PRO WORKS CONTRACTING, INC.

National Labor Relations Board - Board Decisions

Jan 4, 2018

366 NLRB No. 1 (N.L.R.B. 2018)

366 NLRB No. 1
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.
Pro Works Contracting, Inc. and Iron Workers Local
229, International Association of Bridge, Struc-
tural, Ornamental and Reinforcing Iron Work-
ers, AFL–CIO. Cases 21–CA–120477 and 21–
CA–121946
January 4, 2018
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN,
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that Pro Works Contracting, Inc. (the
Respondent) has failed to file an answer to the compli-
ance specification.
On January 27, 2015, the National Labor Relations
Board issued a Decision and Order1 that, among other
things, ordered the Respondent to make whole discrimi-
natees Michael Choma, Robert Whitman, and Ismael
Covarrubias for any loss of earnings and other benefits
suffered as a result of their unlawful discharges in viola-
tion of Section 8(a)(3) and (1). On March 3, 2017, the
United States Court of Appeals for the Ninth Circuit is-
sued a Judgment enforcing the Board’s Order.2
A controversy having arisen over the amount of back-
pay due the discriminatees, on July 31, 2017, the Re-
gional Director for Region 21 issued a compliance speci-
fication and notice of hearing alleging the amount due
under the Board’s Order and notifying the Respondent
that an answer must be filed by August 21, 2017, in con-
formity with the Board’s Rules and Regulations. The
Respondent failed to file an answer to the compliance
specification.
3

1 362 NLRB No. 2.
2 No. 16-73079.
3 The motion for default judgment and attached exhibits indicate that
the Region sent a copy of the compliance specification to the Respond-
ent by certified mail to the Respondent’s last known address, which
was also listed in the Respondent’s filing with the California Secretary
of State, last updated on February 26, 2016. The Region also attempted
personal service of the compliance specification to this address, but the
motion states that the business office at that address was locked and
looked vacant. In addition, the Region sent a reminder letter by regular
mail on August 22, 2017, to the last known address of the Respondent
as well as by email to two separate email addresses that the Respondent
had provided to the Region, notifying the Respondent of its failure to
file an answer and of the Region’s intent to file a motion for default
judgment with the Board if no answer was filed. The Respondent
failed to respond.
The letter sent by certified mail was returned to the Region with a
message stating “MOVED – LEFT NO ADDRESS – UNABLE TO
FORWARD – RETURN TO SENDER.” There is no indication that
On September 21, 2017, the General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on September 22, 2017, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.4 The
Respondent again filed no response. The allegations in
the motion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on 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 Respondent, despite having
been advised of the filing requirements, has failed to file
an answer to the compliance specification. In the ab-
sence of good cause for the Respondent’s failure to file
an answer, we deem the allegations in the compliance
specification to be admitted as true, and we grant the
General Counsel’s Motion for Default Judgment. Ac-
cording, we conclude that the backpay due Choma,
Whitman, and Covarrubias is as stated in the compliance
specification,5 and we will order the Respondent to pay
those amounts to the discriminatees, plus interest accrued
to the date of payment.
ORDER
The National Labor Relations Board orders that the
Respondent, Pro Works Contracting, Inc., Santee, Cali-
fornia, its officers, agents, successors, and assigns, shall

the message sent by email was undeliverable. It is well settled that a
respondent’s failure or refusal to accept certified mail or to provide for
receiving appropriate service cannot serve to defeat the purposes of the
Act. See Cray Construction Group, LLC, 341 NLRB 944, 944 fn. 5
(2004); I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003).
4 The Charging Party filed a joinder in the motion for default judg-
ment.
5 Although the compliance specification requests interim expenses
for Whitman and Covarrubias, we are without jurisdiction to grant this
request. This remedy was not included in the Board’s Order in the
unfair labor practice case. See 362 NLRB No. 2 (2015), enforced
NLRB v. Pro Works Contracting, Inc., No. 16-73079 (9th Cir. March
20, 2017). Because the Board’s Order has already been enforced by the
Ninth Circuit, we no longer possess jurisdiction to modify that Order.
See Interstate Bakeries Corp., 360 NLRB 112, 112 fn. 4 (2014); Grin-
nell Fire Protection Systems Co., 337 NLRB 141, 142 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
make whole discriminatees Michael Choma, Robert
Whitman, and Ismael Covarrubias, by paying them the
amounts following their names, plus interest accrued to
the date of payment, as prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010),
and minus tax withholdings required by Federal and
State Laws.6

6 This amount does not yet include any excess tax. As set forth in
the compliance specification, the Respondent is also liable for the ad-
verse tax consequences for any discriminatee receiving a lump-sum
backpay award. These amounts may be updated to reflect the actual
date of payment. Any adverse tax consequences shall be reported in
accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016); Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014).
Employee Backpay owed
Michael Choma $8,200
Robert Whitman $2,240
Ismael Covarrubias $2,128
Total amount due: $12,568
Dated, Washington, D.C. January 4, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD