Proer Steel Erectors, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 2008

352 N.L.R.B. 74 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 11
74
Proper Steel Erectors, Inc. and its alter ego B & M
Steel Erectors, Inc. and Iron Workers Upstate
Locals of New York and Vicinity, Consisting of
International Association of Bridge, Structural,
Ornamental, and Reinforcing Iron Workers,
Local Union Nos. 60, 33, 9, 440, 6 and 12. Case
3–CA–24700
February 8, 2008
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
The General Counsel seeks default judgment in this
case on the ground that the Respondent has failed to file
an answer to the amended compliance specification. For
the reasons that follow, we grant the motion in part and
deny it in part.
On September 19, 2005, the Board issued a Decision
and Order1 that, among other things, ordered the Re-
spondent to make whole both the bargaining unit em-
ployees and the benefit funds of the local unions for
losses suffered as a result of the Respondent’s violations
of Section 8(a)(5) and (1) of the Act. On March 16,
2006, the United States Court of Appeals for the Second
Circuit summarily enforced in full the Board’s Order.
A controversy having arisen over the amount of back-
pay due discriminatees and contributions due the funds
on December 15, 2006, the Regional Director issued a
compliance specification and notice of hearing alleging
the amounts due under the Board’s Order, and notifying
the Respondent that it should file a timely answer com-
plying with the Board’s Rules and Regulations. On
January 5, 2007, the Respondent filed an answer. Subse-
quently, on March 2, 2007, the Regional Director issued
an amendment to the compliance specification, and on
March 26, 2007, the Regional Director issued an
amended compliance specification and notice of hearing,
again notifying the Respondent of its obligation to file an
answer. Although properly served with copies of the
amendment and amended compliance specifications, the
Respondent failed to file an answer.
By letter dated April 19, 2007, sent through regular
mail and facsimile, counsel for the General Counsel me-
morialized a telephone conversation with the Respon-
dent’s counsel, in which the Respondent’s counsel was
informed that no answer to the amended compliance
specification had been received and that unless an appro-
priate answer was filed by April 23, 2007, default judg-
ment would be sought. The Respondent’s counsel ac-
knowledged that he had received the amended compli-
ance specification and that the Respondent did not an-

1 345 NLRB 906.
ticipate filing an answer. The Respondent did not there-
after file an answer.
On May 1, 2007, the General Counsel filed with the
Board a Motion for Default Judgment, with exhibits at-
tached. On May 7, 2007, 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
Respondent again filed no response. The allegations in
the motion are therefore undisputed.
On the entire record, the National Labor Relations
Board2 makes the following
Ruling on the Motion for Default 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) 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 amended specification. Because the
Respondent has not shown good cause for its failure to
file a timely answer, we grant the General Counsel’s mo-
tion for default judgment, but only in part.
In the original compliance specification, the General
Counsel alleged that the Respondent owed backpay for
work performed on the following projects: Windham Ski
Center, Jiminy Peak Ski Lodge, 20 Century Hill, 22 Cen-
tury Hill, Cayuga Medical Center, and Faxton St. Luke
Hospital. The specific amounts owed each employee
were alleged in exhibits 2–24, which were attached to the
compliance specification. The General Counsel also
alleged that the Respondent owed contributions to vari-
ous union benefit funds with regard to the above projects,
as well as the Riverside Elementary School, Seneca
County Correctional Facility, and Century Hill (Phase 1)
projects, and set forth the alleged amounts owed in ex-
hibits 26–30.

2 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,
Members Liebman and 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.
PROPER STEEL ERECTORS, INC. 75
The Respondent filed an answer to the original com-
pliance specification, admitting in part and denying in
part the allegations. In paragraph 2 of the answer, the
Respondent denied that any employee was owed backpay
for work performed on the Century Hill Phase 1, River-
side Elementary School, or Seneca County Correctional
Facility projects. However, the General Counsel did not
allege, in either the original or amended compliance
specification, that any backpay is owed for those pro-
jects. The Respondent did not contest any other backpay
claims contained in the original specification.
With regard to the specification’s claims for amounts
owed to the funds, the Respondent admitted the amounts
claimed for work performed on the Faxton St. Luke Hos-
pital project. However, in paragraph 5 of its answer, the
Respondent generally denied liability to the funds for
work on other projects “for any hours . . . for which con-
tributions were paid by other contractors out of monies
that contractor [sic] owed to Proper Steel or B & M
Steel.” In paragraph 6, the Respondent denied liability to
the union benefit funds for work performed on the Cen-
tury Hill Phase 1 project, contending that “no such work
was performed.” In paragraphs 7 and 8, the Respondent
denied liability to the funds for work performed on the
Riverside Elementary School and Seneca County Correc-
tional Facility projects “on the basis that these contribu-
tions were paid or have otherwise been settled with the
funds.” The Respondent either explicitly or implicitly
admitted the other allegations of the specification, except
for the total amounts claimed.
In the amended compliance specification, the General
Counsel revised many of the original claims, abandoning
some and recomputing others. With regard to the Seneca
County and Century Hill Phase 1 projects, the General
Counsel abandoned all claims for amounts owed to the
benefit funds. With regard to the Riverside project, the
abandonment of claims resulted in approximately a 75
percent reduction in the total amount allegedly owed to
the funds. As stated above, the Respondent filed no an-
swer to the amended compliance specification.
The Backpay Claims
The Respondent admitted all claims for backpay in the
original compliance specification and failed to answer
the amended specification. (The Respondent denied ow-
ing backpay for the Century Hill Phase 1, Riverside Ele-
mentary School, or Seneca County Correctional Facility
projects, although neither the original nor the amended
specification claimed backpay for those projects.) Be-
cause the Respondent has never denied any of the Gen-
eral Counsel’s actual claims for backpay, we shall deem
the backpay claims contained in the amended specifica-
tion to be admitted, and we shall grant the motion for
default judgment with regard to those claims.
Claims for Amounts Owed to the Funds
As stated above, the Respondent has admitted the
amounts claimed as owing the funds for work on the
Faxton St. Luke project. Accordingly, we shall grant the
General Counsel’s motion for default judgment concern-
ing those claims. The General Counsel has dropped from
the amended specification all claims for amounts owing
the funds arising out of the Century Hill Phase 1 and
Seneca County projects. As for the remaining allega-
tions, the Respondent in its answer to the original speci-
fication generally denied liability for any sums contrib-
uted to the funds by other contractors out of monies
owed to the Respondent. The Respondent also denied all
claims concerning contributions owed to the funds for
the Riverside project, contending that those claims have
either been paid or settled.3
Although the Respondent failed to answer the
amended specification, the Board will not grant default
judgment on an allegation denied in a timely-filed an-
swer to a compliance specification, even though the re-
spondent later fails to timely answer an amended specifi-
cation repeating the allegation, provided that the repeated
allegation is not substantively changed from the original.
Kolin Plumbing Corp., 337 NLRB 234, 235 (2001).
Here, we find that the allegations in the amended specifi-
cation regarding the amounts owed to the union benefit
funds for work on the Riverside project were not sub-
stantively changed from those in the original: the General
Counsel simply abandoned certain claims, leaving the
others unchanged. And the changes in the amended
specification do not affect the Respondent’s contention
that it should not be liable to the funds for any contribu-
tions made by other contractors with monies owed the
Respondent—in effect, that the Respondent should not
have to make the funds whole twice. Cf. RFS Ecusta,
Inc., 342 NLRB 920, 921 (2004) (finding no substantive
change where original complaint alleging refusal to fur-
nish information was amended to include the specific
information that had been requested, but was not other-
wise altered). In these circumstances, the Respondent
may be excused from filing an amended answer that
would have been unchanged from its initial answer. We
shall therefore deny the General Counsel’s request for
default judgment as to the allegations concerning contri-
butions to the funds (except those owed for the Faxton

3 The General Counsel does not contend that the Respondent’s an-
swers fail to conform to the Board’s specificity requirements under
Rule 102.56(b) and (c). Accordingly, that issue is not before us. James
Michael Shull, 291 NLRB 342, 343 (1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD76
St. Luke project), and we shall remand those portions of
the proceeding to the Region for further appropriate ac-
tion.
ORDER
The National Labor Relations Board orders that the
General Counsel’s motion for default judgment against
the Respondent, Proper Steel Erectors, Inc. and its alter
ego B & M Steel Erectors, Inc., Pompey and Central
Square, New York, is granted insofar as it concerns all
claims for backpay, and also the claims for amounts
owed the industry benefit funds for work on the Faxton
St. Luke Hospital project, contained in the General
Counsel’s amended compliance specification. The mo-
tion is otherwise denied.
It is ordered that the Respondent, its officers, agents,
successors, and assigns, shall make whole the individuals
listed in Attachment 1, by paying them a total amount of
$16,505.15, as set forth in attachment 1, plus interest as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), minus tax withholdings required by Federal
and State laws. The Respondent shall also make whole
the Local 440 benefit funds by paying them the amounts
set forth in Attachment 2, totaling $1,388.40, in the man-
ner specified in the Board’s underlying Decision and
Order.
It is further ordered that this proceeding is remanded to
the Regional Director for Region 3 for the purposes of
issuing a notice of hearing and scheduling the hearing
before an administrative law judge, for the limited pur-
pose of taking evidence to determine the Respondent’s
liability for other contributions to union benefit funds.
It is further ordered that the administrative law judge
shall prepare and serve on the parties a supplemental
decision containing findings of fact, conclusions of law,
and recommendations based on all of the record evi-
dence. Following service of the administrative law
judge’s decision on the parties, the provisions of Section
102.46 of the Board’s Rules shall be applicable.
PROPER STEEL ERECTORS, INC. 77
ATTACHMENT 1
Proper Steel Erectors, Inc.
and B & M Steel Erectors, Inc.
Case 3-CA-24700
Backpay
Backpay
Local 12 Local 33 Local 60 Local 440 Total
1. Beckman, Duane $ 1,064.50 $0.00 $ 302.50 $ 1,367.00
2. Beyea, Ray 0.00 -
3. Commer, Jacques 579.50 819.88 1,399.38
4. Dieffenbach, Trevor 2,136.50 677.00 2,813.50
5. Drury, Bruce 0.00 -
6. Dupree, Christopher 328.00 328.00
7. Gabriel, Raun 919.13 0.00 919.13
8. Jaconski, Vincent 891.50 691.88 1,583.38
9. Lazore, John 0.00 0.00 -
10. Lazore, Shawn 1,087.50 0.00 60.00 1,147.50
11. Lorete, Kevin 0.00 -
12. Lute, Russell 66.00 143.00 209.00
13. Moon, Ricky 58.00 44.00 102.00
14. O’Connor, John 801.00 28.00 829.00
15. Papineau, Kent 0.00 -
16. Scudo, Sean 598.75 0.00 598.75
17. Sendel, Frederick 508.00 751.63 1,259.63
18. Spencer, Ray $1,068.00 1,068.00
19. Spencer, Roger 84.00 52.00 136.00
20. Stone, Guy 0.00 -
21. Urbaniak, Shawn 836.63 0.00 836.63
22. Williams, Jason 148.00 148.00
23. Woodworth, Colin 1,110.25 0.00 650.00 1,750.25
TOTALS $11,217.26 - $4,219.89 $1,068.00 $16,505.15
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD78
ATTACHMENT 2
Local 440 Welfare Pension Medical Annuity App/train Total
Quarter -04-1 $444.00 $565.20 $61.20 $318.00 $0 $1,388.40
Totals $444.00 $565.20 $61.20 $318.00 $0 $1,388.40