Engineering Contractors, Inc. and its alter ego, ECI of Washingon, LLC

364 NLRB No. 32 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. Engineering Contractors, Inc. and ECI of Washing- ton, LLC, Alter Egos and Plumbers Local No. 5, United Association o f Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO Engineering Contractors, Inc. and ECI of Washing- ton, LLC, Alter Egos and Steamfitters Local 602, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting In- dustry of The United States and Canada, AFL– CIO Engineering Contractors, Inc. and ECI of Washing- ton, LLC, Alter Egos and Sheet Metal Workers International Association, Local No. 100, AFL– CIO Engineering Contractors, Inc. and ECI of Washing- ton, LLC, Alter Egos and Asbestos Workers Lo- cal 24 Pension Fund, Asbestos Workers Local 24 Medical Fund, and Asbestos Workers Local 24 Apprenticeship Fund, Affiliated with Inter- national Association of Heat and Frost Insula- tors and Allied Workers Local 24, AFL–CIO. Cases 05–CA–036213, 05–CA–036214, 05–CA– 036216, 05–CA–036306, and 05–CA–036225 June 23, 2016 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the compliance specification. On December 8, 2011, the National Labor Relations Board issued a Decision and Order1 that, among other things, ordered the Respondent, Engineering Contractors, Inc. and ECI of Washington, LLC, Alter Egos, to make whole all bargaining unit employees for any loss of earn- ings and other benefits resulting from the Respondent’s violations of Section 8(a)(1), (3), and (5) of the Act. It further ordered the Respondent to comply with the terms and conditions of its collective-bargaining agreements with Plumbers Local No. 5, Steamfitters Local 602, Sheet Metal Workers Local No. 100, and Asbestos Workers Local 24, and to make whole all fringe benefit funds as required by those agreements. On March 28, 1 357 NLRB 1553 (2011). 2013, the United States Court of Appeals for the Fourth Circuit entered its judgment enforcing the Board’s Order in full.2 A controversy having arisen over the amount of backpay due the discriminatees and the funds, on Febru- ary 4, 2016, the Regional Director for Region 5 issued a compliance specification and notice of hearing alleging the amounts due under the Board’s Order, and notifying the Respondent that it must file a timely answer comply- ing with the Board’s Rules and Regulations. Although properly served with a copy of the compliance specifica- tion, the Respondent failed to file an answer. By letter dated March 8, 2016, the Region advised the Respondent that no answer to the compliance specifica- tion had been received, and that unless an answer was received by March 18, 2016, a motion for default judg- ment would be filed. By letter dated March 22, 2016, the Region again informed the Respondent that no answer had been received and that unless an answer was re- ceived by March 28, 2016, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer. On March 31, 2016, the General Counsel filed with the Board a Motion for Default Judgment, with exhibits at- tached. On April 4, 2016, 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 and the compliance specification are therefore 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 any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allega- tions of the specification and without further notice to the respondent, 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 compliance specification. In the ab- sence of good cause for the Respondent’s failure to file an answer, we deem the allegations in the compliance specification to be admitted as true, and grant the Gen- 2 No. 12–1410. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 eral Counsel’s Motion for Default Judgment.3 Accord- ingly, we conclude that the net backpay due the discriminatees and the funds is as stated in the compli- ance specification, and we will order the Respondent to pay those amounts,4 plus interest accrued to the date of payment. ORDER The National Labor Relations Board orders that the Respondent, Engineering Contractors, Inc. and ECI of Washington, LLC, Alter Egos, Upper Marlboro, Mary- land and Washington, District of Columbia, its officers, agents, successors, and assigns, shall make whole the named discriminatees and fringe benefit funds by paying them the amounts set forth below, plus interest accrued to the date of payment, as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as set forth in Kentucky River Medical Center, 356 NLRB 6 (2010), minus tax withholdings required by Federal and State laws.5 Plumbers Local 5 discriminatees: Thomas Alston 283,249.34 Thomas Bistodeau 173,419.21 Donald Brown 296,970.71 Richard Emery 230,898.12 Francis Hill 102,356.79 Jeffrey Lehman 232,354.21 Jeremy Nicholas 279,980.22 Lovelle Proctor 176,634.48 Brandon Sewell 247,334.03 Tristan Swann 259,916.83 Total: $2,283,113.94 Steamfitters Local 602 discriminatees: 3 Member Miscimarra concurs with the entry of a default judgment in this case. However, because default judgment cases can give rise to questions regarding whether the proper address was used when serving the complaint and when serving a notice to show cause why a default judgment should not be granted, Member Miscimarra believes the Board should evaluate the development of standards that would foster greater uniformity and certainty in this area. 4 The compliance specification provides that the backpay period for all the discriminatees and funds begins on May 7, 2010, the date the Respondent discharged the employees and ceased bargaining with the Unions, and ends on August 31, 2014, the approximate date the Re- spondent ceased operations. 5 As set forth in the compliance specification, the Respondent shall pay the discriminatees the amounts set forth opposite their names be- low, less any additional interim earnings unknown at this time, and shall remit to the appropriate taxing authority the Respondent’s share of FICA contributions. Timothy Capps 59,155.83 Clinton Cupples 1,843.50 Phillip Fowler 72,680.10 David Hall, Sr. 67,510.74 David Hall, Jr. 25,377.68 Nicholas Hamilton 76,538.91 Gary Harper, Jr. 74,559.30 Thomas Kay 43,934.82 Total: $421,600.88 Sheet Metal Workers Local 100 discriminatees: Arrington Baines 269,392.56 Gregory DeSibour 277,596.20 Florence Gjorka 177,459.23 Dwayne Lyons 176,089.08 Eric Martin 244,849.72 Scottie Moomau 142,753.97 Troy Naylor 274,634.72 John Prescott 277,596.20 Charles Seville 277,596.20 David Tabron 178,525.00 Corey Young 320,827.00 Frank Young 96,408.00 Victor Zelaya 137,776.11 Total: $2,851,503.99 Asbestos Workers Local 24 discriminatees: Joe Burnette 200,727.44 Curtis Clark 150,289.52 Bobby Jones 106,069.54 Frank Keeler 180,908.96 Sandra Rice 191,643.97 Sean Sprouse 180,908.96 Total: $1,010,548.39 TOTAL AMOUNT BACKPAY DUE $6,566,767.20 Plumbers Local 5 benefit funds: Plumbers and Pipefitters Medical Fund 479,715.00 Plumbers and Pipefitters National Pension Fund 409,620.05 Plumbers and Gasfitters Local 5 Retirement Savings Fund 80,559.62 ENGINEERING CONTRACTORS, INC. 3 Plumbers and Pipefitters Apprenticeship Fund 82,836.44 United Association International Training Fund 6,856.40 Total: $1,059,587.51 Steamfitters Local 602 benefit funds: Heating, Piping and Refrigeration Medical Fund 80,728.81 Heating, Piping and Refrigeration Pension Fund 98,902.24 Steamfitters Local 602 Retirement Savings Fund 32,352.92 Heating, Piping and Refrigeration Training Fund 10,816.62 International Training Fund 1,214.20 Total: $224,014.79 Sheet Metal Workers Local 100 benefit funds: Health Benefit Fund 581,259.44 National Pension Fund for the Sheet Metal and Air Conditioning Industry 575,041.20 Sheet Metal Workers Local 100 401(k) Fund 48,083.50 Sheet Metal Local 100 Apprentice and Journeyman Training Fund 60,034.30 International Training Institute for the Sheet Metal and Air Conditioning Industry 11,540.04 Total: $1,275,958.48 Asbestos Workers Local 24 benefit funds: Asbestos Workers Local 24 Medical Fund 262,013.78 Asbestos Workers Local 24 Pension Fund 310,005.51 Asbestos Workers Local 24 Apprentice Fund 8,398.15 National Joint Apprentice Fund 2,282.35 Total: $582,699.79 TOTAL AMOUNT DUE BENEFIT FUNDS: $3,142,260.57 TOTAL AMOUNT DUE IN BACKPAY AND TO FUNDS: $9,709,027.77 Dated, Washington, D.C. June 23, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Philip A. Miscimarra, Member ______________________________________ Kent Y. Hirozawa, Member (SEAL) NATIONAL LABOR RELATIONS BOARD