Rogan Brothers Sanitation, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 2020

369 N.L.R.B. 53 (N.L.R.B. 2020)

369 NLRB No. 53
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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 Ser-
vices, LLC, a single employer and/or successor
and Waste Services, Inc., and ECSI America,
Inc., a single employer, and R&S Waste Ser-
vices, LLC, alter egos and/or R&S Waste Ser-
vices, LLC, and Waste Services, Inc., a successor
and Teamsters Local 813, International Broth-
erhood of Teamsters. Cases 02‒CA‒040028,
02‒CA‒065928, 02‒CA‒065930, and
02‒CA‒066512
April 9, 2020
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
In this compliance proceeding, the General Counsel
has filed a Motion for Partial Summary Judgment and to
strike portions of the amended answer submitted by Re-
spondents Waste Services, Inc., R&S Waste Services,
LLC, and ECSI America, Inc. (Respondents) in response
to the amended consolidated compliance specification.
In his motion, the General Counsel asserts that the Re-
spondents’ amended answer attempts to raise matters that
were decided in the underlying unfair labor practice pro-
ceedings and is inadequate under the Board’s Rules and
Regulations. For the reasons that follow, we grant the
General Counsel’s motion.
On December 9, 2011, the National Labor Relations
Board issued a Decision and Order granting the General
Counsel’s Motion for Summary Judgment against Rogan
Brothers Sanitation, Inc. (Rogan Brothers), pursuant to
the noncompliance provisions of a bilateral informal set-
tlement agreement. Rogan Bros. Sanitation, Inc., 357
NLRB 1655 (2011) (Rogan Brothers I). The Board or-
dered Rogan Brothers to take certain affirmative actions,
including making discriminatees Anthony Mercado and
Daniel Mattei whole and paying the amount set forth in
the settlement agreement to discriminatee Joseph Smith.1
On March 22, 2012, the United States Court of Appeals
for the Second Circuit entered a judgment enforcing the
Board’s order in Rogan Brothers I.
1 Specifically, the Board ordered Rogan Brothers to offer employees
Mercado and Mattei full reinstatement to their former jobs and to make
them whole for any loss of earnings and other benefits suffered as a
result of Rogan Brothers’ unlawful actions against them, with interest,
and to remit the amount set forth in the informal settlement agreement,
plus interest, owed to employee Smith.
On April 8, 2015, the Board issued a Decision and Or-
der, finding, inter alia, that Rogan Brothers and R&S
Waste Services, LLC (R&S Waste), were jointly and
severally liable as a single employer for the unlawful
terminations of Wayne Revell, Joseph Smith, and Mi-
chael Roake from March 1, 2011, through October 4,
2011.
Rogan Bros. Sanitation, Inc., 362 NLRB 547 (2015)
(“Rogan Brothers II”). On June 7, 2016, the United
States Court of Appeals for the Second Circuit entered a
judgment enforcing the Board’s order in Rogan Brothers
II.2
A controversy having arisen over the amount of back-
pay due the discriminatees under the Board’s orders in
Rogan Brothers I and II and any derivative liability, the
Regional Director for Region 2 issued a consolidated
compliance specification and notice of hearing on De-
cember 17, 2018. The specification alleges, in relevant
part, that R&S Waste is derivatively liable for the unfair
labor practices in Rogan Brothers I as a single employer
with and/or Golden State3 successor to Rogan Brothers,
and that Waste Services, Inc. (Waste Services) is deriva-
tively liable for the unfair labor practices in both Rogan
Brothers I and II. The specification also sets forth the
backpay amounts due to the five discriminatees in Rogan
Brothers I and II. On January 11, 2019, the Respondents
filed an answer to the specification. On April 19, 2019,
the Region amended the specification, additionally alleg-
ing that Waste Services is a Golden State successor to
R&S Waste and clarifying the allegation that R&S Waste
is the Golden State successor to Rogan Brothers. On
May 10, 2019, the Respondents filed an amended answer
to the specification.
On May 21, 2019, the General Counsel filed the pend-
ing motion requesting that the Board transfer the case to
the Board, strike portions of the Respondents’ amended
answer, and grant partial summary judgment (motion).
The General Counsel also filed a memorandum of law in
support of the motion. On July 19, 2019, the Board is-
sued an order transferring the proceeding to the Board
and a Notice to Show Cause why the General Counsel’s
motion should not be granted. Thereafter, the Respond-
ents filed an answer and accompanying memorandum of
law in opposition to the General Counsel’s motion, and
the General Counsel filed a reply.
On the entire record the Board makes the following
2 R&S Waste Servs., LLC v. NLRB, 651 Fed.Appx. 34 (2d Cir.
2016).
3 Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Ruling on the Motion to Strike Portions of Respondents’
Amended Answer to the Amended Compliance
Specification
A. The Respondents’ Attempt to Relitigate Matters Pre-
viously Decided by the Board
The General Counsel moves to strike portions of the
Respondents’ amended answer to the amended specifica-
tion, asserting that the Respondents, in effect, are deny-
ing factual findings or legal conclusions made by the
Board in Rogan Brothers I and II and are thereby seeking
to relitigate matters already decided by the Board. “It is
well settled that a respondent may not relitigate matters
in the compliance stage that were decided in an underly-
ing unfair labor practice proceeding.” M. D. Miller
Trucking & Topsoil, Inc., 363 NLRB No. 49, slip op. at 2
(2015) (citing Convergence Communications, Inc., 342
NLRB 918, 919 (2004)), enfd. 728 Fed.Appx. 2 (D.C.
Cir. 2018). We find merit in the General Counsel’s posi-
tion and, accordingly, strike portions of the Respondents’
amended answer as described below.
1. Paragraph 1(a) of the amended specification
The General Counsel alleges that R&S Waste and
Rogan Brothers were a single employer from March 1,
2011 through October 4, 2011, as found by the Board in
Rogan Brothers II. In their amended answer, the Re-
spondents deny the General Counsel’s allegation “to the
extent there was no common ownership.” In Rogan
Brothers II, the Board concluded that “common owner-
ship [was] established.” 362 NLRB at 550. By their
denial, the Respondents seek to relitigate whether R&S
Waste and Rogan Brothers had common ownership.
Accordingly, we grant the General Counsel’s motion to
strike paragraph 1(a) from the Respondents’ amended
answer.
2. Paragraphs 1(b) through 1(f) of the amended
specification
The General Counsel alleges the dates of the unfair la-
bor practice proceedings in Rogan Brothers I, and further
alleges that Rogan Brothers and R&S Waste were a sin-
gle employer during that time, as found by the Board in
Rogan Brothers II. The Respondents deny knowledge
regarding the General Counsel’s allegations. In Rogan
Brothers I, the Board set forth the dates the complaint,
the answer and the Motion for Summary Judgment were
filed. The Board also indicated that Rogan Brothers filed
a response to the Motion for Summary Judgment. 357
NLRB at 1656. In Rogan Brothers II, the Board found
R&S Waste and Rogan Brothers were a single employer
from March 1, 2011, through October 4, 2011. 362
NLRB at 553. By denying paragraphs 1(b) through 1(f),
the Respondents are attempting to relitigate the Board’s
findings in Rogan Brothers I and II. Accordingly, we
grant the General Counsel’s motion to strike paragraphs
1(b) through 1(f) from the Respondents’ amended an-
swer.
3. Paragraph 2(a) of the amended specification
The General Counsel alleges that on January 1, 2011,
“Joseph Spiezio, through Spiezio Organization LLC, and
Respondent Rogan [Brothers] entered into a consulting
agreement whereby Spiezio agreed to represent Re-
spondent Rogan [Brothers] on various issues related to
Respondent [Rogan Brothers’] labor relations . . . .” The
Respondents deny this allegation, explaining that Spiezio
Organization—not Spiezio himself—was the separate
legal entity that contracted with Rogan Brothers. In
Rogan Brothers II, the Board stated that “Spiezio and
Rogan entered into an agreement whereby Spiezio would
act as a consultant for [Rogan Brothers] on issues such as
retaining counsel for labor related matters . . . .” 362
NLRB at 548. The Respondents’ denial of this allegation
in the amended specification seeks to relitigate issues
already decided by the Board in Rogan Brothers II. Ac-
cordingly, we grant the General Counsel’s motion to
strike paragraph 2(a) from the Respondents’ amended
answer.
4. Paragraphs 2(b) through 2(e) of the amended
specification
The General Counsel alleges facts showing the transfer
of Rogan Brothers’ assets to R&S Waste in 2011. The
Respondents admit paragraph 2(b) but deny paragraphs
2(c) through 2(e). We agree with the General Counsel
that, by their denials, the Respondents are attempting to
relitigate findings that were set forth in Rogan Brothers
II.
Paragraph 2(c) alleges that on May 25, 2011, Spiezio
created “an enforceable security interest in Respondent
[Rogan Brothers’] commercial sanitation and roll-off
business in Westchester County, New York . . . .” In
Rogan Brothers II, the Board found that “a Security
Agreement dated January 3, 2011 . . . between Rogan
Brothers as debtor and Pinnacle Equity Group, LLC4 as
the secured party . . . lists items used as collateral,” and
that “the filing . . . of a document listing the property
used as the security for the loan from . . . Joseph Spiezio
to James Rogan” was dated May 25, 2011. 362 NLRB at
564. The Board also found that “after making the loan,
Spiezio, by virtue of the secured collateral agreement,
had a substantial potential interest in that company’s real
4 Pinnacle Equity Group was a business financing services company
owned by Spiezio. See 362 NLRB at 548.
ROGAN BROTHERS SANITATION, INC. 3
and intangible assets.” Id. at 577. We grant the General
Counsel’s motion to strike paragraph 2(c) from the Re-
spondents’ amended answer.
Paragraph 2(d) alleges that on July 31, 2011, “Joseph
Spiezio, through Pinnacle, acquired Respondent [Rogan
Brothers’] commercial sanitation and roll-off business in
Westchester County, New York, by foreclosing on Pin-
nacle’s enforceable security interest in Respondent
Rogan [Brothers], and assigned Respondent [Rogan
Brothers’] collateral to Respondent R&S.” In Rogan
Brothers II, the Board found that “[o]n July 31, certain
assets of [Rogan Brothers] that served as security for the
loan—customer lists, trucks, dumpsters, and other
equipment—were surrendered to R&S through Pinnacle
in full satisfaction of [Rogan Brothers’] debt.” 362
NLRB at 548. We grant the General Counsel’s motion
to strike paragraph 2(d) from the Respondents’ amended
answer.
Paragraph 2(e) alleges that “Joseph Spiezio continued
to operate Respondent [Rogan Brothers’] commercial
sanitation and roll-off business in Westchester County,
New York as Respondent R&S in basically unchanged
form.” In Rogan Brothers II, the Board stated the fol-
lowing:
R&S commenced operations on August 1, [2011] ser-
vicing most of [Rogan Brothers’] former customers [. .
.]. Its work force consisted mainly of former [Rogan
Brothers] bargaining unit drivers and helpers who were
not Local 813 members, and whom Spiezio hired im-
mediately after their separation from [Rogan Brothers]
during the last week of July. The R&S workforce also
included some current [Rogan Brothers] drivers who
were Local 813 members . . . .
. . . .
When R&S took over the waste collection operations
of [Rogan Brothers] on August 1, some of the people
who actually did this work were drivers on the Rogan
Brothers payroll . . . [who] continued to work on their
same trucks and do their same routes. Other employees
were former [Rogan Brothers] drivers and helpers who
had been terminated the previous week and immediate-
ly rehired by Spiezio for R&S. Both groups of em-
ployees continued to report to work after August 1 at
the same [Rogan Brothers] truck yard at 1014 Saw Mill
River Road.
362 NLRB at 548, 550 (internal quotation marks omit-
ted).
The Board further stated that “Spiezio . . . created R&S
for the purpose of taking over all or part of [Rogan
Brothers’] business in the event that Rogan [Brothers]
could not repay the loan.” Id. at 566. Accordingly, we
grant the General Counsel’s motion to strike paragraph
2(e) from the Respondents’ amended answer.
5. Paragraphs 1(g), 2(j), 4(e), 4(k), 4(l) through (n), 5(a),
5(c), 6(a), and 6(c) of the amended specification
The General Counsel alleges that the Respondents are
jointly and severally liable for remedying Rogan Broth-
ers’ unfair labor practices, including reinstating and mak-
ing whole discriminatees Daniel Mattei and Anthony
Mercado. The Respondents deny these allegations in
both the corresponding paragraphs and affirmative de-
fense 25 of their amended answer, asserting that Mattei
and Mercado waived their right to reinstatement as part
of the settlement agreement of the unfair labor practice
charge underlying Rogan Brothers I. However, Rogan
Brothers defaulted on that agreement in 2011, and, in
Rogan Brothers I, the Board ordered the customary rein-
statement and make-whole remedies for Mattei and Mer-
cado. Therefore, we agree with the General Counsel that
the Respondents should be precluded from denying any
paragraphs of the specification on the basis that Mattei
and Mercado agreed to waive reinstatement for the pur-
pose of settlement. Accordingly, we grant the General
Counsel’s motion to strike those portions of the Re-
spondents’ amended answer in paragraphs 1(g), 2(j),
4(e), 4(k), 4(l) through (n), 5(a), 5(c), 6(a), and 6(c).
6. Paragraph 9 of the amended specification
The General Counsel provides the Region’s calcula-
tions of discriminatee Joseph Smith’s gross backpay, as
set forth in Rogan Brothers I. The Respondents deny
knowledge regarding paragraph 9. By their denial, the
Respondents are, in effect, disputing the Board’s findings
in Rogan Brothers I and are attempting to relitigate mat-
ters already decided by the Board. In addition, the Re-
spondents have provided no basis to deny the interest
calculations on Smith’s backpay. Accordingly, we grant
the General Counsel’s motion to strike Paragraph 9 from
the Respondent’s amended answer.
7. Paragraph 7(a) of the specification
The General Counsel alleges that discriminatee Wayne
Revell’s backpay period began on October 4, 2011, the
date the Board found that Rogan Brothers and R&S
Waste, as a single employer, unlawfully discharged Rev-
ell, and continued until his reinstatement to R&S Waste
on October 8, 2011. The Respondents deny the allega-
tion, asserting that “Revell was offered a job at R&S the
same day [. . .]” he was terminated. In Rogan Brothers
II, the Board found that Rogan Brothers and R&S Waste,
as a single employer, violated Section 8(a)(3) and (1) by
discharging Revell on October 4, 2011, and violated Sec-
tion 8(a)(1) by telling Revell he was terminated because
of his Union membership. The Board found that a man-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ager “promised Revell a job at R&S, conditioned on him
resigning his union membership. . . .” 362 NLRB at 553.
Thus, Rogan Brothers and R&S Waste’s termination of
Revell, and R&S Waste’s simultaneous employment
offer conditioned on Revell’s resignation from the Un-
ion, were part of the same unlawful act, and the Re-
spondents are attempting to relitigate the unlawful termi-
nation of Revell for being a union member. According-
ly, we grant the General Counsel’s motion to strike para-
graph 7(a) from the Respondent’s amended answer.
8. Paragraph 7(b) of the specification
The General Counsel alleges Revell’s gross backpay is
the amount he would have earned at Rogan Brothers and
R&S Waste between October 4 and 8, 2011, but for his
unlawful October 4 discharge. The Respondents deny
this paragraph on the basis that R&S Waste and Rogan
Brothers were no longer a single employer on October 4.
The Board in Rogan Brothers II found R&S Waste joint-
ly and severally liable for Revell’s termination. Thus,
the Respondents are attempting to relitigate an issue that
was decided in the underlying unfair labor practice pro-
ceeding. Accordingly, we grant the General Counsel’s
motion to strike paragraph 7(b) from the Respondent’s
amended answer.
9. Paragraphs 10(a) and 10(b) of the specification
The General Counsel alleges that discriminatee
Smith’s backpay period in Rogan Brothers II com-
menced on October 5, 2011—the day after the Board
found that Rogan Brothers and R&S Waste, as a single
employer, unlawfully discharged Smith—and continued
until October 7, 2016, when he received an offer of rein-
statement. The General Counsel further alleges Smith’s
gross backpay is the amount he would have earned at
Rogan Brothers and R&S Waste during the backpay pe-
riod, but for his unlawful discharge. The Respondents
deny the allegations on the basis that Smith refused a
substantially equivalent position by not applying to work
at R&S Waste. The Respondents’ assertion contravenes
the Board’s finding in Rogan Brothers II that both R&S
Waste and Rogan Brothers unlawfully terminated Smith
as a single employer and that R&S Waste had a duty to
reinstate him. Thus, the Respondents are attempting to
relitigate an issue that was decided in the underlying un-
fair labor practice proceeding. Accordingly, we grant the
General Counsel’s motion to strike paragraph 10(a) and
the remainder of paragraph 10(b) of the Respondents’
amended answer.
B. The Respondents’ Assertion that There Are Offsets to
the Region’s Gross Backpay Calculations
Section 102.56(b) of the Board’s Rules and Regula-
tions states, in relevant part:
(b) Form and contents of answer. The answer must
specifically admit, deny, or explain each and every al-
legation of the specification, unless the Respondent is
without knowledge, in which case the Respondent must
so state, such statement operating as a denial. Denials
must fairly meet the substance of the allegations of the
specification at issue. When a Respondent intends to
deny only a part of an allegation, the Respondent must
specify so much of it as is true and deny only the re-
mainder. As to all matters within the knowledge of the
Respondent, including but not limited to the various
factors entering into the computation of gross backpay,
a general denial will not suffice. As to such matters, if
the Respondent disputes either the accuracy of the fig-
ures in the specification or the premises on which they
are based, the answer must specifically state the basis
for such disagreement, setting forth in detail the Re-
spondent's position and furnishing the appropriate sup-
porting figures.
In paragraphs 5(b), 6(b), 7(b), 8(b), and 10(b) of the
specification, the General Counsel alleges that the Re-
gion’s gross backpay calculations for all five discrimi-
natees are the wages they “would have earned while em-
ployed by Respondents during [the] backpay period . . .
.” As part of their denial of the corresponding para-
graphs of the specification, the Respondents repeatedly
argue that there are unidentified “offsets” to the Region’s
gross backpay calculations for all five discriminatees.
We agree with the General Counsel that this is not a suf-
ficient denial because the Respondents have not provided
alternative gross backpay calculations that address these
“offsets.” See, e.g., Ampersand Publishing, LLC d/b/a
Santa Barbara News-Press, 368 NLRB No. 65 (2019)
(finding that the employer’s amended answer challenging
the accuracy of alleged merit-increase backpay amounts
on the basis that some employees may not have qualified
for merit increases did not meet the requirements of Sec-
tion 102.56(b) because the employer failed to set forth its
position in detail or to furnish supporting figures to coun-
ter those in the compliance specification); Ace Unlimited,
360 NLRB 197, 199 (2014) (rejecting the employer’s
argument disputing the General Counsel’s backpay cal-
culation, reasoning that the employer did not provide a
sufficient basis for its disagreement). Accordingly, we
grant the General Counsel’s motion to strike the Re-
spondents’ denial of paragraphs 5(b), 6(b), 7(b), 8(b),
and 10(b) of the amended specification to the extent they
argue there are “offsets” to the Region’s gross backpay
calculations.
ROGAN BROTHERS SANITATION, INC. 5
Ruling on Motion for Partial Summary Judgment
A. R&S Waste’s Derivative Liability
The General Counsel seeks partial summary judgment
as to paragraphs 1(g) and 2(f) through (j) of the amended
specification, asserting that R&S Waste is derivatively
liable to remedy Rogan Brothers’ unfair labor practices
in Rogan Brothers I as both a single employer with and a
Golden State successor to Rogan Brothers. In Golden
State, the Supreme Court approved the Board’s holding
in Perma Vinyl Corp., 164 NLRB 968 (1967), that a bo-
na fide successor employer that acquires and continues a
business in “basically unchanged form” with knowledge
of the predecessor’s unfair labor practices can be held
liable for the predecessor’s remedial obligations. 414
U.S. at 171‒172 fn. 2, 184‒185. The Court agreed with
the Perma Vinyl rationale that a purchaser-successor is in
the best position to redress known violations without
being unduly burdened because it can adjust the purchase
price to reflect its potential liability or arrange other in-
demnification by the offending seller. Id. at 171 fn. 2,
185. For the reasons below, we find that R&S Waste is a
Golden State successor and grant the General Counsel’s
Motion for Partial Summary Judgment as to paragraphs
2(f) through (j) of the amended specification.5
First, the Respondents argue that R&S Waste is not a
Golden State successor because there was no bona fide
purchase of assets. We find no merit to this contention.
The Board has held that the sale and purchase of assets is
not a prerequisite for finding successorship. See Hot
Bagels & Donuts, 244 NLRB 129, 131 (1979) (successor
was former predecessor who returned as lessee after bank
foreclosure), enfd. 622 F.2d 1113 (2d Cir. 1980); Ponn
Distributing, Inc., 232 NLRB 312, 313‒315 (1977) (suc-
cessor foreclosed its security interest and retook distribu-
torship), enf. denied on other grounds sub nom. NLRB v.
Cott Corp., 578 F.2d 892 (1st Cir. 1978). In this case,
although there was no purchase of assets, the security
agreement between Joseph Spiezio and Rogan Brothers
created an enforceable security interest once Spiezio
identified the real and intangible assets of Rogan Broth-
ers as collateral to secure the loan. We agree with the
General Counsel that Spiezio’s foreclosure of that securi-
ty interest in Rogan Brothers on July 31, 2011, was suffi-
ciently analogous to a purchase of assets for purposes of
Golden State liability.
Moreover, we agree with the General Counsel that the
Board’s findings in Rogan Brothers II establish that R&S
5 We find it unnecessary to pass on the General Counsel’s theory,
expressed in par. 1(g) of the amended specification, that R&S Waste is
derivatively liable for remedying Rogan Brothers’ unfair labor practices
in Rogan Brothers I as a single employer.
Waste substantially continued Rogan Brothers’
Westchester County operations. Factors bearing on
whether substantial continuity exists include “whether
the business of both employers is essentially the same;
whether the employees of the new company are doing
the same jobs in the same working conditions under the
same supervisors; and whether the new entity has the
same production process, produces the same products,
and basically has the same body of customers.” Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,
43 (1987). As explained above in our analysis of the
General Counsel’s motion to strike Paragraph 2(e) of the
amended answer, the Board in Rogan Brothers II deter-
mined that there was no hiatus between the relevant op-
erations of R&S Waste and Rogan Brothers, they served
most of the same customers and shared common man-
agement, and many of the same employees continued to
perform the same work. Thus, the Board found suffi-
cient facts to determine that R&S Waste substantially
continued Rogan’s relevant Westchester County com-
mercial sanitation operations beginning on August 1,
2011.6
Regarding R&S Waste’s knowledge of Rogan Broth-
ers’ unfair labor practices, the Board in Rogan Brothers
II specifically found that
[b]eginning in March, soon after [Rogan Brothers gen-
eral manager Michael] Vetrano instructed [Local 813]
business agent [James] Troy to henceforth “take up . . .
labor matters with Spiezio,” Spiezio and Troy com-
menced discussions of an unfair labor practice charge
that Local 813 had filed against [Rogan Brothers].
Notwithstanding that the parties had already settled the
charge in an informal agreement that the Board’s Re-
gional Director had approved [as reflected in Rogan
Brothers I], Spiezio sought Troy’s agreement to with-
draw the charge and resolve it through the grievance-
arbitration procedure . . . .
362 NLRB at 551. These findings establish that R&S
Waste, through its principal Spiezio, was on notice of the
potential unfair labor practice liability stemming from
6 There is no support for the Respondents’ assertion that they should
not be held liable for the unfair labor practice liability stemming from
Rogan Brothers I because of the 7-year period between the Board’s
decision in Rogan Brothers I and issuance of the specification, and
because the General Counsel could have alleged R&S Waste as a Gold-
en State successor to Rogan Brothers in Rogan Brothers II. The Board
has held that in compliance matters, the doctrine of laches is not a
defense against the Board in its enforcement of a public right. See
Aroostook County Regional Ophthalmology Center, 332 NLRB 1616,
1618‒1619 (2001). Further, the Board has held that the General Coun-
sel may choose to litigate questions of derivative liability at the compli-
ance stage rather than in the underlying unfair labor practice proceed-
ing. See 2 Sisters Food Group, Inc., 361 NLRB 1380, 1380 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Rogan Brothers I as early as March 2011—well before
Spiezio foreclosed on Rogan Brothers’ relevant assets on
July 31, 2011, and before he secured the loan to Rogan
Brothers by identifying Rogan Brothers’ collateral on
May 25, 2011.
We reject the Respondents’ assertion that because
R&S Waste did not purchase assets from Rogan Broth-
ers, R&S Waste did not have the opportunity to negotiate
an indemnity clause to protect itself against the risk asso-
ciated with potential unfair labor practice liability or to
negotiate a lower price to reflect that risk. R&S Waste
and Rogan Brothers were under Spiezio’s integrated con-
trol while the entities constituted a single employer from
March 1, 2011, through October 4, 2011. During this
period, Spiezio decided which Rogan Brothers assets
would secure the Pinnacle loan on May 25, 2011, when
to foreclose on the loan, and when and which Rogan
Brothers assets would be transferred to R&S Waste. The
Board in Rogan Brothers II pointed to the judge’s find-
ings that Spiezio
“became increasingly involved in the business affairs
of [Rogan Brothers] as the de facto manager of the
company,” and eventually “it was Spiezio, and not
James Rogan [who] was running or attempting to run
the business of [Rogan Brothers]” . . . . Spiezio set up
bank accounts with Key Bank to transact [Rogan
Brothers] business, used loan proceeds from the Pinna-
cle loan to make payments to [Rogan Brothers’] credi-
tors and to businesses that provided services to [Rogan
Brothers] . . . . Spiezio also made the “quintessential
managerial decision” to shut down [Rogan Brothers’]
Westchester operations by declaring the Pinnacle loan
to [Rogan Brothers] in default and designating which
physical assets, i.e., trucks and equipment, would re-
main [Rogan Brothers] property and which would be
transferred to R&S.
362 NLRB at 552. Moreover, the Board found that
Spiezio had complete control over Rogan Brothers’ fi-
nances, observing the following:
Spiezio testified that he refused to allow loan proceeds
to pay some [Rogan Brothers] bills presented to him by
[James] Rogan, telling him that payment should be
made as “part of your cash flow” from [Rogan Broth-
ers]. While performing these financial duties for
[Rogan Brothers], Spiezio was concurrently conducting
the business operations of R&S.
Id. at 550.
Thus, Spiezio had full control of the entire security
agreement transaction and, further, had the opportunity
to adjust both the collateral and loan disbursement to
reflect the risk associated with unfair labor practice lia-
bility. The Board has recognized that such financial con-
trol supports a finding of Golden State successorship.
See, e.g., Ponn Distributing, 232 NLRB at 313‒315
(finding successorship based on maintenance of some
control over predecessor’s manner of operation and sub-
sequent assumption of control of business to protect own
investment); cf. Lebanite Corp., 346 NLRB 748 (2006)
(finding no Golden State successorship where the suc-
cessor leased its relevant operations from the predecessor
and did not have any opportunity to negotiate a lease
price that could account for potential unfair labor prac-
tice liability). We agree with the General Counsel that
imposing liability in these circumstances does not im-
pose an undue hardship on the Respondents.
B. Waste Services’ Derivative Liability
The General Counsel also seeks partial summary
judgment as to paragraphs 4(i) through (n) of the amend-
ed specification. In those paragraphs, the General Coun-
sel alleges that Waste Services, as a Golden State succes-
sor to R&S Waste, is derivatively liable to remedy R&S
Waste’s unfair labor practices in Rogan Brothers II and
Rogan Brothers’ unfair labor practices in Rogan Brothers
I, for which R&S Waste is liable. The Respondents ad-
mit in paragraphs 4(f) through (j) of their amended an-
swer that (1) following R&S Waste’s merger into Waste
Services, Waste Services continued the business of R&S
Waste in basically unchanged form, and (2) Spiezio was
the principal of both entities and executed the merger of
R&S Waste into Waste Services on March 11, 2019,
which was made retroactively effective December 31,
2018. Due to his direct relationship with Rogan Broth-
ers, Spiezio had knowledge of the potential liability of
R&S Waste from Rogan Brothers I as early as March 1,
2011. In addition, Spiezio had knowledge of R&S
Waste’s potential liability in Rogan Brothers II as of
October 21, 2011, based on service of the second amend-
ed charge in Case 02‒CA‒065928. As Spiezio was a
principal of Waste Services, his knowledge is imputed to
Waste Services. See, e.g., Robert G. Andrew, Inc., 300
NLRB 444, 445 (1990) (employer on notice of predeces-
sor’s unfair labor practices via knowledge of own-
er/president and affiliated attorney). Further, by service
of the original specification on December 17, 2018,
Waste Services was put on notice of R&S Waste’s and
its own potential liability to remedy the unfair labor prac-
tices in Rogan Brothers I and II. Accordingly, we agree
with the General Counsel that summary judgment is war-
ranted as to paragraphs 4(i) through (n) of the amended
specification and find Waste Services derivatively liable
for remedying the unfair labor practices in Rogan Broth-
ers I and II as a Golden State successor to R&S Waste.
ROGAN BROTHERS SANITATION, INC. 7
ORDER
IT IS ORDERED that the General Counsel’s motion to
strike is granted with respect to paragraphs 1(a) through
1(f), 2(a), 2(c) through 2(e), 7(a) and (b), 9, and 10(a)
and (b) of the Respondents’ amended answer in their
entirety, and the corresponding paragraphs in the amend-
ed compliance specification are deemed admitted and
true. The motion to strike is also granted with respect to
the portions of paragraphs 4, 5, 6, and 8(b) of the Re-
spondents’ amended answer specified above.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Partial Summary Judgment as to paragraphs
2(f) through (j) and 4(i) through (n) of the amended spec-
ification is granted.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 2 for the
purpose of arranging a hearing before an administrative
law judge on the remaining allegations of the amended
specification.
Dated, Washington, D.C. April 9, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD