Synergy One Locating, LLC

National Labor Relations Board - Board Decisions

Apr 11, 2017

365 NLRB No. 58 (N.L.R.B. 2017)

365 NLRB No. 58
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.
Synergy One Locating Services, LLC and Safe
Markx, LLC, as Joint Employers; and Dervon
Gaskins, and International Brotherhood of Elec-
trical Workers, Local 387, AFL–CIO. Cases 28–
CA–137972, 28–CA–143708, 28–CA–145625, and
28–CA–147819
April 11, 2017
SUPPLEMENTAL DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondents have failed to
file an answer to the compliance specification.
On July 1, 2015, the National Labor Relations Board
issued an unpublished Decision and Order that approved
the Formal Settlement Stipulation between the Charging
Party, International Brotherhood of Electrical Workers,
Local 387, AFL–CIO, and Respondent Synergy One
Locating Services, LLC and Safe MarkX, LLC, as joint
employers (Respondent Synergy), and that, among other
things, ordered Respondent Synergy to make whole em-
ployees Mason Crisenbacker, Sean Cherry, Jacob Cher-
ry, Troy Hager, Henry Maurice Petit,1 Adam Valdez,
Kevin Schroeder, Devin Koivisto, Timothy Montanez,
Joshua Merino, Bryan McBride, Joe Moure, Edwin Cy-
rus Hare IV, Dan Huebner, David Venegas, Cory Jack-
son, James Redondo, Michael Cummings, Jason Lantrip,
Manny Madrid, Pete Martinez, Stan Barker, Greg
Digiordi, Garret Forrest, Sal Medina, and Jeff Rose for
any loss of earnings resulting from the unlawful discrim-
ination against them by payment to them of the amounts
set forth opposite their respective names and at the times
set forth in the schedule as reflected in Appendix B to
that decision, plus interest until paid in full.2
On August 3, 2015, the United States Court of Appeals
for the Ninth Circuit entered its judgment enforcing in
full the remedial requirements of the Board’s Decision
and Order.3
Although not a party to the original unfair labor prac-
tice proceeding, a controversy arose over the liability of
Respondent Dervon Gaskins (Respondent Gaskins) to
fulfill the remedial obligations of the Board’s Order as

1 In accordance with the Board’s Decision and Order, Petit is re-
ferred to as Henry Maurice Petit, although the compliance specification
states his first name as Hendry.
2 Greg Digiordi is listed as Greg Dejordy on Appendix B.
3 No. 15-72162.
court enforced. Accordingly, on November 14, 2016, the
Regional Director for Region 28 issued a compliance
specification and notice of hearing alleging that Re-
spondent Gaskins is personally liable, jointly and sever-
ally, with Respondent Synergy for remedying the unfair
labor practices of Respondent Synergy and notifying the
Respondents that an answer must be filed by December
5, 2016, in conformity with the Board’s Rules and Regu-
lations.
The compliance specification additionally sets forth
the following allegations.
Relationship between the Respondents
1. At all material times, and continuing until an un-
specified time in 2015, Respondent Synergy, a limited
liability company with an office and place of business in
Phoenix, Arizona, was engaged in providing utility locat-
ing services for utility companies.
2. At all material times, Respondent Gaskins has been
the owner and a managing member of Respondent Syn-
ergy, and has been a supervisor of Respondent Synergy
within the meaning of Section 2(11) of the National La-
bor Relations Act (Act), an agent of Respondent Synergy
within the meaning of Section 2(13) of the Act, and an
insider of Respondent Synergy within the meaning of 28
U.S.C. § 3301(5).
3. At all material times, Respondent Gaskins con-
trolled the day-to-day management, labor relations poli-
cies, business operations, and financial resources of Re-
spondent Synergy.
4. On at least the following dates, Respondent Gaskins
used Respondent Synergy’s funds for personal purchases
without reimbursing Respondent Synergy:
(a) On or about August 7, and September 4, 2015, Feb-
ruary 5, April 4, June 8, July 5, August 8, and September
5, 2016, Respondent Gaskins paid $1950 each, for a total
of $15,600, in personal rent.
(b) On or about October 26, 2015, Respondent Gaskins
purchased $18,987 in Charlotte Hornets tickets in his
own name.
(c) On or about April 21, 2016, Respondent Gaskins
purchased $9300 in Charlotte Hornets tickets in his own
name.
(d) On or about September 28, 2016, Respondent Gas-
kins purchased $25,000 in Charlotte Hornets tickets in
his own name.
5. By the transactions described above in paragraph 4
and other transactions, Respondent Synergy transferred
property to Respondent Gaskins without receiving a rea-
sonably equivalent value in exchange for the transfer, at
times when Respondent Synergy was insolvent or be-
came insolvent as a result of the transfer.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6. By the transactions described above in paragraph 4
and other transactions, Respondent Synergy transferred
property to Respondent Gaskins, at times when Re-
spondent Synergy was insolvent and Respondent Gaskins
had reasonable cause to believe that Respondent Synergy
was insolvent.
7. At all material times, Respondent Gaskins failed to
observe the corporate formalities of Respondent Syner-
gy.
8. At all material times, Respondent Gaskins com-
mingled his assets with those of Respondent Synergy and
used corporate assets of Respondent Synergy for his per-
sonal use.
9. At all material times, Respondent Gaskins has di-
verted assets of Respondent Synergy in an effort to ren-
der Respondent Synergy insolvent and make it incapable
of fulfilling its obligations of the Board’s Order as en-
forced.
10. By the conduct described above, Respondent Gas-
kins, individually, acted to divert the assets of Respond-
ent Synergy, and is therefore an individual Respondent
and is thereby personally liable, jointly and severally,
with Respondent Synergy for remedying the unfair labor
practices of Respondent Synergy, including the payment
of backpay and interest and other relief required by the
Board’s Order as enforced.
Failure to file an Answer
Although properly served with a copy of the compli-
ance specification, the Respondents failed to file an an-
swer.4 By letter dated December 6, 2016, counsel for the
General Counsel advised the Respondents that no answer
to the compliance specification had been received by the
December 5, 2016 deadline, and that unless an answer
was filed by December 12, 2016, a motion for default

4 On November 28, 2016, the compliance specification served on
Respondent Gaskins by certified mail was returned to the Regional
office marked “refused.” The compliance specification served on Re-
spondent Synergy One Locating Services, LLC was also returned to the
Regional Office as undeliverable. On December 1, 2016, the Region
re-served the compliance specification on Respondent Gaskins, who is
also a registered agent of Synergy One Locating Services, LLC, by
certified and regular mail. According to the United States Postal Ser-
vice tracking system, service of the certified mail was again refused. It
is well settled that a respondent’s failure or refusal to claim certified
mail or to provide for receiving appropriate service cannot serve to
defeat the purposes of the Act. See Atlantic Northeast Transport, Inc.,
364 NLRB No. 155, slip op. at 1 fn. 1 (2016); Cray Construction
Group, LLC, 341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc.,
339 NLRB 247, 247 fn. 2 (2003). Further, the failure of the Postal
Service to return documents served by regular mail indicates actual
receipt of those documents by the Respondent. I.C.E. Electric, Inc.,
supra at 247 fn. 2; Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd.
843 F.2d 1392 (6th Cir. 1988).
judgment would be filed. Nevertheless, the Respondents
again failed to file an answer.
Motion, Order, and Notice
On December 14, 2016, the General Counsel filed with
the Board a motion to transfer this proceeding to the
Board and for default judgment. On December 15, 2016,
the Board issued an order transferring the proceedings to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondents filed no re-
sponse. The allegations in the motion and the compli-
ance specification are therefore undisputed.
Ruling on the 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 Respondents, despite hav-
ing been advised of the filing requirements, have failed
to file an answer to the compliance specification. In the
absence of good cause for the failure to file an answer,
we deem the allegations in the compliance specification
to be admitted as true, and we grant the General Coun-
sel’s Motion for Default Judgment. Accordingly, we
conclude that Respondent Gaskins is personally liable,
jointly and severally, with Respondent Synergy for the
backpay due to the discriminatees as described in the
Board’s Order, as enforced, and in the compliance speci-
fication. The obligation of the Respondents to make the
discriminatees whole under the Board’s Order and court
judgment will be discharged by payment of a total of
$46,359.00, plus interest as provided in the Board’s Or-
der.
ORDER
The National Labor Relations Board orders that the
Respondents, Synergy One Locating Services, LLC, and
Safe MarkX, LLC, as joint employers, Phoenix, Arizona,
and Dervon Gaskin, an individual, Matthews, North Car-
olina, their officers, agents, successors, and assigns, shall
jointly and severally make whole employees Mason
Crisenbacker, Sean Cherry, Jacob Cherry, Troy Hager,
Henry Maurice Pettit, Adam Valdez, Kevin Schroeder,
Devin Koivisto, Timothy Montanez, Joshua Merino,
Bryan McBride, Joe Moure, Edwin Cyrus Hare IV, Dan
Huebner, David Venegas, Cory Jackson, James Redondo,
SYNERGY ONE LOCATING SERVICES, LLC 3
Michael Cummings, Jason Lantrip, Manny Madrid, Pete
Martinez, Stan Barker, Greg Digiordi, Garret Forrest, Sal
Medina, and Jeff Rose by paying them the amounts set
forth in the Board’s Order, totaling $46,359.00, plus in-
terest as provided in the Board’s Order.
Dated, Washington, D.C. April 11, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member