                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-2003

NRLB v. Evans
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1034




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"NRLB v. Evans" (2003). 2003 Decisions. Paper 105.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT




                                       No. 03-1034


                      NATIONAL LABOR RELATIONS BOARD,

                                               Petitioner

                                               v.

                                RONALD E. EVANS,
                               d/b/a Evans Sheet Metal;
                              RONALD E. EVANS, INC.,
                                t/a Evans Sheet M etal;
                                EVANS AND EVANS;
                               EVANS & EVANS, INC.


                    Appeal from the National Labor Relations Board
                               (Case No. 4-CA-27272)


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 19, 2003

              Before: MCKEE, SMITH, Circuit Judges, and SCHILLER,
                               District Judge*

                               (Filed: November 14, 2003)




  *
    Honorable Berle M. Schiller, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
                                OPINION OF THE COURT




SMITH, Circuit Judge.

       Appellants Ronald E. Evans, d/b/a Evans Sheet M etal; Ronald E. Evans, Inc., t/a

Evans Sheet Metal; Evans & Evans; and Evans & Evans, Inc. (collectively, “the

Company”), appeal from an order of the National Labor Relations Board (hereinafter “the

NLRB” or “the Board”), determining that the Company violated § 8(a)(1) and (5) of the

National Labor Relations Act (“NLRA”) by failing to adhere to the terms and conditions

of its collective-bargaining agreement with Local Union No. 44, Sheet Metal Workers

International Association, AFL-CIO ( “the Union”). It further found that Ronald E.

Evans, d/b/a Evans Sheet Metal; Ronald E. Evans, Inc., t/a Evans Sheet Metal; Evans &

Evans; and Evans & Evans, Inc., were alter egos. We have jurisdiction over this appeal

pursuant to 29 U.S.C. § 160(e). For the reasons set forth below, we will enforce the

Board’s order.

       Because we write only for the parties in this matter, we will dispense with a full

recitation of the facts and limit our discussion only to the resolution of the issues on

appeal. The standard of review we apply to the Board’s decision and order is a

deferential one. Subsection 10(e) of the NLRA provides that the “findings of the Board



                                              2
with respect to questions of fact if supported by substantial evidence on the record

considered as a whole shall . . . be conclusive.” 29 U.S.C. § 160(e).

       We believe that substantial evidence supports the Board’s conclusions regarding

the charges brought against the Company on behalf of the Union. Although the Union

served notice to reopen negotiations on its contract with the Company, the plain language

of their agreement demonstrates the collective-bargaining agreement remained in effect

thereafter. “In the event such notice of reopening is served, this Agreement shall

continue in force and effect until conferences relating thereto have been terminated by

either party by written notice.” App. 318 (emphasis added). There is no evidence of

either party having given such notice, nor does the Company now contend as much. The

Company’s argument that the collective-bargaining agreement terminated immediately

upon the Union providing notice of reopening ignores the latter half of Art. XIII, § 1 of

their agreement.

       On the question of alter-ego, even if we might “justifiably have made a different

choice had the matter been before [us] de novo,” Universal Camera Corp. v. N.L.R.B.,

340 U.S. 474, 488 (1951), substantial evidence supports the Board’s decision. The

Company concedes a “small loan” without interest was made between Evans & Evans

and Evans Sheet Metal, but that otherwise there were only “arms-length” transactions

between the entities, and “there is virtually no evidence in the record to support the alter

ego/disguised continuance allegations.” We disagree.



                                              3
       Beyond the interest-free loan Robert Evans received from his uncle Ronald to start

Evans & Evans (a name which, in and of itself, suggests that there were two “Evans”

immediately involved in that business), Evans & Evans frequently used Evans Sheet

Metal’s telephone and equipment at no cost. Both were based from the same location for

a substantial portion of the period at issue. Both worked on many of the same projects for

the same employers. Furthermore, the record reflects a significant intermingling of assets

and little respect for the formalities normally attendant to independent businesses

operating in an “arms-length” manner. There is also evidence that Ronald directly

assisted in the management and supervision of Evans & Evans in various capacities.

       We also reject the Company’s assertions that Evans & Evans, the unincorporated

partnership, was denied due process. A partnership acts through its principals, and the

Board found that Ronald Evans was a proprietor of Evans & Evans; Ronald Evans was

properly named in the Board’s complaint. Furthermore, Evans & Evans ceased to exist

and became Evans & Evans, Inc. during the pendency of these proceedings, and there is

no question that Evans & Evans, Inc. was properly named in the complaint. Finally, the

record reflects that Evans & Evans was well aware of the NLRB proceedings against it

from the beginning, and did in fact participate throughout the litigation. Ordinarily, a

technical objection such as this over the sufficiency of process must be raised as an

affirmative defense and is waived if not asserted promptly. Cf. Fed. R. Civ. P. 12(b), (h).

       After due consideration of the entire record, we conclude that substantial evidence



                                              4
supports the determinations of the Board. Accordingly, we will grant the Board’s petition

to enforce its order.




                                         By the Court,

                                          /s/ D. Brooks Smith
                                         Circuit Judge
