National Labor Relations Board v. Ace Masonry Inc.

16-2200(L)
NLRB v. Ace Masonry Inc., et al.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of June, two thousand seventeen.
5
6 PRESENT: DENNIS JACOBS,
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 NATIONAL LABOR RELATIONS BOARD,
13 Petitioner/Cross-Respondent,
14
15 -v.- 16-2200
16 16-2705
17
18 ACE MASONRY INC., d/b/a ACE UNLIMITED,
19 and BELLA MASONRY, LLC, a single
20 member employer and alter egos, and
21 LISA BELLAVIGNA, ROBERT BELLAVIGNA,
22 and HENRY BELLAVIGNA, DOMENICK
23 BELLAVIGNA and BELLA FURNITURE
24 SOLUTIONS, INC,
25 Respondents/Cross-
26 Petitioner.
27
28 - - - - - - - - - - - - - - - - - - - -X

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 1
2 FOR PETITIONER: MARCI J. FINKELSTEIN (Usha
3 Dheenan, Richard F. Griffin,
4 Jr., Jennifer Abruzzo, John H.
5 Ferguson, Linda Dreeben, on the
6 brief), National Labor Relations
7 Board, New York, New York.
8
9 FOR RESPONDENTS: JASON B. BAILEY, Sheats &
10 Bailey, PLLC, Brewerton, New
11 York.
12
13 Petition to enforce an order of the National Labor

14 Relations Board and cross-petition for review by

15 respondents.

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17 AND DECREED that the National Labor Relations Board’s

18 petition for enforcement be GRANTED, and that respondents’

19 cross-petition for review be DENIED.

20 The National Labor Relations Board (the “Board”)

21 petitions, pursuant to 29 U.S.C. § 160, to enforce an order

22 that the respondents be jointly and severally liable for

23 various payments to individual employees and labor unions.

24 We assume the parties’ familiarity with the underlying

25 facts, the procedural history, and the issues presented for

26 review. We affirm for the reasons set forth below.

27 Respondent Ace Masonry Inc. (“Ace”) was a general

28 contractor in the construction industry that had collective

29 bargaining agreements with several unions. In part to avoid

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 1 obligations under those CBAs, the principals of Ace and

2 their family members created a new entity called Bella

3 Masonry LLC (“Bella”) with substantially similar ownership,

4 management, supervision, business purposes, operations,

5 customers, projects, and equipment. The NLRB found that Ace

6 and Bella were alter egos, and that Ace and Bella together

7 owed money to various employees and unions under the CBAs.

8 The Second Circuit summarily enforced the Board’s order.

9 Ace and Bella were both controlled by members of the

10 Bellavigna family. In a subsequent proceeding, the Board

11 pierced Ace/Bella’s corporate veil and held that various

12 members of the Bellavigna family were jointly and severally

13 liable for the $140,082.16 due to unions and employees under

14 the CBAs, primarily because several members of the family

15 personally appropriated the companies’ funds in an effort to

16 evade those obligations under the CBAs. Three members of

17 the Bellavigna family–-Lisa, Robert, and Domenick--contest

18 their personal liability.1

19 Lisa Bellavigna made several cash withdrawals from

20 Ace’s bank accounts, each withdrawal close to, but slightly

21 under, $10,000. She admitted she did so with the intent to

1
The Board is entitled to summary enforcement of those
portions of its order the Bellavignas do not contest. NLRB
v. Consol. Bus Transit, Inc., 577 F.3d 467, 474 n.2 (2d Cir.
2009).
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 1 evade benefit payments due to Ace employees, but she argues

2 that the withdrawals were in fact required by Section 71 of

3 New York’s Lien Law, which mandates prioritization of

4 payments to subcontractors. As the ALJ and the Board

5 concluded, however, Lisa failed to provide any evidence that

6 she used the withdrawn funds to pay subcontractors. Indeed,

7 she testified that she did not know where the funds had

8 gone. Moreover, and in any event, Lisa fails to cite any

9 authority indicating that a state law obligation to pay

10 contractors relieves her of an independent federal

11 obligation to pay employee back wages and union

12 contributions. Cf. Interworks Sys. Inc. v. Merchant Fin.

13 Corp., 604 F.3d 692, 702 (2d Cir. 2010) (concluding that

14 obligations imposed by Lien Law were not in conflict with

15 federal tax obligation). We need not here decide what

16 priorites might be assigned these obligations in other

17 contexts.

18 Robert Bellavigna does not contest the Board’s ability

19 to pierce the corporate veil when a member of the family

20 that controls the corporation plays an active role in

21 corporate management and in the underlying misconduct; but

22 he argues that the Board’s factual findings on those points

23 were incorrect because his participation was solely

24 attributable to Lisa Bellavigna. See SRC Painting, LLC, 346

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 1 NLRB 707, 708 (2006) (concluding that family member’s mere

2 “passive receipt” of commingled property does not alone

3 suffice for showing of veil-piercing). We review factual

4 findings under a “substantial evidence” standard. 29 U.S.C.

5 § 160(e). Ample evidence supported the Board’s finding that

6 Robert was involved in both the operations of the companies

7 and their misconduct, and we therefore reject the challenge

8 to his personal liability. See A.J. Mechanical, 352 NLRB

9 874 (2008) (piercing a corporate veil as to owner’s spouse,

10 who although not formally employed by corporation, could

11 jointly authorize checks, jointly extended credit, and

12 performed clerical duties).

13 Finally, Domenick Bellavigna argues that he should not

14 have been held personally liable under a fraudulent

15 conveyance theory because his due process rights were

16 violated. Except in “extraordinary circumstances,”

17 respondents may only appeal issues that were previously

18 “urged before the Board.” 29 U.S.C. § 160(e). The alleged

19 denial of due process is not an “extraordinary circumstance”

20 sufficient to excuse his failure to raise the issue via a

21 motion for rehearing: “Even when the Board itself raises and

22 decides an issue sua sponte, an objection must be filed with

23 the Board to preserve the issue for a reviewing court.”

24 N.L.R.B. v. Ferguson Elec. Co., 242 F.3d 426, 435 (2d Cir.

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 1 2001); see also International Ladies’ Garment Workers’ Union

2 v. Quality Mfg. Co., 420 U.S. 276, 281 n.3 (1975) (applying

3 same principal to forfeiture of procedural due process

4 claim). We therefore also reject the unpreserved due

5 process challenge to Domenick’s personal liability.

6 For the foregoing reasons, and finding no merit in the

7 respondents’ other arguments, we hereby GRANT the NLRB’s

8 petition and DENY respondents’ cross-petition for review.

9

10
11
12
13 FOR THE COURT:
14 CATHERINE O’HAGAN WOLFE, CLERK
15

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