Superior Export Packing Co., Inc. And Meadowland Hy-Pro Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1987

284 N.L.R.B. 1169 (N.L.R.B. 1987)

SUPERIOR EXPORT PACKING CO. 1169
Superior Export Packing Co., Inc. and Meadowland
Hy-Pro Industries, Inc. and District 65, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO. Cases
22-CA-13806 and 22-CA-13888
23 July 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 12 May 1986 Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondents filed exceptions and a supporting brief.
The Charging Party and General Counsel filed
cross-exceptions, and briefs in support thereof as
well as in answer to the Respondents' exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' as
modified below, and conclusions, 2 to modify his
remedy, 3 and to adopt the recommended Order as
modified.
The questions presented here are (1) whether
Respondent Meadowland is an alter ego of, or a
successor to, Respondent Superior; (2) whether the
Respondents violated Section 8(a)(3) and (1) by ter-
minating and refusing to rehire employees because
they belonged to the Union; and (3) whether the
Respondents violated Section 8(a)(5) and (1) by re-
fusing to bargain in good faith with the Union. We
disagree with the judge's finding that Respondent
Meadowland was the alter ego of Respondent Su-
1 The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
2 The General Counsel has excepted to the judge's conclusion that the
Respondents did not threaten the Union with a lawsuit for filing an unfair
labor practice charge m its letter of 30 April 1985. In support of this ex-
ception, the General Counsel quotes a portion of the letter stating that
the filing of the charge was a breach of the severance agreement between
the Respondents and the Union, and that the Respondents would hold
the Union responsible for damages arising from such breaches. Although
we agree that the letter does refer to the charge, we find that the focus
of the letter was a perceived breach of the severance agreement and that
the language quoted by the General Counsel does not amount to an un-
equivocal threat of a lawsuit in retaliation for the charge itself.
Member Babson disagrees with the judge and would find this allega-
tion to have been fully litigated. Member Babson, however, agrees with
his colleagues that the allegation must be dismissed because the evidence
does not establish an unequivocal threat to sue the Union in retaliation
for the Union's having filed the instant unfair labor practice charges.
In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621
284 NLRB No. 124
perior. We conclude, however, that Meadowland
unlawfully refused to rehire Superior's warehouse
employees due to their union membership, was a
successor to Superior, and unlawfully failed to rec-
ognize and bargain with the Union.
Simon Mike established Superior to provide
warehousing services for the customers of his four
other companies, which were engaged in the busi-
ness of distributing automobile parts at wholesale.
The five companies were located at the same ad-
dress and shared the same unrepresented clerical
and unit warehouse employees. Simon Mike's son,
David Mike, was the general manager of the five
companies and was responsible for their day-to-day
operation. Marta Voto supervised the clerical em-
ployees and Tony Mustich supervised the ware-
house employees.4
Superior entered into a series of collective-bar-
gaining agreements with the Union covering the
warehouse employees. The last contract was effec-
tive through 31 December 1984. 5 In November
representatives of the Union and Superior met to
negotiate. Superior's attorney, Michael Appelbaum,
informed the Union that "the company was going
out of business and they were not getting into an-
other business whatsoever." The parties negotiated
a severance agreement and at the end of December
Superior and its allied companies ceased operating.
There were seven warehouse unit employees at this
time.
In the meantime, Mohammed Sultan, the sole
owner of Multiple Auto Parts, a retailer of automo-
tive parts, learned that Simon Mike had decided to
close his businesses. He believed that this was his
opportunity to obtain the A.C. Delco distributor-
ship he had desired for many years. In October
Meadowland was incorporated as a wholly owned
Multiple subsidiary, 6 with David Mike and Sultan
as directors. David Mike became president of
Meadowland and acted as a "front man" in obtain-
ing the A.C. Delco distributorship. Sultan was con-
cerned about competitors learning that Meadow-
land was connected to him or Multiple. Meadow-
land received an A.C. Delco distributorship in De-
cember. Meadowland purchased two trucks,
shelves, racks, crates, hi-los, bins, and office furni-
ture from Superior. The agreement to purchase
these assets was "done by a handshake."
4 No exceptions were filed to the judge's finding that the five compa-
nies Simon Mike directly or indirectly owned—S. M. Enterprises, Sy-Mi
Industries, Laird Johnson Parts Division, Bergen R.B. Auto Parts, and
Superior—constituted a single employer.
5 All dates refer to 1984 unless otherwise indicated.
No exceptions were filed to the judge's finding that Meadowland and
Multiple Auto Parts constituted a single employer.
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Starting in January 1985, David Mike was in
charge of the daily operations of Meadowland.
David Mike had the responsibility of bringing over
as many of his father's former customers as he
could. As a result, substantially all the customers of
Superior and its allied companies became custom-
ers of Meadowland.
David Mike also made the effective hiring rec-
ommendations for Meadowland. All the clerical
employees who had worked for the five Simon
Mike companies began work at Meadowland in
January 1985. In addition, Voto started supervising
the clerical employees and Mustich the warehouse
employees for Meadowland. In January 1985 there
were six full-time warehouse employees, only one
of whom had formerly been employed by Superior.
Another former Superior warehouse employee
worked part-time on Saturdays. No other unit em-
ployees received notice of hiring by Meadowland.
David Mike testified that Meadowland warehouse
employees perform the same work that Superior
warehouse employees performed.
During February 1985, several former Superior
warehouse employees told the Union's organizer,
Sergio Acosta, that they had seen a Superior truck
and knew where Superior had relocated. At Acos-
ta's suggestion three of the former employees ap-
plied for jobs at Meadowland and were turned
down by David Mike. Subsequently, in March
1985 the Union sent David Mike a letter requesting
recognition of and bargaining with the Union on
the basis that Superior had "never ceased operation
but merely moved the operations from one location
to another." Appelbaum, acting on behalf of David
Mike, rejected the Union's demand for recognition
because the new company "is not a continuation or
change of location of Superior."
The judge concluded that Meadowland was an
alter ego of Superior, based on findings that the
two enterprises had substantially identical manage-
ment, business purpose, operation, equipment, cus-
tomers, and supervision. He also stated that the
centralized control of labor relations, common offi-
cers, the informal "handshake" sales agreement be-
tween Simon Mike and Mohammed Sultan, the
transfer of all the clerical employees from Superi-
or's payroll to Meadowland's, and the lack of
hiatus between the closing of Superior and the
opening of Meadowland was indicative of an alter
ego relationship. In addition, he found that the lack
of common ownership between Superior and
Meadowland did not preclude an alter ego finding.
Contrary to the judge, we find that the lack of
substantially identical common ownership pre-
cludes fmding that Meadowland was an alter ego
of Superior. Although common ownership is not a
prerequisite for an alter ego fmding, the Board has
found such a relationship absent common owner-
ship only where both companies were either
wholly owned by members of the same family or
nearly totally owned by the same individual 7 or
where the older company continued to maintain
substantial control over the business claimed to
have been sold to the new company. 8 The excep-
tions to the common ownership requirement do not
exist here inasmuch as Meadowland and Superior
were not owned by the same individual or family.
In addition, notwithstanding David Mike's role in
the operations of both companies, Simon Mike had
no continuing role in Meadowland, his corpora-
tions went out of business, so that Superior had no
continuing substantial control over Meadowland's
business. Accordingly, we reverse the judge's find-
ing of an alter ego relationship between Meadow-
land and Superior.
Having found that Meadowland was not an alter
ego of Superior, we still need to consider whether
it failed to hire Superior's warehouse employees
because of their union representation in violation of
Section 8(a)(3) and (1). Meadowland employed all
the unrepresented clerical employees and two su-
pervisors who had worked for Superior, while re-
taining only one of the union-represented ware-
house employees on a full-time basis. Except for
that employee, none of Superior's unit employees
were informed of the openings for warehouse em-
ployees at Meadowland or given an opportunity to
apply for those jobs. Indeed, at the same time that
Simon and David Mike had reached agreement
with Mohammed Sultan about the formation of
Meadowland and the purchase of Superior's assets,
the Union was being told that Superior was going
out of business and "was not going to reopen."
Further, when three former Superior unit employ-
ees learned of Meadowland's existence and applied
for warehouse jobs they were summarily rejected.
Based on the disparity in hiring practices between
represented and unrepresented employees and evi-
dence that Meadowland's hiring was being con-
cealed from the former, we conclude that the Gen-
eral Counsel has established a prima facie case that
Meadowland unlawfully failed to hire the former
Superior warehouse employees because they were
represented by the Union.
7 See East Texas Packing Co., 270 NLRB 520 (1984); Morton's IGA
Foodliner, 240 NLRB 1246 (1979), Crawford Door Sales Co., 226 NLRB
1144 (1976).
We note that in J. M. Tanaka Construction v. NLRB, 675 F 2d 1029
(9th Cit. 1982), relied on by the judge, all the shares of both companies
mvolved were owned by members of the same family.
8 McAllister Bros., 278 NLRB 601 (1986); T E Elevator Corp., 268
NLRB 1461 (1984).
SUPERIOR EXPORT PACKING CO. 1171
Under Wright Line, 9 once the General Counsel
has established a prima facie case, the burden shifts
to the Respondent to demonstrate that it would
have taken the same action absent the protected
conduct. The only evidence presented by Meadow-
land concerning the hiring of former Superior em-
ployees was that it followed David Mike's recom-
mendations. There was, however, no indication as
to what criteria those recommendations encom-
passed. Consequently, we find that Meadowland
failed to establish that it would not have hired the
Superior warehouse employees even absent their
affiliation with the Union. We conclude that Mead-
owland failed to rebut the General Counsel's prima
facie case. Accordingly, we fmd that Meadowland
violated Section 8(a)(3) and (I) by failing to rehire
the former Superior unit employees because they
were represented by the Union."
The next issue that needs to be determined is
whether Meadowland was a successor to Superior
and therefore obligated under NLRB v. Burns Secu-
rity Service, 406 U.S. 272 (1979), to recognize and
bargain with the Union. The judge had found no
need to resolve this issue, raised again in exceptions
by the General Counsel and the Union, because of
his alter ego finding. The following factors are to
be considered in determining whether an employer
is a successor:
Whether (1) there has been a substantial conti-
nuity of the same business operations; (2) the
new employer uses the same plant; (3) the
same or substantially the same work force is
employed; (4) the same jobs exist under the
same working conditions; (5) the same supervi-
sors are employed; (6) the same machinery,
equipment, and methods of production are
used; and (7) the same product is manufac-
tured or the same services offered. Not all of
these criteria need be present to warrant a
finding of continuation of the employment in-
dustry.
Applying these factors to the instant case, we
find: There has been a substantial continuity of the
same business operations. There was no hiatus "in
time or operations" between the closing of Superi-
or and the opening of Meadowland. Also, the gen-
9 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See also NLRB v. Transportation Manage-
ment, 462 U.S. 393 (1983).
10 In light of our finding that the Respondent Superior and related op-
erations are not the alter ego of Respondent Meadowland and that they
went completely out of business, we shall dismiss the complaint as to Su-
perior. Consequently, we do not reach Superior's exception to the judge's
finding that the Union did not waive its right to file an unfair labor prac-
tice charge against Superior.
Jeffries Lithograph Co., 265 NLRB 1499, 1503 (1982), enfd. 752 F.2d
459 (9th Cir. 1985).
eral manager of Superior became the president of
Meadowland. The Meadowland employees perform
the same jobs that were performed at Superior; the
nonunit clerical employees also continued to per-
form the same jobs. Meadowland has the same su-
pervision that Superior had, with Voto and Mus-
tich. Meadowland used the trucks, shelving, racks,
hi-los, crates, and offices furniture that it had pur-
chased from Superior. The methods of operation
were the same at Meadowland as they had been at
Superior. Meadowland distributed and warehoused
automobile parts as Superior and Sy-Mi Industries
had done. Also substantially all Meadowland's cus-
tomers were former customers of Superior and its
allied companies. Meadowland was also a party to
the exact same type of A.C. Delco distributor
agreement to which Sy-Mi Industries had been a
party. The foregoing provides that sufficient basis
for fmding successorship are present but for Mea-
dowland's failure to retain the warehouse unit
work force from Superior. Successorship will be
found in such circumstances, however, if the new
business entity discriminatorily failed to hire the
predecessor's employees because of their affiliation
with the Union. 12 In light of our above finding
that Meadowland unlawfully failed to hire Superi-
or's warehouse employees because the Union rep-
resented them, we conclude that but for this unfair
labor practice it would have employed substantially
the same work force as Superior.
For all the foregoing reasons we find that Mead-
owland was a legal successor to Superior. Accord-
ingly, we find that Meadowland violated Section
8(a)(5) and (1) by failing to recognize and bargain
with the Union.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Meadowland Hy-Pro Industries Inc. and
Multiple Auto Parts, Inc., Moonachie, New Jersey,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Refusing to hire employees because they
belong to a union."
2. Substitute the attached notice for that of the
administrative law judge.
12 E.g., Loves Barbeque Restaurant No. 62, 245 NLRB 7$, 79 (1979),
enfd. in relevant part 640 F.2d 1094 (9th Cir. 1981).
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had an oppor-
tunity to give evidence it has been found that we
violated the National Labor Relations Act and we
have been ordered to post this notice.
WE WILL NOT refuse to hire employees because
they were represented by a union.
WE WILL NOT refuse to recognize and bargain
with District 65, United Automobile, Aerospace
and Agricultural Implement Workers of America,
AFL-CIO as the exclusive representative for pur-
poses of collective bargaining of the employees in
the following appropriate unit:
Warehouse employees including truckdrivers
and shipping and receiving employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed to you by Section 7 of
the Act.
WE WILL recognize and bargain collectively
with the above-mentioned Union as the exclusive
representative of all our employees in the appropri-
ate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment and,
if an understanding is reached, embody such under-
standing in a signed agreement.
WE WILL offer full and immediate reinstatement
to James Alexander, Daniel Christian°, Anthony
DeMarco, Juan Diaz, Rafael Garcia, and Ramon
Payon to their former positions or, if such positions
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights
and privileges previously enjoyed, and we will
make them whole for any losses of earnings that
they may have suffered by reason of their termina-
tion, with interest.
MEADOWLAND HY-PRO INDUSTRIES
INC. AND MULTIPLE AUTO PARTS,
INC.
Gary A. Carlson Esq., for the General Counsel.
Michael W. Appelbaum, Esq., of New York, New York,
for Respondent Superior.
Nancy Iris Oxfeld, Esq. (Oxfeld, Cohen and Blunda), of
Newark, New Jersey, for Respondent Meadowland.
Ellen F. Moss, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This
case was heard before me in Newark, New Jersey, on 18
and 25 November 1985. On charges filed on 22 April and
18 June 1985 a consolidated complaint was issued on 17
July 1985 alleging that Superior Export Packing Co. Inc.
(Superior) and Meadowland Hy-Pro Industries, Inc.1
(Meadowland) violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended (the Act). Re-
spondents filed answers denying the commission of the
alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Excellent and very helpful
briefs were filed by all the parties.
On the entire record of the case, including my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Superior, a corporation with a place of business in
Moonachie, New Jersey, was prior to 31 December
19842 engaged in the business of distributing automobile
parts. During the 12-month period ending 31 December
it shipped goods valued in excess of $50,000 directly to
points outside the State of New Jersey. Meadowland, a
corporation with a place of business in East Rutherford,
New Jersey, has been engaged in the business of distrib-
uting automobile parts commencing December 1984. Re-
spondents admit that they are employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and I so find. In addition, District 65,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO (the Union) is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Is Meadowland an alter ego of, or a successor to,
Superior?
2. Did Respondents unlawfully terminate certain em-
ployees and refuse to rehire them in violation of Section
8(a)(3)?
3. Have Respondents refused to bargain in good faith
with the Union in violation of Section 8(a)(5)?
4. Did the Union waive its right to file an unfair labor
practice charge?
The certificate of incorporation indicates that the correct name of the
company is Meadowland Hy-Pro Industries, Inc. The caption has been
amended accordingly.
2 All dates refer to 1984 unless otherwise specified.
SUPERIOR EXPORT PACKING CO. 1173
B. The Facts
1. The five Simon Mike companies
At the hearing the complaint was amended to allege
that Superior, S.M. Enterprises, Inc., Sy-Mi Industries,
Inc., Bergen R.B. Auto Parts, Inc., and Laird Johnson
Parts Division, Inc. constitute a single-integrated business
enterprise and a single employer within the meaning of
the Act. Each of the five companies was located at 250
Carol Place Moonachie, New Jersey, and other than
Bergen R.I3. Auto Parts, Inc., the daily operations of
each company were run by David Mike. Robert Levine
was the accountant for each of the companies.
S.M. Enterprises, Inc. was in the business of selling
miscellaneous auto parts. Simon Mike owned the compa-
ny and he and his wife, Rae, were directors. S.M. Enter-
prises, Inc. owned the shares of Superior, which was in
the business of operating a public warehouse. Simon
Mike was president of Superior, his wife was vice
president/secretary, and Marta Voto was treasurer. The
directors of the corporation were Simon Mike, his wife,
and Marta Voto.
Sy-Mi Industries, Inc. was an AC-Delco distributor of
automobile parts. The shares of the corporation were
owned by Simon Mike. Bergen R.B. Auto Parts, Inc.
was, also a distributor of automobile parts. Its shares
were owned by Simon Mike and his wife. In addition,
Laird Johnson Parts Division, Inc. was a distributor of
automobile parts. Its shares owned by Simon Mike.
In Airport Bus Service, 273 NLRB 561 (1984), the
Board stated the criteria for assessing whether nominally
separate employers constitute a single employer. The
Board stated supra at 562:
It is well established that in determining whether
two or more nominally separate businesses operat-
ing simultaneously are sufficiently interrelated so
that they may be treated as a single integrated busi-
ness enterprise, the Board looks to four principal
factors: common management, centralized control
of labor relations, interrelation of operations, and
common ownership or financial control. No single
criterion is controlling, although the first three fac-
tors, which reveal the degree of operational integra-
tion, are more critical than common ownership.
Radio Union v. Broadcast Service, 380 U.S. 255
(1965); Biyar Construction Co., 240 NLRB 102, 104
(1979).
David Mike, Anthony Mustich, and Marta Voto man-
aged the five companies. David Mike testified that "I ran
the day-to-day operations of my father's companies." He
further testified, in describing the companies located at
250 Carol Place, Moonachie, that "Marta [Voto] handled
the inside and Tony [Mustich] the outside." Regardless
of which company nominally employed by the five com-
panies and Mustich supervised the unit of seven ware-
house employees. David Mike had ultimate control over
labor relations at the five companies. He executed collec-
tive-bargaining agreements covering the unit of ware-
house employees on behalf of Superior, Sy-Mi Industries,
Inc., and S.M. Enterprises, Inc. Voto was generally re-
sponsible for routine labor relations matters and daily im-
plementation of personnel policies and practices with re-
spect to the seven clerical employees employed by the
five companies, and Mustich had those responsibilities
with respect to the unit of warehouse employees.
The five companies were closely interrelated. All were
located at 250 Carol Place, Moonachie, New Jersey. The
clerical employees were all located in a corner of the
warehouse and they answered the telephone as "Sy
Mike's office." The five companies had the same man-
agement and shared the same unit of warehouse employ-
ees and Voto served as an officer of several of the com-
panies. Voto also performed bookkeeping services for all
five companies. Four of the five companies were en-
gaged in the business of distributing automobile parts and
Superior, the fifth, was created to provide warehousing
services on behalf of the customers of the other four
companies.
Simon Mike directly or indirectly owned the shares of
the five companies. He directly owned S.M. Enterprises,
Sy-Mi Industries, and Laird Johnson Parts Division. He
and his wife owned the shares of Bergen R.B. Auto
Parts. S.M. Enterprises, which he owned, was the owner
of the shares of Superior.
Based on the above I find that the five companies con-
stitute a single employer within the meaning of the Act.
2. Meadowland and Multiple Auto Parts
The complaint was also amended at the hearing to
allege that Meadowland and Multiple Auto Parts, Inc.
constitute a single-integrated business enterprise and a
single employer within the meaning of the Act. Multiple
Auto Parts, Inc., which is in the business of selling auto-
motive parts is owned by Mohammed Sultan. Robert
Levine is the Company's accountant. Meadowland, lo-
cated in East Rutherford, New Jersey, occupies the same
premises as Multiple Auto Parts and is owned by Multi-
ple Auto Parts. Sultan is a director and officer of Mead-
owland and Robert Levine is the Company's accountant.
Meadowland is a distributor of AC-Delco automotive
parts.
Marta Voto supervises the clerical employees em-
ployed by the two companies and Mustich supervises the
group of warehouse employees. The two companies
share the same premises, have the same management, and
are commonly owned. Sultan owns Multiple Auto Parts,
which, in turn, owns Meadowland.
Based on the foregoing I fmd that Meadowland and
Multiple Auto Parts, Inc. constitute a single employer
within the meaning of the Act. Respondents, in their
briefs, do not contend otherwise. See Airport Bus Service,
supra, 273 NLRB 561.
3. Superior
David Mike was general manager of Superior and as
such was responsible for the Company's daily operations.
For approximately 15 years Superior operated a public
warehouse that included receiving merchandise, packing,
crating, and shipping. Mustich was supervisor of the
warehouse employees. In December 1984 Superior em-
ployed the following individuals as warehouse employ-
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees: Antonio Paisan, Ramon Payon, Rafeal Garcia, Juan
Diaz, James Alexander, Daniel Christian°, and Anthony
DeMarco.
Superior entered into three successive collective-bar-
gaining agreements with the Union. The third agreement,
effective 1 January 1984, provided that the terms of the
prior agreements would be extended through 31 Decem-
ber.
In November representatives of the Union and Superi-
or met to negotiate. Sergio Acosta, a general organizer
for the Union, and several of Superior's warehouse em-
ployees represented the Union. Michael Appelbaum and
David Mike represented Superior. Acosta credibly testi-
fied that Appelbaum stated, "the company was going out
of busbies and they were not getting into another busbies
whatsoever." A second negotiating session was held in
December with the same individuals attending. Appel-
baum stated that Superior was "emptying out the ware-
house," "they're going out of business," and that "we're
not going to reopen." Acosta then negotiated for sever-
ance pay because there was no such provision in the col-
lective-bargaining agreement.
On 20 December the parties entered into an agreement
providing for severance pay to each warehouse employ-
ee. The agreement also provided:
Upon the payment of the sums set forth in subpara-
graph 2 above, the Company, its subsidiaries and af-
filiates and all of its officers, directors and stock-
holders shall be generally and fully released from
any and all claims or demands arising out of the
aforementioned Collective Bargaining Agreement
or the termination of the Company's operations.
4. Formation of Meadowland
Meadowland was incorporated on 25 October 1984
with David Mike and Mohammed Sultan as directors.
On 11 December David Mike, signing as president of
Meadowland, entered into and AC-Delco warehouse dis-
tributor supply agreement.
During the latter part of 1984 Sultan and Simon Mike
discusssed the purchase of certain of Superior's assets by
Meadowland. They reached agreement regarding the
purchase but the agreement was not embodied in a writ-
ten document. Sultan and Simon Mike have had a busi-
ness relation for 25 years and the agreement to purchase
the assets was "done by a handshake." Meadowland con-
sequently purchased two trucks, shelves, racks, crates,
hi-los, bins, and office furniture from Superior.
In December employees worked at the Meadowland
warehouse setting up shelving, received some merchan-
dise, and preparing for business. David Mike did "some
work at home" for Meadowland in December and begin-
ning January 1985 he was at the premises on a daily
basis. Substantially all the firms that had been customers
of Superior of Sy-Mi Industries until December 1984
became customers of Meadowland. All the clerical em-
ployees who had worked for the five Simon Mikes com-
panies began to work at Meadowland's premises in Janu-
ary 1985. In addition, Mustich began to work at Mea-
dowland's premises in January as supervisor of the ware-
house employees. In January Meadowland employed six
warehouse employees, only one of whom, Antonio
Paisan, was formerly employed by Superior.
During the first week of February 1985 several former
Superior employees told Acosta that they saw a Superior
truck going by and that they knew where Superior had
relocated. Acosta suggested that they apply for jobs.
David Mike testified that Diaz and DeMarco came to
Meadowland during February and asked if there was any
work. Mike stated, "I said no and that was it, they just
walked out." On 8 March 1985 Acosta sent the follow-
ing letter to David Mike:
District 65, UA.W., hereby demands that you
recognize District 65 as the collective bargaining
agent of the employees at your warehouse at 125
Murray Hill Parkway, East Rutherford, New
Jersey, and that you negotiate with District 65 over
those employees' terms and conditions of employ-
ment.
The settlement agreement entered into on De-
cember 20, 1984, between District 65 and Superior
Export Co. is null and void. The agreement was
premised upon the termination of your business op-
erations. However, you never ceased operation but
merely moved the operations from one location to
another.
On 19 March 1985 Michael Appelbaum, on behalf of
David Mike, replied to the Union's letter. Appelbaum
stated that the new company "is not a continuation or
change of location of Superior. Accordingly, your re-
quest for recognition is inappropriate." In a letter dated
30 April 1985 Appelbaum advised Acosta that the filing
of an unfair labor charge by the Union was a "blatant
breach" of the 20 December agreement between Superi-
or and the Union. The letter continued:
Under the circumstances, I herewith advise you
that District 65 will be held responsible for any and
all damages suffered by Superior and/or David
Mike by reason of the breach by you of the afore-
said agreement.
In addition, demand is hereby made for the
return of all severance and other payments made by
Superior to your member under said agreement.
Unless these payments are returned to my client
promptly, we will have no recourse but to take
whatever legal action we deem appropriate to re-
cover the same.
C. Discussion
1. Meadowland is the alter ego of Superior
In Crawford Door Sales Co., 226 NLRB 1144 (1976),
the Board stated the criteria for establishing alter ego
status:
Clearly each case must turn on its own facts, but
generally we have found alter ego status where the
two enterprises have "substantially identical" man-
agement, business purpose, operation, equipment,
customers, and supervision, as well as ownership.
SUPERIOR EXPORT PACKING CO. 1175
In Fugazy Continental Corp., 265 NLRB 1301 (1982),
enfd. 725 F.2d 1416 (D.C. Cir. 1984), the Board stated
that in determining whether there is an alter ego rela-
tionship "we must consider a number of factors, no one
of which taken alone is the sine qua non of alter ego
status." In asessing the relevant factors, as detailed
below, I conclude that Meadowland is the alter ego of
Superior.
a. Management
David Mike was general manager of Superior running
its "day-to-day operations" with Warehouse Supervisor
Mustich and Clerical Supervisor Voto reporting to him
until December 1984. Beginning in January 1985 David
Mike, who was by then the president of Meadowland,
ran the daily operations of Meadowland, again with
Warehouse Supervisor Mustich and Clerical Supervisor
Voto reporting to him.
b. Business purpose
Superior, together with its four allied companies, dis-
tributed and warehoused automobile parts. One of the
five companies, Sy-Mi Industries, was party to an AC-
Delco distributor agreement. Superior "was formed to
perform warehousing services for the customers" of
these companies. Multiple Auto Parts and Meadowland
distribute and warehouse automobile parts. Meadowland
is a party to the exact same type of AC-Delco distributor
agreement to which Sy-Mi Industries was a party. Mead-
owland also performs warehousing services. Superior to-
gether with its allied companies and Multiple and Mead-
owland have the same business purpose, namely, to dis-
tribute and warehouse automobile parts.
c. Operation
Superior operated in the same manner that Meadow-
land operates. The warehouse employees loaded automo-
bile parts into containers at Superior's warehouse until
December 1984. Beginning in January 1985 warehouse
employees loaded automobile parts into containers at
Meadowland's warehouse. Ramon Payon, who was a
warehouse employee at Superior, does the same type of
work at Meadowland. David Mike testified, that as a
warehouse employee at Meadowland, Payon does "ex-
actly the same thing he did for us at Superior."
d. Equipment and Customers
Superior sold the equipment that its employees used to
Meadowland and Meadowland now uses that equipment.
With respect to customers, David Mike testified that one
of his responsibilities as president of Meadowland was to
"bring over as many of my father's customers as I
could." Substantially all the customers of Superior and
its allied companies have become customers of Meadow-
land.
e. Supervision
Meadowland has the same supervisors that Superior
had. David Mike testified that when Superior was in op-
eration Mustich supervised the warehouse employees and
Voto supervised the clerical employees. Similarly, when
Meadowland began to operate in January 1985, Mustich
supervised the warehouse employees and Voto super-
vised the clerical employees.
f. Ownership
There is no common ownership between Superior and
Meadowland. As found earlier, Superior and its allied
companies are owned by Simon Mike and his wife. On
the other hand, Sultan owns Multiple Auto Parts, Inc.,
which, in turn, owns Meadowland. However, common
ownership is not a necessary prerequiste to an alter ego
finding. As stated in 1 M Tanaka Construction v.
NLRB, 675 F.2d 1029, 1035 (9th Cir. 1982):
Common ownership, however, is but one, and not
always an important factor to be considered in de-
termining the existence of an alter ego relationship.
NLRB v. Lantz, 607 F.2d at 295; Los Angeles Marine
Hardware Co. v. NLRB, 602 F.2d at 1305; NLRB v.
Don Construction Corp., 596 F.2d at 384: NLRB v.
Triumph Curing Center, 571 F.2d at 468. It is not a
necessary prerequisite to an alter ego finding.
The Board has found alter ego status in the absence of
common ownership. See, for example, Fugazy Continen-
tal Corp., supra, 265 NLRB 1301; Crawford Door Sales
Co., supra, 226 NLRB 1144 (1976). In American Pacific
Concrete Pipe Co., 262 NLRB 1223, 1226 (1982), enfd.
mein. 709 F.2d 1514 (9th Cir. 1983), the Board stated:
As in most alter ego situations, Ampac and Dean
had substantially identical business purpose, oper-
ation, equipment, and customers. They did not,
however, share common ownership. . .
g. Centralized control of labor relations and common
officers
There are other factors as well indicating the presence
of an alter ego relationship, including centralized control
of labor relations, common officers, an informal sales
agreement, the transfer of all the clerical employees from
the payroll of one company to that of the other, and the
lack of a hiatus in operations.
In determining whether two companies are alter egos
the most important single factor is centralized control of
labor relations. I M Tanaka Construction, v. NLRB,
supra, 675 F.2d at 1034. David Mike served as general
manager of Superior and is president of Meadowland.
Thus, the labor relations of Superior and Meadowland
are "centralized" in David Mike.
In addition, Marta Voto served as an officer of several
of the five companies and had authority to sign checks.
She served as treasurer of Superior and also serves as
secretary of Meadowland and she has authority to sign
checks on behalf of Meadowland and Multiple Auto
Parts.
h. Sales agreement
The absence of an "arm's length" purchase and sale
agreement is also indicative of an alter ego relationship.
Fugazy Continental Corp., supra. There was no purchase
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and sale agreement for the purchase by Meadowland of
Superior's assets. The agreement between Superior and
Meadowland was done with a "handshake" between
Simon Mike and Sultan.
i. Clerical employees and hiatus
The Board has recognized that the termination of cler-
ical and other employees by one employer and their si-
multaneous employment by another employer is evidence
that the two employer are alter egos. Al Bryant, Inc., 260
NLRB 128, 146 (1982), enfd. 711 F.2d 543 (3d Cir. 1983).
In this case seven clerical employees ceased working for
Superior and its allied companies in December 1984.
David Mike brought them all to Meadowland where
they began working in January 1985.
In addition, lack of hiatus "in time or operations" is
also a factor indicating alter ego status. Artcraft Orna-
mental Iron Co., 279 NLRB 829, 842 (1984). As stated in
Contee Sand & Gravel Co., 274 NLRB 574, 587 (1985):
[T]he circumstances immediately after the transfer
without hiatus of the two operations, while Contee
Sand was still in business, Richard Ecroyd was
chief executive of all three companies, and the
Union Trust Company a dominant financial influ-
ence in all three, demonstrate the "presence of a
very substantial qualitative degreee of centralized
control of labor relations" and a "substantial quali-
tative degree of interrelation of operations and
common management—one that. . . would not be
found in the arm's length relationship existing
among unintegrated companies." Operating Engi-
neers v. NLRB, 518 F.2d 1040, 1046, 1047 (D.C. Cir.
1975).
In the present case there was no hiatus "in time or op-
erations" between the closing of Superior's business and
the beginning of Meadowland. The continuity is further
demonstrated by the fact that David Mike was general
manager of Supeior and president of Meadowland and
Robert Levine was the accountant for all the companies.
j. Antiunion motivation
Respondents argue that the record is devoid of any
evidence of antiunion animus. However, as the Supreme
Court stated in NLRB v. Great Dane Trailers, 388 U.S.
26, 34 (1967):
Rif it can reasonably be concluded that the employ-
er's discriminatory conduct was "inherently de-
structive" of important employee rights, no proof of
an antiunion motivation is needed and the Board
can find an unfair labor practice even if the employ-
er introduces evidence that the conduct was moti-
vated by business considerations.
In addition, as was stated in Hageman Underground
Construction, 253 NLRB 60, 68 (1980):
An employer cannot evade its obligation under
the Act by setting up what appears to be a new
company, but is in reality a "disguised continuance"
of the old one. Southport Petroleum Co. a N.L.R.B.,
315 U.S. 100, 106 (1942). The new company is con-
sidered an alter ego or disguised continuing of the
old one when it is set up to enable a company to
continue operations while ridding itself of a union,
or when the closing of one company and opening of
another is used as a means of eliminating a union,
even though motivated by economic considerations.
In the instant proceeding the management, business
purpose, operations, equipment, customers, clerical em-
ployees, and supervision that existed at 250 Carol Place,
Moonachie until December 1984 was transferred in Janu-
ary 1985 to the facility in East Rutherford under the
name of Meadowland.
Similarly, Meadowland employed all the unrepresent-
ed clerical employees who had been employed by Supe-
rior, while retaining only one of the union represented
warehouse employees. In Wintz Motor Freight, 265
NLRB 922 (1982), the Board found, that in the creation
of an alter ego, the company retained unrepresented em-
ployees while terminating the employees in the unit rep-
resented by the Union. In holding that the company's
action was motivated by antiunion animus, the decision
stated, supra (at 928):
Such disparate treatment warrants an inference of
unlawful motivation. Further, such discrimination
against represented employees is inherently destruc-
tive of important employee rights and, such, is vio-
lative of Section 8(a)(3) and (1) of the Act.
k. Conclusion
Based on the above, I find that Meadowland is the
alter ego of Superior. 3 The two companies have substan-
tially identical management, business purpose, operations,
equipment, customers, and supervision. In addition, there
is centralized control of labor relations, a common offi-
cer, and lack of hiatus in the commencement of oper-
ation of Meadowland and closing of Superior. Further-
more, the sale of assets was done informally by a "hand-
shake" among two persons with a business relationship
that extends back for 25 years. I further find that the ter-
mination by Superior of its warehouse employees and the
failure of Meadowland to hire them was "inherently de-
structive" of their Section 7 rights and as such violated
Section 8(a)(3) and (1) of the Act. I also find that Re-
spondent's failure to negotiate with the Union constitutes
a violation of Section 8(a)(5) and (1) of the Act.
2. The Union did not waive its right to file an
unfair labor practice charge
On 20 December 1984 the parties entered into an
agreement that stated that on the payment of severance
pay by Superior it shall be "fully released from any and
all claims or demands arising out of the aforementioned
Collective Bargaining Agreement or the termination of
3 Inasmuch as I have found that Meadowland is the alter ego of Supe-
rior it is not necessary for me to determine whether Meadowland is also
a "successor" to Superior.
SUPERIOR EXPORT PACKING CO. 1177
the Company's operations." Respondent Superior argues
that the Union, with knowledge of David Mike's future
plans, agreed to the termination of Superior's operations
and released Superior from all its obligations. Having
done so, Respondent contends that the Union waived its
rights to "bring charges."
Acosta credibly testified that during the negotiating
sessions in November and December 1984 Respondents
represented to the Union that Superior "was going out
of business and they were not getting into another busi-
ness whatsoever." Appelbaum further stated, "we're not
going to reopen. . . . We're out of business completely."
David Mike, on the other hand, testified that during the
negotiating sessions:
Mike [Appelbaum] told, not only Sergio but every
single member of the union that was there at the
time, that I was getting another A.C. Delco distrib-
utorship. Mike says he did it private, but I know he
didn't.
During his testimony David Mike appeared to be an
evasive witness. I credit Acosta's statement that Re-
spondent advised the Union that they were "out of busi-
ness completely" and were "not going to reopen."
Section 10(a) of the Act provides, in part:
The Board is empowered, as hereinafter provided,
to prevent any person from engaging in any unfair
labor practice (listed in section 8) affecting com-
merce. This power shall not be affected by any
other means of adjustment or prevention that has
been or may be established by agreement, law, or
otherwise. . .
In NLRB v. General Motors Corp., 116 F.2d 306 (7th
Cir. 1940), respondent and the union had entered into an
agreement that provided that the union would not file
any charges alleging discrimination with the Board. The
union subsequently filed charges with the Board and the
Board held that respondent had commited various unfair
labor practices. In enforcing the Board's Order, the Sev-
enth Circuit rejected respondent's argument that the
agreement between it and the union precluded the union
from filing the charge, and the Board from adjudicating
the matter. Relying on the language of Section 10(a) of
the Act, the court stated (at 312):
he controversy here is between the Federal
Government on one hand, represented by the
Board, and the respondent-employer on the other
hand. The controversy is not to vindicate a private
right, but to give effect to the Public policy as de-
fined by Congress, viz: the prevention unfair labor
practices. . . .
The above-quoted section plainly indicates that
the jurisdiction of the Board, once established in all
other respects, is not to be affected by an agreement
entered into by private parties. Amalgamated Utility
Workers v. Edison Co., 309 U.S. 261, 264, 267, 269.
Similarly, in Machinists Local 743 v. United Aircraft
Corp., 337 F.2d 5 (2d Cir. 1964), cert. denied 380 U.S.
908 (1965), the union executed an arbitration agreement
providing for final determination by the arbitrators of
strikers' rights "without recourse whatsoever to any
appeal or review under any State or federal laws." After
the union filed an unfair labor practice charge with the
Board, the employer alleged that the Union violated the
arbitration agreement. The court stated supra (at 8):
The standard rule in cases such as this, enunci-
ated in numerous decisions of the Supreme Court,
this court, and the courts of other circuits, is that
the right to resort to the Board for relief against
unfair labor practices cannot be foreclosed by pri-
vate contract. [Citations omitted.] These decisions
are based on the express language of Section 10(a)
of the National Labor Relations Act. . . .
I find that the Union entered into the 20 December
1984 agreement because it was advised that Superior was
"out of business completely" and was "not going to
reopen." In fact, however, as I have previously found,
the business was continued by Superior's alter ego,
Meadowland. Under the circumstances, I find that the
Union did not waive its statutory right to file an unfair
labor practice charge with the Board.
3. Threat of lawsuit
Paragraph 21 of the complaint alleges that on 30 April
1985 Respondents threatened the Union with a lawsuit
because it had filed an unfair labor practice charge. In
her brief the General Counsel alleges that this threat is a
violation of Section 8(a)(1) of the Act.
The 30 April letter from Appelbaum to Acosta states,
in pertinent part:
In addition, demand is hereby made for the
return of all severance and other payments made by
Superior to your members under said agreement.
Unless these payments are returned to my client
promptly, we will have no recourse but to take
whatever legal action we deem appropriate to re-
cover the same.
I believe that Appelbaum's statement that "we will
have no recourse but to take whatever legal action we
deem appropriate" relates to the demand for the return
of severance and other payments. I do not believe that it
relates to the fact that the Union filed an unfair labor
practice charge. In addition, the complaint does not spe-
cifically allege that the threat of a lawsuit was a viola-
tion of Section 8(a)(1). 4 Accordingly, I believe that the
issue has not been fully litigated and I would not be war-
ranted in making a finding in that regard. See Mainte-
nance Service Corp., 275 NLRB 1422 (1985).
4 Par. 22 of the complaint alleges that the conduct described in par. 14
violates Sec. 8(aX1) and (3) of the Act. Par. 23 of the complaint alleges
that the conduct described in pars. 11, 13, 14, and 16 violates Sec. 8(aX1)
and (5) of the Act. However, there is no allegation in the complaint that
the conduct described m par. 21 violates Sec. 8(a)(1).
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Superior Export Packing Co., Inc. and its alter ego,
Meadowland Hy-Pro Industries, Inc., are employers en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Superior Export Packing Co., Inc., S.M. Enter-
prises, Inc., Sy-Mi Industries, Inc., Bergen R.B. Auto
Parts, Inc. and Laird Johnson Parts Division, Inc. consti-
tute a single employer within the meaning of the Act.
4. Meadowland Hy-Pro Industries, Inc. and Multiple
Auto Parts, Inc. constitute a single employer within the
meaning of the Act.
5. The appropriate unit for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act
consists of:
Warehouse employees including truckdrivers and
shipping and receiving employees.
6. By terminating certain employees in December 1984
and by failing to reemploy them in January 1985 Re-
spondents violated Section 8(a)(3) and (1) of the Act.
7. By failing to bargain with the Union as the exclu-
sive collective-bargaining representative of the above-
mentioned unit Respondents have violated Section
8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices, I fmd it necessary to order them
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Respondents having terminated the employment of
James Alexander, Daniel Christiano, Anthony DeMarco,
Juan Diaz, Rafael Garcia, and Ramon Payon, I shall
order Respondents to offer them full reinstatement to
their former positions, or if such positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges and
make them whole for any losses of earnings that they
may have suffered from the time of their termination to
the date of Respondents' offers of reinstatement. 6 Back-
pay shall be computed in accordance with the formula
approved in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed in the manner prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977).6
5 The record mdicates that commencmg 21 February 1985 the only
full-time warehouse employees employed by Meadowland were Pison,
Wise, Assil, and Pizzano. I believe that the record is insufficient to deter-
mine whether, had the discrhninatees not been terminated, they would
have all been retained beyond February 1985. I believe that determina-
tion of that issue should await the compliance stage of this proceeding.
See Service Operations Systems, 272 NLRB 1033, fn. 1 (1984).
6 See generally Isis Plumbing Co., 138 NLRB 716, 717-721 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
The Respondent, Superior Export Packing Co., Inc.,
S.M Enterprises, Inc., Sy-Mi Industries, Inc., Bergen
R.B. Auto Parts, Inc. and Laird Johnson Parts Division,
Inc., and their alter egos, Meadowland Hy-Pro Indus-
tries, Inc. and Multiple Auto Parts, Inc., Moonachie,
New Jersey, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Terminating and refusing to rehire employees be-
cause they belong to a union.
(b) Refusing to recognize and bargain with District 65,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO as the exclusive
representative for the purposes of collective bargaining
of the employees in the following appropriate unit:
Warehouse employees including truckdrivers and
shipping and receiving employees.
(c) In any like or related marmer interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer James Alexander, Daniel Christiano, Antho-
ny DeMarco, Juan Diaz, Rafeal Garcia, and Ramon
Payon immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of
the decision.
(b) On request, bargain with the Union as the exclu-
sive representative a the employees in the following ap-
propriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in East Rutherford, New Jersey,
copies of the attached notice marked "Appendix."
7 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all put-
poses
8 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."
SUPERIOR EXPORT PACKING- CO. 1179
Copies of the notice, on forms provided by the Regional
Director for Region 22, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.