The Commissary Of The Great Race Pizza Shoppes, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1985

277 N.L.R.B. 1175 (N.L.R.B. 1985)

COMMISSARY OF GREAT RACE PIZZA SHOPPES
The Commissary of the Great Race Pizza SliLoppes,
Inc. and United Food and Commercial Workers
Local Union No. 31, AFL-CIO-CLC. Cases 8-
CA-13927, 8-CA-14114, and 8-CA-14655
20 December 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
Pursuant to Settlement Stipulation entered into
by all parties, the National Labor Relations Board
on 21 April 1982 issued a Decision and Order1 in
the above-entitled proceeding in which the Board,
inter alia, ordered the Respondent to make whole
certain employees for any loss of pay caused by the
Respondent's unfair labor practices. On 30 June
1982 the United States Court of Appeals for the
Sixth Circuit entered its judgment enforcing the
Board's Order. Thereafter, on 2 May 1985, the
General Counsel filed with the Board a Motion to
Join Party and brief in support thereof, submitting
that (1) subsequent to the court's Order the Re"`
spondent failed to make any of the stipulated pay-
ments called for in the - Decision and Order, and
ceased operation; (2) the Respondent on 7 Septem-
ber 1982 filed a voluntary petition for bankruptcy
under Chapter 7 United States Bankruptcy Code;
(3) the admitted and the- record facts are more than
sufficient to establish that the Respondent and an
affiliated business enterprise, The Great Race Pizza
Shoppes, Inc. (Great Race), constitute a single inte-
grated enterprise and single employer within the
meaning of the Act; and (4) Great Race continues
in operation as a solvent business entity.
In the Motion to Join Party, the General Coun-
sel moves the Board for summary judgment- that
Great Race was and is a single employer with the
Respondent and requests that the Board issue an
appropriate amended Order requiring that Great
Race abide' by the Board's Order. Subsequently, on
8 May 1985, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the General Counsel's motion should
not be granted. On 4 June 1985 Charles Adams, on
behalf of Great Race, filed a Motion for Dismissal
of the General Counsel's motion to Join Party,
contending that any prior admission by the Re-
spondent concerning single employer status was
made purely for jurisdictional purposes and that
the General Counsel, by failing to name Great
Race as a party in the original action and to pro-
ceed against the Respondent in the bankruptcy pro-
1 Not reported in Board volumes
1175
ceedings, waived the right to now join Great Race
as a named party.
The National Labor Relations Board' has delegat-
ed its authority in this proceeding to' a" three-
member panel.
On the entire record in this proceeding, the
Board makes the following
Ruling on the Motions
In the Board-approved Settlement Stipulation en-
tered into on 4 January 1982, Charles Adams, the
president of both the Respondent and Great Race,
stipulated to the following:
(E) -At all times material herein, The Com-
missary of the Great Race Pizza Shoppes, Inc.
and The Great Race Pizza Shoppe, Inc. were
affiliated business enterprises with common of-
ficers, ownership, directors, management and
supervision;., formulated and administered a
common labor policy affecting employees of
said operations; shared common premises and
facilities; have provided services and made
sales to each other; interchanged personnel
with each other; and held themselves out to
the public as a single integrated business enter-
prise.
(F) By virture of its operations described
above in subparagraph (E), Respondent and
The Great Race Pizza Shoppe, Inc. constitute
a single integrated business enterprise and
single employer within the meaning of the
Act, for the-purpose of rendering Respondent
an employer engaged in commerce under the
Act.
During the ' initial investigation of the alleged
unfair labor practices, the Respondent provided the
affidavit of Adams, signed 21 July 1980, which cor-
roborates the statements contained in the stipula-
tion. The affidavit established that Adams was
president of both companies, and owned 50 percent
of the stock of the Respondent and 51 percent of
Great Race; the remaining stock in both companies
was owned by the estate of the former president of
the Respondent and vice president of Great Race,
Michael Walsh; and both companies had the same
vice president and board of directors, utilized the
same accounting and payroll services, and shared
the same office space. The two companies inter-
changed employees and the Respondent's primary
function was to supply pizza supplies to the pizza
carryout and delivery facilities either owned or
franchised by Great Race. While Adams' affidavit
does not recount at length how labor relations poli-
cies were formulated at the two companies, the
stipulation to a "common labor policy" is support-
277 NLRB No. 130
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed by statements in the affidavit indicating that
wage increases were determined in large part by a
labor cost budget prepared by Adams and that
before a store manager made salary changes apart
from "normal procedure," Adams' approval was
secured, -Employees at both companies normally
were hired at minimum wage with no benefits.
We find that the Respondent and Great Race are
a single integrated enterprise. Accordingly, we
grant the General Counsel's Motion to Join Party
and to amend our Order issued 21 April 1982.
Insofar as Adams now contends, on behalf of
Great Race, that any prior admission of single em-
ployer status cannot be used for determining liabil-
ity because the admission was solely for jurisdic-
tional purposes, that argument must fail. Even as-
suming the admission was made so as to provide
the Board with jurisdiction in the underlying' settle-
ment proceeding, a Board determination of single
employer status, based on such an admission, is
conclusive and binding in all further litigation bear-
ing on the issue.2
The only matter remaining to be resolved is
whether Great Race is bound by the Board-ap-
proved settlement stipulation,
We find that Great Race is bound to the settle-
ment stipulation through the admissions made by
Adams, its president. Based on his position as presi-
dent of both the Respondent and Great Race, as
well as his 51 percent ownership of the stock of
Great Race, Adams- had the authority to bind
Great Race to the admission of single employer
status and similarly placed Great Race on notice as
to the significance of the underlying proceedings.
It would be anomalous to suggest that Adams
could now dispute this legal status in an attempt to
insulate Great Race from liability merely because
he now speaks on behalf of Great Race.
Furthermore, the stipulation also contains state-
ments 'of fact, corroborated by Adams' affidavit, es-
tablishing that the Respondent and Great Race are
a single employer. Great Race does not challenge
these statements; nor does it refute the General
2 See Circle Transport, 257 NLRB 902, 903 (1981).
Counsel's assertion that although the Respondent
ceased operation and was declared bankrupt, Great
Race continues in operation as a solvent business
entity with its management remaining as it was at
the time of the Board Order. Indeed, the Respond-
ent's Motion for Dismissal has attached to it
Adams' 21 July 1980 affidavit which, as noted,
fully supports the stipulation and the General
Counsel's motion, and contains no factual assertions
that contravene the statements relied on by the
General Counsel'3
Having granted the General Counsel's Motion' to
Join Party, we further find that Great Race is
liable in this supplemental proceeding for the back-
pay' owed by the Respondent4 and, accordingly,
we shall amend the previous Order to require
Great Race, as well- as the Respondent, to comply
therewith. 5
ORDER
The National Labor Relations Board orders that
the Respondents, The Commissary of the Great
Race Pizza Shoppes, Inc. and the The Great Race
Pizza §b.oppes, Inc., their officers, agents, succes-
sors, and assigns , shall make certain employees
whole, as computed in the Board's Decision and
Order in this proceeding, pursuant to the parties
Settlement Stipulation, and in all other respects
take all action which the Board has set forth in the
Order of 21 April 1982.
3 We find no merit in Great Race's additional argument that the Gen-
eral Counsel has waived the right to join Great Race as a named party to
these proceedings by the failure to proceed against the Respondent in the
bankruptcy proceedings, and as a result of the time lapse of 3 years since
the issuance of the Board's Decision and Order Having established that a
single integrated enterprise existed, each employer within the enterprise is
subject to liability. Great Race has failed to demonstrate that it has been
substantially prejudiced in any way by the delay In any event, it is well
settled that a defense of laches does not lie against the Board or other
agencies of the United States Government. NLRB v. J. H Rutter-Rex
Mfg Co., 396 U S 258 (1969), Ventura Coastal Corp, 264 NLRB 291, 297
(1(J82)
4 Contrary to Great Race's contention, it is immaterial that it was not
named as a party to the underlying proceeding. F & F Construction Co,
269 NLRB 287 fn 5 (1984), Southeastern Envelope Co, 246 NLRB 423
(1979)
5 Accordingly, Great Race's Motion for Dismissal is denied