Brisben Development, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 2005

344 N.L.R.B. 400 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 46
400
Brisben Development, Inc., Brisben Timber Lake Inc.
and Timber Lake Apartments Limited Partner-
ship and Ohio and Vicinity Regional Council of
Carpenters, United Brotherhood of Carpenters
and Joiners of America and International
Brotherhood of Electrical Workers, Local 38
and United Union of Roofers, Waterproofers
and Allied Workers, AFL–CIO and Bricklayers
and Allied Craftsworkers, Local No. 5
Brisben Development, Inc. and Plumbers and Steam-
fitters, Local 42 and Painters District Council
No. 6 of Northern Ohio and Operative Plasterers
and Cement Masons, Local 404 and Plumbers
and Pipefitters, Local 495 a/w United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry (AFL–CIO).
Cases 8–CA-33018–1, 8–CA–33042–1, 8–CA–
33043–1, 8–CA–33044–1, 8–CA–33078–1, 8–CA–
33078–2, 8–CA–33078–3, and 8–CA–33129–1
March 31, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The General Counsel seeks a partial defult judgment in
this case on the ground that the Respondents Brisben
Development, Inc. (Brisben) and Brisben Timber Lake,
Inc. (Brisben TL) have failed to file an answer to the
consolidated complaint and compliance specification.1
Upon charges and amended charges filed by Ohio and
Vicinity Regional Council of Carpenters, United Broth-
erhood of Carpenters and Joiners of America (Carpen-
ters), in Case 8–CA–33018-1; International Brotherhood
of Electrical Workers, Local 38 (Electrical Workers), in
Case 8–CA–33042-1; United Union of Roofers, Water-

1 The General Counsel’s motion states that summary judgment is not
sought against Respondent Timber Lake Apartments Limited Partner-
ship (Timber Lake) because Timber Lake filed an answer. On October
5, 2004, Respondent Timber Lake filed a motion to construe the Gen-
eral Counsel’s motion as a motion for partial default judgment. On
October 21, 2004, the General Counsel filed a response to Timber
Lake’s motion, agreeing that the motion should be considered a motion
for partial default judgment. Accordingly, we grant Respondent Tim-
ber Lake’s motion to the extent that it requests that we construe the
General Counsel’s motion as a motion for partial default judgment.
However, we do not grant Respondent Timber Lake’s motion insofar
as it seeks to have the Board refrain from issuing findings of fact and
conclusions of law. The findings of fact and conclusions of law that are
issued herein will not prejudice Respondent Timber Lake, and we do
not pass on whether it is liable for any unfair labor practices that Re-
spondent Brisben or Respondent Brisben TL may have committed.
See, e.g., Metro Detroit Valet Parking, Inc., 334 NLRB No. 71 (2001)
(not published in Board volume); B/E Aerospace, 323 NLRB 604 fn. 3
(1997).
proofers and Allied Workers, AFL–CIO (Roofers), in
Case 8–CA–33043-1; Bricklayers and Allied Crafts-
workers, Local No. 5 (Bricklayers), in Case 8–CA–
33044–1; Plumbers and Steamfitters, Local 42 (Plumb-
ers), in Case 8–CA–33078–1; Painters District Council
No. 6 of Northern Ohio (Painters), in Case 8–CA–
33078–2; Operative Plasterers and Cement Masons, Lo-
cal 404 (Plasterers), in Case 8–CA–33078–3; and
Plumbers and Pipefitters, Local 495 a/w United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry (AFL–CIO) (Pipefitters), in Case 8–
CA–33129–1, against Respondent Brisben, Respondent
Brisben TL, and Respondent Timber Lake, the General
Counsel issued the consolidated complaint and compli-
ance specification on March 30, 2004, alleging that they
have violated Section 8(a)(1) of the Act. Respondents
Brisben and Brisben TL failed to file an answer.
On September 21, 2004, the General Counsel filed a
Motion for Partial Summary Judgment and Brief in Sup-
port with the Board. On September 24, 2004, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. Respondents Brisben and Brisben TL filed
no response. The allegations in the motion against Bris-
ben and Brisben TL are therefore undisputed.
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. Similarly, Section 102.56 of the Board’s Rules
and Regulations provides that the allegations in a com-
pliance specification will be taken as true if an answer is
not filed within 21 days from service of the compliance
specification. In addition, the consolidated complaint
and compliance specification affirmatively stated that
unless an answer was filed within 21 days, all the allega-
tions in the consolidated compliant and compliance
specification could be considered admitted.2

2 Copies of the consolidated complaint and compliance specification
were served on both Respondent Brisben and Respondent Brisben TL
by certified mail, return receipt requested. However, although Brisben
TL was served at the address of its statutory agent, the consolidated
complaint and compliance specification mailed to it was returned to the
Region as undeliverable. The Region then followed the statutory pro-
cedure for perfecting service when an agent cannot be located. On June
22, 2004, the Secretary of State of Ohio issued a Proof of Service veri-
fying that the service obligation had been fulfilled under Sec. 1701.07
of the Ohio Revised Code. Thereafter, a legal representative for Re-
spondents Brisben and Brisben TL advised the Region that these parties
would not file answers to the consolidated complaint and compliance
specification.
BRISBEN DEVELOPMENT, INC. 401
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel's motion for default judgment to the extent set forth
below.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Brisben Development,
Inc., an Ohio corporation, with an office and place of
business in Cincinnati, Ohio, was engaged in the construc-
tion industry as a general contractor. Prior to 2003, Re-
spondent Brisben, in conducting its business operations
described above, annually performed services valued in
excess of $50,000 in States other than the State of Ohio.
We find that Respondent Brisben has been an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that Carpenters, Electrical
Workers, Roofers, Bricklayers, Plumbers, Painters, Plas-
terers, and Pipefitters have been labor organizations within
the meaning of Section 2(5) of the Act.
As to Respondent Brisben TL, there is no allegation in
the consolidated complaint or compliance specification
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), or (7) of the Act, nor are
there any commerce facts relating as to it. Accordingly,
for purposes of this proceeding, we are unable to find that
Brisben TL is a statutory employer. And, absent that find-
ing, we cannot find that it violated the Act, as alleged.3
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent Brisben entered into a contract to con-
struct the Timber Lake apartments. At all material times,
the following individuals held the positions set forth op-
posite their respective names and have been supervisors
of the designated Respondents within the meaning of

3 Accordingly, the General Counsel’s motion is denied as to Re-
spondent Brisben TL, and this matter is remanded to the Regional
Director for further appropriate action.
Nothing herein will require a hearing if, in the event of an appropri-
ate amendment to the complaint, Respondent Brisben TL again fails to
answer, thereby admitting evidence that would permit the Board to find
the alleged violation. In that event, the General Counsel may renew the
motion for default judgment with respect to the amended complaint
allegations. See, e.g., VMI Cabinets and Millwork, 340 NLRB 1196,
1198 fn. 2 (2003) (default judgment denied as to allegation that respon-
dent failed to bargain over decision to close business, but no hearing
would be required if General Counsel amended complaint, and respon-
dent again failed to file answer, thereby admitting allegations); Cray
Construction Group LLC, 341 NLRB 944 (2004) (renewed motion for
default judgment granted after General Counsel amended complaint to
specify the “certain funds” to which the respondent failed to make
contractually required contributions, and respondents again failed to
file an answer).
Section 2(11) of the Act and agents of Respondent Bris-
ben within the meaning of Section 2(13) of the Act:
William O. Brisben President—Brisben
Robert Schuler Vice President—Brisben
Paul Metzger Project Manager—Brisben
John Biggs Project Superintendent—Brisben
Gordon Gomez Superintendent—Brisben
Since about December 18, 2001, Respondent Brisben,
by its attorney, Jack Fuchs, filed and maintained a law-
suit and complaint in the Federal District Court for the
Southern District of Ohio (Case C–2–01–1048) against
the Carpenters, the Electrical Workers, the Bricklayers,
the Plumbers, the Painters, the Plasterers, the Roofers,
and the Pipefitters, seeking damages, court costs, and
legal expenses.
On about February 15, 2002, the lawsuit against the
Roofers was withdrawn by the Respondent.
On September 26, 2002, United States District Judge
Graham granted the Carpenters’, Electrical Workers’,
Bricklayers’, Plumbers’, Painters’, Plasterers’ and Pipefit-
ters’ motions to dismiss the lawsuit described above. On
July 8, 2003, the lawsuit was concluded when the United
States Court of Appeals for the Sixth Circuit dismissed the
Respondent’s appeal of Judge Graham’s decision.
The lawsuit described above was without a reasonable
basis and motivated by an intent to retaliate against the
Carpenters, Electrical Workers, Roofers, Bricklayers,
Plumbers, Painters, Plasterers, and Pipefitters because of
their protected concerted activity.
CONCLUSION OF LAW
By the acts and conduct described above, Respondent
Brisben has been interfering with, restraining, and coerc-
ing employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has thereby engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent Brisben has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act. Specifically, having
found that Respondent Brisben violated Section 8(a)(1)
by unlawfully initiating and maintaining a state court
lawsuit which was without a reasonable basis and was
motivated by an intent to retaliate against the protected
concerted activity of the Carpenters, Electrical Workers,
Roofers, Bricklayers, Plumbers, Painters, Plasterers, and
Pipefitters, we shall order Respondent Brisben to pay to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD402
the Unions the amounts listed below as reimbursement
for legal fees and other expenses they incurred in defend-
ing and challenging these legal proceedings, plus interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), as set forth in the compliance speci-
fication.
The attorney’s fees expended by the Carpenters totaled
$38,760.50. The attorney’s fees expended by the Elec-
trical Workers, Roofers, and Bricklayers totaled $49,290.
The attorney’s fees expended by the Plumbers, Painters,
and Plasterers totaled $25,906. The attorney’s fees ex-
pended by the Pipefitters totaled $12,108.
ORDER
The National Labor Relations Board orders that the
Respondent, Brisben Development, Inc., Cincinnati,
Ohio, its officers, agents, successors, and assigns, shall
1.Cease and desist from
(a) Filing legal proceedings against a union that lack a
reasonable basis in fact and law and are instituted and
prosecuted in order to retaliate against the union for the
union’s protected concerted activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Pay to the Unions the amounts listed below, plus
interest as set forth in the remedy section of this decision,
as reimbursement for the legal fees and other expenses
they incurred defending the Respondent’s lawsuit filed
against them in the U.S. District Court for the Southern
District of Ohio, on about December 18, 2001.
UNION NAME ATTORNEY’S
FEES OWED
Carpenters $38,760.50
Electrical Workers,
Roofers and Brick-
layers
49,290.00
Plumbers, Painters,
and Plasterers
25,906.00
Pipefitters 12,108.00
TOTAL $126,064.50
(b) Within 14 days after service by the Region, post at
its facility in Cincinnati, Ohio, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
forms provided by the Regional Director for Region 8,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 18, 2001.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT file legal proceedings against a union
that lack a reasonable basis in fact and law and are insti-
tuted and prosecuted in order to retaliate against the un-
ion for the union’s protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BRISBEN DEVELOPMENT, INC. 403
WE WILL pay to the Unions the amounts listed below,
plus interest, as reimbursement for the legal fees and
other expenses they incurred defending our lawsuit filed
against them in the U.S. District Court for the Southern
District of Ohio, on or about December 18, 2001.
UNION NAME ATTORNEY’S
FEES OWED
Carpenters $38,760.50
Electrical Workers,
Roofers and Brick-
layers
49,290.00
Plumbers, Painters,
and Plasterers
25,906.00
Pipefitters 12,108.00
TOTAL $126,064.50
BRISBEN DEVELOPMENT, INC.