Ace Electric & Plumbing

National Labor Relations Board - Board Decisions

Nov 30, 2004

343 N.L.R.B. 84 (N.L.R.B. 2004)

1
Ace Electric and Plumbing, Inc. and Shade Tree Elec-
tric of Arkansas, Inc., a single employer and
Plumbers Local Union No. 68, AFL–CIO a/w
United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO. Case
16–CA–22807
November 30, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
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 October 28, 2003, the National Labor Relations
Board issued an Order1 that, among other things, ordered
the Respondent to make whole employees for any losses
they may have suffered as a result of the Respondent’s
failure to adhere to its 2002—2003 collective-bargaining
agreement with the Union, until it expired on September
30, 2003. On May 4, 2004, the United States Court of
Appeals for the Fifth Circuit issued its judgment enforc-
ing in full the Board’s Order.2
A controversy having arisen over the amount of back-
pay due the unit employees, on August 31, 2004, the
Regional Director issued a compliance specification and
notice of hearing alleging the amounts due under the
Board’s Order. The compliance specification notified
the Respondent that it should file a timely answer com-
plying with the Board’s Rules and Regulations. Al-
though properly served with a copy of the compliance
specification, the Respondent failed to file an answer.
On October 4, 2004, the Respondent’s counsel, by
telephone, informed a representative of Region 16 that
the Respondent would not file an answer to the compli-
ance specification. On the same date, a representative of
Region 16, by telephone, advised the Respondent’s
counsel that a motion for default judgment would be
filed if the Respondent failed to file an answer. Further,
by letter dated October 11, 2004, the Respondent’s coun-
sel informed counsel for the General Counsel that the
Respondent would not file an answer.
On October 18, 2004, the General Counsel filed with
the Board a Motion for Default Judgment, with exhibits
attached. On October 21, 2004, the Board issued an or-
der transferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be granted.

1 The unpublished Order adopted, in the absence of exceptions, the
decision of Administrative Law Judge Lawrence W. Cullen, which
issued on September 9, 2003 (JD(ATL)-61-03).
2 04-60094.
The Respondent filed no response. The allegations in the
motion and in 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 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 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-
eral Counsel’s Motion for Default Judgment. Accord-
ingly, we conclude that the amounts of backpay due the
unit employees and discriminatees are as stated in Ap-
pendices C and J of the compliance specification, and we
will order the Respondent to pay those amounts, plus
interest accrued to the date of payment. In addition, we
conclude that the contractual fringe benefit funds pay-
ments owed by the Respondent are as stated in Appendi-
ces E and K of the compliance specification, and we will
order the Respondent to pay those amounts to the funds
on behalf of the unit employees and the discriminatees.
ORDER
The National Labor Relations Board orders that the
Respondent, Ace Electric and Plumbing, Inc. and Shade
Tree Electric of Arkansas, Inc., a Single Employer,
Greenville, Texas, its officers, agents, successors, and
assigns, shall make whole the individuals named in the
attached Appendices A and B, by paying them the
amounts of backpay opposite their names, plus interest
accrued to the date of payment, as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), mi-
nus tax withholdings required by Federal and State laws.
The Respondent also shall make whole those individuals
for payments due the contractual fringe benefit funds by
paying the amounts set forth in the attached Appendices
C and D, plus the interest specified in the collective-
bargaining agreement for delinquent contributions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In summary, the amounts owed by the Respondent are
as follows:
BACKPAY: $98,491.24
FRINGE BENEFIT PAYMENTS: $63,509.68
TOTAL: $162,000.92