The Commissary Of The Great Race Pizza Shoppes, Inc.

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