Harabedian Paving Co.

National Labor Relations Board - Board Decisions

Mar 28, 1997

323 N.L.R.B. 56 (N.L.R.B. 1997)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Harabedian Paving Company, and its Alter
Ego/Single Employer/Successor and Harpo
Company, Inc.1 and Fringe Benefit Funds,
Local 324, International Union of Operating
Engineers, AFL–CIO. Case 7–CA–35228
March 28, 1997
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On April 14, 1994, the National Labor Relations
Board issued a Decision and Order,2 inter alia, order­
ing Harabedian Paving Company, its officers, agents,
successors, and assigns, to make the unit employees
whole for its failure to make contractually required
fringe benefit fund contributions since May 17, 1993,
by making all such delinquent contributions and reim­
bursing the employees for any expenses ensuing from
its failure to do so. On November, 9, 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 liability of Re­
spondent Harabedian and an additional company,
Harpo Company, Inc., with respect to the amounts due
under the Board’s enforced order, on January 6, 1997,
the Regional Director for Region 7 issued an amended
compliance specification and notice of hearing against
the Respondents alleging the amounts due under the
Board’s Order, and notifying the Respondents that they
should file a timely answer complying with the
Board’s Rules and Regulations. Although the Respond­
ents initially filed an answer to the amended compli­
ance specification, they subsequently withdrew their
answer by letter dated February 11, 1997.
On February 24, 1997, the General Counsel filed
with the Board a Motion for Default Summary Judg­
ment, with exhibits attached. On February 25, 1997,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo­
tion should not be granted. The Respondents filed no
response. The allegations in the motion and in the
amended compliance specification are therefore undis­
puted.
1 Harpo Company, Inc. is the additional Respondent responsible
for the purpose of achieving compliance with the terms of the
Board’s Order.
2 313 NLRB 1079.
Ruling on the Motion for Default 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 Default Summary Judgment, although the
Respondents initially filed an answer to the amended
compliance specification, they subsequently withdrew
their answer. Such a withdrawal has the same effect as
the failure to file an answer, i.e., the allegations in the
amended compliance specification are deemed admit­
ted. See Maislin Transport, 274 NLRB 529 (1985).
Accordingly, we deem the allegations in the amended
compliance specification to be admitted as true, and
grant the General Counsel’s Motion for Default Sum­
mary Judgment. We therefore conclude that the
amounts due for the period covered by the amended
compliance specification are as stated therein,3 and we
will order payment by the Respondents of those
amounts, plus interest accrued on the amounts to the
date of payment.
FINDINGS OF FACT
At all material times, George Harabedian has been
president and a major stockholder of Respondent
Harabedian and George Bradley Harabedian Jr. has
been vice president and a major stockholder of Re­
spondent Harabedian.
Respondent Harpo was incorporated on October 14,
1993. From October 14, 1993, until June 13, 1996,
George Harabedian was the majority owner of Re­
spondent Harpo, and since June 13, 1996, George
Bradley Harabedian Jr. has been the majority owner of
Respondent Harpo.
In about spring 1994, George Harabedian and
George Bradley Harabedian Jr. caused Respondent
Harpo to take over and continue to operate the busi-
3 The compliance specification only appears to cover the last three
quarters in 1993. The specification also alleges that since spring
1994 Respondent Harpo has failed to make any contractually re­
quired payments to the fringe benefit funds and that the Respondents
are also obligated to make such contributions, including liquidated
damages, for employees employed since that time. However, the
specification does not set forth the amounts due for that period.
323 NLRB No. 56
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ness of Respondent Harabedian in essentially un­
changed form and as a disguised continuance of Re­
spondent Harabedian.
At all material times, Respondent Harabedian and
Respondent Harpo have been business enterprises hav­
ing common ownership, common officers, common
management and supervision, common business pur­
pose, operation and customers, overlapping common
premises and facilities, interchange of personnel, com­
mon labor relations policies and have variously held
themselves out to the public as a single enterprise.
Based on the conduct described above, Respondent
Harabedian and Respondent Harpo are alter egos and
a single employer within the meaning of the Act and
are liable, jointly and severally, to remedy the unfair
labor practices of Respondent Harabedian. Based on
the conduct and operations described above, Respond­
ent Harpo continued as the employing entity with no­
tice of the potential liability of Respondent Harabedian
to remedy its unfair labor practices and is a successor
to Respondent Harabedian.
ORDER
The National Labor Relations Board orders that the
Respondents, Harabedian Paving Company and Harpo
Company, Inc., Troy, Michigan, their officers, agents,
successors, and assigns, shall make whole the unit em­
ployees by paying the amounts listed below, plus inter­
est on the amounts due for employee expenses4 and
any additional amounts due the funds as set forth in
the agreement.5
4 See New Horizons for the Retarded, 283 NLRB 1173 (1987).
5 See Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
Health Care Fund: $13,438.53

Pension Fund: 12,302.88

Retiree Benefit

Fund: 757.10

Vacation Fund: 9,026.40

Supplemental

Vacation Fund: 75.71

Apprentice Fund: 567.83

Advancement

Promotion Fund: 227.13

Labor Management

Fund: 264.99

Liquidated Damages: 3,666.06

TOTAL CONTRIBUTIONS AND

LIQUIDATED

DAMAGES: 40,326.63

Richard Ortwine: 867.66

TOTAL DUE: $41,194.29

Dated, Washington, D.C. March 28, 1997

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William B. Gould IV, Chairman
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Sarah M. Fox, Member
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John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD