Extreme Services Corp.

National Labor Relations Board - Board Decisions

Apr 29, 2009

354 N.L.R.B. 80 (N.L.R.B. 2009)

354 NLRB No. 6
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.
Extreme Building Services Corp. and Emil Braun, its
guarantor and Local 78, Asbestos Lead and
Hazardous Waste Union, Laborers International
Union of North America, AFL–CIO. Cases 29–
CA–24894, 29–CA–25007, 29–CA–25082
April 29, 2009
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks summary judgment in this
case pursuant to the terms of a settlement agreement. On
April 30, 2007, the National Labor Relations Board is-
sued a Decision and Order1 that, inter alia, directed Re-
spondent Extreme Building Services Corp. to make
whole five discriminatees for the loss of earnings and
other benefits resulting from their discharges in violation
of Section 8(a)(3) and (1) of the Act.
On July 30, 2008, the Regional Director approved a
settlement agreement, executed by all parties, resolving
the amount of backpay due to the discriminatees2 under
the Board’s Order. Pursuant to the terms of the settle-
ment agreement, the Respondents agreed to pay the dis-
criminatees a total of $65,519, which represented
$46,000 in backpay, $3519 in Employer F.I.C.A. and
Medicare contributions, and $16,000 in interest due at
the time of the settlement agreement.3 The amounts due
were to be paid in two installments of $32,759.50. The
settlement agreement also contained the following provi-
sions:
1. Respondent hereby waives its rights under
Sections 10(e) and (f) of the National Labor Rela-
tions Act (29 U.S.C. 160(e) and (f)) to contest either
the propriety of the Board’s Order issued on April
30, 2007 or the findings of fact and conclusions of
law underlying that Order.
. . . .
5. (a) If either installment payment is not re-
ceived in the Board’s Treasury account on or before

1 349 NLRB 914 (2007).
2 Although five discriminatees were included in the make-whole
remedy in the Board’s Order, only four of the five individuals are
named in the settlement agreement, compliance specification, and
Motion for Summary Judgment.
3 Respondent Emil Braun, though not listed as a Respondent in the
Board’s original Decision and Order, signed the settlement agreement,
pursuant to which he agreed to personally pay the balance owed under
the settlement agreement in the event of an uncured default by Respon-
dent Extreme Building Services Corp.
the dates set forth in paragraph 4 above, Respondent
shall be in default. In such an event, the Regional
Director, or his designated agent, shall provide Re-
spondent by facsimile transmission with written no-
tice providing it with seven (7) calendar days to cure
such default. It shall be addressed to [the Respon-
dents’ attorney].
. . . .
(c) If, within the seven (7) calendar day default
cure period, the delinquent amount owed under the
terms of this Stipulation is not received in the
Board’s Treasury account, the Regional Director for
Region 29, in his discretion, may declare, by written
notice served upon [the Respondent’s attorney], in
the manner set forth in paragraph 5(a), that the full
unpaid portion of the remaining indebtedness is im-
mediately due and payable. Such notice will spe-
cifically state the final date, seven (7) calendar days
from the date of the notice, that the accelerated-
payment must be received.
(d) Upon expiration of the accelerated-payment
period, if Respondent has failed to make payment of
the full unpaid balance owed under this Stipulation,
the Respondent will be required to pay the Board in-
terest on this amount from the date this Stipulation is
approved by the Regional Director until the date that
full payment is received, computed at the rate of
12% annually, or in accordance with the formulas
set forth in New Horizons for the Retarded, Inc., 283
NLRB 1173 (1987), whichever is greater.
6. In the absence of full payment of the
$65,519, and, if applicable, additional interest
thereon, the General Counsel may, upon the expira-
tion of the accelerated-payment period, without fur-
ther notice, issue a Compliance Specification and
Notice of Hearing (“the Specification”), alleging to-
tal net backpay of $74,187.07 on behalf of discrimi-
natees Betsy Arruda, Maria Ortega, Andrzej Siemek
and Jerzy Sokol, plus accrued interest as set forth in
paragraph 5(d) and reduced by any payment(s) re-
ceived from the Respondent pursuant to the install-
ment payment provision of this Stipulation, . . . .4
The Respondent understands and agrees that the al-
legations of the Specification, as described in this
paragraph, may be deemed to be true by the Board,
that it will not contest the validity of any such alle-
gations, and the Board may enter findings of fact,

4 Although it appears that some additional material was omitted from
the copy of the settlement agreement that the General Counsel submit-
ted with his Motion for Summary Judgment, the language quoted above
is sufficient to enable the Board to grant the appropriate remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
conclusions of law, and a Supplemental Order on the
allegations of the aforementioned Specification. On
receipt of said Motion for Summary Judgment, the
Board shall issue an Order requiring the Respondent
to show cause why said Motion of the General
Counsel should not be granted. The only issues that
may be raised in response to the Board’s Order to
Show Cause are whether the Respondent defaulted
upon the terms of this Stipulation, whether it re-
ceived the required notice(s) to cure its default(s),
and whether a proper setoff has been credited for
payments already received by the Board. The Board
may then, without necessity of trial or any other pro-
ceeding, find all allegations of the Specification to
be true and make findings of fact and conclusions of
law consistent with those allegations adverse to the
Respondent, on all issues raised by the pleadings.
The Board may then issue a Supplemental Order
providing for payment by the Respondent of a
minimum net backpay of $74,187.07, plus accrued
interest as set forth in paragraph 5(d), less any pay-
ment already deposited with the Board, and the ap-
plicable Employer F.I.C.A. and Medicare contribu-
tions. The parties further agree that the Board’s
Supplemental Order may be entered upon applica-
tion by the Board to the appropriate United States
Court of Appeals for enforcement of the Board’s
Supplemental Order. The only issues that Respon-
dent may raise in response to the Board’s application
to the appropriate United States Court of Appeals are
whether it received the required notice(s) to cure its
default(s), and the amount of payments Respondent
has already deposited with the Board.
7. If the Regional Director elects to file a Motion
for Summary Judgment, Respondent agrees to reim-
burse the Board for all reasonable costs and attor-
neys’ fees incurred by the Board, at the prevailing
market rate, in connection with the prosecution of
that action.
The Respondents failed to make the second installment
payment required by the terms of the settlement agree-
ment, which was due on December 10, 2008. On De-
cember 17, 2008, the Regional Director granted the Re-
spondents an extension of time to make the past-due in-
stallment payment, and he agreed to modify the settle-
ment agreement by permitting the remaining payment to
be paid in two additional installments due January 12 and
February 10, 2009, respectively.5 By letters dated Janu-

5 By letter to the Respondents’ attorney dated December 22, 2008,
counsel for the General Counsel confirmed the attorney’s statement that
Braun agreed to comply with these conditions.
ary 14 and 22, 2009, the Regional Director notified the
Respondents that they were in default of the settlement
agreement and had failed to cure the default within 7
days, and he reminded the Respondents of the conse-
quences of default, as specified in the settlement agree-
ment. The Regional Director also gave the Respondents
an additional 7 days, until January 29, 2009, to cure the
default. Although the Respondents made a $5000 pay-
ment to the Board on February 10, 2009,6 the Respon-
dents have failed to make the remaining payments due
pursuant to the modified settlement agreement.
On February 25, 2009, the Regional Director for Re-
gion 29 issued a compliance specification alleging the
amount due under the Board’s Order, pursuant to the
noncompliance provisions of the settlement agreement.
Also on February 25, 2009, the General Counsel filed
with the Board a Motion for Summary Judgment, with
exhibits attached. On March 9, 2009, the Board issued
an order transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not be
granted.7 The Respondents filed no response. The alle-
gations in the motion and in the compliance specification
are therefore undisputed.
Ruling on the Motion for Summary Judgment8
According to the uncontroverted allegations of the Mo-
tion for Summary Judgment, the Respondents have
breached the terms of the settlement agreement by failing
to make the second installment payment required by the
settlement agreement. Consequently, pursuant to the
noncompliance provisions of the settlement agreement
set forth above, we find that the entire backpay amount
of $74,187.07, plus interest and applicable Employer
F.I.C.A. and Medicare contributions, plus reasonable
costs and attorneys’ fees as described in the settlement
agreement, is immediately due, less any payments al-
ready deposited with the Board9 and tax withholdings
required by Federal and State laws.10 Accordingly, we

6 The compliance specification (discussed below) indicates that this
$5000 was allocated entirely to backpay.
7 This Notice to Show Cause corrected an error in the Notice to
Show Cause dated March 4, 2009.
8 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
9 These payments already deposited with the Board are $28,000
(backpay), $1759.50 (Employer F.I.C.A. and Medicare contributions),
and $8000 (interest).
10 See Tom Cat Development Corp., 340 NLRB 193 (2003).
EXTREME BUILDING SERVICES CORP. 3
grant the General Counsel’s Motion for Summary Judg-
ment, and we will order the Respondents to pay the
amounts specified in the settlement agreement and com-
pliance specification.
ORDER
The National Labor Relations Board orders that the
Respondent, Extreme Building Services Corp., Great
Neck, New York, its officers, agents, successors, and
assigns, and Emil Braun, its guarantor, shall make whole
Betsy Arruda, Maria Ortega, Andrej Siemak, and Jerzy
Sokol, by paying to the Board, on behalf of those indi-
viduals, the outstanding amounts of $74,187.07 in back-
pay and $16,000 in interest through July 30, 2008, plus
additional interest accrued on the unpaid balance of net
backpay owed until the date of payment, at the rate of 12
percent annually or in the manner set forth in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), which-
ever is greater, plus applicable Employer F.I.C.A. and
Medicare contributions, plus reasonable costs and attor-
neys’ fees as described in the settlement agreement, mi-
nus the amounts already paid to the Board, and minus tax
withholdings required by Federal and State laws.
TOTAL BACKPAY DUE: $46,187.07
Dated, Washington, D.C. April 29, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD