ABC Automotive Products Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1995

319 N.L.R.B. 874 (N.L.R.B. 1995)

874
319 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In response to the Respondent’s exceptions, the General Counsel
filed with the Board its brief to the administrative law judge.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
1 307 NLRB 248.
2 At the hearing in the underlying proceeding, when Seymour Perl-
man was asked to identify his son’s position, he testified ‘‘David
Perlman is the president of ABC Automotive Products Corp.’’ (Tr.
249.)
ABC Automotive Products Corp. and Local 365,
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), AFL–CIO. Case 29–CA–
14335
November 30, 1995
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 16, 1995, Administrative Law Judge D.
Barry Morris issued the attached supplemental deci-
sion. The Respondent filed exceptions, and the Charg-
ing Party filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record and the at-
tached supplemental decision in light of the exceptions
and briefs, and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, ABC Automotive Products
Corp., Brooklyn, New York, and ABC Automotive
Products Corp., Philadelphia, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order by paying a total of $371,598
plus interest and additional amounts as computed pur-
suant to New Horizons for the Retarded, 283 NLRB
1173 (1987), and Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979), respectively, less any
taxes withheld pursuant to state and Federal law.
Rosalind Rowen, Esq. and Diane Lee, Esq., of Brooklyn,
New York, for the General Counsel.
Michael P. Pierce, Esq. (Sereni and Lunardi), of Broomall,
Pennsylvania, for the Respondent.
Irving T. Bush, Esq., of New York, New York, for the Re-
spondent.
K. Dean Hubbbard, Jr., Esq. and Yuval D. Bar Kokhba, Esq.
(Eisner & Hubbard, P.C.), of New York, New York, for
the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. On April
27, 1992, the National Labor Relations Board issued an
Order1 directing that ABC Automotive Products Corp. (Re-
spondent) make whole Phillipe Bolisca, Levoyant Brioche,
Eddie Dominick, Pierre Francois, Richard Harrington, Pablo
Lopez, Michael J. Mood, Jerome E. Smith, Arthur Richburg,
and Ronald Williams (the discriminatees) for their losses re-
sulting from Respondent’s unfair labor practices. On Decem-
ber 17, 1992, the United States Court of Appeals for the Sec-
ond Circuit entered its judgment enforcing the Board’s
Order. A controversy having arisen over the amount of back-
pay due each discriminatee, on October 20, 1994, the Re-
gional Director for Region 29 issued an amended backpay
specification and notice of hearing. Answers were filed on
November 8 and December 8, 1994. Seven days of hearing
were held before me in New York City commencing January
9 and ending May 16, 1995. All parties were given full op-
portunity to participate, to produce evidence, to examine and
cross-examine witnesses, to argue orally, and to file briefs.
Briefs were filed by the parties on August 2, 1995.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. SINGLE EMPLOYER
The backpay specification alleges that ABC Automotive
Products Corp., a New York corporation, formerly located at
847 Shepherd Avenue in Brooklyn, New York (ABC Brook-
lyn), and ABC Automotive Products Corp., a Pennsylvania
corporation, located in Philadelphia (ABC Pennsylvania) are
affiliated businesses constituting a single integrated business
enterprise.
A. ABC Brooklyn
ABC Brooklyn was engaged in the distribution and re-
manufacture of automotive products. Seymour Perlman was
chief executive officer between 1986 and 1990. Seymour
Perlman’s son, David, was the president of ABC Brooklyn
from 1986–1988. David’s title changed from president to
general manager in 1988 and he continued as general man-
ager through 1990.2 Between 1988 and 1990 David ran the
day-to-day operations of ABC Brooklyn and participated
with his father in negotiations with Local 365 UAW (the
Union).
B. ABC Pennsylvania
In 1988 David purchased a plant from Diversified Inter-
ests, an automotive parts remanufacturer located in Philadel-
phia. David then changed the name to ‘‘ABC Automotive
Products Corp.,’’ the same name as ABC Brooklyn, and was
its president and sole shareholder. Between 1988 and 1990
David spent most of his time running ABC Brooklyn.
875ABC AUTOMOTIVE PRODUCTS CORP.
Jerome Smith, a discriminatee employed by ABC Brook-
lyn, credibly testified that during 1988 and 1989 David and
Seymour instructed him to load equipment and products onto
trucks for shipping to ABC Pennsylvania. Smith also
credibly testified that desks and office equipment were
shipped from ABC Brooklyn to ABC Pennsylvania.
C. Intrafamily Loan
David Perlman testified that he and his mother, Leona
Perlman, loaned ABC Brooklyn $285,000. David testified
that to secure the loan he and his mother had a security inter-
est in the equipment, inventory, and accounts receivable of
ABC Brooklyn. At the hearing Respondent did not produce
a copy of the loan or a copy of any document evidencing
the security interest.
D. Letterheads, Catalogues, and Invoices
Both ABC Brooklyn and ABC Pennsylvania used identical
letterhead, product catalogues, and invoices. Peter Fullerton,
the Union’s vice president, credibly testified that in 1988 Re-
spondent’s Philadelphia address was listed together with the
Brooklyn address on ABC Brooklyn’s letterhead. The record
contains Respondent’s letter dated June 19, 1989, which lists
both the Brooklyn and Philadelphia addresses. Respondent’s
joint product catalogues for 1991 list ABC Pennsylvania’s
Philadelphia address as the ‘‘manufacturing’’ address and
ABC Brooklyn’s address as the ‘‘Executive Offices.’’ Simi-
larly, Respondent’s invoices during 1990 contain both the
Brooklyn and Philadelphia addresses. Richard Deosingh, the
accounting manager for F & S Distributors, a customer of
Respondent since 1989, credibly testified that there had been
no changes in the business relationship between F & S and
Respondent except for the fact that while in 1989 invoices
were payable to Respondent at its Brooklyn address, since
January 1991 payments were made to Respondent at its
Philadelphia address.
E. Control of Labor Relations
ABC Brooklyn and the Union were parties to a collective-
bargaining agreement between 1986 and 1989. Fullerton
credibly testified that he always dealt with both Seymour and
David and that they both told him that they had authority to
represent Respondent. In June and July 1989 negotiations
were conducted between the Union and ABC Brooklyn re-
garding the collective-bargaining agreement which was to ex-
pire in August. David and Seymour represented ABC Brook-
lyn during the negotiations.
F. Common Management and Employees
After negotiations failed to produce an agreement, a strike
commenced on August 17, 1989, and lasted until August 19,
1991. Prior to the strike there were approximately 20 em-
ployees at ABC Brooklyn. After the strike began there were
approximately five employees who remained and continued
to work in the plant while the striking employees were pick-
eting. ABC Brooklyn employees, Flood, Esposito, Torres,
and Brown were transferred to ABC Pennsylvania. Flood,
who built distributors at ABC Brooklyn, performed the same
work for ABC Pennsylvania. Esposito, who worked as a sec-
retary in the Brooklyn facility was transferred to ABC Penn-
sylvania for a month to perform secretarial work. Brown,
who was the sales manager of ABC Brooklyn, became the
sales manager of ABC Pennsylvania.
G. Transfer of Equipment, Inventory, and Cusomer List
Mood testified that he delivered parts from ABC Brooklyn
to ABC Pennsylvania during 1989 and 1990. He testified that
he delivered testing equipment and the ‘‘bench area that we
used to rebuild rack and pinions.’’ David Perlman testified
that in conjunction with the closing of the Brooklyn plant,
after ABC Brooklyn defaulted on the family loan, he and his
mother exercised their security interest in the inventory,
equipment, and accounts receivable of ABC Brooklyn. He
testified that he and his mother sold the inventory, accounts
receivables, and equipment to ABC Pennsylvania for
$100,000. David testified that a customer list contains very
valuable ‘‘proprietary information.’’ He acknowledged that
ABC Pennsylvania ‘‘took over’’ the customer list of ABC
Brooklyn.
II. EFFORTS OF DISCRIMINATEES TO
OBTAIN EMPLOYMENT
On August 29, 1989, the discriminatees struck Respondent.
The strike lasted until August 19, 1991. The striking employ-
ees received $100 per week and were required to be on the
picket line 1 day per week.
Bolisca testified that he did not look for employment dur-
ing 1989. He further testified that his efforts to obtain em-
ployment consisted of looking at newspaper ads, speaking to
friends about job opportunities, and visiting stores. Brioche
testified that he began looking for employment while on the
picket line and looked at newspaper ads. He also testified
that he applied at Pathmark for a job and ‘‘a lot of places
I went to they just didn’t give me any application because
there were no jobs.’’
Dominick was the shop steward and he testified that he
was on the picket line every day. He testified that Fullerton
took him to a number of places to seek employment and that
among the places he applied to for employment were A &
S, a garbage disposal company, paint factories, and hospitals.
He testified that he was hospitalized during 1993 and he was
unable to work for approximately 2-1/2 months. He further
testified that he developed a heart problem in January 1995
and was required to be connected to an oxygen tank begin-
ning in February 1995. He testified at the hearing connected
to an oxygen tank.
Francois testified that he began looking for work in 1990.
He testified that he made telephone calls searching for work
and among the companies he looked for work were Murray
Auto Parts, RBG, and Dorlette Motors. In January 1991 he
was hired as a part-time employee by Atlantic Express and
he became a full-time employee there in September 1991. He
testified that he never received an offer of reinstatement from
Respondent.
While Harrington testified that he would not have taken
full-time work while he was on strike, there was no evidence
that he was offered a job which he declined. He testified that
he looked for work beginning August 1989. Among the com-
panies where he applied were Daily News, several lumber-
yards, Pathmark, and a liquor store. He testified that he
earned approximately $3000 per year through 1992. He fur-
ther testified that in the latter part of 1989 he had a hernia
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The General Counsel has submitted Richburg’s Social Security
report. It is admitted into evidence as G.C. Exh. 28.
4 As noted earlier, the record is unclear as to David’s title. At the
hearing in the underlying proceeding, Seymour Perlman identified
his son as president.
5 At the hearing in the underlying proceeding, Seymour Perlman
responded affirmatively to the statement, ‘‘You can only testify to
what happened since you owned the company.’’ (Tr. 303.)
operation and was hospitalized for 2 weeks and required an
additional month for recuperation.
Mood testified that he began looking for work in 1990. He
testified that he applied to Sears, a shoe store, and read the
ads in the newspapers. He was incarcerated from July
through December 1992. He further testified that he did not
look for work in 1993 and that he was again incarcerated be-
ginning April 1993.
Arthur Richburg died on November 21, 1994.3 His broth-
er, Caesar Richbow, testified that he saw Arthur looking at
newspaper ads. Richbow further testified that Arthur told him
he was looking for work. He, however, did not testify that
he actually saw his brother looking for work. Respondent’s
counsel objected to the testimony on the basis of hearsay. I
sustained the objection.
Smith testified that beginning in August 1989 he received
job applications from the Union which he filled out. He testi-
fied that he looked at newspaper ads every day and applied
for some jobs from those ads. He also testified that soon
after the beginning of the strike he started working for his
landlord and received $100 per week for approximately 1
year. He began working for Regency Service in February
1992 and remained there until February 1994, when he was
laid off. He testified that since February 1994 he looked for
many jobs, including jobs at such companies as the Times,
OPC, and Big R.
At the hearing the backpay specification was amended so
that no backpay is being claimed for Williams after the first
quarter of 1993. Williams testified that beginning in August
1989 he regularly looked at newspaper ads and applied at
various neighborhood companies including Honeywell, RPS,
and Pergament. He testified that after his unemployment ben-
efits ran out in April 1991 he did some odd jobs working
on three cars for which he was paid $90 per car. He testified
that he was hospitalized in June 1991 and that he was unable
to work after that time.
III. DISCUSSION AND CONCLUSIONS
A. Single Employer
In Radio Union Local 1264 v. Broadcast Service, 380 U.S.
255, 256 (1965), the Supreme Court, in considering which
factors determine whether nominally separate business enti-
ties should be treated as a single employer, stated:
The controlling criteria, set out and elaborated in
Board decisions, are interrelation of operations, com-
mon management, centralized control of labor relations
and common ownership.
In Blumenfeld Theatres Circuit, 240 NLRB 206, 215
(1979), the Board stated:
We conclude that ‘‘single employer status,’’ for pur-
poses of the National Labor Relations Act, depends
upon all the circumstances of the case, that not all of
the ‘‘controlling criteria’’ specified by the Supreme
Court need be present; that, in addition to the criterion
of common ownership or financial control, the other
criteria, whether or not they are present at the top level
of management, are ‘‘controlling’’ indicia of the actual
exercise of the power of common ownership or finan-
cial control; and that the standard for evaluating such
exercise of power is whether, as a matter of substance,
there is the ‘‘arm’s-length relationship found among
unintegrated companies.’’ [Footnote omitted.]
Concerning interrelation of operations, the name of ABC
of Pennsylvania was changed to be the very same name as
ABC Brooklyn and ABC Pennsylvania ‘‘took over’’ the cus-
tomer list of ABC Brooklyn. There was a transfer of office
equipment, testing machines, and inventory from ABC
Brooklyn to ABC Pennsylvania. Those companies utilized
identical letterhead, catalogues, and invoices. Respondent
used catalogues and invoices that listed ABC Pennsylvania’s
Philadelphia address as the ‘‘manufacturing’’ address and
ABC Brooklyn’s address as the ‘‘Executive Offices.’’
With respect to common management, during 1988 to
1990 David Perlman was concurrently running the operation
of both locations as general manager of ABC Brooklyn and
president of ABC Pennsylvania.4 When David’s title changed
from president to general manager of ABC Brooklyn he ran
the day-to-day operations of ABC Brooklyn and participated
in all major decisions.
Concerning centralized control of labor relations, David
participated in the negotiations with the Union between 1988
and 1989 and had the authority to represent the Company.
Concurrently, as president of ABC Pennsylvania, he con-
trolled labor relations there.
With respect to common ownership, it appears that Sey-
mour Perlman was the owner of ABC Brooklyn5 and that
David was the sole shareholder of ABC Pennsylvania. Nev-
ertheless, the Board has held that where close family mem-
bers owned two separate corporations the companies were
deemed to be a single employer where the same individual
was chief executive officer in each company and exercised
virtually unrestricted operational, financial, administrative,
and labor relations control over both companies. Hahn Mo-
tors, 283 NLRB 901 (1987). See also Blumenfeld Theatres
Circuit, supra, 240 NLRB at 216.
In addition, as stated in Blumenfeld Theatres Circuit,
supra, 240 NLRB at 215, it is instructive to examine whether
there is an ‘‘arms-length relationship found among uninter-
grated companies.’’ David Perlman testified that he and his
mother loaned $285,000 to ABC Brooklyn and obtained a se-
curity interest in the inventory and assets of ABC Brooklyn
which were later transferred to ABC Pennsylvania. Respond-
ent produced no written evidence of the loan or of the secu-
rity agreement. This would not appear to be the ‘‘arms-
length’’ relationship normally found among companies which
are unintegrated. Accordingly, under all of the circumstances,
I believe that ABC Brooklyn and ABC Pennsylvania are af-
filiated businesses constituting a single integrated business
enterprise.
877ABC AUTOMOTIVE PRODUCTS CORP.
B. Efforts to Obtain Employment
An employer may mitigate his backpay liability by show-
ing that a discriminatee ‘‘willfully incurred’’ loss by a
‘‘clearly unjustifiable refusal to take desirable new employ-
ment.’’ Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199–
200 (1941). This, however, is an affirmative defense and the
burden is on the employer to prove the necessary facts.
NLRB v. Mooney Aircraft, 366 F.2d 809, 813 (5th Cir.
1966); Sioux Falls Stock Yards Co., 236 NLRB 543, 551
(1978); O.K. Machine & Tool Corp., 279 NLRB 474, 477
(1986). Bolisca testified that he did not look for employment
during 1989. Francois testified that he began looking for
work in 1990. Similarly, Mood testified that he began look-
ing for work in 1990 and that he did not look for work in
1993. Otherwise the record contains evidence demonstrating
the efforts made by the discriminatees in attempting to seek
employment. While in some instances the job search records
were incomplete and the discriminatees were unable to re-
member certain specifics as to job applications, ‘‘it is well
established that employees are not disqualified from backpay
merely because of poor recordkeeping or uncertainty as to
memory.’’ Hickory’s Best, Inc., 267 NLRB 1274, 1276
(1983); Diversified Case Co., 272 NLRB 1099, 1100 (1984).
Accordingly, I find that Respondent has not sustained its bur-
den of showing that the discriminatees did not ‘‘make rea-
sonable efforts to find interim work.’’ NLRB v. Coca-Cola
Bottling Co., 360 F.2d 569, 575–576 (5th Cir. 1966).
C. Strike Benefits
The strike began August 29, 1989, and lasted until August
19, 1991. The striking employees received $100 per week
from the Union and were required to be on the picket line
1 day per week. Respondent argues that these sums should
be deducted from gross backpay as interim earnings. As was
stated in Rice Lake Creamery Co., 151 NLRB 1113, 1131
(1965), enfd. as modified 365 F.2d 888, 893 (D.C. Cir.
1966):
If the strike benefits received by the discriminatees
constitute wages or earnings resulting from interim em-
ployment, they are proper deductions from gross pay. If
these sums represent collateral benefits flowing from
the association of the discriminatees with their union,
then these sums are not deductible. The burden of prov-
ing that the strike benefits constituted wages for picket-
ing and thus were in the nature of interim earnings, was
on Respondent.
In Madison Courier, 202 NLRB 808, 810 (1973), re-
manded on other grounds 505 F.2d 391 (D.C. Cir. 1974), the
Board stated:
There is no record evidence indicating that the receipt
of strike benefits by the unfair labor practice strikers in
any way interfered with their efforts to locate suitable
interim employment. In the absence of such evidence
we find that the claimants’ right to receive backpay
should not be diminished by the fact that the claimants
picketed, attended union-sponsored training sessions, or
received strike benefits roughly comparable to their
take-home pay during the period of the Respondent’s li-
ability.
While the discriminatees were required to picket 1 day per
week, I believe that Respondent has not satisfied its burden
of proving that the strike benefits constituted ‘‘wages for
picketing.’’ In addition, there is no evidence indicating that
the receipt of strike benefits by the discriminatees ‘‘in any
way interfered with their efforts to locate suitable interim
employment.’’ Accordingly, I conclude that the strike bene-
fits should not be deducted from the gross backpay.
D. Deductions from Backpay
Bolisca testified that he did not look for employment dur-
ing 1989. The backpay specification shows a computation of
net backpay in the amount of $4284 for the third and fourth
quarters of 1989. I am deducting that amount from the sum
of $28,362 which appears in the specification. Accordingly,
the net backpay amount due Bolisca is $24,078.
Dominick testified that he was hospitalized during 1993
and was unable to work for approximately 10 weeks. The
backpay specification indicates that he was unavailable for 8
weeks due to medical reasons. I am deducting from the back-
pay figure for 1993 an additional 2 weeks’ backpay, which
totals $568. Accordingly, the net backpay amount for
Dominick is $72,136.
Francois testified that he began looking for work in 1990.
The backpay specification shows a computation of net back-
pay in the amount of $4828 for the third and fourth quarters
of 1989. I am deducting that amount from the sum of
$22,520 which appears in the specification. Accordingly, the
net backpay amount due Francois is $17,692.
Harrington testified that in the latter part of 1989 he was
hospitalized for 2 weeks and required an additional month
for recuperation. The backpay specification shows that he
was unavailabe for 2 weeks during the last quarter of 1989
and for 4 weeks during the first quarter of 1990 due to medi-
cal reasons. It appears that the deductions have already been
made in Harrington’s net backpay computation.
With respect to Mood, the General Counsel amended the
backpay specification to reflect that it would not claim back-
pay for the third and fourth quarters of 1992. In addition, the
General Counsel has amended the specification to reflect that
Mood had interim earnings of $300 per week making deliv-
eries for Respondent from August 1989 until the end of the
first quarter of 1990. The General Counsel’s brief claims the
net backpay amount for Mood to be $30,856. Mood testified
that he began looking for work in 1990. The specification
shows net backpay for the third and fourth quarters of 1989
totaling $4420. I am deducting that amount. Mood also testi-
fied that he did not look for work in 1993 and that he was
again incarcerated beginning April 1993. The backpay speci-
fication shows a total of $6760 for 1993, which I am deduct-
ing. Therefore, I am deducting $11,180 from the $30,856 re-
quested by the General Counsel. Mood is due as net backpay
the sum of $19,676.
In its brief the General Counsel has amended the claim for
Williams to reflect Williams’ testimony that he was hospital-
ized for 1-1/2 in June 1991 and spent one-half month
recuperating after his hospitalization. The General Counsel
asserts the amount due to Williams is $40,086. Williams tes-
tified that he was hospitalized in June 1991 and that he was
unable to work after that time. The backpay specification
lists as net backpay $20,748 for the period beginning the
third quarter of 1991 through the first quarter of 1993. Since
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 Under New Horizons, supra, interest is computed at the ‘‘short-
term Federal rate’’ for the underpayment of taxes as set out in the
1986 amendment to 26 U.S.C. § 6621.
8 Since Richburg is deceased, the backpay due him shall be paid
to the legal administrator of the estate or to any person authorized
to receive such payment under applicable state law.
Williams testified that he was unable to work during that
time, I am deducting that amount from the sum requested by
the General Counsel and find that the amount of backpay due
Williams is $19,338.
CONCLUSION OF LAW
I find that ABC Brooklyn and ABC Pennsylvania are af-
filiated businesses constituting a single integrated business
enterprise. I further find that the backpay computation, as
amended, is appropriate. Respondent has not sustained its
burden of showing that there should be any additional off-
sets. See NLRB v. Brown & Root, 311 F.2d 447, 454 (8th
Cir. 1963).
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, ABC Automotive Products Corp., Brook-
lyn, New York, and ABC Automotive Products Corp., Phila-
delphia, Pennsylvania, its officers, agents, successors, and as-
signs, shall pay the sum of $83,838 to the Union’s welfare
fund and shall pay to each of the following employees as net
backpay the amounts set forth opposite each name, plus in-
terest computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987),7 less tax
withholdings required by Federal and state laws:
Phillipe Bolisca $24,078
Michael Mood 19,676
Levoyant Brioche 42,940
Arthur Richburg8 15,048
Eddie Dominick 72,136
Jerome Smith 34,200
Pierre Francois 17,692
Ronald Williams 19,338
Richard Harrington 42,652