Omega Construction Services, LLC, (2017)
In the absence of good cause being shown for the failure to file an answer, we deem the allegations of the consolidated complaint to be admitted as true, and we grant the General Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following FINDINGS OF FACT
At all material times, the Respondent has been a corporation with an office and place of business in Tucson, Arizona (Respondent’s facility), and has been a contractor in the construction industry doing multifamily residential, commercial, and industrial construction and repair.
During the 12-month period ending November 18, 2016, the Respondent in conducting its operations described above, performed services valued in excess of $50,000 in States other than the State of Arizona, and purchased and received at the Respondent’s facility
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.
Omega Construction Services, LLC and Roy Evaimalo. Case 28–CA–188536
May 12, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
The General Counsel seeks a default judgment in this case on the ground that the Respondent failed to file an answer to the complaint. Upon a charge and amended charge filed by Roy Evaimalo on November 18 and November 30, 2016, respectively, the General Counsel issued a complaint and notice of hearing on January 31, 2017, against Omega Construction Services, LLC (the Respondent), alleging that it has violated Section 8(a)(1) of the Act. The Respondent failed to file an answer.
On March 9, 2017, the General Counsel filed with the National Labor Relations Board motions to transfer and continue matter before the Board and for default judgment. Thereafter, on March 15, 2017, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed.
On the entire record, the National Labor Relations Board makes the following
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 February 14, 2017, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated February 16, 2017, advised the Respondent that unless an answer was received by February 21, 2017, a motion for default judgment may be filed. In addition, on February 27, 2017, the Region issued another letter to the Respondent, informing it that the Region will file a motion for default judgment with the Board if the Respondent failed to file an answer by March 6, 2017. Nevertheless, the Respondent failed to file an answer.1
1 The uncontradicted assertions in the motion for default judgment indicate that the Region used various means to communicate with the
Respondent, including regular and certified mail, UPS delivery, email, and telephone. After the copy of the charge was returned to the Regional Office, a Board agent called the Respondent’s owner, Danny Lee Anderson, Jr. requesting the Respondent’s current mailing address. Anderson provided an email address and stated that he would provide an updated mailing address the next day, representing that the Respondent was locked out of its facility. The Board agent then sent copies of the charge and amended charge to Anderson at his email address, and Anderson subsequently corresponded with Board agents using his email address. Anderson later informed a Board agent that he was willing to accept service of documents at his personal address. Copies of the charge and amended charge were then sent by regular mail to the Respondent at the personal address provided by Anderson. There is no indication that these documents were returned by the Postal Service. A copy of the complaint was sent by certified mail to the Respondent at Anderson’s address, but no authorized recipient was available. Notice was left that the document was available for pickup, but after the holding time had expired, the document was returned unclaimed to the Board’s Las Vegas Resident Office. The February 16 and February 27, 2017 reminder letters, with attached copies of the complaint, were served on the Respondent at Anderson’s address by UPS delivery, and tracking information indicates they were delivered. In addition, the February 27, 2017 reminder letter with an attached copy of the complaint was sent to Anderson at his email address, and the General Counsel received a read receipt showing that the email had been read. The motion for default judgment was also sent to Anderson at that email address. It is well settled that a respondent’s failure or refusal to accept certified mail or to provide for receiving appropriate service cannot serve to defeat the purposes of the Act. See Cray Construction Group, LLC, 341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003). Further, the failure of the Postal Service to return documents served by regular mail indicates actual receipt of those documents by the Respondent. Id.; Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. sub nom. NLRB v. Sherman, 843 F.2d 1392 (6th Cir. 1988). In any event, the undisputed assertions in the General Counsel’s motion indicate that UPS delivered the reminder letters and attached complaints to Anderson’s personal address...
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