Ohio Container Service, Inc.

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