Classic Fire Protection, LLC, and its alter ego, Swift Fire Protection, LLC

National Labor Relations Board - Board Decisions

Nov 20, 2012

359 NLRB No. 23 (N.L.R.B. 2012)

359 NLRB No. 23
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.
Classic Fire Protection, LLC and its alter ego, Swift
Fire Protection, LLC and United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and
Canada, Local 669, AFL–CIO. Cases 09–CA–
044812, 09–CA–044814, and 09–CA–044926
November 20, 2012
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting General Counsel seeks default judgment in
this case on the ground that the Respondents, Classic Fire
Protection, LLC (Respondent Classic) and Swift Fire
Protection, LLC (Respondent Swift), have withdrawn
their answer and amended answer to the compliance
specification. On April 16, 2010, the Board issued an
unpublished Order1 that, among other things, required
Respondent Classic to make whole seven discharged
employees and three applicants for any loss of earnings
that they may have suffered as a result of its unfair labor
practices in violation of Section 8(a)(3) and (1) of the
Act.
A controversy having arisen over the amounts of
backpay due the discharged employees and applicants
under the Board’s Order, on November 30, 2011, the
Regional Director issued a compliance specification al-
leging the amounts due under the Board’s Order. Al-
though not a party to the original unfair labor practice
litigation, Respondent Swift was added to the compliance
specification and was alleged to be an alter ego of Re-
spondent Classic, and therefore alleged to be liable for
remedying Respondent Classic’s unfair labor practices.
The compliance specification alleged that the alter ego
relationship between Respondent Classic and Respon-
dent Swift is based on the common familial ownership
between Respondent Classic and Respondent Swift; an
insignificant hiatus between the cessation of Respondent
Classic’s operations and the commencement of Respon-
dent Swift’s operations; substantially identical manage-
ment, supervision, similar business purpose, customers,
operations, equipment and substantial familial support;
and an intent to avoid Respondent Classic’s liability un-
der the Act.

1 Unpublished Order adopting, in the absence of exceptions, the de-
cision of Administrative Law Judge Eric M. Fine issued on February
26, 2010 (JD–13–10).
On December 13, 2011 and January 11, 2012, respec-
tively, the Respondents filed an answer and amended
answer to the compliance specification. However, on
August 17, 2012, the Respondents entered into a compli-
ance stipulation with the Union, where they agreed to
withdraw their answers upon approval of the stipulation.
The Respondents also agreed that the Regional Director
could file an unopposed motion for default judgment and
further, that the Board could, without necessity of trial or
any other proceeding, find all allegations of the compli-
ance specification to be true and make findings of fact
and conclusions of law consistent with those allegations
adverse to the Respondents on all issues raised by the
pleadings. The Respondents expressly consented to the
entry of a Board Order providing a remedy in accordance
with the allegations of the compliance specification and
to the enforcement of such Order in the appropriate
United States court of appeals. The parties agreed that
the stipulation, the Board’s Decision and Order, and the
compliance specification constitute the entire record.
The stipulation also included the following provisions:
(1) Respondents will, upon notice that the compliance
stipulation has been approved by the Regional Director
for Region 9, immediately convey to Region 9 payment
of $1300; based on Respondents’ representations that
both Classic and Swift have been dissolved, are totally
out of business, and without additional assets with which
to satisfy the full backpay obligation, the Regional Direc-
tor and the Union agree that payment of this amount
shall constitute compliance with the backpay provisions
of the Board Order;2 (2) the parties agree that Mark
Meyer and Mathew Meyer are not, as individuals, per-
sonally liable for remedying the unfair labor practices of
Respondents as set forth in the compliance specification
and the Board’s Order; and (3) in the event that Respon-
dents, individually or collectively, resume operations or
acquire additional assets, the Regional Director shall
have the right to institute further proceedings to collect
the full amounts alleged in the compliance specification,
determine any additional amounts owed, and to obtain
reinstatement and instatement for the 10 discriminatees,
if appropriate.
On August 30, 2012, the Regional Director approved
the stipulation, and on September 21, 2012, the Respon-
dents withdrew their answers.
On October 1, 2012, the Acting General Counsel filed
with the Board a Motion for Default Judgment, with ex-
hibits attached. On October 3, 2012, the Board issued an

2 There is no indication whether Respondents have paid this amount
to the Region, but there is also no allegation that the Respondents have
breached this provision of the stipulation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be
granted. The Respondents filed no response. The allega-
tions 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 Respondents, although
initially filing an answer and amended answer to the
compliance specification, subsequently withdrew the
answers pursuant to the compliance stipulation. Such a
withdrawal has the same effect as failure to file an an-
swer, i.e., the allegations in the compliance specification
must be considered to be true.3
Based on the withdrawal of the Respondents’ answer
and amended answer to the compliance specification and
in accord with the parties’ stipulation, we deem the alle-
gations in the compliance specification to be admitted as
true, and grant the Acting General Counsel’s Motion for
Default Judgment. Accordingly, we conclude that Re-
spondent Swift is an alter ego of Respondent Classic, and
is therefore liable for remedying the unfair labor prac-
tices of Respondent Classic. We further conclude that
the net backpay due the discriminatees is as stated in the
compliance specification and we will order the Respon-
dents to pay those amounts, plus interest accrued to the
date of payment.

3 See Maislin Transport, 274 NLRB 529 (1985).
ORDER
The National Labor Relations Board orders that the
Respondents, Classic Fire Protection, LLC and its alter
ego, Swift Fire Protection, LLC, Westerville, Ohio, their
officers, agents, successors, and assigns, shall make
whole employees set forth below, by paying them the
amounts following their names, plus interest accrued to
the date of payment in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), mi-
nus tax withholdings required by Federal and State laws:4
Robert Ford $ 4960
Rich Forsha 0
Robert Huff 1504
James Patrick King 4960
Josh McKim 4650
Larry Meuse 5270
Benjamin Waldo 1504
Travis Anders 12,541
Daniel Cervi 0
Michael Stetham, Jr. 1168
Total amount due: $ 36,557
Dated, Washington, D.C. November 20, 2012
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Richard F. Griffin, Jr., Member
______________________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 The Board has declined to apply its new policy, announced in Ken-
tucky River Medical Center, 356 NLRB No. 8 (2010), of daily com-
pounding of interest on backpay awards, in cases such as this, that were
already in the compliance stage on the date that decision issued. Rome
Electrical Systems, Inc., 356 NLRB No. 38, slip op. at 1 fn. 2 (2010).