Mays Electric Co.

National Labor Relations Board - Board Decisions

Apr 10, 2008

352 N.L.R.B. 49 (N.L.R.B. 2008)

352 NLRB No. 49
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive 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.
Mays Electric Co., Inc. and Mays Electrical Services
Corporation and Vincent T. Mays and Interna-
tional Brotherhood of Electrical Workers, Local
666, AFL–CIO. Cases 5–CA–31247 and 5–CA–
31371
April 10, 2008
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The General Counsel seeks default judgment in this
case on the ground that the Respondents have failed to
file an answer to the compliance specification.
On September 30, 2004, the Board issued a Decision
and Order1 that, among other things, ordered Respondent
Mays Electric Company, Inc. (MEC) to make whole dis-
criminatee Allen Morgan for any loss of earnings or
other benefits he may have suffered as a result of MEC’s
unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act. On October 17, 2005, the United States
Court of Appeals for the Fourth Circuit entered its judg-
ment enforcing the Board’s Order.2
A controversy having arisen over the amount of back-
pay due the discriminatee, the Regional Director issued a
compliance specification and notice of hearing on De-
cember 7, 2007,3 alleging the amount of backpay due
under the Board’s Order, and notifying the Respondents
that they should file an answer by December 28, 2007,
complying with the Board’s Rules and Regulations.
The compliance specification also alleges that at all
material times and continuing until 2005, Respondent
MEC, a corporation with an office and place of business
in Lynchburg, Virginia, was engaged in the construction
business as an electrical contractor; that since about
January 23, 2003, and continuing to date, Respondent
Mays Electrical Service Corporation (MESC), with an
office and place of business in Lynchburg, Virginia, has
been engaged in the construction business as an electrical
contractor; that Respondent Vincent T. Mays (Mays) was
the president of Respondent MEC, owned 100 percent of
the stock in Respondent MEC, since January 23, 2003,
served as the president of Respondent MESC, owns 100
percent of the stock in Respondent MESC, and is a su-

1 343 NLRB No. 20.
2 No. 05–1862.
3 The compliance specification initially issued on November 30,
2007, but was inadvertently sent to the wrong address. Consequently,
the Regional Director reissued the compliance specification on Decem-
ber 7.
pervisor and an agent within the meaning of Section
2(11) and (13) of Respondent MEC and Respondent
MESC; that Respondent Mays made all business and
major construction decisions for Respondent MEC and
Respondent MESC, including but not limited to all final
bid submissions, including determining whether Respon-
dent MEC or Respondent MESC would bid new work
and perform work on successful bids; that Respondent
Mays controlled the day-to-day management, labor rela-
tions policies, and financial resources of Respondent
MEC and Respondent MESC; and that since late 2003,
Respondent Mays has diverted the assets of Respondent
MEC for his own use, by using the assets of Respondent
MEC for the purposes of satisfying the terms of a settle-
ment in a court proceeding involving a personal matter,
and in an effort to render Respondent MEC insolvent and
to make it incapable of fulfilling its obligations, Respon-
dent Mays directed the purchase of a property through
English Tavern Development, a company wholly owned
by Respondent Mays and engaged in a business unrelated
to electrical contracting, at an artificially low price and
later selling it for personal gain at a profit. Based on the
conduct described above, the compliance specification
alleges that Respondent Mays individually acted as an
alter ego of Respondent MEC and of Respondent MESC,
and thereby is personally liable, jointly and severally,
with Respondent MEC and Respondent MESC for reme-
dying the unfair labor practices of Respondent MEC.
The compliance specification further alleges that about
June 2003, Respondent MESC began acting as a single,
integrated enterprise with Respondent MEC; that since
about January 2003 and continuing to 2005, Respondent
MESC maintained the same business address, business
telephone, cell phone accounts, website address, and
goodwill as Respondent MEC; that from 2003 to 2004,
Respondent MESC regularly paid only nominal rental
fees to Respondent MEC for office space, vehicle, and
equipment use; that around April 2004 and continuing
until 2004, Respondent MEC paid construction equip-
ment, office equipment, office furniture, and vehicle ex-
penses on behalf of Respondent MESC to English Tav-
ern Development; that at all material times, Robin E.
Mays was the vice president of Respondent MEC and
since about January 23, 2003, has been the vice president
of Respondent MESC, and at all material times has been
a supervisor and an agent within the meaning of Section
2(11) and (13) of the Act of Respondent MEC and Re-
spondent MESC.
The compliance specification additionally alleges that
beginning about June 2003 and continuing to 2005, Re-
spondent MESC employed the same employees and su-
pervisors as Respondent MEC; that certain employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
performed work on Respondent MEC’s jobsites and were
compensated by Respondent MEC during the same pay
period(s) that they performed work on Respondent
MESC’s jobsites and were compensated by Respondent
MESC; that employees of Respondent MEC and Re-
spondent MESC were paid identical individual hourly
wage rates and received identical individual benefits
when performing work for Respondent MEC or for Re-
spondent MESC; that all terms and conditions were the
same, regardless of whether employees were performing
work for Respondent MEC or Respondent MESC; that
Respondent MEC and Respondent MESC maintained the
same workers compensation insurance policy; that Re-
spondent MESC has advertised itself as a continuation of
Respondent MEC, including by promoting the trade ex-
perience gained by Respondent MEC, and using the sub-
stantially same corporate logo as Respondent MEC; that
beginning in January 2003 and continuing to about April
2004, Respondent MESC established credit with, and
procured supplies from, many of the same suppliers used
by Respondent MEC; that in establishing credit, Respon-
dent MESC relied on the goodwill earned by Respondent
MEC; that beginning about June 2003 and continuing to
2005, Respondent MEC and Respondent MESC per-
formed work for the same customers; and that beginning
in July 2003 and continuing until at least April 2005,
checks from customers made payable to Respondent
MEC were deposited directly into an account held by
Respondent MESC. Based on the conduct described
above, that compliance specification alleges that Re-
spondent MEC and Respondent MESC are a single, inte-
grated enterprise.
Further, the compliance specification alleges that at all
material times, Respondent MEC and Respondent MESC
have been affiliated business enterprises with common
officers, ownership, directors, management, and supervi-
sion; have formulated and administered a common labor
policy; have shared common premises and facilities;
have provided services for and made sales to each other;
have interchanged personnel with each other; and have
held themselves out to the public as single-integrated
business enterprises; and that based on the operations
described above, Respondent MEC and Respondent
MESC have been the single employer of the employees
of Respondent MEC.
Although properly served with a copy of the compli-
ance specification, the Respondents failed to file an an-
swer.4

4 As stated above, copies of the compliance specification were sent
by certified mail on December 7, 2007. On December 11, having
learned that MEC refused delivery of the December 7 mailing, the
Regional Attorney sent four envelopes to Mays by regular mail, each of
On February 11, 2008, the General Counsel filed with
the Board a Motion for Default Judgment, with exhibits
attached. On February 15, 2008, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be
granted. The Respondents failed to file a response. The
allegations in the motion and in the amended compliance
specification are therefore undisputed.
Ruling on the Motion for Summary Judgment5
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) of the Board's Rules and Regula-
tions provides that if the respondent fails to file any an-
swer 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 respondent, 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 Respondents’ failure to file
an answer, we deem the allegations in the compliance

which contained a copy of the compliance specification and a letter
advising him that a Motion for Default Judgment would be filed if he
failed to file an answer to the compliance specification by the close of
business on January 4, 2008. Two envelopes were mailed to Mays’
home address and two envelopes to MESC’s address—one mailed to
each address contained the return address of the Region, and one did
not. On December 20 and 26, 2007, the envelopes with the Region’s
return address were returned to the Regional office marked “return to
sender”; however, there is no evidence that the unmarked envelopes
were returned.
In addition, copies of the Notice to Show Cause were sent to the Re-
spondent by certified and regular mail on February 15, 2008. The letter
sent by regular mail was returned on March 3, 2008, and the certified
letter was returned on March 6, 2008. Both were marked “return to
sender.” Subsequently, an additional copy of the Notice to Show Cause
was sent by regular mail on March 6, 2008, and it was returned on
March 18, 2008, and marked “return to sender.”
It is well-settled that a party’s failure to accept certified mail or to
provide for appropriate service cannot serve to defeat the purposes of
the Act. See, e.g., I.C.E. Electric, Inc., 339 NLRB 247 fn. 2 (2003).
Accordingly, we find that the Respondents were properly served with
the compliance specification.
5 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,
Chairman Schaumber and Member Liebman 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.
MAYS ELECTRIS CO. 3
specification to be admitted as true,6 and grant the Gen-
eral Counsel’s Motion for Default Judgment. Accord-
ingly, we conclude that (1) the net backpay due the dis-
criminatee is as stated in the compliance specification;
(2) MEC and MESC are a single employer as alleged,
and as such are joint and severally liable for the amount
due the discriminatee under the Board’s Order; and (3)
Mays is the alter ego of MEC and MESC, and as such is
personally liable, jointly and severally with MEC and
MESC, for the amount due the discriminatee. We will
therefore order the Respondents to pay that amount to
Allen Morgan, plus interest accrued to the date of pay-
ment.7
ORDER
The National Labor Relations Board orders that the
Respondents, Mays Electric Co., Inc., and Mays Electri-

6 We note and correct two mathematical errors in the General Coun-
sel’s Exhibit C. First, the correct amount of net backpay owed the
discriminatee is $7,170.27, not $7,170.26. Second, we note that the
amount of interim earnings in column 7 should be $170,107.51, not
$95,039.70; however, the change in this total does not affect the
amount of backpay owed.
7 In the compliance specification, the General Counsel seeks com-
pound interest computed on a quarterly basis for any monetary amounts
owing to the discriminatee. Having duly considered the matter, we are
not prepared at this time to deviate from our current practice of assess-
ing simple interest. See, e.g., Rogers Corp., 344 NLRB 504 (2005).
cal Services Corporation, Lynchburg, Virginia, their of-
ficers, agents, successors, and assigns, and Vincent T.
Mays, an individual, shall jointly and severally make
Allen Morgan whole by paying him the amount follow-
ing his name, plus additional net backpay and interest
which may accrue in the absence of a valid offer of rein-
statement, plus interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), minus tax
withholdings required by Federal and State laws:
Allen Morgan $7,170.26
TOTAL BACKPAY DUE: $7,170.26
Dated, Washington, D.C. April 10, 2008
Peter C. Schaumber, Chairman
Wilma B. Liebman, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD