Vance v. N.L.R.B.
| Decision Date | 25 August 1995 |
| Docket Number | 95-1779 and 95-1780,Nos. 95-1261,s. 95-1261 |
| Citation | 71 F.3d 486 |
| Parties | 131 Lab.Cas. P 11,464 Delores VANCE, d/b/a D & J Trucking, a sole proprietorship; Don Vance, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Delores VANCE, d/b/a D & J Trucking; Don Vance, Respondents. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DENART COAL COMPANY, INCORPORATED and its Alter Ego, V Coal Company, Incorporated; Delores Vance, an Individual, Respondents. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Daniel Charles McCarthy, Greenwood, Indiana, for Petitioners. Angela Michelle Washington, National Labor Relations Board, Washington, D.C., for Respondent. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Linda Dreeben, Supervisory Attorney, National Labor Relations Board, Washington, D.C., for Respondent.
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
Enforcement granted by published per curiam opinion.
Petitioners Delores Vance d/b/a D & J Trucking ("D & J") and Don Vance appeal a decision of the National Labor Relations Board (the "Board"). In its decision, the Board held that D & J is a single employer with Denart Coal Co., Inc. ("Denart"), and V Coal Co., Inc. ("V Coal"), and that D & J and its owners, Don and Delores Vance, are therefore jointly and severally liable to remedy the unfair labor practices committed by Denart and V Coal. Finding that the Board's decision is supported by substantial evidence on the record as a whole, we affirm.
On August 14, 1989, the Board issued an order adopting the finding of Administrative Law Judge ("ALJ") Wallace H. Nations that Denart and V Coal violated Secs. 8(a)(5) and (1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Secs. 158(a)(5) and (1), by failing to abide by the terms of their collective bargaining agreement with the United Mine Workers of America, District 17 (the "Union"), and by refusing to provide information to the Union. 1 The Board also adopted the ALJ's finding that Denart and V Coal were alter ego corporations commonly owned and managed by Vance family members. Denart was 75% owned and controlled by Don Vance; and V Coal was owned by Don Vance's sons, Don E. and Michael Vance, and was operated by Don Vance. The Board's order required, in part, that Denart/V Coal remedy any losses the employees suffered due to the unfair labor practices. On March 1, 1990, this Court enforced the Board's order in full. NLRB v. Denart Coal Co., No. 90-1004 (Mar. 1, 1990) (unpublished order).
On June 4, 1990, the Board's Regional Director issued a compliance specification, alleging, inter alia, that in addition to Denart/ V Coal, D & J Trucking, a sole proprietorship owned by Delores Vance, was liable for the backpay due under the conditions of the Board's order. The specification also claimed that Don and Delores Vance were personally, jointly, and severally liable for the backpay amounts. 2 On January 28, 1991, the Board granted the General Counsel's Motion for Partial Summary Judgment against Denart/V Coal for failing to file an answer to the compliance specification and found that Denart/V Coal admitted as true the allegations against them in the compliance specification. Denart Coal Co., 301 N.L.R.B. 391, 392 (1991). The Board, however, remanded for a hearing on the issue of the single employer status of Denart/V Coal and D & J. The Board added that any parties found to constitute a single employer with Denart/V Coal would be bound by the actions of Denart/V Coal, including the failure to file an answer to the compliance specification. Id. at 392-93.
In his initial supplemental decision dated October 14, 1992, ALJ Hubert E. Lott found that the General Counsel did not present sufficient evidence to establish that D & J is a single employer with Denart/V Coal, and the judge dismissed the compliance specification with regard to Petitioners. In its remand order issued March 26, 1993, the Board directed the judge to explain his finding that the documentary evidence did not contradict Delores Vance's testimony that she was the sole owner of D & J.
In his second supplemental decision dated March 25, 1994, Judge Lott reaffirmed his finding that D & J is not a single employer with Denart/V Coal. On December 16, 1994, the Board reversed the ALJ's judgment and found that D & J and Denart/V Coal constitute a single employer. Denart Coal Co., 315 N.L.R.B. 850 (1994). The Board therefore held that D & J is liable with Denart/V Coal for remedying the unfair labor practices and that because D & J is a proprietorship, its principals, Don and Delores Vance, are personally liable for the obligations incurred by D & J. The Petitioners appeal from this order of the Board.
Petitioners' appeal presents the single issue of whether substantial evidence supports the Board's finding that D & J and Denart/V Coal constitute a single employer such that D & J and its owners, Don and Delores Vance, are jointly and severally liable to remedy the unfair labor practices committed by Denart/V Coal. The Board's finding that two entities constitute a single employer is essentially a factual determination and, as such, should not be disturbed when supported by substantial evidence on the record as a whole. NLRB v. Emsing's Supermarket, Inc., 872 F.2d 1279, 1289 (7th Cir.1989); Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 24-25 (1st Cir.), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983); see also 29 U.S.C. Secs. 160(e) and (f). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." NLRB v. Peninsula Gen. Hosp. Medical Ctr., 36 F.3d 1262, 1269 (4th Cir.1994) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). It is "more than a scintilla but less than a preponderance." Id. (quoting Elliott v. Administrator, Animal & Plant Health Inspection Serv., USDA, 990 F.2d 140, 144 (4th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 191, 126 L.Ed.2d 149 (1993)). Although a reviewing court accords "due deference" to the Board's factual findings under the substantial evidence standard of review, NLRB v. Brown, 380 U.S. 278, 292, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965), the court does not "mechanically accept[ ]" those findings, Flack v. Cohen, 413 F.2d 278, 279 (4th Cir.1969), see also Peninsula, 36 F.3d at 1269. As to the Board's application of the law to the facts, a reviewing court must affirm the Board's application if it is reasonable and consistent with the NLRA. NLRB v. Yeshiva Univ., 444 U.S. 672, 691, 100 S.Ct. 856, 867, 63 L.Ed.2d 115 (1980); Peninsula, 36 F.3d at 1269.
The law is well settled that the controlling criteria in determining whether two or more employing entities constitute a single employer are (1) common ownership, (2) interrelation of operations, (3) common management, and (4) centralized control of labor relations. Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per curiam); Walter N. Yoder & Sons, Inc. v. NLRB, 754 F.2d 531, 535-36 (4th Cir.1985). No one factor is determinative, and the Board need not find extensive evidence that all four criteria are satisfied in order to find single employer status. I.B.E.W., Local 613 v. Fowler Indus., Inc., 884 F.2d 551, 553 n. 3 (11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1783, 108 L.Ed.2d 785 (1990); NLRB v. Don Burgess Constr. Corp., 596 F.2d 378, 384 (9th Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). Ultimately, single employer status is characterized by the absence of an "arm's length relationship found among the integrated companies." Local No. 627, Int'l Union of Operating Eng'rs v. NLRB, 518 F.2d 1040, 1046 (D.C.Cir.1975), aff'd in pertinent part sub nom., South Prairie Constr. Co. v. Local No. 627, Int'l Union of Operating Eng'rs, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976).
Petitioners present two arguments to contend that the Board should have addressed considerations beyond these single employer factors in determining their liability in this case. 3 First, Petitioners rely on principles of limited liability to contend that the Board should have required the General Counsel to prove fraud or other wrongdoing before the Board pierced the corporate veil and held Don and Delores Vance personally liable for conduct attributed to D & J. As the Board recognizes, Petitioners' extensive discussion of individual liability for corporate violations is irrelevant because D & J is a proprietorship, not a corporation. See Wayne Electric, Inc., 241 N.L.R.B. 1056, 1057-58 & n. 4 (1979), enforced, 636 F.2d 1227 (9th Cir.1980).
Second, Petitioners argue that, because they have offered evidence that they had legitimate nondiscriminatory reasons for engaging in the transactions on which the Board relied to find single employer status, the Board should have required the General Counsel to show that Petitioners would not have conducted the particular transactions but for the purpose of circumventing the NLRA. In advocating this burden-shifting scheme, Petitioners rely on Wright Line, A Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). As the Board argues, however, Wright Line is wholly inapplicable to this case. In Wright Line, the Board established the framework for assessing whether an employer was unlawfully motivated in discriminating against an employee so as to encourage or discourage union membership. The determination of single employer status does not depend on the employer's motivation, but rather on evidence of common...
To continue reading
Request your trial
-
Int'l Union, United Mine Workers of Am. v. Consol Energy, Inc.
...the letters and CONSOL's involvement as it did.12 Case law further supports this court's previous ruling. See, e.g., Vance v. N.L.R.B., 71 F.3d 486, 490 (4th Cir. 1995) (finding a single employer where interrelation of operations, common ownership, or centralized control of labor relations ......
-
Pearson v. Component Technology Corp.
...of formal documentation, etc), such evidence would cut in favor of finding a dependency of operations. See, e.g., Vance v. NLRB, 71 F.3d 486, 493 (4th Cir. 1995) (per curiam) (finding an interrelation of operations in part because of numerous interest-free, or unrepaid, "loans" between corp......
-
At&T Wireless Pcs v. City Council, Virginia Beach
...Id. at 477, 71 S.Ct. at 459; see also Cox v. Shannon-Pocahontas Mining Co., 6 F.3d 190, 192 (4th Cir.1993); Vance v. NLRB, 71 F.3d 486, 489-90 (4th Cir.1995); accord Virginia Real Estate Commission v. Bias, 226 Va. 264, 308 S.E.2d 123, 125 (Va.1983). Assuming, arguendo, that it would be pro......
-
Flynn v. Ohio Bldg. Restoration, Inc.
...that Duane Haas has an ownership interest in Exact, regardless of how defendants try to characterize the situation. See Vance v. NLRB, 71 F.3d 486, 492 (4th Cir.1995) (common ownership determination of two entities by the NLRB as part of single employer finding upheld because "initial fundi......