Environmental Construction

National Labor Relations Board - Board Decisions

Jan 29, 2001

333 N.L.R.B. 10 (N.L.R.B. 2001)

333 NLRB No. 10
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 Construction, Inc., and Wayne A.
Moore and Junior Allen Smith and Sheet Metal
Workers International Association Local No. 2.
Case 17–CA–19890
January 29, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS WALSH
AND HURTGEN
On February 18, 2000, the National Labor Relations
Board issued an unpublished Order, directing Respon-
dent Environmental Construction Inc., its officers,
agents, successors, and assigns, to make whole em-
ployee-applicant Tim Moran for any loss of earnings and
other benefits resulting from its discriminatory refusal to
hire him in violation of the National Labor Relations Act.
On May 24, 2000, the Eighth Circuit issued an unpub-
lished judgment enforcing the Board’s Order.
A controversy having arisen over the amount of back-
pay due Tim Moran, as well as whether Wayne A. Moore
and Junior Allen Smith should be held individually li-
able, on November 3, 2000, the Regional Director for
Region 17 issued a compliance specification and notice
of hearing alleging the amount due under the Board’s
Order and the personal liability of Wayne Moore and
Junior Allen Smith for that amount, and notifying the
Respondents that they should file timely answers com-
plying with the Board’s Rules and Regulations. Al-
though properly served with copies of the compliance
specification, the Respondents failed to file answers.1
On December 13, 2000, the General Counsel filed with
the Board a Motion for Default Summary Judgment, with
exhibits attached. On December 14, 2000, 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 Respondents again filed no response.
The allegations in the motion and in the compliance
specification are therefore undisputed.

1 The copies of the compliance specification were served by certified
mail and by regular mail on Respondent Environmental Construction,
Inc., at its last known address, but were returned by the United States
Postal Service on November 8, and 24, 2000, with stamps that stated,
“Moved, Left No Address.” On November 3, 2000, a copy of the speci-
fication was served by certified mail on Respondent Wayne A. Moore
at his last known address, and was returned by the United States Postal
Service on December 4, 2000, with stamps indicating that notice was
given on November 4 and 20, 2000, and the material was “unclaimed.”
A respondent’s failure to provide for receiving appropriate service of
documents or to claim certified mail cannot defeat the purposes of the
Act. National Automotive Sprinklers, 307 NLRB 481 fn. 1 (1992), and
Michigan Expediting Service, 282 NLRB 210 fn. 6 (1986). On No-
vember 3, 2000, a copy of the specification was served on Respondent
Junior Allen Smith by certified mail and was received by him on No-
vember 6, 2000.
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 Regula-
tions states:

If the respondent fails to file any answer to the speci-
fication 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 mo-
tion for default summary judgment, the Respondents,
despite having been advised of the filing requirements,
have failed to file answers to the compliance specifica-
tion.2 In the absence of good cause for the Respondents’
failure to file answers, we deem the allegations in the
compliance specification to be admitted as true, and grant
the General Counsel’s motion for default summary
judgment. Accordingly, we conclude that the net back-
pay due Tim Moran is as stated in the compliance speci-
fication and we will order payment by the Respondents
of said amount to him, plus interest accrued on said
amount to the date of payment. Further, we conclude
that, as alleged in the compliance specification, Respon-
dents Wayne A. Moore and Junior Allen Smith have
failed to observe corporate formalities and have inter-
mingled their individual affairs with those of Respondent
Environmental. Thus, they are individually and severally
liable to remedy the unfair labor practices of Respondent
Environmental and for the backpay and interest due pur-
suant to this Order.
ORDER
The National Labor Relations Board orders that the
Respondent, Environmental Construction Inc., Blue
Springs, Missouri, its officers, agents, successors, and
assigns, and Respondents Wayne A. Moore and Junior
Allen Smith as individuals, shall, jointly and severally,
make whole the individual named below, by paying him
the amount following his name, plus interest as set forth

2 It appears that no warning letter was sent to any of the named Re-
spondents advising them that no response had been received and that a
Motion for Default Summary Judgment would be entered. However,
even assuming arguendo that no letter was sent, it is well established
that this warning letter is not required by the Act or the Board’s Rules.
Bricklayers Local 31, 309 NLRB 970 (1992); Superior Industries, 289
NLRB 834, 835 (1988). Finally, although the Board’s Casehandling
Manual provides for the reminder letter, the failure of the Regional
Office to send one does not excuse the Respondent’s failure to file a
timely answer. Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
in New Horizons for the Retarded, 283 NLRB 1173
(1987), and minus tax withholdings required by Federal
and state laws:3

Tim Moran $53,021.42

3 The General Counsel’s compliance specification requests that the
Board order the Respondent to “reimburse Moran for any extra Federal
and/or state income taxes that would or may result from the lump-sum
payment of this backpay award.” The General Counsel’s proposed
Order would represent a change in Board law. See, e.g., Hendrickson
Bros., 277 NLRB 438, 440 (1985), enfd. 762 F.2d 990 (2d. Cir. 1985).
We believe that the question should be resolved after full briefing by
affected parties. See Kloepfers Floor Covering, Inc., 330 NLRB No.
126 fn. 1 (2000). Because there has been no such briefing in this no-
answer case, we decline to include this additional relief in the Order.

Dated, Washington, D.C. January 29, 2001

John C. Truesdale, Chairman

Peter J. Hurtgen, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD