Ohio Container Service, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1985

277 N.L.R.B. 305 (N.L.R.B. 1985)

OHIO CONTAINER SERVICE 305
Ohio Container Service, Inc.; Myron E. Wasserman,
Trustee in Bankruptcy and William H.' Blomer.
Case 9-CA-17493
12 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
Upon a charge filed by William H. Blomer on 1
October 1981, the General Counsel of the National
]Labor Relations Board issued a complaint and
notice of hearing on 27 October 1981. The General
Counsel issued an amended complaint on 19 July
1982, a second amended complaint on 12 August
1982, and an order consolidating proceedings,
backpay specification, and notice of hearing on 18
August 1982. The complaint as amended alleges
that the Respondent, Ohio Container Service, Inc.,
engaged in certain conduct in violation of Section
8(a)(1) and (3) of the National Labor Relations
Act. The complaint as amended also alleges that
since 22 June 1982 the Respondent's trustee in
bankruptcy, Myron E. 'Wasserman, has been an
alter ego of, or a successor in bankruptcy to, the
Respondent. Copies of the charge, the complaint as
amended, and the backpay specification were
served on the parties. The Respondent filed an
answer to the complaint on 30 November 1981.
Wasserman filed an answer to the amended com-
plaint in July 1982, and an answer to the second
amended complaint on 24 August 1982. The an-
swers admitted in part and denied in part the alle-
gations of the complaint as amended. The record
does not indicate that an answer to the backpay
specification was filed. On 30 June 1982 Wasser-
man filed a notice of bankruptcy and automatic
stay, with an attached order converting a Chapter
11 case to a case under Chapter 7.1
The parties subsequently filed a motion to trans-
fer the proceeding to the Board and a stipulation of
facts. The parties stipulated that they waived a
hearing before, and a ruling on motions by, an ad-
ministrative law judge, and they further stipulated
that they desired to submit the case directly to the
Board for findings of fact, conclusions of law, and
an order. The parties also agreed that no oral testi-
mony is necessary, and that the entire record in
this case shall consist of the stipulation and motion,
the complaint as amended, the answers, the back-
pay specification, and the notice of bankruptcy and
' The complete title of the attached document was "Order converting
Chapter 11 case to case under Chapter 7, order for meeting of creditors
and fixing times for filing objections to discharge and fol filing com-
plaints to determine dischargeability of certain debts, combined with
notice thereof and automatic stay."
automatic stay with the attached order converting
a Chapter 11 case to a Chapter 7 case.
The Board subsequently issued an order approv-
ing the stipulation and transferring the proceeding
to the Board. The General Counsel filed a brief on
13 December 1982.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record and
the brief, and makes the following
FINDINGS OF FACT
1. THE BUSINESS, OF THE EMPLOYER
The Respondent, Ohio Container Service, Inc.,
was an Ohio corporation engaged in the local and
longhaul shipment of overseas containers, with an
office and place of business at 10648 Evendale
Drive, Cincinnati, Ohio. In the course and conduct
of its operations, the Respondent derived gross rev-
enues in excess of $50,000 from the interstate trans-
portation of freight during the last 12 months of its
operations. The backpay specification indicates that
on 28 January 1982 the Respondent effectively
ceased its trucking operations.
Since about 22 June 1982, Myron E. Wasserman
has been the trustee In re: Ohio Container Service,
Inc., Case No. B 82-0296. That case is a proceed-
ing under Chapter 7 of the Bankruptcy Code of
1978, 11 U.S.C. § 101 et seq., and is presently
pending before the United States Bankruptcy Court
for the Northern District of Ohio. Wasserman has
not been specifically authorized to operate the busi-
ness of Ohio Container Service, Inc., the debtor in
the bankruptcy proceeding, and he has not in fact
operated Ohio Container Service, Inc., as an ongo-
ing business. Wasserman has only those powers and
duties of a trustee in bankruptcy as set forth in
Chapter 7 of the Bankruptcy Code, and he is in the
process of liquidating the assets of the Respondent.
The parties stipulated, and we find, that until 16
June 1982 the Respondent was an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
We find that Truck Drivers, Chauffeurs and
Helpers Local Union No. 100, an affiliate of the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (the
Union), is a labor organization within the meaning
of Section 2(5) of the Act.
277 NLRB No. 25
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Facts
During the early part of August 1981,2 the Re-
spondent's dispatcher and operations manager,
England, and its terminal manager, Brinkel, threat-
ened employees at the Evendale facility that the
Respondent would close or transfer its operations if
they selected the Union as their collective-bargain-
ing representative. Identical threats were made by
the Respondent's dispatcher and operations manag-
er, Harris, during the week of 14 September, and
by the Respondent's vice president, Bush, about 24
September. 3
The parties stipulated that in order to discourage
the union activities of employees, England told an
employee on 7 May that the Respondent's oper-
ations were nonunion, and Brinkel told an employ-
ee on 27 June that the Respondent was a nonunion
company and would never be union. Brinkel also
told employees on 24 September that they would
not be allowed to carry out their scheduled dis-
patches because they had selected the Union as
their collective-bargaining representative.
On 24 September the Respondent discharged or
laid off employees George Behymer, William
Blomer, and Ray Woodbridge because they joined,
supported, or assisted the Union and because they
engaged in other protected concerted activities, in
order to discourage employees from engaging in
such activities.
B. Contentions of the Parties
The Respondent stipulated that the discharges or
layoffs of Behymer , Blomer, and Woodbridge vio-
lated Section 8(a)(3) and (1). It further stipulated
that the statements made by England , Brinkel,
Harris, and Bush violated Section 8 (a)(1). The only
dispute concerns the status of Wasserman, the
trustee in bankruptcy . The complaint as amended
alleges that since 22 June 1982 Wasserman has been
a successor in bankruptcy to, or an alter ego of, the
Respondent . In his answers to the complaint as
amended, Wasserman denies that he is a successor
to or an alter ego of the Respondent.4
Unless otherwise specified, all dates herein refer to 1981
The parties stipulated that England, Brinkel, Harris, and Bush are su-
pervisors within the meaning of Sec 2(11) of the Act and agents within
the meaning of Sec 2(13) of the Act.
4 In his notice of bankruptcy and automatic stay, Wasserman requests
that this proceeding be stayed pursuant to the Bankruptcy Code It is
well established as a matter of law that the Board's jurisdiction to hear
and determine charges of unfair labor practices are exempted from the
automatic stay provisions of the Bankruptcy Act under the exception of
11 U S C § 362(b)(4). See Goldstein Co, 274 NLRB 682 (1985), and cases
cited therein at fn I
In her brief the General Counsel contends that
Wasserman is an alter ego or successor for remedi-
al purposes in his capacity as a trustee.
C. Conclusions
Prior to the Supreme Court's decision in NLRB
v. Bildisco & Bildisco, 465 U.S. 513 (1984), the
Board had found that debtors-in-possession and
trustees in bankruptcy were alter egos of the pre-
bankruptcy employer.5 In Bildisco the Court found
it unnecessary to decide whether "alter ego" or
"successor" more properly describes a debtor-in-
possession. The Court rejected the argument that a
debtor-in-possession is a wholly "new entity," and
concluded that "it is sensible to view the debtor-in-
possession as the same `entity' which existed before
the filing of the bankruptcy petitions."6
Bildisco is distinguishable from this case, because
in Bildisco the Court was concerned with whether
a debtor-in-possession commits an unfair labor
practice when it unilaterally rejects a collective-
bargaining agreement before formal rejection by
the Bankruptcy Court. The Court concluded that
"from the filing of a petition in bankruptcy until
formal acceptance, the collective-bargaining agree-
ment is not an enforceable contract within the
meaning of NLRA sec. 8(d)."7 In this case, there is
no allegation that the Respondent violated Section
8(a)(5), there is no evidence that the parties entered
a collective-bargaining agreement, and we are pre-
sented only with allegations of noncontractual vio-
lations of Section 8(a)(1) and (3).
We see nothing in Bildisco which precludes the
Board from directing the trustee in bankruptcy in
this case to take certain action to remedy these
noncontractual violations of Section 8(a)(1) and (3).
We therefore conclude that we may properly
direct Wasserman to take remedial action regard-
less of the term used to describe his status.
On the basis of the foregoing findings of fact,
and on the entire record in this case, we make the
following
CONCLUSIONS OF LAW
1. Ohio Container Service, Inc. was an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, an affiliate of the International
5 Imperial Hospital, 257 NLRB 581 fn 2 (1981 ); Oxford Structures, Ltd.,
245 NLRB 1180 , 1181 (1979), Airport Limousine Service , 231 NLRB 932,
934 fn 2 (1977); Jersey Juniors, Inc, 230 NLRB 329, 331 (1977); Cagle's
Inc, 218 NLRB 603, 604 (1975), Stateside Shipyard & Marina, 178 NLRB
516, 518 (1969)
6 465 U .S at 528
7 Id at 532
OHIO CONTAINER SERVICE
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discriminatorily discharging or laying off
employees George Behymer, William Blomer, and
Ray Woodbridge on 24 September 1981, because
they joined, supported, or assisted the Union and
engaged in other protected concerted activities, the
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
4. By threatening its employees with the closure
or transfer of its operations if they selected the
Union as their bargaining representative, by telling
employees that they would not be allowed to carry
out their scheduled dispatches because they had se-
lected the Union as their bargaining representative,
and by telling employees that the Respondent was
a nonunion company and would never be union,
the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. The above unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order that
it cease and desist and that it take certain affirma-
tive action designed to effectuate the policies of the
Act.
We shall order that the Respondent make whole
employees George Behymer, William Blomer, and
Ray Woodbridge for any loss of earnings suffered
as a result of the discrimination against them." The
parties have stipulated that George Behymer is
owed $7,631.47, that Williams Blomer is owed
$8,489.57, and that Ray Woodbridge is owed
$4,711.10,9 plus interest accrued to the date of pay-
8 In the circumstances of this case, we shall not order the reinstate-
ment of Behymer, Blomer, and Woodbridge. The backpay specification
indicates that Behymer and Woodbridge were reinstated to positions sub-
stantially equivalent to their former positions of employment. The specifi-
cation further indicates that Blomer's backpay period ended on the date
that the Respondent "effectively ceased its trucking operations."
9 We note that the General Counsel issued the backpay specification
piior to the entry of a Board Order directing the payment of backpay.
Nonetheless, we find this case to be distinguishable from Earle Equipment
C9, 270 NLRB 827 (1984), where we observed that Sec. 102 52 of the
Board's Rules and Regulations authorizes the issuance of a backpay speci-
fication only after "the entry of a Board order directing the payment of
backpay or the entry of a court decree enforcing such a Board order
." We emphasize that in this case the parties have reached a stipula-
tion as to the amount of backpay owed, which they would have been
free to do even in the absence of a backpay specification In these cir-
cumstances we conclude that the issuance of the specification was merely
harmless error, and we shall order the payment of the stipulated backpay
amounts.
307
meat minus the tax withholding required by Feder-
al and state law.10
We shall not order the posting of a notice be-
cause the Respondent has effectively ceased its
trucking operations and the trustee in bankruptcy is
in the process of liquidating the Respondent's
assets. However, we shall require that notices be
mailed to the Respondent 's employees.
ORDER
The National Labor Relations Board orders that
the Respondent, Ohio Container Service, Inc., Cin-
cinnati, Ohio, and its trustee in bankruptcy, Myron
E. Wasserman, their officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discriminatorily discharging or laying off
employees for joining , supporting , or assisting
Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and for engaging in
other protected concerted activities.
(b) Threatening employees with the closure or
transfer of operations if they select the Union de-
scribed above as their bargaining representative.
(c) Telling employees that they would not be al-
lowed to carry out their scheduled dispatches be-
cause they had selected the Union described above
as their bargaining representative.
(d) Telling employees that the Company was a
nonunion company and would never be union.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole employees George Behymer,
William Blomer, and Ray Woodbridge for any loss
of earnings and other benefits suffered as a result of
the discrimination against them , in the manner set
forth in the remedy section of the decision.
(b) Mail signed and dated copies of the attached
notice marked "Appendix"" to the last known ad-
10 The parties stipulated that Wasserman, as an individual , shall not be
considered to be monetarily liable or responsible for any other remedial
action for any unfair labor practices The parties further stipulated that
Wasserman has only the responsibility for such remedial action as is en-
compassed within the scope of his powers and duties as trustee in bank-
ruptcy We also note that monetary claims arising from this Order are
governed by bankruptcy law and may be filed as the claim of a creditor
in the bankruptcy court
11 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 Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dress of all employees on the payroll as of 28 Janu-
ary 1982. Copies of the notice, on forms provided
by the Regional Director for Region 9, after being
signed and dated by the authorized representative
of the Respondent and the Respondent's trustee in
bankruptcy, shall be mailed immediately upon re-
ceipt.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent and the Respondent's trustee
in bankruptcy have taken to comply.
APPENDIX
NOTICE To EMPLOYEES
MAILED 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 the National Labor Relations Act
and has ordered us to mail and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
We assure you that in the event we reenter the
business of the local and longhaul shipment of
overseas containers:
WE WILL NOT discriminatorily discharge or lay
off our employees for joining, supporting, or assist-
ing Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other union,
and WE WILL NOT discriminatorily discharge or lay
off our employees for engaging in other protected
concerted activities.
WE WILL NOT threaten our employees with the
closure or transfer of our operations if they select
the Union described above, or any other union, as
their bargaining representative.
WE WILL NOT tell our employees that they will
not be allowed to carry out their scheduled dis-
patches because they selected the Union described
above, or any other union, as their bargaining rep-
resentative.
WE WILL NOT tell our employees that our com-
pany is a nonunion company and will never be
union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL make whole employees George Be-
hymer, William Blomer, and Ray Woodbridge for
any loss of earnings and other benefits suffered as a
result of our discrimination against them , plus inter-
est.
OHIO CONTAINER SERVICE, INC.;
MYRON E. WASSERMAN, TRUSTEE IN
BANKRUPTCY