Sumo Container Station, Inc. d/b/a Sumo Airlines

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 171 (N.L.R.B. 2002)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
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.
Sumo Container Station, Inc. d/b/a Sumo Airlines
and Sumo Trucking and Cargo, Personnel &
Equipment Leasing, Inc. and Sumo Cargo Ser­
vices, Inc. and Sumo Air Cargo, Inc. and Team­
sters Local No. 25, International Brotherhood of
Teamsters, AFL–CIO. Cases 1–CA–29985 and 1–
CA–30236
August 1, 2002
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS COWEN
AND BARTLETT
On May 10, 1995, the National Labor Relations Board
issued a Decision and Order in this proceeding1 directing
the original Respondent, Sumo Container Station, Inc.
d/b/a Sumo Airlines, inter alia, to offer full and immedi­
ate reinstatement to Joseph M. Warren, Dennis P. Shee­
han, Matthew Sarno, Kathryn Pettis Mogan, Charles
Lloyd, Ronald Dearden, and Stephen Rea; to make them
whole for any loss of pay or benefits resulting from the
discrimination against them in violation of the National
Labor Relations Act; to reestablish its entire business
operation at its East Boston, Massachusetts terminal; and
to restore the work formerly performed at that location
before bargaining unit employees were terminated.
On October 16, 1996, Respondent Sumo Container,
Inc., d/b/a Sumo Airlines entered into a stipulation waiv­
ing its right under Section 10(e) and (f) of the Act to con-
test either the propriety of the Board’s Order or the find­
ings of fact and conclusions of law underlying the
Board’s Order, and providing for a compliance hearing
to resolve any disputes concerning the amount of back-
pay due under the terms of the Board’s Order.
A controversy having arisen over the amount of back-
pay due the discriminatees under the Board’s Order and
the identity of the entities responsible for payment, the
Acting Regional Director for Region 1 issued a compli­
ance specification and notice of hearing on September
30, 1999, alleging the amounts due under the Board’s
Order. The specification also alleges that four additional
Respondents 2 are derivatively liable for the backpay due
the discriminatees because they are each alter egos of,
single employers with, and successor employers to the
original Respondent. Thereafter, all five Respondents
1 317 NLRB 383.
2 The four additional Respondents are: Sumo Trucking; Cargo, Per­
sonnel & Equipment Leasing, Inc.; Sumo Cargo Services, Inc.; and
Sumo Air Cargo, Inc.
filed an answer and a first amended answer to the com­
pliance specification.
On March 28, 2000, the General Counsel filed with the
Board a motion to strike portions of the Respondents’
answer to the compliance specification and for partial
summary judgment, with exhibits attached. The General
Counsel moves to strike those parts of the Respondents’
first amended answer which fail to meet the specificity
requirements of the Board’s Rules and Regulations. The
General Counsel further moves for partial summary
judgment on those allegations of the compliance specifi­
cation for which the Respondents have answered with
denials that the General Counsel moves to strike, and on
those allegations of the compliance specification that the
Respondents have admitted. The Ge neral Counsel states
that, once the motion to strike and for partial summary
judgment is granted, items remaining for litigation before
an administrative law judge include, inter alia, the alter
ego, single employer, and/or successor employer status
of the Respondents, the calculation of the backpay
claimants’ interim earnings and interim expenses, and the
final amount of backpay.
On March 30, 2000, the Respondents filed an opposi­
tion to the motion to strike and for partial summary
judgment, asserting that its pleadings raise genuine issues
of material fact concerning the tolling of the backpay
period and warranting the denial of summary judgment.
On March 30, 2000, the Board issued an order trans­
ferring the proceeding to the Board and a Notice to Show
Cause why the Motion for Partial Summary Judgment
should not be granted. By letter dated April 4, 2000, the
Respondents informed the Board that its March 30, 2000
opposition to the motion to strike and for partial sum­
mary judgment would serve as its response to the
Board’s Notice to Show Cause. On April 13, 2000, the
Charging Party filed a brief in support of the General
Counsel’s Motion to Strike and for Partial Summary
Judgment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record the Board makes the following
Ruling on the Motion to Strike Portions of Respondents’
Answer to the Compliance Specification and for Partial
Summary Judgment
1. Paragraphs 13, 14 and 15
These three paragraphs of the compliance specifica­
tion set forth the wage rate paid to the discriminatees
immediately prior to their unlawful discharges; the wage
rates adjusted for increases which the discriminatees
would have received each year during the backpay pe­
riod; and the formula for determining the amount of va-
337 NLRB No. 171
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cation pay the discriminatees would have received each
year during the backpay period.3
In their first amended answer to paragraphs 13 through
15, the Respondents claim that they are without suffi­
cient knowledge to either admit or deny the allegations
because they have been “unable to locate the appropriate
payroll records of the defunct Sumo [Sumo Container
Station, Inc. d/b/a Sumo Airlines].” The Ge neral Counsel
moves to strike these answers on the grounds that they do
not comport with the specificity requirement of Section
102.56 of the Board’s Rules and Regulations.
We find it unnecessary to address the General Coun­
sel’s specificity argument as it pertains to paragraphs 13
through 15 of the compliance specification. Considering
the Respondents’ pleadings as a whole, including their
opposition to the General Counsel’s Motion to Strike and
for Partial Summary Judgment4, we find that the Re­
spondents have effectively admitted the allegations of
these three paragraphs.
The Respondents state in their opposition that they
“are not contesting the legal standards or formulas util­
ized by the General Counsel in computing the gross back
pay (sic) alleged in the Compliance Specification,” and
that they do not challenge “the premise on which gross
back pay, interim earnings, or net back pay is to be calcu­
lated.” In fact, the Respondents explicitly state that they
dispute only the amount of gross and net backpay and
that their disagreement is based solely on the tolling ar­
gument discussed below. The Respondents concede that
“gross back pay, subject to a determination of if, and
when, gross back pay is to be tolled, is readily subject to
calculation.”
We find, based on these statements, that the Respon­
dents no longer contest the allegations of paragraphs 13
through 15. Accordingly, we deem these allegations to
be admitted to be true, and we grant the General Coun­
sel’s Motion to Strike and for Partial Summary Judgment
as to paragraphs 13 through 15.
2. Paragraphs 19(a)-(b); 20(a)-(b); 21(a)-(b); 22(a)-(b);
23(a)-(b); 24(a)-(b) and 25(a)-(b)
Paragraphs 19 through 25, subsection (a), allege that
the backpay period for each discriminatee commences on
3 The Respondents admit that the backpay period begins on Novem­
ber 30, 1992. For purposes of computing the amount of backpay due
the discriminatees, the General Counsel uses December 30, 1999 as the
end of the backpay period, but specifically notes that the backpay pe­
riod is continuing because the Respondents have not offered to reinstate
the discriminatees.
4 It is well established that in ruling on a General Counsel’s Motion
for Summary Judgment on a compliance specification, the Board will
examine not only the respondent’s answer, but also the respondent’s
opposition to the General Counsel’s motion. See Mining Specialists,
Inc., 330 NLRB 99, 101, fn. 12 (1999).
November 30, 1992, the date of the unlawful discharge.
Subsection (a) further alleges that the Respondents have
failed to comply with the reinstatement provisions of the
Board’s Order in the underlying unfair labor practice
case and that “by this failure [have] not tolled the accrual
of backpay for” each discriminatee.5 paragraphs 19
through 25, subsection (b), set forth the gross backpay by
calendar quarter due each discriminatee.6
In their answer to subsections (a) and (b) of paragraphs
19 through 25, the Respondents admit the beginning date
of the backpay period and admit that each discriminatee
has not been reinstated. The Respondents deny, how-
ever, that the backpay period has not been tolled, assert­
ing that the backpay period was, in fact, tolled on Janu­
ary 1, 1993, when each discriminatee would have been
terminated due to legitimate, nondiscriminatory reasons,
or, alternatively, that the backpay period would have
been tolled on or about October 1993, when the original
Respondent ceased its operations.
The General Counsel argues that the Respondents’ an­
swers to subsections (a) and (b) of paragraphs 19 through
25 are insufficient because they do not comply with the
specificity requirement of the Board’s Rules and Regula­
tions.
We find it unnecessary to address the General Coun­
sel’s specificity argument as it pertains to paragraphs 19
through 25 of the compliance specification. Looking at
the entirety of the Respondents’ argument, we find that
the only genuine issue in dispute is the allegation of the
compliance specification that backpay has not been
tolled. In other words, the Respondents have made it
clear, through their admissions and their affirmative de­
fenses, that the only ground on which they oppose the
Motion for Partial Summary Judgment is their claim that
backpay was tolled on either one of two dates.
We address first the Respondents’ claim that backpay
was tolled on January 1, 1993, when each discriminatee
allegedly would have been terminated for legitimate, non
discriminatory reasons. This argument was raised and
rejected in the underlying unfair labor practice proceed­
ing. Thus, the judge “discredited [president Anthony]
Evangelista’s statement—made without any documen­
tary evidence or other reliable corroboration—that he
would have closed the Boston operation on January 1,
[1993,] even if the Union had not filed a representation
petition. Statements made by his principal supervisor in
Boston to various employees belie this assertion em-
5 The only exception is Stephen Rea, whose backpay period was
tolled by his death on December 2, 1998.
6 The two remaining subsections of Paragraphs 19 through 25 set
forth interim earnings and interim expenses. The General Counsel does
not seek summary judgment as to these issues.
SUMO CONTAINER STATION, INC. 3
phatically.”7 The Board specifically affirmed the judge’s
credibility findings, including his discrediting of Evan­
gelista’s testimony.8
“Issues litigated and decided in an unfair labor practice
proceeding may not be relitigated in the ensuing backpay
proceeding.” Transport Service Co., 314 NLRB 458,
459 (1994). Accordingly, as the Board has already re­
jected the claim that the employees would have been
lawfully discharged in any event on January 1, 1993, the
Respondent may not relitigate that issue in this proceed­
ing.
We turn now to the Respondents’ alternative claim that
backpay should be tolled on or about October 1993,
when the original Respondent allegedly ceased all opera­
tions. The unfair labor practice hearing was held on Oc­
tober 18-20, 1993. According to the judge’s findings,
which the Board adopted, the original Respondent had
not entirely ceased its operations at its East Boston, Mas­
sachusetts terminal at that time. 317 NLRB at 388, 394.
The Respondents, however, allege that there are changed
circumstances since the date of the hearing which have
resulted in the cessation of all operations. The Respon­
dents urge that there are genuine issues of fact on this
issue and that they should not be precluded from intro­
ducing evidence on facts which have arisen since the date
of the unfair labor practice hearing.
We agree with the Respondents that the issue of
whether the original Respondent ceased all operations
after October 20, 1993, has not been decided. In general,
the Board’s policy is to permit a respondent the opportu­
nity at the compliance stage to introduce evidence con­
cerning the continued appropriateness of the reinstate­
ment provisions of a Board Order, “provided of course
that such evidence was not available prior to the unfair
labor practice hearing.” Lear Siegler, 295 NLRB 857,
862 (1989). Accordingly, we find that the issue of
whether the original Respondent ceased all operations
after October 20, 1993, effectively tolling backpay at that
time, should be resolved at a hearing.9 Consequently, we
deny the General Counsel’s Motion to Strike and for
Partial Summary Judgment as to paragraphs 19 through
25, subsections (a) and (b), of the compliance specifica-
7 Sumo Airlines, supra, 317 NLRB at 394.
8 Id. at 383 fn. 2, 384.
9 Although the General Counsel is correct that the Respondents have
failed to comply with Sec. 102.56(b) to the extent that they have failed
to furnish “the appropriate supporting figures” for calculating gross
backpay as of the October 1993 date that the original Respondent alleg­
edly ceased operations, we believe that it would be overly technical to
grant summary judgment on this ground. As the Respondents correctly
point out in their opposition, once the tolling issue is resolved at a
hearing, gross backpay “is readily subject to calculation.”
tion insofar as they allege that backpay has not been
tolled.10
In sum, as the General Counsel does not seek summary
judgment with respect to the alter ego, single employer,
and/or successor employer status of the Respondent
companies, or with respect to the calculation of the dis­
criminatees’ interim earnings and interim expenses, we
shall order a hearing on those issues. We shall also order
a hearing on the issue raised by the Respondents con­
cerning the tolling of backpay because the original Re­
spondent, Sumo Container Station, Inc. d/b/a Sumo Air-
lines, allegedly ceased all operations after October 20,
1993. Because there are issues remaining to be decided
after a hearing, we shall not make a determination of
final backpay liability at this time. Hahn Motors, 314
NLRB 511, 513 (1994).
Accordingly, we grant the General Counsel’s Motion
to Strike and for Partial Summary Judgment against the
Respondents, except to the extent that issues concerning
the tolling of backpay after October 20, 1993 have been
remanded for a hearing.
ORDER
It is ordered that the General Counsel’s Motion to
Strike and for Partial Summary Judgment is granted,
except to the extent that the issues of the Respondents’
alter ego, single employer, and/or successor employer
status, tolling of backpay after October 20, 1993, interim
earnings, and interim expenses are remanded to be de­
cided at a hearing.
It is further ordered that this proceeding is remanded to
the Regional Director for Region 1 for the purposes of
issuing a notice of hearing and scheduling the hearing
before an administrative law judge, limiting such pro­
ceeding to the determination of the issues of the Respon­
dents’ alter ego, single employer, and/or successor em­
ployer status, tolling of backpay after October 20, 1993,
interim earnings, and interim expenses.
It is further ordered that the administrative law judge
shall prepare and serve on the parties a supplemental
decision containing findings of fact, conclusions of law,
and recommendations based on all the record evidence.
10 We grant the General Counsel’s motion with respect to all other
allegations of these paragraphs.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Following service of the administrative law judge’s deci-
sion on the parties, the provisions of Section 102.46 of William B. Cowen, Member
the Board’s Rules shall be applicable.
Dated, Washington, D.C. August 1, 2002
Michael J. Bartlett, Member
Peter J. Hurtgen, Chairman
(SEAL) NATIONAL LABOR RELATIONS BOARD