Art Berger

National Labor Relations Board - Board Decisions

Jul 19, 1996

321 N.L.R.B. 815 (N.L.R.B. 1996)

815
321 NLRB No. 114
ART BERGER
1 313 NLRB 1129.
2 The letter was sent by both certified and regular mail. Although
the certified letter was returned to the Regional Office marked ‘‘un-
claimed,’’ failure or refusal to accept service cannot defeat the pur-
poses of the Act. See, e.g., Michigan Expediting Service, 282 NLRB
210 fn. 6 (1986). In addition, the failure of the Postal Service to re-
turn documents served by regular mail indicates actual receipt of
those documents by the Respondent. Lite Flight, Inc., 285 NLRB
649, 650 (1987). Furthermore, even if no further reminder or warn-
ing of the consequences of failing to file an answer were sent or
given to the Respondent, this would not warrant denial of the mo-
tion. See, e.g., Superior Industries, 289 NLRB 834, 835 fn. 13
(1988).
Art Berger, a sole proprietor d/b/a Art Berger and
Detroit Area Local 67, Operative Plasterers’
and Cement Masons International Association,
AFL–CIO. Case 7–CA–35151
July 19, 1996
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
On April 28, 1994, the National Labor Relations
Board issued a Decision and Order,1 inter alia, order-
ing Art Berger, a sole proprietor d/b/a Art Berger,
Romeo, Michigan, to make whole its unit employees
by making all contributions it had failed to make since
May 15, 1993, to the fringe benefit funds required by
its collective-bargaining agreement with Detroit Area
Local 67, Operative Plasterers’ and Cement Masons
International Association, AFL–CIO. On October 19,
1994, the United States Court of Appeals for the Sixth
Circuit entered its judgment enforcing the Board’s
Order.
A controversy having arisen over the amounts due
the fringe benefit funds, on March 4, 1996, the Re-
gional Director for Region 7 issued a compliance spec-
ification and notice of hearing alleging the amounts
due under the Board’s Order, and notifying the Re-
spondent that it should file a timely answer complying
with the Board’s Rules and Regulations. Although
properly served with a copy of the compliance speci-
fication, the Respondent failed to file an answer.
By letter dated March 28, 1996,2 the Region advised
the Respondent that no answer to the compliance spec-
ification had been received and that unless an appro-
priate answer were filed by April 12, 1996, summary
judgment would be sought. The Respondent filed no
answer.
On June 17, 1996, the General Counsel filed with
the Board a Motion to Transfer Case to the Board and
for Summary Judgment, with exhibits attached. On
June 20, 1996, 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 Re-
spondent again 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 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 Regu-
lations states:
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 allegations 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
Motion for Summary Judgment, the Respondent, de-
spite having been advised of the filing requirements,
has failed to file an answer to the compliance speci-
fication. In the absence of good cause for the Respond-
ent’s failure to file an answer, we deem the allegations
in the compliance specification to be admitted as true,
and grant the General Counsel’s Motion for Summary
Judgment. Accordingly, we conclude that the amounts
due the fringe benefit funds are as stated in the com-
pliance specification, and we will order payment by
the Respondent of $5,522.40 to the fringe benefit
funds on behalf of the unit employees, plus interest ac-
crued on the amounts to the date of payment.
ORDER
The National Labor Relations Board orders that the
Respondent, Art Berger, a sole proprietor, Romeo,
Michigan, its officers, agents, successors, and assigns,
shall pay the following amounts, plus any additional
amounts that accrue on those amounts to the date of
payment as computed in accordance with Merry-
weather Optical Co., 240 NLRB 1213 (1979):
FRINGE BENEFIT FUND CONTRIBUTION
Health Care $2,160.00
Pension $1,800.00
Vacation $1,080.00
Apprentice $72.00
Int Pension $360.00
Ind. Promot $50.40
lll
TOTAL: $5,522.40