Boulder Contracting Inc.

National Labor Relations Board - Board Decisions

Mar 16, 2018

366 NLRB No. 37 (N.L.R.B. 2018)

366 NLRB No. 37
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.
Boulder Contracting, Inc. and Santiago Zavala-
Gonzalez. Cases 10–CA–189876 and 10–CA–
193007
March 16, 2018
DECISION AND ORDER
MEMBERS PEARCE, MCFERRAN, AND EMANUEL,
The General Counsel seeks a default judgment in this
case on the ground that Boulder Contracting Inc. (the
Respondent) has withdrawn its answer to the complaint.
Upon a charge and amended charges filed by Santiago
Zavala-Gonzalez on December 15, 2016, January 3,
2017, and February 14, 2017, the General Counsel issued
a complaint against the Respondent on April 27, 2017,
and a consolidated complaint against the Respondent on
June 7, 2017, alleging that it has violated Section 8(a)(1)
of the National Labor Relations Act.
The Respondent filed answers to the complaint and the
consolidated complaint. However, on August 15, 2017,
the Respondent withdrew both of its answers.
On September 13, 2017, the General Counsel filed
with the National Labor Relations Board a Motion for
Default Judgment. On September 15, 2017, 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 filed no response. The alle-
gations in the motion are therefore undisputed.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the consolidated complaint affirma-
tively states that unless an answer is received on or be-
fore June 21, 2017, the Board may find, pursuant to a
motion for default judgment, that the allegations in the
complaint are true. Although the Respondent filed an
answer to the complaint on May 11, 2017, and the con-
solidated complaint on June 20, 2017, it later withdrew
its answers. The withdrawal of an answer has the same
effect as failure to file an answer, i.e., the allegations in
the complaint must be considered to be true.1 Accord-
ingly, based on the withdrawal of the Respondent’s an-
swer, we deem the allegations of the complaint to be

1 See Maislin Transport, 274 NLRB 529 (1985).
admitted as true, and we grant the General Counsel’s
Motion for Default Judgment, as detailed below.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Georgia cor-
poration, has been engaged in installing drainage systems
at various locations in the greater Atlanta, Georgia area,
with a headquarters in Canton, Georgia.
During the calendar year ending December 31, 2016,
the Respondent, in conducting its operations described
above, purchased and received at its Canton, Georgia
facility goods valued in excess of $50,000 directly from
points outside the State of Georgia.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals have
held the positions set forth opposite their respective
names and have been supervisors of the Respondent
within the meaning of Section 2(11) of the Act and
agents of the Respondent within the meaning of Section
2(13) of the Act:
Antonio Mendoza - Foreman (Supervisor)
Jack Treadwell - Owner
Juan Zavala - Foreman (Supervisor)
About November 24, 2016, the Respondent’s employ-
ees Santiago Zavala-Gonzalez, Ruben de Hoyos de Leon,
and Gabriel Gonzales engaged in concerted activities
with each other for the purposes of mutual aid and pro-
tection by walking off the jobsite because they did not
receive their weekly paychecks. About November 24,
the Respondent discharged Zavala-Gonzalez, de Hoyos
de Leon, and Gonzales. The Respondent engaged in the
conduct described above because Zavala-Gonzalez, de
Hoyos de Leon, and Gonzales engaged in the conduct
described above and to discourage employees from en-
gaging in these or other concerted activities.
CONCLUSIONS OF LAW
By the conduct described above the Respondent has
been interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7
of the Act, in violation of Section 8(a)(1) of the Act.2

2 The consolidated complaint also alleges that the Respondent vio-
lated Sec. 8(a)(1) by misclassifying its workers as independent contrac-
tors rather than employees, thereby inhibiting them from engaging in
Sec. 7 activity and depriving them of their rights guaranteed under the
Act. This unfair labor practice theory is currently under consideration
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The unfair labor practices of the Respondent described
above affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(1) of the
Act by discharging Santiago Zavala-Gonzalez, Ruben de
Hoyos de Leon, and Gabriel Gonzales, we shall order the
Respondent to offer them full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed. Fur-
ther, we shall order the Respondent to make Zavala-
Gonzalez, de Hoyos de Leon, and Gonzales whole for
any loss of earnings or other benefits suffered as a result
of the Respondent’s unlawful actions against them.
Backpay shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). In accord-
ance with our decision in King Soopers, Inc., 364 NLRB
No. 93 (2016), enfd. in rel. part 859 F.3d 23 (D.C. Cir.
2017), we shall also order the Respondent to compensate
Zavala-Gonzalez, de Hoyos de Leon, and Gonzales for
their search-for-work and interim employment expenses
regardless of whether those expenses exceed interim
earnings. Search-for-work and interim employment ex-
penses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Hori-
zons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra.3
We shall further order the Respondent to compensate
Zavala-Gonzalez, de Hoyos de Leon, and Gonzales for
any adverse tax consequences of receiving a lump-sum

in Velox Express Inc.,15–CA–184006, where the Board has invited all
interested parties to file briefs addressing the following question: “Un-
der what circumstances, if any, should the Board deem an employer’s
act of misclassifying statutory employees as independent contractors a
violation of Section 8(a)(1) of the Act?” Notice and Invitation to File
Briefs, February 15, 2018. Accordingly, we shall deny the motion for
default judgment with respect to this allegation and remand it for fur-
ther appropriate action.
3 The General Counsel additionally seeks a make-whole remedy that
includes reasonable consequential damages incurred as a result of the
Respondent’s unfair labor practices. This issue, which was not briefed,
would involve a change in Board law. We are not prepared at this time
to deviate from our current remedial practice. Accordingly, we decline
to order this relief at this time. See Laborers International Union of
North America, Local Union No. 91 (Council of Utility Contractors),
365 NLRB No. 28, slip op. at 1 fn. 2 (2017).
backpay award and to file with the Regional Director of
Region 10 a report allocating the backpay award to the
appropriate calendar years. AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016). The Respondent addi-
tionally shall be ordered to remove from its files any ref-
erences to the discharges of Zavala-Gonzalez, de Hoyos
de Leon, and Gonzales and to notify them in writing that
this has been done and that the unlawful discharges will
not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Boulder Contracting Inc., Canton, Georgia,
its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees for engaging in protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer
Santiago Zavala-Gonzalez, Ruben de Hoyos de Leon,
and Gabriel Gonzales full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make Santiago Zavala-Gonzalez, Ruben de Hoyos
de Leon, and Gabriel Gonzales whole for any loss of
earnings and other benefits they may have suffered as a
result of their unlawful discharges, in the manner set
forth in the remedy section of this decision.
(c) Compensate Santiago Zavala-Gonzalez, Ruben de
Hoyos de Leon, and Gabriel Gonzales for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
10, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter, notify the employees in
writing that this has been done and that the unlawful dis-
charges will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
BOULDER CONTRACTING, INC. 3
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Canton, Georgia facility, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 10, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since November 24, 2016.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 10 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 16, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge you or otherwise discriminate
against you for engaging in protected concerted activi-
ties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days of the Board’s Order, offer
Santiago Zavala-Gonzalez, Ruben de Hoyos de Leon,
and Gabriel Gonzales full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make employees Santiago Zavala-Gonzalez,
Ruben de Hoyos de Leon, and Gabriel Gonzales whole
for any loss of earnings and other benefits suffered as a
result of their unlawful discharges, less any net interim
earnings, plus interest, plus reasonable search-for-work
and interim employment expenses.
WE WILL compensate Santiago Zavala-Gonzalez, Ru-
ben de Hoyos de Leon, and Gabriel Gonzales for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 10, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful discharges of Santiago Zavala-Gonzalez, Ruben de
Hoyos de Leon, and Gabriel Gonzales and WE WILL,
within 3 days thereafter, notify them in writing that this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
has been done and that the unlawful discharges will not
be used against them in any way.
BOULDER CONTRACTING INC.
The Board’s decision can be found at
www.nlrb.gov/case/10-CA-189876 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.