Jim Rogers Superior Insulation

National Labor Relations Board - Board Decisions

Oct 29, 1990

300 N.L.R.B. 565 (N.L.R.B. 1990)

565
300 NLRB No. 61
JIM RODGERS SUPERIOR INSULATION
1 296 NLRB No. 66 (not reported in Board volume).
2 The court’s judgment was numbered 89–70539.
3 The Respondent was obligated under its collective-bargaining agreement
with the Union to remit 76 cents per employee hour in union dues to the
Union on behalf of all employees who had signed dues-deduction authorization
forms.
4 Sec. 102.56(c) states, in relevant part, as follows:
(c) Effect of failure to answer or to plead specifically and in detail to
the specification.—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 speci-
fication and without further notice to the respondent, find the specification
to be true and enter such order as may be appropriate.
Jim Rodgers d/b/a Jim Rodgers Superior Insulation
and Superior Abatement, Inc., All State Insula-
tion, and Construction Services, Alter Egos and
Heat and Frost Insulators and Asbestos Work-
ers Local No. 16, a/w International Association
of Heat and Frost Insulators and Asbestos
Workers, AFL–CIO. Case 32–CA–9650
October 29, 1990
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
RAUDABAUGH
On September 8, 1989, the Board issued a Decision
and Order in this proceeding,1 ordering, inter alia, that
the Respondent, Jim Rodgers d/b/a Jim Rodgers Supe-
rior Insulation, comply with its collective-bargaining
agreement with Heat and Frost Insulators and Asbestos
Workers Local No. 16, a/w International Association
of Heat and Frost Insulators and Asbestos Workers,
AFL–CIO (the Union), effective by its terms from Au-
gust 1, 1986, through July 31, 1989; pay all fringe
benefits contributions, including vacation and health
and welfare and pension contributions, required by the
collective-bargaining agreement; make its unit employ-
ees whole for any losses resulting from its repudiation
of the collective-bargaining agreement and reimburse
them for expenses ensuing from its failure to pay
fringe benefit contributions; reinstate unfair labor prac-
tice strikers on their application; and make any em-
ployee improperly denied reinstatement whole for any
loss of earnings. On March 22, 1990, the United States
Court of Appeals for the Ninth Circuit entered a judg-
ment enforcing the Board’s Order in full.2
On April 20, 1990, the Acting Regional Director for
Region 32 issued a compliance specification and notice
of hearing (the specification) that set forth the Re-
spondent’s liability for failing to make fringe benefit
contributions and deduct dues3 from April 1988, when
it unilaterally ceased the contributions and the deduc-
tion of dues, until July 31, 1989, when its collective-
bargaining agreement with the Union expired. The
specification also set forth the Respondent’s liability
under article IX, section 8 of the collective-bargaining
agreement for liquidated damages and interest for its
failure to make fringe benefit contributions. A copy of
the specification was sent by certified mail to the Re-
spondent which the Respondent did not claim. On May
15, 1990, the Region’s compliance officer sent a letter
to the Respondent, by certified mail, notifying the Re-
spondent that no answer had been received to the spec-
ification, and that unless the Respondent filed an an-
swer by May 21, 1990, the Region would institute
summary judgment proceedings. The Respondent did
not claim the May 14, 1990 letter.
On July 3, 1990, the compliance officer sent individ-
ually, by certified and regular mail, copies of the spec-
ification with cover letters to Superior Abatement, Inc.,
All State Insulation, and Construction Services advis-
ing them that, as alleged alter egos in the specification,
they had to be accorded an opportunity to answer the
specification and that they had until July 30, 1990, to
file an answer. The certified letters were not claimed.
The letters sent by regular mail, however, were not re-
turned to the Regional Office as undelivered or un-
deliverable. To date, no answer to the specification has
been filed by the Respondent, Superior Abatement,
Inc., All State Insulation, or Construction Services.
On August 2, 1990, the General Counsel filed a Mo-
tion for Summary Judgment. On August 6, 1990, the
Board issued an order transferring proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent, Superior
Abatement, Inc., All State Insulation, and Construction
Services failed to file a response. The allegations in
the motion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceediing to a three-member
panel.
On the entire record in this proceeding, the Board
makes the following
Ruling on Motion for Summary Judgment
Section 102.56(c)4 of the Board’s Rules and Regula-
tions provides that if the Respondent fails to file an an-
swer within 21 days from service of the specification,
the Board may find the specification to be true and
enter such order as may be appropriate. It is apparent
from the evidence and representations submitted by the
General Counsel that the failure of the Respondent,
Superior Abatement, Inc., All State Insulation, and
Construction Services to answer or otherwise respond
to either the specification or the Motion for Summary
Judgment is not due to their lack of knowledge of
these documents.
As we noted in Michigan Expediting Services, 282
NLRB 210 fn. 6 (1986), ‘‘The Respondent’s refusal or
failure to claim certified mail should not serve to de-
feat the purposes of the Act.’’ Therefore, we deem the
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The specification alleges, and we find, that Superior Abatement, Inc., All
State Insulation, and Construction Services are alter egos of the Respondent
and of each other and are therefore liable for all liabilities arising under the
Board Order.
6 The General Counsel concedes, and we find, that all the unfair labor prac-
tice strikers named in the specification either had interim earnings in excess
of the Respondent’s gross backpay liability or were unavailable during the ap-
plicable calendar quarter and that the Respondent has to date incurred no back-
pay liability as a result of its failure to reinstate unfair labor practice strikers.
The Respondent, however, will incur a future backpay liability to unfair labor
practice strikers if it employs other employees into the appropriate unit at
wages that exceed offsetting interim earnings of unfair labor practice strikers.
7 The specification combines the amount owed the benefit plans for fringe
benefit contributions with the amount owed the Union for dues and alleges
the total amount due as $186,930.96. Of this amount, it appears that $1,581.94
is owed to the Union for dues, and $185,349.02 is owed to the benefit plans
for fringe benefit contributions.
8 This amount is owed to the benefit plans.
9 In accordance with Board policy, interest on the amount due the Union
for dues will be calculated in the manner set forth in New Horizons for the
Retarded, 283 NLRB 1173 (1987). Interest on the amounts due the benefit
funds will be calculated at the rate of 7 percent per annum as set forth in the
collective-bargaining agreement. See Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).
allegations to be true,5 find the alleged amounts of
fringe benefit contributions, dues, and liquidated dam-
ages set forth in the specification to be correct, and
grant the Motion for Summary Judgment.6
ORDER
The National Labor Relations Board orders that the
Respondent, Jim Rodgers d/b/a Jim Rodgers Superior
Insulation, and its alter egos Superior Abatement, Inc.,
All State Insulation, and Construction Services, Anti-
och, California, their officers, agents, successors, and
assigns, shall pay to the Western States Asbestos
Workers Fringe Benefit Plans and Heat and Frost
Insulators and Asbestos Workers Local No. 16, a/w
International Association of Heat and Frost Insulators
and Asbestos Workers, AFL–CIO, $186,930.96 in
fringe benefit contributions and dues,7 $37,386.19 in
liquidated damages,8 and interest on these two amounts
until paid.9