Marsco, Inc.

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin Arsham Sewing Co., a/k/a Marsco, Inc. and International Ladies Garment Workers Union Local 29. Case 8-CA-11894 24 June 1986 ORDER REMANDING PROCEEDING TO REGIONAL DIRECTOR BY CHAIRMAN DOTSON AND MEMBERS DENNIS, JOHANSEN, BABSON, AND STEPHENS On 7 September 1979 the National Labor Rela- tions Board issued a Decision and Order' in the above-entitled proceeding finding, inter alia, that the Respondent had discriminatorily discharged certain employees and ordering that the Respond- ent offer reinstatement to and make whole the dis- criminatees for losses resulting from the Respond- ent's unlawful conduct. On 30 March 1982 the Board issued a Supplemental Decision and Order2 granting the General Counsel's unopposed Motion for Summary Judgment and ordering the Respond- ent, "its officers, agents, successors, and assigns," to pay backpay to various employees in amounts which totaled approximately $30,000. On 3 December 1984 the General Counsel filed with the Board a Motion for Determination of Per- sonal Liability alleging that Martin Arsham (Arsham), as president and plant manager of the Respondent corporation, wrongfully converted company assets to his personal use and intermin- gled his personal and corporate financial affairs with the intention of frustrating the Board's back- pay order by rendering the Respondent bankrupt and insolvent. On 31 May 1985 the Board denied the motion, finding that the General Counsel failed to demonstrate that Arsham committed any act which would justify "piercing the corporate veil" to reach Arsham as an individual.3 On 15 November 1985 the General Counsel filed a Supplemental Motion for Determination of Per- sonal Liability, providing the Board with additional information regarding Arsham's actions in late 1981, particularly in December 1981, with respect to the commencement of corporate bankruptcy proceedings and the repossession of company assets secured by a cognovit promissory note and securi- ty agreement of early 1979.4 1 244 NLRB 918 (1979) 2 260 NLRB 1309 (1982) a 275 NLRB 633 (1985) (Member Dennis dissenting) Member Dennis adheres to the view set forth in her dissent that "[t]he General Counsel's motion on its face alleges facts sufficient to find Arsham personally liable " Id at 635 For the purpose of forming a majority, however, she joins Members Babson and Stephens in directing a hearing 4 The Respondent's motion to strike the General Counsel's supplemen- tal Motion for Determination of Personal Liability, filed with the Board 25 November 1985, is denied The Respondent and our dissenting col- league contend the General Counsel's supplemental motion is untimely The Board, having duly considered the matter, finds that the General Counsel has raised substan- tial issues of fact and law material to the question of whether the Board should impose personal li- ability upon Arsham and concludes that the dispo- sition of the issues presented here requires further findings by an administrative law judge. Accord- ingly,5 IT IS ORDERED that a hearing be held before an administrative law judge to be designated by the Chief, Division of Judges, for consideration of the issues raised by the General Counsel's Motion for Determination of Personal Liability. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 8 for the purpose of arranging such hearing, and that the Regional Director is authorized to issue notice thereof. IT IS FURTHER ORDERED that, on the conclusion of such hearing, the administrative law judge shall prepare and serve on the parties a decision contain- ing findings of fact based on the evidence received, conclusions of law, and recommendations; and that following service of the decision on the parties the provisions of Section 102.46 of the Board's Rules and Regulations shall apply. CHAIRMAN DOTSON, dissenting. I would deny the General Counsel's Supplemen- tal Motion for Determination of Personal Liability on the basis of the analysis set forth in the Board's denial of the General Counsel's original motion on 31 May 1985.1 As the Board stated in that decision, the General Counsel failed to demonstrate that Martin Arsham, as president and plant manager of the Respondent, committed any act which would justify piercing the corporate veil to find Arsham personally liable. The Board noted the lack of in- formation critical to the relief requested by the General Counsel. Specifically, we cited the absence of any information regarding such bankruptcy mat- ters as the precise amount of a secured claim filed by Arsham, the relative priorities of certain unse- cured claims, the status in the bankruptcy proceed- ing of Arsham's state court judgment, and whether filed In fn 8 of the Board's 1985 Order, however , the Board stated that its "ruling does not preclude the General Counsel from re-filing a motion with the appropriate evidential support " We find that the General Counsel's supplemental motion constitutes a "re-filing " of the original motion within the meaning of the Board's Order and is therefore timely 5 In directing further proceedings in this case, we note Chairman Dot- son's dissent based on the General Counsel's failure to submit information on all items detailed in the Board's original Order Denying Motion In our view, the material submitted is adequate to raise issues appropriately resolved through a hearing, even without regard to the omitted items However, additional information on the items not addressed in the Gen- eral Counsel's supplemental motion, or the lack thereof, may be consid- ered in the context of the further proceedings 1 275 NLRB 633 (1985) 280 NLRB No. 81 MARSCO, INC. the bankruptcy court considered Arsham's secured claim and the sale of corporate assets personally re- possessed from the Respondent. I find that, despite being provided with ample notice and opportunity to furnish the Board with the indicated critical in- formation, the General Counsel has again failed to submit this information or explain why Arsham's alleged fraudulent conveyance is not a matter more appropriately resolved by the bankruptcy court rather than by the Board. I further find that once a trustee in bankruptcy disposes of a bankrupt's assets and closes an estate, the Board, without spe- cific information regarding actions taken by the bankruptcy court, should not grant motions or issue orders which in essence may result in a redis- tribution of a bankrupt estate's assets. Such activity could result in an undue preference to the Board and fails to give the necessary primacy to policies underlying Chapter 11 bankruptcy proceedings. It appears that the General Counsel may have failed to pursue this matter at the appropriate time in the 697 appropriate forum and now seeks to utilize Board processes to remedy the error. Should the matters raised before us now not have been presented to the bankruptcy court, the General Counsel may find it appropriate to file a motion to reopen the bankruptcy proceedings to obtain a ruling whether Arsham's alleged fraudulent conveyance should be set aside and the proceeds of that conveyance, or the repossessed assets, claimed by the bankruptcy court as part of the bankrupt estate. In short, I find that the General Counsel's sup- plemental motion is as precedurally and substan- tively defective as the original motion and should be denied. MEMBER JOHANSEN, dissenting. I would dismiss the General Counsel's motion as untimely filed.1 1 I did not participate in the earlier decision and I take no position on its merits