Pierre Pellaton Enterprises, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1977

228 N.L.R.B. 1070 (N.L.R.B. 1977)

1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pierre Pellaton Enterprises, Inc.; Pierre Pellaton
Apartments at Mineola, Inc.; Pierre Pellaton
Apartments, Inc.; Pierre Pellaton at Clinton
Avenue, Inc.; Fardale Apartments Corp .; Pierre
Pellaton an Individual , and Estate of Pierre
Pellaton ; and Michael Kluger, Fred Seidenfeld and
Aaron Sokol, a co-partnership doing business as
S.K.S. Associates and Local 307, Service Employ.
ees International Union, AFL-CIO. Case 29-CA-
2670
March 25, 1977
NOTICE TO SHOW CAUSE
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND WALTHER
On January 23, 1976, the National Labor Relations
Board issued a Supplemental Decision and Order 1 in
the above-entitled proceeding in which the Board
adopted the findings and conclusions of the Admin-
istrative Law Judge as contained in his Decision of
May 30, 1975, and ordered the Respondent, Michael
Kluger, Fred Seidenfeld and Aaron Sokol, a co-
partnership doing business as S.K.S. Associates, to
pay to the discriminatees the amounts set forth in the
backpay specification, as amended, as recommended
by the Administrative Law Judge.
Thereafter, on August 26, 1976, the parties to the
court proceeding stipulated that the Board's applica-
tion to the United States Court of Appeals for the
Second Circuit for enforcement of its Order be
withdrawn so that the Respondent, S.K.S. Associ-
ates, could be afforded an opportunity to present its
position concerning the settlement stipulation en-
tered into January 21, 1975, between the General
Counsel, the Estate of Pierre Pellaton, Local 307,
Service Employees International Union, AFL-CIO,
and the four claimants.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to the three-member
panel which participated in the Supplemental Deci-
sion and Order.
The Board having duly considered the matter,
Notice is hereby given that cause be shown, in
writing, filed with the Board in Washington, D.C., on
or before April 11, 1977 (with affidavit of due service
of copies on the other parties to this proceeding),
why the Board should not fmd that the Estate of
1 222 NLRB 555.
2 In issuing this Notice To Show Cause we are not rejecting a hearing
before an Administrative Law Judge , as proposed by our dissenting
colleague , as a possible alternative to the course we have suggested . Indeed
our Notice To Show Cause is issued at least in part to provide the parties an
228 NLRB No. 139
Pierre Pellaton and S.K.S. Associates are jointly and
severally liable for the backpay accruing after
September 15, 1972.2
MEMBER WALTHER, dissenting:
I cannot join my colleagues in issuing a Notice To
Show Cause in this proceeding. Rather, in view of the
unusual circumstances surrounding this case and its
present posture, I conclude that a remand of this
proceeding to the Administrative Law Judge is
necessary.
The background of this case is as follows: On
January 24, 1973, the Board issued its Decision and
Order in this proceeding,3 in which it found, inter
alia, that Respondent, Pierre Pellaton Enterprises,
Inc. (herein called Pellaton Enterprises), had violated
Section 8(a)(3) by discriminatorily discharging four
employees and ordered, inter alia, that Pellaton
Enterprises, its officers, agents, successors, and
assigns, offer the four discriminatees reinstatement
and make them whole. Thereafter, on January 29,
1974, the Board's Order was enforced by the United
States Court of Appeals for the Second Circuit by
default judgment.
On October 23, 1974, the Regional Director for
Re 'on 29 issued an amended backpay specification
and notice of hearing, naming as Respondents both
Pellaton Enterprises and S.K.S. Associates, which
had acquired the properties of Pellaton Enterprises
on September 15, 1972. Prior to the opening of the
hearing, on January 21, 1975, Pellaton Enterprises
entered into a settlement stipulation with counsel for
the General Counsel, the Charging Party, and the
four discriminatees pursuant to which it paid sums
due the discriminatees for the period from the
commencement of backpay liability until September
15, 1972. Counsel for the General Counsel then
withdrew from the backpay specification the allega-
tions concerning Pellaton Enterprises.
At the hearing, counsel for the General Counsel
submitted the settlement stipulation to the Adminis-
trative Law Judge for approval. The Administrative
Law Judge, although receiving the stipulation into
evidence, declined to approve or disapprove it.
Subsequently, the Administrative Law Judge issued
his Supplemental Decision in which he found that
Pellaton Enterprises was not a party to the proceed-
ing. He further found that S.K.S. Associates became
a bona fide successor to Pellaton Enterprises on
September 15, 1972, and provided in his recommend-
ed Order that S.K.S. Associates make whole the
named discriminatees from that date.
opportunity to state their positions as to how the Board should proceed. We
are, however, unwilling to pass on the objections raised by our dissenting
colleague to the course we have proposed until the parties have had an
opportunity to state their positions on the matter.
3 201 NLRB 409.
PIERRE PELLATON ENTERPRISES 1071
Thereafter, on January 23, 1976, the Board issued
its Supplemental Decision and Order4 in which it
adopted the findings, conclusions, and recommended
Order of the Administrative Law Judge as contained
in his Supplemental Decision. However, in so doing,
Chairman Murphy and I, comprising the panel
majority, joined in the following footnote which read,
in pertinent part:
Inasmuch as the settlement agreement is not
before us, we express no opinion as to the
propriety of the General Counsel's action in
settling with the Pellaton parties or the acceptabil-
ity of the terms of that agreement. Furthermore,
inasmuch as the Pellaton parties are not before
us, our decision herein is limited to a resolution of
the issue of S.K.S.' liability. Our decision, there-
fore, is not to be construed as a finding or a
determination that the Pellaton parties are ab-
solved from primary responsibility for making
whole the discriminatees for any losses they may
have sustained following S.K.S. Associates' suc-
cessorship... .
Member Fanning expressly did not join in that
footnote.
Thereafter, on August 26, 1976, the Board and
S.K.S. Associates stipulated that the Board's applica-
tion to the court of appeals for enforcement of its
Supplemental Order be withdrawn and that Respon-
dent S.K.S. Associates be afforded the opportunity to
present its position to the Board concerning the
settlement stipulation of January 21, 1975.
Thus, the Board now has before it an issue
involving the allocation of backpay liability under
Perma Vinyls between the predecessor, Pellaton
Enterprises, and the successor, S.K.S. Associates, in a
posture in which the settlement stipulation entered
into by Pellaton Enterprises has never been approved
by the General Counsel, the Administrative Law
Judge, or the Board, and under circumstances in
which Pellaton Enterprises is not a party to the
instant proceeding. My colleagues have decided to
issue a Notice To Show Cause why Pellaton
Enterprises and S.K.S. Associates should not be held
jointly and severally liable for backpay accruing to
the discriminatees after September 15, 1972. My
colleagues thereby have indicated their intention to
resolve the substantive issue in its present posture,
despite the express findings of the panel majority in
the Board's Supplemental Decision that neither the
settlement stipulation nor Pellaton Enterprises was
before the Board. I fail to see how the issuance of a
Notice To Show Cause effectively cures either of
these procedural infirmities. Rather, the use of a
notice to show cause to determine the issue of
whether or not to impose joint and several liability
herein can only result in substantial prejudice to
either Pellaton Enterprises or S.K.S. Associates and
in further enmeshing this Board in a procedural
thicket.
Given the unusual circumstances of this case, I
consider a remand to the Administrative Law Judge
necessary in order to join all parties involved into a
single proceeding and to place the settlement
stipulation before the Administrative Law Judge for
ruling. Thereafter, if review of the Administrative
Law Judge's decision is sought, the Board would
then have all the parties, their positions, and the
settlement stipulation before it. In my view, a
remand to the Administrative Law Judge is the only
course available here which can afford both Pellaton
Enterprises and S.K.S. Associates the fundamental
due process to which they are entitled. Accordingly, I
dissent.
4 222 NLRB 555.
5 Perma Vinyl Corporation, Dade Plastics Co. and United States Pipe and
Foundry Company, 164 NLRB 968 (1967).