Washington Sprinkler Co.

National Labor Relations Board - Board DecisionsMar 31, 2008

352 N.L.R.B. 48 (N.L.R.B. 2008)

352 NLRB No. 48 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. Washington Sprinkler Company, Inc. f/k/a Washing- ton Sprinkler, Inc. and Road Sprinkler Fitters Local Union 669, UA, AFL–CIO. Cases 5–CA– 31925 and 5–CA–32016 March 31, 2008 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the amended compliance specification. On September 21, 2005, the Board issued a Supple- mental Decision and Order1 that, among other things, ordered the Respondent, Washington Sprinkler Com- pany, Inc., formerly known as Washington Sprinkler, Inc., to make unit employees whole for lost earnings and benefits resulting from the Respondent’s unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. On January 12, 2006, the United States Court of Appeals for the District of Columbia entered its judg- ment enforcing in full the Board’s Order.2 A controversy having arisen over the amount of back- pay due the unit employees and contributions due the funds, on August 24, 2007, the Regional Director issued an amended compliance specification and notice of hear- ing alleging the amounts due under the Board’s Order, and notifying the Respondent that it should file a timely answer complying with the Board’s Rules and Regula- tions. Although properly served with a copy of the amended compliance specification, the Respondent has failed to file an answer.3 1 345 NLRB 912. This supplemental decision supersedes the Deci- sion and Order reported at 344 NLRB 396 (2005), in which the Board denied default judgment with respect to the allegation that Washington Sprinkler, Inc. (the Respondent) violated Sec. 8(a)(5) “by failing to make fund payments as required by the collective-bargaining agree- ment.” The Board stated that certain types of benefit funds are permis- sive subjects of bargaining for which no remedy would be warranted, and that there was no indication as to the nature of the funds involved. In her dissent, Member Liebman stated that she would have granted the General Counsel’s motion in all respects. 2 No. 05-1394. 3 As set forth in the General Counsel’s motion, the compliance offi- cer for Region 5 experienced repeated difficulties in serving the Re- spondent with the amended compliance specification and notice of hearing. After several attempts to serve the Respondent via mail, the Respondent’s principal, Kendrick Evans, was personally served on October 10, 2007. Subsequently, the Regional Director issued several orders postponing the hearing and extending the date for the Respon- dent’s answer in order to accommodate the Respondent. The compli- ance officer again experienced difficulties in serving the Respondent On February 11, 2008, the General Counsel filed with the Board a Motion for Default Judgment, with exhibits attached. On February 13, 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 Respondent again failed to file a response. The allegations in the motion and in the amended com- pliance specification are therefore undisputed. Ruling on the Motion for Default Judgment4 Section 102.56(a) of the Board’s Rules and Regula- tions provides that the 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 Respondent, despite having been advised of the filing requirements, has failed to file an answer to the amended compliance specification. In the absence of good cause for the Respondent’s failure to file an answer, we deem the allegations in the amended compliance specification to be admitted as true, and grant the General Counsel’s Motion for Default Judgment. Accordingly, we conclude that the amounts of backpay due the unit employees are as stated in the compliance specification, and we will order the Respondent to pay those amounts, plus interest accrued to the date of pay- ment. In addition, we conclude that the contractual fringe benefit fund payments owed by the Respondent are as stated in the compliance specification, and we will order the Respondent to pay those amounts to the funds on behalf of the unit employees.5 via mail. Evans was personally served with all of the additional rele- vant documents on December 31, 2007. 4 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. 5 The amended compliance specification alleges that the Respondent failed to provide the Union with the information it requested on Febru- ary 27, 2004, and mail at its own expense a copy of the notice to all current and former employees employed by the Respondent at any time since January 19, 2004. By failing to file an answer, the Respondent has effectively admitted that it has failed to do so. Nevertheless, we find it unnecessary in this proceeding to order the Respondent to do so, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 ORDER The National Labor Relations Board orders that the Respondent, Washington Sprinkler Company, Inc. f/k/a Washington Sprinkler, Inc., Washington, D.C., its offi- cers, agents, successors, and assigns, shall make whole the individuals named below by paying them the amounts following their names, plus interest accrued to the date of payment, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax with- holdings required by Federal and State laws. The Re- spondent also shall make whole those individuals for payments due the contractual fringe benefit funds by paying the amounts set forth. In summary, the amounts owed by the Respondent are as follows: Backpay: DISCRIMINATEE QUARTER NETBACKPAY Adams, Kevin 1st 2004 2nd 2004 $ 1,688.40 3,135.60 Aston, Melvin 1st 2005 2,298.40 Burnette, Glenn 1st 2004 2nd 2004 1st 2005 1,856.40 3,447.60 4,596.80 Butler, Rick 1st 2005 2,475.20 Butler, Tony 2nd 2005 4,596.80 Cyrus, Dwayne 1st 2005 2,699.20 Ferguson, Christopher 1st 2005 4,571.84 Hayes, Michael 1st 2005 2,699.20 Moore, Isom 1st 2005 4,743.60 Moore, Tony 1st 2004 2nd 2004 1st 2005 1,856.40 4,773.60 2,475.20 Murphy, Willie 1st 2005 2,475.20 Price, Gregory 2nd 2005 1,326.00 Randall, Steven 1st 2005 2,475.20 Scott, Elliott 1st 2005 4,596.80 Scott, Ysef 0 Williams, Llewellyn 3rd 2005 1,684.80 Williams, Vernon 0 Willis, Marvin 1st 2005 4,571.84 TOTAL BACKPAY:6 $ 65,044.08 as those actions are required by our previous Order that has been en- forced by the court of appeals. See Ryder System, 302 NLRB 608, 610 fn. 9 (1991), enfd. 983 F.2d 705 (6th Cir. 1993). 6 The amended compliance specification incorrectly lists the total backpay award as $65,044.88. The backpay Order reflects the correct total. Benefit Fund Payments: NASI Welfare Fund: $ 25,731.20 NASI Pension Fund: 19,574.80 NASI Industry Education Fund: 2,270.40 NASI-Local 669 Industry Education Fund: 1,135.207 NASI Supplemental Pension Fund: 7,568.00 TOTAL FRINGE BENEFIT PAYMENTS: 56,279.60 COMBINED TOTAL DUE: $ 121,323.68 Dated, Washington, D.C. March 31, 2008 ______________________________________ Peter C. Schaumber, Chairman ______________________________________ Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 7 The amended compliance specification inadvertently omits the payment to the Charging Party’s NASI Local 669 Education Fund and incorrectly lists the payment to the Supplemental Pension Fund as $1,135.20. The backpay Order reflects the appropriate payment to these funds, as set forth in Exhibit C of the amended compliance speci- fication, attached hereto as appendix A. WASHINGTON SPRINKLER CO. 3 APPENDIX A DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4