of employees and subcontractors, se- curing supplies, and overseeing all phases of the con- struction work. Respondent Succi employed Nelson Dominguez and Santos Vasquez as laborers until in or around December 2008 or January 2009. Dominguez and Vasquez were the last two employees known to have worked for Respondent Succi. In January 2009, after a brief interruption in their employment with Respondent Succi, Dominguez and Vasquez were employed by Re- spondent JS. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 In November 2008, Respondent Succi began work on a project for a residential customer in Pipersville, Pennsyl- vania, and continued the work until in or around January 2009. Beginning in February 2009, Respondent JS con- tinued the work that had been initiated by Respondent Succi on the Pipersville project. When Respondent JS began operation, it used the same handtools, scaffolding, and trucks used by Respondent Succi. In performing its construction business, Respondent JS utilizes the same type of equipment and tools that Respondent Succi used in the operation of its business. Since its inception, Re- spondent JS has used the services of the same accountant that performed services for Respondent Succi in 2008. Since its inception, Respondent JS has used the business phone number that had formerly been used by Respond- ent Succi. Accordingly, the compliance specification alleges that since January 26, 2009, Respondent JS has been estab- lished as a disguised continuation of Respondent Succi, with substantially identical ownership, management, supervision, business purpose, operation, equipment, and customers. The compliance specification further alleges that based on the conduct of its business operations as described, Respondent JS is the alter ego of Respondent Succi and thus is jointly and severally liable with Re- spondent Succi for fulfilling the remedial obligations set forth in the Board’s enforced Order. On April 20, 2011, the Acting General Counsel filed with the Board a motion for default judgment, with ex- hibits attached.4 On April 20, 2011, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be grant- ed. On May 17, 2011, a revised Notice to Show Cause issued, noting that the original notice had not been served on Respondent JS. The revised notice was served on Respondent JS. The Respondents failed to file a re- sponse. The allegations in the motion and in the compli- ance specification are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 4 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 their counsel. The copy of the compliance specification sent to John Succi, president, John Succi Contracting, Inc. d/b/a John Succi General Con- tractors was returned unclaimed. 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, 247 fn. 2 (2003), and cases cited therein. Further, the attached exhibits indicate that the copy of the compliance specification sent to John Succi, JS Contractors and Build- ers, Inc. t/a Succi Contractors and Builders was delivered. 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 we grant the Acting General Counsel’s Motion for Default Judgment. Based on the above, the compliance specification al- leges, and we find, that JS Contractors and Builders, Inc. t/a Succi Contractors and Builders is a disguised continu- ation and an alter ego of Respondent John Succi Con- tracting, Inc. d/b/a John Succi General Contractors a/k/a Succi, John General Contractors with substantially iden- tical ownership, management, supervision, business pur- pose, operation, equipment, and customers. As such, JS Contractors and Builders, Inc. t/a Succi Contractors and Builders is jointly and severally liable for remedying the unfair labor practices of John Succi Contracting, Inc. d/b/a John Succi General Contractors a/k/a Succi, John General Contractors. We further conclude that the net backpay due the discriminatees through the fourth quar- ter of 2010 is as stated in the compliance specification, and we will order the Respondents to pay those amounts to the discriminatees, plus additional backpay that may accrue in the absence of a valid offer of reinstatement, plus interest accrued to the date of payment. ORDER The National Labor Relations Board orders that the Respondents, John Succi Contracting, Inc. d/b/a John Succi General Contractors a/k/a Succi, John General Contractors, Yardley, Pennsylvania, and its alter ego, JS Contractors and Builders, Inc. t/a Succi Contractors and Builders, Fairless Hills, Pennsylvania, and their officers, agents, successors, and assigns, shall jointly and several- ly make whole the individuals named below, by paying JOHN SUCCI GENERAL CONTRACTORS 3 them the amounts following their names, plus additional backpay that may accrue in the absence of a valid offer of reinstatement, plus interest accrued to the date of payment in the manner prescribed in New Horizons, 283 NLRB 1173 (1987), minus tax withholdings required by Federal and State laws.5 Summarizing these amounts, 5 The Board has declined to apply its new policy, announced in Ken- tucky River Medical Center, 356 NLRB 6 (2010), of daily compound- ing of interest on backpay awards, in cases such as this, that were al- ready in the compliance stage on the date that decision issued. Rome Electrical Systems, Inc., 356 NLRB 170, 170 fn. 2 (2010). the Respondents are obligated to pay the employees backpay totaling, through the fourth quarter of 2010, $49,674.93, plus additional backpay that may accrue in the absence of a valid offer of reinstatement, plus interest and minus withholdings. Joseph Perri $25,993.43 Kenneth Whittaker 13,312.50 Matthew Whittaker 10,369.00 TOTAL: $49,674.93