R & S Waste Services, LLC, (2015)

Docket Number:02-CA-065928
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Rogan Brothers Sanitation, Inc., and R&S Waste Services, LLC, as single employer, alter ego and/or successor International Union of Journeymen and Allied Trades, Local 726 and International Brotherhood of Teamsters, Local 813. Cases 02–CA–065928, 02–CA–065930, 02–CA– 066512, and 02–CB–069408

April 8, 2015 DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA

AND JOHNSON

On June 17, 2013, Administrative Law Judge Raymond P. Green issued the attached decision. Respondent R&S Waste Services (R&S) filed exceptions and a supporting brief, the General Counsel filed an answering brief, and R&S filed a reply brief. The Charging Party Union (Local 813) filed exceptions and a supporting brief, and R&S filed an answering brief. The General Counsel filed cross-exceptions and a supporting brief, R&S filed an answering brief, and the General Counsel filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions, cross-exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and

1 R&S has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative 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 reversing the findings.

The General Counsel argues in his answering brief that R&S made various statements and arguments in the “preliminary statement” of its brief in support of its exceptions that should be disregarded as noncompliant with Sec. 102.46(b)(1) of the Board’s Rules and Regulations. In light of our adoption of the judge’s decision, we find it unnecessary to pass on the General Counsel’s request.

R&S argues in its answering brief that certain of the General Counsel’s cross-exceptions are procedurally deficient under Sec. 102.46(b) and (c) of the Board’s Rules and Regulations and should be rejected. We find no procedural deficiency and deny the request.

For the reasons set forth by the judge, we agree with his finding that R&S violated Sec. 8(a)(1), (2), and (3) by recognizing and entering into a collective-bargaining agreement containing a union-security clause with Respondent International Union of Journeymen and Allied Trades, Local 726 (Local 726). Local 726 filed no exceptions to the judge’s finding that it violated Sec. 8(b)(1)(A) and (2) by accepting recognition and agreeing to the contract.

conclusions as modified and to adopt the recommended Order as modified and set forth in full below.2

The principal issues in this case are (1) whether R&S and Respondent Rogan Brothers Sanitation (RBS) are alter egos and a single employer, jointly liable for the discharge of employees, and (2) whether the collectivebargaining agreement between RBS and Local 813 was unenforceable as a “members-only” agreement, i.e., one applied only to bargaining unit employees who were Local 813 members.

The judge found that the Respondents were not alter egos but were a single employer. As a single employer, the judge found that the Respondents violated Section 8(a)(3) and (1) of the Act by discharging three employees and violated Section 8(a)(1) by their agents’ statements to employees. The judge further found that R&S violated Section 8(a)(3) by refusing to hire one of the discharged employees.

The judge found that the RBS-Local 813 agreement was an invalid and unenforceable members-only contract. As a consequence, he dismissed complaint allegations that the Respondents violated Section 8(a)(5) and

(1) by failing to apply the contract’s wage and benefit provisions to all unit employees and by refusing to furnish Local 813 with relevant requested information.

R&S excepts to the single-employer finding and to the 8(a)(3) and (1) violations predicated on single-employer status. R&S also excepts to the 8(a)(3) refusal-to-hire violation. Local 813 excepts to the dismissal of the 8(a)(5) allegations, and to the judge’s failure to find that the Respondents were alter egos.

For the reasons stated by the judge, we adopt his finding that the RBS-Local 813 contract was an unenforceable members-only contract and his dismissal of the 8(a)(5) allegations on that basis.3 Accordingly, we find it unnecessary to address Local 813’s exceptions to the judge’s finding that the Respondents were not alter egos, a finding relevant only to the 8(a)(5) allegations. As explained in sections 1 and 2 below, we also adopt the judge’s finding that the Respondents were a single employer and that they violated Section 8(a)(3) by discharging the three employees, and violated Section 8(a)(1) by

2 In adopting the judge’s tax compensation and Social Security reporting remedies, we rely on Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014). We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language and substitute new notices in accordance with Durham School Services, 360 NLRB No. 85 (2014).

3 In light of the dismissal of the 8(a)(5) allegations because the RBSLocal 813 contract was an unenforceable members-only agreement, we reject the judge’s alternative finding that the contract was unenforceable because the bargaining unit was insufficiently defined. Member Johnson relies on both grounds in dismissing these allegations.

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

their agents’ statements to employees. Finally, as set forth in section 3, we also adopt the 8(a)(3) refusal-tohire violation.4

Background

RBS was engaged in the collection and disposal of residential and commercial waste in New York City and nearby Westchester County, New York. James Rogan owned RBS and operated it out of a truck yard at 1014 Saw Mill River Road in Yonkers, New York. In early 2011, RBS employed a bargaining unit of approximately 25–30 employees, most of whom were truckdrivers; the remainder were helpers who assisted some drivers on residential routes.

Joseph Spiezio is a real estate developer and owner of the Spiezio Organization, a management firm that operates his several other businesses. In January 2011, with RBS experiencing financial difficulties, Spiezio agreed to Rogan’s request for an $850,000 loan to RBS.5 The 6-month loan was financed through Pinnacle Equity Group, a business financing services company also owned by Spiezio. In a letter detailing the terms of the loan, Spiezio specified that he intended to form his own waste company to take over the Westchester operations of RBS if it defaulted on the loan. At the same time, Spiezio and Rogan entered into an agreement whereby Spiezio would act as a consultant for RBS on issues such as retaining counsel for labor related matters, negotiating contracts and meeting with Local 813, implementing company policies, and referring bankers for operating accounts and payroll services.

In February, Spiezio filed articles of organization for R&S, his new waste collection company, with the State of New York. On March 1, he filed an R&S operating agreement and applied for a waste hauling license with the Westchester County Solid Waste Commission. On March 7, Spiezio and Rogan opened a commercial bank account for R&S at Key Bank in Westchester County and, on March 29, opened two commercial accounts for RBS at the same bank. The signature card for the R&S account listed Spiezio as the managing member and Rogan as a member; the signature cards for the RBS accounts listed Rogan as president and Spiezio as an authorized signer.

James Troy was Local 813’s business agent who, until 2011, had always dealt with Rogan or Michael Vetrano, the RBS general manager, on labor issues at RBS. In

6 As former employees, these non-Local 813 members were in the unit covered by the collective-bargaining agreement between RBS and Local 813. However, because it was a members-only contract, the non-Local 813 unit employees did not receive the wages and benefits set forth in the contract.

7 Roeke had worked for many years at Industrial Recycling, a small area waste company that was owned by Peter Liguori and signatory to a contract with Local 813. Liguori terminated his business on July 20. Roeke was hired by RBS, and Liguori was hired by Spiezio at R&S and transferred his customers to R&S.

The General Counsel correctly notes in his cross-exceptions that, contrary to the judge’s findings, Liguori was never employed at RBS and did not transfer his customers to RBS before moving them to R&S. These factual errors do not affect any issues in the case.

4 R&S excepts to the judge’s finding that it was also a joint employer with RBS. We grant the exception, as there was no joint employer allegation in the complaint and the General Counsel disavows such an allegation in his answering brief.

5 All dates are in 2011, unless otherwise indicated.

early March, Vetrano told Troy that “going forward he would have to take up labor relations matters with Spiezio.” Later that month, Howard Kassman, the RBS comptroller, moved his office from the RBS office trailer on Saw Mill River Road to Spiezio’s offices at the Spiezio Organization.

On June 30, Spiezio received his R&S operating license from the Westchester Solid Waste Commission. The next day, Spiezio declared the Pinnacle loan to RBS in default and signed a...

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