N.L.R.B. v. I.W.G., Inc., AFL-CI

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore PORFILIO, McKAY, and LUCERO; McKAY
Citation144 F.3d 685
Parties158 L.R.R.M. (BNA) 2285, 159 L.R.R.M. (BNA) 2703, 135 Lab.Cas. P 10,165, 98 CJ C.A.R. 2554 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. I.W.G., INC.; Con-Bru, Inc. doing business as AAA Fire Sprinkler, Inc.; Robert B. Gordon, an individual; and Arlene, Inc., doing business as AAA Fire Suppression, Inc., Respondents. Road Sprinkler Fitters Local Union 669, U.A.,ntervenor. Robert B. GORDON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Road Sprinkler Fitters Local Union 669, U.A.,ntervenor.
Decision Date18 May 1998
Docket NumberNos. 96-9548,96-9550,AFL-CI,I

Page 685

144 F.3d 685
158 L.R.R.M. (BNA) 2285, 159 L.R.R.M. (BNA) 2703,
135 Lab.Cas. P 10,165, 98 CJ C.A.R. 2554
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
I.W.G., INC.; Con-Bru, Inc. doing business as AAA Fire
Sprinkler, Inc.; Robert B. Gordon, an individual;
and Arlene, Inc., doing business as AAA
Fire Suppression, Inc., Respondents.
Road Sprinkler Fitters Local Union 669, U.A., AFL-CIO, Intervenor.
Robert B. GORDON, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Road Sprinkler Fitters Local Union 669, U.A., AFL-CIO, Intervenor.
Nos. 96-9548, 96-9550.
United States Court of Appeals,
Tenth Circuit.
May 18, 1998.

Page 686

James W. Bain (Peter A. Gergely with him on Petitioner Gordon's Opening Brief), Brega & Winters P.C., Denver, CO, for Robert B. Gordon.

Vincent J. Falvo, Jr., Attorney (Frederick L. Feinstein, General Counsel; Linda Sher, Associate General Counsel; Aileen A. Armstrong, Deputy Associate General Counsel; Charles Donnelly, Supervisory Attorney; and Robert J. Englehart, Attorney, on the brief), National Labor Relations Board, Washington, DC, for National Labor Relations Board.

William W. Osborne, Jr. (Robert H. Morsilli with him on the brief), Osborne Law Offices, P.C., Washington, DC, for Intervenor

Page 687

Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO.

Before PORFILIO, McKAY, and LUCERO, Circuit Judges.

McKAY, Circuit Judge.

The National Labor Relations Board [NLRB or Board] petitions this court for enforcement of its order against Robert B. Gordon, I.W.G., Inc. [I.W.G.], Con-Bru, Inc. [Con-Bru], and Arlene, Inc. [Arlene]. Respondent, Mr. Gordon, cross-petitions this court for review of the Board's decision. The case came before the Board on a complaint issued by the General Counsel, following an investigation of charges filed by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO [the Union]. After an administrative law judge [ALJ] conducted a hearing on the charges set forth in the Board's complaint, the Board adopted the ALJ's decision with a slight modification. The Board essentially decided that Respondent "abandoned and subsequently created" several corporations, namely, I.W.G., Con-Bru, and Arlene, "primarily to avoid paying his employees pursuant to an extant collective-bargaining agreement and to evade a statutory obligation to bargain with the Union over the terms and conditions of employment." I.W.G., Inc., 322 N.L.R.B. No. 12, 1997-98 NLRB Dec. (CCH) p 16,108, at 33,441, 1996 WL 506089 (Aug. 27, 1996). We assume jurisdiction pursuant to 29 U.S.C. § 160(f).

Respondent claims that there is a procedural impediment to the Board's conclusion that Arlene was an alter ego of I.W.G. and Con-Bru. 1 He contends that because the unfair labor practice complaint filed September 2, 1993, did not allege that Arlene was an alter ego, he was not given notice sufficient to adequately prepare and present a defense to a charge that Arlene was an alter ego of I.W.G. and Con-Bru, and that Respondent was personally liable for Arlene's unfair labor practices. The Board urges us to hold that, regardless of whether the Arlene alter ego issue was specifically pled, it was properly decided by the Board because it was fully and fairly litigated. See NLRB Br. at 26-28; Facet Enters., Inc. v. NLRB, 907 F.2d 963, 972 (10th Cir.1990); NLRB v. Tricor Prods., Inc., 636 F.2d 266, 271 (10th Cir.1980); NLRB v. Thompson Transp. Co., 421 F.2d 154, 155 (10th Cir.1970). As we explained in Facet Enterprises, "variation between an unfair labor practice charged in the complaint and one found by the Board does not deprive a respondent of due process where it is clear that the respondent 'understood the issue and was afforded full opportunity to justify [its actions].' " Facet Enters., 907 F.2d at 972 (quoting NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 350, 58 S.Ct. 904, 82 L.Ed. 1381 (1938)).

After reviewing the record and the Board's contentions, we hold that Respondent was not accorded his due process rights as to the Arlene alter ego claim. In its Decision and Order, the NLRB found that the Arlene alter ego claim had a sufficient connection to the complaint for Respondent to anticipate the Arlene alter ego issue. See I.W.G., Inc., 1997-98 NLRB Dec. (CCH) at 33,443. The Board articulated two reasons for its decision: (1) Arlene was named as a respondent in the proceeding along with I.W.G., Con-Bru, and Respondent Mr. Gordon; and (2) "the gravamen of the General Counsel's complaint is that Gordon created and abandoned corporate entities in order to evade I.W.G.'s contractual and statutory obligations to its employees and the Union." Id. The Board's summary of the complaint is inaccurate; nowhere does the complaint allege Respondent "created and abandoned" Arlene. Id. We agree with the Board's dissenting opinion that the General Counsel's complaint drew a clear distinction between (1) I.W.G. and Con-Bru and (2) Arlene. Id. at 33,448 (Member Cohen, dissenting). The complaint alleged that Con-Bru, I.W.G., and Respondent were a single employer or alter egos. See Petitioner's

Page 688

App., Vol. I at 165 (Order Revoking Settlement Agreement and Amended Consolidated Complaint and Notice of Hearing at 2(d)). Arlene was only alleged to be a successor to I.W.G./Con-Bru with notice of their potential liability to remedy unfair labor practices, i.e., a Golden State successor. See id. at 2(e)-(g); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184-85, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973). Our review of the record leads us to conclude that Respondent read the complaint to mean what it said; the complaint did not give Respondent notice of an implied and unalleged theory of creating and abandoning multiple corporate entities.

The Board's...

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13 practice notes
  • Barrie v. U.S. Dept. of Labor, Case No. 07-cv-01751-LTB.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • January 29, 2009
    ...Service, 435 F.3d 1204, 1217 (10th Cir.2006); Lighton v. Univ. of Utah, 209 F.3d 1213, 1223-24 (10th Cir.2000); N.L.R.B. v. I.W.G., Inc., 144 F.3d 685, 689 (10th C. DOL improperly failed to award Plaintiff wage-loss benefits for his chronic atrophic gastritis Plaintiff claims lost wages as ......
  • Decisions and Orders:
    • United States
    • Federal Register October 28, 2011
    • October 28, 2011
    ...and legal basis for the Agency's action.'' CBS Wholesale Distributors, 74 FR 36,746, 36,749 (DEA 2009) (citing NLRB v. I.W.G., Inc., 144 F.3d 685, 688-89 Cir. 1998) and Pergament United Sales, Inc., v. NLRB, 920 F.2d 130, 134 (2d Cir. 1990)). Although non-noticed evidence may not be used fo......
  • Klein–Becker USA, LLC v. Englert, No. 12–4076.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 27, 2013
    ...courts may establish personal liability through the entry of summary or default judgment is a legal question. See NLRB v. I.W.G., Inc., 144 F.3d 685, 689 (10th Cir.1998) (“Whether a corporate veil ought to be pierced is a question of law.”). We review legal questions de novo. See Hofer v. U......
  • Public Service Co. of Oklahoma v. N.L.R.B., No. 01-9525.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 5, 2003
    ...Board's decision if it is based on a violation "neither charged in the complaint nor litigated at the hearing." N.L.R.B. v. I.W.G., Inc., 144 F.3d 685, 689 (10th Cir.1998). The Board may decide a material issue fairly tried by the parties, however, even if not specifically pled in the compl......
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9 cases
  • Barrie v. U.S. Dept. of Labor, Case No. 07-cv-01751-LTB.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • January 29, 2009
    ...Service, 435 F.3d 1204, 1217 (10th Cir.2006); Lighton v. Univ. of Utah, 209 F.3d 1213, 1223-24 (10th Cir.2000); N.L.R.B. v. I.W.G., Inc., 144 F.3d 685, 689 (10th C. DOL improperly failed to award Plaintiff wage-loss benefits for his chronic atrophic gastritis Plaintiff claims lost wages as ......
  • Klein–Becker USA, LLC v. Englert, No. 12–4076.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 27, 2013
    ...courts may establish personal liability through the entry of summary or default judgment is a legal question. See NLRB v. I.W.G., Inc., 144 F.3d 685, 689 (10th Cir.1998) (“Whether a corporate veil ought to be pierced is a question of law.”). We review legal questions de novo. See Hofer v. U......
  • Public Service Co. of Oklahoma v. N.L.R.B., No. 01-9525.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 5, 2003
    ...if it is based on a violation "neither charged in the complaint nor litigated at the hearing." N.L.R.B. v. I.W.G., Inc., 144 F.3d 685, 689 (10th Cir.1998). The Board may decide a material issue fairly tried by the parties, however, even if not specifically pled in the complaint. S......
  • In re Edwards, Bankruptcy No. 00-43650-S.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Eastern District of Texas
    • October 4, 2001
    ...was complete with regard to the challenged issue and whether any prejudice to the respondent resulted." N.L.R.B. v. I.W.G., Inc., 144 F.3d 685, 688 (10th Whether this Court applies the Fifth Circuit standard or the Tenth Circuit standard, the result will be the same. The undisputed fac......
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