ENVIRONMENTAL CONTRACTORS, INC. AND KIELCZEWSKI CORPORATION

National Labor Relations Board - Board Decisions

Mar 19, 2018

366 NLRB No. 41 (N.L.R.B. 2018)

366 NLRB No. 41
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.
Environmental Contractors, Inc., Kielczewski Corpo-
ration and their alter ego, single employer,
and/or successor, BE Construction Corporation
and Local 78, Laborers International Union of
North America. Cases 22–CA–089865, 22–CA–
136700, 22–CA–145173, and 22–CA–172957
March 19, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that Respondents Environmental
Contractors, Inc., Kielczewski Corporation, and BE Con-
struction Corporation (the Respondents) have failed to
file an answer to the consolidated complaint and compli-
ance specification. Upon charges filed by Local 78, La-
borers International Union of North America (the Union)
on September 12, 2014, January 23, 2015, and March 31,
2016, respectively, the General Counsel issued an Order
Consolidating Complaint, Compliance Specification and
Notice of Hearing (the consolidated complaint and com-
pliance specification) on July 31, 2017, alleging that the
Respondents had violated Section 8(a)(5) and (1) of the
Act.1 Respondents Environmental Contractors and
Kielczewski Corporation did not file an answer. Re-
spondent BE Construction filed an answer on August 14,
2017. By letter dated December 1, 2017, the Region
informed BE Construction that its answer did not comply
with the Board’s Rules. Respondent BE Construction
filed an amended answer on December 22, 2017, and a
second amended answer on December 29, 2017. The
General Counsel moved to strike portions of the second
amended answer on December 29, 2017, arguing that
those portions were deficient because they did not meet
the requirements of the Board’s Rules and Regulations.
On January 8, 2018, Respondent BE Construction filed a
motion to withdraw its second amended answer “and any
other pleadings incident to the Consolidating [sic] Com-
plaint and Compliance Specification,” based on the
statement of its president that continuing with this litiga-
tion was “practically and financially infeasible.”

1 The compliance specification also encompasses the unfair labor
practices found by the Board in Environmental Contractors, Inc., Case
22–CA–089865 (2014) (unpublished), enfd. sub nom. NLRB v. Envi-
ronmental Contractors, Inc. and Kielczewski Corp., alter egos and a
single employer, Case 14–2815 (3d Cir. July 3, 2014).
The National Labor Relations Board has delegated its
authority in this proceeding 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. Similarly, Section 102.56 of the Board’s Rules
and Regulations provides that the allegations in a com-
pliance specification will be taken as true if an answer is
not filed within 21 days from service of the compliance
specification. In addition, the consolidated complaint
and compliance specification affirmatively stated that
unless a timely answer was received on or before August
21, 2017,2 the Board may find, pursuant to a motion for
default judgment, that the allegations in the consolidated
complaint and compliance specification are true. Never-
theless, Respondents Environmental Contractors and
Kielczewski Corporation did not file an answer, and Re-
spondent BE Construction withdrew its second amended
answer and “any other pleadings,” i.e., its initial and
amended answers. The withdrawal of an answer has the
same effect as a failure to file an answer: the allegations
in the complaint and compliance specification will be
taken as true. See Maislin Transport, 274 NLRB 529
(1985).3
On January 19, 2018, the General Counsel filed with
the National Labor Relations Board a Motion to Transfer
and Continue Case before the Board and Motion for De-
fault Judgment. On January 24, 2018, the Board issued a
Notice to Show Cause stating that “any party seeking to
show cause why the General Counsel’s motion should
not be granted must do so . . . on or before February 7,
2018.” The Respondents did not file a response to the
Notice to Show Cause.
In the absence of good cause being shown for the fail-
ure to file an answer to the consolidated complaint and

2 Subsequently, by letter dated December 1, 2017, the General
Counsel gave the Respondents until December 15, 2017, to file a timely
answer.
3 In a statement accompanying the withdrawal of its second amend-
ed answer, Respondent BE Construction stated that it “has found it
practically and financially infeasible to continue with the . . . litiga-
tion.” Even were the Board to consider this statement a response to the
consolidated complaint and compliance specification, “Respondent’s
financial situation does not constitute good cause for failure to file an
answer, nor is it otherwise a basis for denying the General Counsel’s
[m]otion . . . .” Judd Contracting, Inc., 338 NLRB 676, 676 fn. 3
(2002) (granting summary judgment where respondent failed to file an
answer to compliance specification), enfd. 76 Fed. Appx. 651 (6th Cir.
2003); see also Goudreau Corp., 314 NLRB No. 44, slip op. at 1 (1994)
(in a compliance proceeding, the issue is the amount due and not the
respondent’s ability to pay).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
compliance specification, we deem the allegations in the
consolidated complaint and compliance specification to
be admitted as true, and we grant the General Counsel’s
Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
JURISDICTION
At all material times, the Respondents have been cor-
porations with an office and a place of business in West
Orange, New Jersey (the Respondents’ facility), and
have been contractors in the construction industry per-
forming residential and commercial demolition, asbestos
abatement, and mold and lead removal. At all material
times, the Respondents have had substantially identical
management, business purposes, operations, equipment,
customers, supervision, and ownership.
About December 13, 2013, Respondent BE Construc-
tion was established by Respondent Kielczewski as a
disguised continuation of Respondent Kielczewski for
the purpose of evading its responsibilities under the Act.
Based on the operations and conduct described above,
Respondent Kielczewski and Respondent BE Construc-
tion are, and have been at all material times, alter egos
and a single employer within the meaning of the Act. At
all material times, the Respondents 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 and made sales to each other; have interchanged per-
sonnel with each other; have interrelated operations with
common administration, equipment, purchasing and
sales; and have held themselves out to the public as a
single integrated business enterprise. Based on the oper-
ations described above, the Respondents constitute a sin-
gle integrated business enterprise and a single employer
within the meaning of the Act.
In conducting their operations described above, during
the 12-month period ending June 1, 2017, the Respond-
ents performed services valued in excess of $50,000 in
states outside the State of New Jersey.
We find that at all material times, the Respondents
have been employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following employees of the
Respondents constituted a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All full-time and regular part-time building and con-
struction laborers employed by the Employer in the
State of New Jersey, but excluding all office clerical
employees, managers, guards and supervisors as de-
fined in the Act.
On April 23, 2012, the Board certified the Union as the
exclusive collective-bargaining representative of the unit.
At all times since about April 23, 2012, based on Section
9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the unit.
On January 13, 2014, Administrative Law Judge Ste-
ven Davis issued a Decision and Order in Case 22–CA–
089865, finding that Respondent Environmental Contrac-
tors and Respondent Kielczewski were alter egos and a
single employer and that Respondent Kielczewski was a
disguised continuance of Respondent Environmental
Contractors, established to evade its responsibilities un-
der the Act. Judge Davis also found that Respondent
Environmental Contractors and Respondent Kielczewski
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union and by reducing
the wages and benefits of unit employees without provid-
ing the Union notice and an opportunity to bargain over
the changes. On February 27, 2014, the Board adopted
Judge Davis’s Decision and Order in the absence of ex-
ceptions. On July 3, 2014, the United States Court of
Appeals for the Third Circuit enforced the Board’s Order
in National Labor Relations Board v. Environmental
Contractors, Inc. and Kielczewski Corp., alter egos and a
single employer, Case 14-2815 (3d Cir. July 3, 2014).
About June 16, 2014, the Union again requested that
the Respondents recognize and bargain collectively with
it as the exclusive collective-bargaining representative of
the unit. Since about June 16, 2014, the Respondents
have failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of the unit.
Since about March 1, 2014, the Respondents have
changed the wages and benefits of the unit employees by
reducing their wages and benefits without notice to the
Union and without affording the Union an opportunity to
bargain with the Respondents.4

4 The complaint alleges a change in wages and benefits on about
March 1, 2014, more than 6 months before the filing of the charge.
However, the 6-month limitations period in Sec. 10(b) of the Act is an
affirmative defense that is waived if not timely raised. See, e.g., News-
paper & Mail Deliverers (New York Post), 337 NLRB 608, 609 (2002)
(citing Public Service Co., 312 NLRB 459, 461 (1993)). As the Re-
spondents have failed to file an answer to the complaint or a response
to the notice to show cause and have failed to raise a 10(b) defense, we
find the violations as alleged and shall issue an appropriate remedial
order. See, e.g., Malik Roofing Corp., 338 NLRB 930, 931 fn. 3
ENVIRONMENTAL CONTRACTORS, INC. 3
Since about November 17, 2014, the Union has re-
quested, orally and in writing, that the Respondents fur-
nish it with payroll and financial information necessary
to conduct a payroll audit. The information requested by
the Union is necessary for, and relevant to, the Union’s
performance of its duties as the exclusive collective-
bargaining representative of the unit. Since about De-
cember 26, 2014, the Respondents, by Respondent
Kielczewski’s president, Slawomir Kielczewski, in writ-
ing, have failed and refused to furnish the Union with the
requested information.
About January 1, 2014, Respondent BE Construction
purchased the business of Respondent Kielczewski, and
since that date has continued to operate the business of
Respondent Kielczewski in basically unchanged form
and has employed as a majority of its employees individ-
uals who were previously employees of Respondent
Kielczewski. Based on the operations described above,
Respondent BE Construction has continued the employ-
ing entity and is a successor to Respondent Kielczewski.
Before Respondent BE Construction purchased Re-
spondent Kielczewski, Respondent BE Construction was
put on notice of Respondent Kielczewski’s actual liabil-
ity in Board Case 22–CA–089865, orally, by Slawomir
Kielczewski to Barbara Reed, the president and an agent
of Respondent BE Construction. Based on the conduct
and operations described above, Respondent BE Con-
struction has continued the employing entity with notice
of Respondent Kielczewski’s actual liability to remedy
its unfair labor practices, and Respondent BE Construc-
tion is a successor to Respondent Kielczewski.
CONCLUSION OF LAW
By the conduct described above, the Respondents have
been failing and refusing to bargain collectively and in
good faith with the Union as the exclusive collective-
bargaining representative of their employees within the
meaning of Section 8(d) of the Act in violation of Sec-
tion 8(a)(5) and (1) of the Act. The unfair labor practices
of the Respondents affect commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Specifically, having found that the Respondents violat-
ed Section 8(a)(5) and (1) by refusing to bargain collec-
tively and in good faith within the meaning of Section

(2003); J. F. Morris Co., 292 NLRB 869, 870 fn. 2 (1989), enfd. mem.
881 F.2d 1076 (6th Cir. 1989).
8(d) of the Act with the unit employees’ exclusive col-
lective-bargaining representative, and by reducing unit
employees’ wages without giving the Union notice and
opportunity to bargain over the changes, we shall order
the Respondents to make the unit employees whole by
paying them the amounts set forth in attachment A of the
compliance specification, plus interest accrued to the
date of payment at the rate prescribed in New Horizons,
283 NLRB 1171 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
In addition, we shall order the Respondents to compen-
sate employees for any adverse tax consequences of re-
ceiving lump-sum backpay awards and to file a report
with the Regional Director for Region 22 allocating
backpay to the appropriate calendar years. AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016).
Further, having found that the Respondents violated
Section 8(a)(5) and (1) by failing and refusing to bargain
collectively and in good faith with the exclusive collec-
tive-bargaining representative of the unit within the
meaning of Section 8(d) of the Act by failing to remit
contributions to the Union’s benefit funds, we shall order
the Respondents to reinstitute payments to the benefit
funds and to make the benefit funds and the unit employ-
ees whole. Specifically, we shall order the Respondents
to make all such delinquent fund contributions on behalf
of unit employees in the amounts set forth in attachment
B of the compliance specification, including any addi-
tional amounts due the funds in accordance with Merry-
weather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979),
and to make the employees whole for any expenses they
may have incurred as a result of the Respondents’ failure
to make such payments as set forth in Kraft Plumbing &
Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. mem.
661 F.2d 940 (9th Cir. 1981), such amounts to be com-
puted in the manner set forth in Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons,
above, compounded daily as prescribed in Kentucky Riv-
er Medical Center, above.5
Having also found that the Respondents violated Sec-
tion 8(a)(5) and (1) by failing and refusing to furnish
information necessary for, and relevant to, the Union’s
performance of its duties as the exclusive collective-
bargaining representative of the unit, we shall order the

5 To the extent than an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respond-
ents will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondents other-
wise owe the fund.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Respondents to provide the Union with the requested
information.
Finally, having found that the Respondents violated
Section 8(a)(5) and (1) by failing to recognize and refus-
ing to bargain in good faith with the Union, we shall or-
der the Respondents to cease and desist therefrom and to
recognize and bargain with the Union on request.6
ORDER
The National Labor Relations Board orders that the
Respondents, Environmental Contractors, Inc.,
Kielczewski Corporation, and BE Construction Corpora-
tion, alter egos, a single employer and/or successor, West
Orange, New Jersey, their officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain col-
lectively and in good faith with Local 78, Laborers Inter-
national Union of North America (the Union) as the ex-
clusive collective-bargaining representative of the em-
ployees in the bargaining unit.
(b) Changing the terms and conditions of employment
of its unit employees without first notifying the Union
and giving it an opportunity to bargain.
(c) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondents’ unit employees.
(d) 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) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment, and if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time building and con-
struction laborers employed by the Employer in the

6 Consistent with the Board’s 2014 Order discussed above as en-
forced by the Third Circuit, we shall order the remedial notice attached
hereto as “Appendix” to be posted in English, Spanish, and Polish.
In the consolidated complaint and compliance specification, the
General Counsel also requests that we order the Respondents to mail
the remedial notice to all individuals employed in the unit since April
23, 2012, the date of the Union’s certification. We deny this request
because the General Counsel has not shown that this additional measure
is needed to remedy the effects of the Respondents’ unfair labor prac-
tices. See Pro Works Contracting, Inc., 362 NLRB No. 2, slip op. at 3
fn. 1 (2015).
State of New Jersey, but excluding all office clerical
employees, managers, guards and supervisors as de-
fined in the Act.
(b) Furnish to the Union in a timely manner the in-
formation requested by the Union on November 17,
2014.
(c) Rescind the changes in terms and conditions of
employment for its unit employees that were unilaterally
implemented on or after March 1, 2014.
(d) Remit to the Union’s benefit funds all contribu-
tions required and due under the collective-bargaining
agreement that expired on April 30, 2012, in the amounts
set forth in attachment B of the compliance specification,
totaling $656,690, plus any additional amounts due the
funds as set forth in the remedy section of this decision.
(e) Make the unit employees whole for any loss of
earnings suffered as a result of the Respondents’ unilat-
eral changes by paying them the amounts listed in at-
tachment A of the compliance specification, totaling
$820,190, plus any additional amounts due the employ-
ees as set forth in the remedy section of this decision.
(f) Compensate the affected unit employees for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards in the manner set forth in the remedy
section of this decision, and file with the Regional Direc-
tor of Region 22, 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 for each employee.
(g) 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,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
their facility in Orange, New Jersey, copies in English,
Spanish, and Polish of the attached notice marked “Ap-
pendix.”7 Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In

7 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.”
ENVIRONMENTAL CONTRACTORS, INC. 5
addition to such physical posting of paper notices, notic-
es 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 com-
municates with its employees by such means. Reasona-
ble 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 busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current and former em-
ployees employed by the Respondent at any time since
June 1, 2012.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 22 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 19, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
William J. Emanuel, Member
(SEAL) 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
violated 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 fail and refuse to recognize and bargain
collectively and in good faith with Local 78, Laborers
International Union of North America (the Union) as the
exclusive collective-bargaining representative of our
employees in the bargaining unit.
WE WILL NOT make unilateral changes to your terms
and conditions of employment without first notifying the
Union and giving it an opportunity to bargain.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
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, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment, and if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time building and con-
struction laborers employed by us in the State of New
Jersey, but excluding all office clerical employees,
managers, guards and supervisors as defined in the Act.
WE WILL rescind the changes in terms and conditions
of employment of unit employees that were unilaterally
implemented on or after March 1, 2014.
WE WILL remit to the Union’s benefit funds all contri-
butions required and due under the collective-bargaining
agreement that expired on April 30, 2012, totaling
$656,690, plus any additional amounts due the funds.
WE WILL make you whole for any loss of earnings at-
tributable to the unilateral changes we have made, total-
ing $820,190, plus interest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with Regional Director
for Region 22, 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 for each employee.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on November 17,
2014.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ENVIRONMENTAL CONTRACTORS, INC.,
KIELCZEWSKI CORPORATION AND THEIR ALTER
EGO, SINGLE EMPLOYER, AND/OR SUCCESSOR,
BE CONSTRUCTION CORPORATION
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-089865 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.