AAA Fire Sprinkler, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 2001

336 N.L.R.B. 106 (N.L.R.B. 2001)

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.
I.W.G., Inc., d/b/a AAA Fire Sprinkler, Inc.; Con–
Bru, Inc., d/b/a AAA Fire Sprinkler, Inc.;
Robert B. Gordon; Arlene, Inc., d/b/a AAA Fire
Supression, Inc. and Road Sprinkler Fitters Lo­
cal Union No. 669, U.A., AFL–CIO. Cases 27–
CA–11771 and 27–CA–11870
November 23, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
The National Labor Relations Board’s original Deci­
sion and Order in this case issued on August 27, 1996.1
The Board’s August 27, 1996 Decision and Order di­
rected I.W.G., Inc., d/b/a AAA Fire Sprinkler, Inc. (Re­
spondent I.W.G.), Con–Bru, Inc., d/b/a AAA Fire Sprin­
kler, Inc. (Respondent Con–Bru), and Arlene, Inc., d/b/a
AAA Fire Suppression, Inc. (Respondent Arlene), their
officers, agents, successors, and assigns, and Robert B.
Gordon (Respondent Gordon), an individual, his agents,
successors, and assigns, jointly and severally to take cer­
tain affirmative actions, including: (1) making whole all
former I.W.G., Con–Bru, and Arlene employees for any
loss of earnings and other benefits suffered as a result of
the Respondents’ unfair labor practices in violation of
Section 8(a)(3) and (5) of the National Labor Relations
Act; (2) making all delinquent contributions to employee
benefit funds, including any additional amounts due the
funds; and (3) mailing copies of the notice attached to the
Board’s Order to the Union and the last known address
of all former employees.
On April 10, 2000, the U.S. Court of Appeals for the
Tenth Circuit entered its judgment enforcing the Board’s
Order.2
A controversy having arisen over the amount of back-
pay due discriminatees and on other compliance matters,
on April 11, 2001, the Regional Director for Region 27
issued an amended compliance specification and notice
of hearing alleging the amounts due under the Board’s
Order, and notifying the Respondents that they should
file a timely answer complying with the Board’s Rules
1 322 NLRB 69. On May 18, 1998, the United States Court of Ap­
peals for the Tenth Circuit issued a decision in which it enforced in part
and denied enforcement in part of the Board’s decision, and remanded
the case to the Board for further proceedings. 144 F.3d 685. On Feb­
ruary 12, 1999, the Board issued an unpublished Order remanding the
proceeding to the administrative law judge for further hearing. There-
after, on July 9, 1999, the administrative law judge issued a Supple-
mental Decision recommending that the Board’s Order of August 27,
1996, be sustained and affirmed. No exceptions were filed to the
judge’s decision, and on August 25, 1999, the Board sustained and
affirmed its earlier Decision and Order.
2 No. 00–9509.
and Regulations. Although properly served with copies
of the amended compliance specification, none of the
Respondents filed an answer.3
On September 10, 2001, the Ge neral Counsel filed
with the Board a Motion to Transfer Case to the Board
and for Summary Judgment, with exhibits attached. On
September 17, 2001, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondents again filed no response. The allegations in
the motion and in the amended compliance specification
are therefore undisputed.
Ruling on the Motion for Summary Judgment
Section 102.56(a) of the Board’s Rules and Regula­
tions provides that the Respondent shall file an answer
within 21 days from service of a compliance specifica­
tion. Section 102.56(c) of the Board’s Rules and Regula­
tions states:
If the respondent fails to file any answer to the specifi­
cation 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 with-
out further notice to the respondent, find the specifica­
tion to be true and enter such order as may be appropri­
ate.
According to the uncontroverted allegations of the Mo­
tion for Summary Judgment, the Respondents, despite
having been advised of the filing requirements, have
failed to file an answer to the amended compliance speci­
fication. In the absence of good cause for the Respon­
dents’ failure to file an answer, we deem the allegations
in the amended compliance specification to be admitted
as true, and grant the General Counsel’s Motion for
Summary Judgment. Accordingly, we conclude that the
net backpay due the discriminatees and the benefit funds
is as stated in the amended compliance specification, and
3 Respondent Arlene informed the General Counsel that the
amended compliance specification had been received and that no an­
swer would be filed on its behalf. The return receipt from Respondent
Con–Bru indicates that Respondent Con–Bru received the amended
compliance specification. Copies of the amended compliance specifi­
cation served on Respondent I.W.G. at a post office address by certified
and regular mail were returned to the Regional Office by the United
States Postal Service marked “Box Closed—Unable to Forward—
Return to Sender,” but the copies served on Respondent I.W.G. at a
street address by cert ified and regular mail have not been returned,
although the return receipt for the certified mailing has not been re­
ceived. Copies of the amended compliance specification served on
Respondent Gordon at his last known addresses by certified and regular
mail were returned to the Regional Office by the United States Postal
Service. Respondent Gordon’s and Respondent I.W.G.’s failure to
provide for receiving appropriate service cannot defeat the purposes of
the Act. See, e.g., National Automatic Sprinklers, 307 NLRB 481 fn. 1
(1992). In addition, the fact that certain Respondents may no longer be
in business does not constitute good cause for their failure to file an
answer and is not a basis for denying the Motion for Summary Judg­
ment. See, e.g., Beaumont Glass Co., 316 NLRB 35 fn. 1 (1995).
336 NLRB No. 106
2 AAA SPRINKLER
we will order payment by the Respondents of said
amounts to the discriminatees and funds, plus interest
accrued on said amounts to the date of payment.
ORDER
The National Labor Relations Board orders that the
Respondents, I.W.G., Inc., d/b/a AAA Fire Sprinkler,
Inc., Con–Bru, Inc., d/b/a AAA Fire Sprinkler, Inc., and
Arlene, Inc., d/b/a AAA Fire Suppression, Inc., their of­
ficers, agents, successors, and assigns, and Respondent
Robert B. Gordon, an individual, his agents, successors,
and assigns, shall, jointly and severally, make whole the
individuals and funds as set forth in Appendix No. 37 in
the amended compliance specification, by paying them
the amounts following their names, with interest on the
backpay owed as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), and any additional
amounts accruing on the fund contributions as prescribed
in Merryweather Optical Co., 240 NLRB 1213 (1979),
minus tax withholdings on the backpay due the individu-
Todd Morton $ 17,374
Kent Pierceall $ 27,759
Jeffrey Schleusner $ 40,765
William Stanek $ 19,303
Gerald Urquidez $ 14,284
Rick Vancenbrock $ 831
Benjamin Wildeman $ 27,534
TOTAL BACKPAY: $482,923
National Automatic Sprinkler $179,388
Industry Welfare Fund
National Automatic Sprinkler $119,704
Industry Pension Fund
NASI–Local 669 Industry $ 10,777
Education Fund
Sprinkler Industry Supple- $ 28,802
mental Defined Contribution
Pension Fund
TOTAL FUND PAYMENTS: $338,671
GRAND TOTAL: $821,5944
Dated, Washington, D.C., November 23, 2001
Peter J. Hurtgen, Chairman
Wilma B. Liebman, Member
Dennis P. Walsh, Member
als as required by Federal and State laws:
Daniel Anderson $ 10,892
John Arguello $ 18,917
Donald Blair $ 21,240
Gary Blair $ 12,226
Robert Clark, Jr. $ 11,029
William Collins $ 44,778
Terry Cooper $ 30,593
Paul Crowley $ 8,337
John Elliott $ 171
Michael Flis $ 4,825
Darrell Grieser $ 5,887
Troy Hartman $ 8,826
Mike Hernandez $ 2,179
Dean Highland $ 10,828
Richard Hudson $ 1,956
Justin Jones $ 16,291
William Kolb $ 9,456
Duane Kopp $ 47,423
Kory Koralewski $ 5,732
Ken Levosky $ 28,227
Tim Martinez $ 17,506
Ronnie Metter $ 12,800
Thomas Monroe $ 4,953
(SEAL) NATIONAL LABOR RELATIONS BOARD
4 Without delving into the underlying amounts and calculations set
forth in the 37 appendices to the amended compliance specification, we
have amended the amounts set forth in the summary in appendix 37 to
accurately reflect the following numbers: The sum of the backpay owed
is $482,923, not $482,924, and the grand total owed is $821,594, not
$821,593. These minor errors do not provide a basis on which to deny
the General Counsel’s uncontested Motion for Summary Judgment.