Berkebile Bros., Inc. and/or RCC Construction LLC, single employer and/or alter ego

National Labor Relations Board - Board Decisions

Dec 17, 2013

360 N.L.R.B. 81 (N.L.R.B. 2013)

BERKEBILE BROS., INC. 81
360 NLRB No. 16
Berkebile Bros., Inc. and/or RCC Construction LLC,
single employer and/or alter ego and Greater
Pittsburgh Regional Council of Carpenters a/w
United Brotherhood of Carpenters and Joiners
of America. Case 06–CA–071326
December 17, 2013
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON, AND SCHIFFER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the reissued complaint. Upon a charge and
a first amended charge filed by Greater Pittsburgh Re-
gional Council of Carpenters a/w United Brotherhood of
Carpenters and Joiners of America (the Union) on De-
cember 23, 2011, and January 13, 2012, respectively, the
General Counsel issued a complaint on May 31, 2012,
against Berkebile Bros., Inc. and/or RCC Construction
LLC, single employer and/or alter ego (collectively, the
Respondent), alleging that it has violated Section 8(a)(5)
and (1) of the Act. The Respondent filed an answer, ad-
mitting in part and denying in part the allegations of the
complaint.
On October 10, 2012, the Regional Director issued an
order dismissing the complaint and approving the Un-
ion’s request to withdraw the charges, based on a non-
Board settlement. By letter dated May 7, 2013, the Re-
gional Director informed the Respondent that due to its
failure to comply with any of the settlement agreement’s
financial terms he was revoking the approval of the
withdrawal of the charges and reissuing the complaint.
On June 20, 2013, the General Counsel reissued the
complaint, alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act. The Respondent did not
file an answer to the reissued complaint.
On July 25, 2013, the General Counsel filed a Motion
for Default Judgment with the Board. By letter dated
July 26, 2013, the Associate Executive Secretary in-
formed the Respondent that the proceeding had been
transferred to the Board and that the Respondent could
file with the Board a response showing why the General
Counsel’s Motion should not be granted. The Respond-
ent 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 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively stated
that unless an answer was received by July 5, 2013, the
Board may find, pursuant to a motion for default judg-
ment, that the allegations in the complaint are true. Fur-
ther, the undisputed allegations in the General Counsel’s
motion disclose that the Region, by letter dated July 16,
2013, notified the Respondents that unless an answer was
received by the close of business on the third business
day following receipt of the letter, a motion for default
judgment would be filed.
In the Motion for Default Judgment, the General
Counsel contends that the Respondent has failed to file
an answer to the reissued complaint, and that the Board
should find the allegations of that complaint to be true
and issue an order based on these findings.
The record shows that the Respondent did not file an
answer to the reissued complaint. The record also
shows, however, that the Respondent filed an answer to
the original complaint. That answer denied allegations
that are substantially the same as the unfair labor practice
allegations contained in the reissued complaint presently
before the Board. The Board has denied summary judg-
ment when the record reveals that the Regional Director
issued a complaint, the respondent filed an answer, the
parties executed a non-Board settlement agreement, the
Regional Director thereafter withdrew approval of the
settlement agreement and reissued the complaint, and the
respondent failed to file an answer to the reissued com-
plaint. See, e.g., West Fork Energy, Inc., 305 NLRB 870
(1991).
In West Fork, the Board found that an answer to an
original complaint survived a breached non-Board set-
tlement agreement and a subsequent unanswered reissued
complaint. The Board distinguished West Fork from
cases in which the Regional Director approved an infor-
mal Board settlement agreement under Form NLRB-
4775. The Board reasoned that the language of that form
specifically provides that the approved settlement agree-
ment withdrew outstanding complaints and answers.1 In
the instant matter, as in West Fork, there is no evidence
that the non-Board settlement agreement, which is not
part of the record, provided for the withdrawal of the
answer to the original complaint. In addition, the Re-
gion’s withdrawal of the original complaint made no
reference to the Respondent’s previously filed answer.
That answer denied the commission of any unfair labor
practice and contested the complaint’s assertions. Under
these circumstances, we find that the answer to the origi-
nal complaint survives the breached non-Board settle-
ment agreement and subsequent unanswered reissued

1 See, e.g., Orange Data, Inc., 274 NLRB 1018 (1985).
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complaint.2 Therefore, we shall deny the General Coun-
sel’s Motion for Default Judgment.

2 As noted above, the reissued complaint allegations are substantial-
ly unchanged from the allegations contained in the original complaint.
The difference between the two complaints is that the reissued com-
plaint contains updated information regarding the status of collective-
bargaining agreements.
ORDER
IT IS ORDERED that the General Counsel’s Motion for
Default Judgment is denied.
IT IS FURTHER ORDERED that the proceeding is remand-
ed to the Regional Director for Region 6 for further ap-
propriate action.