Ybarra Construction Co.

National Labor Relations Board - Board Decisions

Oct 31, 2006

348 N.L.R.B. 66 (N.L.R.B. 2006)

348 NLRB No. 66
Ybarra Construction Company and D & P Drywall,
Inc., Single Employer and District Council 22,
International Union of Painters and Allied
Trades, AFL–CIO. Case 7–CA–44842
October 31, 2006
SECOND SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW
AND WALSH
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has withdrawn its
answer and amended answer to the compliance specifica-
tion.
On September 29, 2004, the Board issued a Decision
and Order1 that, among other things, ordered the Re-
spondent to make employee Alan Kirk whole for lost
earnings and benefits resulting from the Respondent’s
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act.
A controversy having arisen regarding the backpay due
to Kirk, the Regional Director for Region 7, on Decem-
ber 9, 2005, issued a compliance specification and notice
of hearing specifying the amount of backpay due to Kirk
under the Board’s Order. On December 30, 2005, the
Respondent filed an answer to the specification. In a
letter dated January 3, 2006, the General Counsel advised
the Respondent that its answer was insufficient and that
failure to file a proper answer by January 10 would result
in the filing of a Motion for Summary Judgment.
On January 12, 2006, the General Counsel filed a Mo-
tion for Partial Summary Judgment with the Board. On
January 23, 2006, the Respondent filed an amended an-
swer to the compliance specification. On July 31, 2006,
the Board issued a Supplemental Decision and Order2
granting in part the General Counsel’s motion with re-
spect to all aspects of the compliance specification ex-
cept for the method of calculating base period hours and
interim earnings.
On September 18, 2006, the Respondent withdrew its
answer and amended answer to the compliance specifica-
tion.3
On September 25, 2006, the General Counsel filed
with the Board a Motion for Default Judgment, with ex-
hibits attached. On September 27, 2006, the Board is-
sued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not

1 343 NLRB No. 5 (2004).
2 347 NLRB No. 79 (2006).
3 The Respondent’s letter withdrawing its answers stated that the
“Respondent wishes to concede judgment in [this] matter.”
be granted. The Respondent did not file a response. The
allegations in the motion and in the compliance specifi-
cation 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.
Here, according to the uncontroverted allegations of
the Motion for Default Judgment, although the Respon-
dent initially filed an answer and an amended answer to
the compliance specification, the Respondent, by coun-
sel, subsequently withdrew its answers on September 18,
2006. The withdrawal of an answer has the same effect
as a failure to file an answer, i.e., the allegations in the
compliance specification must be considered to be true.4
Accordingly, based on the withdrawal of the Respon-
dent’s answers to the compliance specification, and in
the absence of good cause being shown otherwise, we
deem the allegations in the compliance specification to
be admitted as true, and we grant the General Counsel’s
Motion for Default Judgment. Accordingly, we conclude
that the net backpay due Kirk is as stated in the compli-
ance specification and we will order the Respondent to
pay that amount to Kirk, plus interest accrued to the date
of payment.
ORDER
The National Labor Relations Board orders that the
Respondents, Ybarra Construction Company, Detroit,
Michigan, and D & P Drywall, Inc., Dearborn, Michigan,
a single employer, their officers, agents, successors, and
assigns, shall make whole Alan Kirk by paying him
$31,425.65, plus interest accrued to the date of payment,
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required by
Federal and State laws.
TOTAL BACKPAY: $31,425.65

4 See Maislin Transport, 274 NLRB 529 (1985).