explaining that “[w]e presume that the leg- islature was aware of existing law” related to the subject of a proposed statute
How later courts described this case
- explaining that “[w]e presume that the leg- islature was aware of existing law” related to the subject of a proposed statute
- considering a term that “embodies a complete [but imprecise] legislative policy” and is “capable of more than one meaning” inexact
- agency’s interpretation of nondelegative term “is not entitled to deference on review”
- considering "whether the same product was manufactured or the same services offered" in determining successor liability
Written by the judges who cited it.
The opinion
676 January 16, 2014 No. 2
IN THE SUPREME COURT OF THE
STATE OF OREGON
BLACHANA, LLC,
dba Penner’s Portsmouth Club,
Petitioner,
Respondent on Review,
v.
BUREAU OF LABOR AND INDUSTRIES,
Respondent,
Petitioner on Review.
(BOLI 0608; CA A143894; SC S060789)
On review from the Court of Appeals.*
Argued and submitted June 5, 2013.
Jonathan M. Radmacher, McEwen Gisvold LLP, Portland,
argued the cause and filed the brief for respondent on review.
Karla H. Ferrall, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief were Mary H. Williams, Deputy
Attorney General, and Anna M. Joyce, Solicitor General.
Shenoa L. Payne, Portland, filed a brief for amicus curiae
Oregon Trial Lawyers Association.
Before Balmer, Chief Justice, Kistler, Walters, Linder,
Landau, and Baldwin, Justices.**
WALTERS, J.
The decision of the Court of Appeals is reversed. The final
order of the Bureau of Labor and Industries is affirmed.
______________
** Judicial review from a final order of the Bureau of Labor and Industries.
250 Or App 80, 279 P3d 248 (2012).
** Brewer, J., did not participate in the consideration or decision of this case.
Cite as 354 Or 676 (2014) 677
Bureau of Labor and Industries (BOLI) determined that Blachana, which
repossessed the property and business of a bar and restaurant that had closed its
doors owing wages to four former employees, was a successor “employer” under
ORS 162.310(1) (defining employer to include “any successor to the business of
any employer”), and, as such, was required under ORS 652.414 to reimburse
BOLI for wages paid those former employees from the Wage Security Fund, not-
withstanding that it was a separate business entity and had not itself employed
the wage claimants. Held: To determine whether Blachana was a “successor to
the business of any employer” for purposes of the wage claim statutes, BOLI cor-
rectly considered whether Blachana conducted “essentially the same business as
conducted by the predecessor,” and it did not err in concluding that, in this case,
Blachana was such a successor.
The decision of the Court of Appeals is reversed. The final order of the Bureau
of Labor and Industries is affirmed.
678 Blachana, LLC v. Bureau of Labor and Industries
WALTERS, J.
In this wage claim case, the issue is whether the
Bureau of Labor and Industries (BOLI) correctly deter-
mined that a business entity, Blachana, LLC, is a “successor”
employer and must, therefore, reimburse BOLI for wages
paid from the Wage Security Fund on behalf of four wage
claimants. The employees had worked for NW Sportsbar
Inc. (NW Sportsbar) before that corporation went out of
business and surrendered its property and the business to
Blachana. On judicial review of BOLI’s final order assigning
liability to Blachana, the Court of Appeals reversed, hold-
ing that Blachana was not a “successor to the business” of
NW Sportsbar, as that phrase is used in the wage claim
statute, ORS 652.310(1).1 Blachana, LLC v. Bureau of Labor
and Industries, 250 Or App 80, 279 P3d 248 (2012). For the
reasons that follow, we conclude that BOLI did not err in
deciding that an entity is a successor to a business if it “con-
ducts essentially the same business as conducted by the pre-
decessor” or in applying that test in this case. We therefore
reverse the decision of the Court of Appeals.
The following facts are undisputed. Janet and Chris
Penner, mother and son, owned and managed a limited liabil-
ity corporation called CP Underhill LLC (CPU). CPU owned
a building in Portland and, in that building, operated a bar
called the Portsmouth Club and a restaurant called Mama’s
BBQ. Since 1940, five different businesses had operated
a bar and restaurant in that location, and customers had
referred to each business as the “Portsmouth Club.” In
February 2005, CPU executed an agreement to lease the
building to NW Sportsbar for five years. The same day, CPU
also executed a sales agreement under which NW Sportsbar
bought the inventory of the Portsmouth Club for $50,000
and the good will of the Portsmouth Club for $285,000.
The president of NW Sportsbar, Dustin Drago, signed both
agreements on behalf of that company. Drago then regis-
tered with the Oregon Corporation Division as the autho-
rized representative for “Portsmouth Club,” an assumed
business name that had been registered in 1988.
1
We set out and discuss the text of ORS 652.310(1) later in this opinion.
Cite as 354 Or 676 (2014) 679
For the rest of 2005 and until May 2006, NW Sportsbar
operated its business in the leased building under the
names “Portsmouth Club” and “Anchor Grill.” The business
offered food and drinks and live music as entertainment.
Drago managed the business and hired the four wage claim-
ants, two in 2005 and two in 2006. Drago paid some wages
in 2005, but stopped paying any of the wage claimants’
wages in 2006. The two wage claimants hired in 2006 never
received any wages for their work.
By May 2006, Drago also was three months behind
in his payments under the lease and sales agreements and
began to discuss with Janet Penner the closing, and CPU’s
repossession, of the business. In early May 2006, “Portsmouth
Club” closed its doors, and, on May 9, 2006, Drago and CPU
entered into a Surrender and Release Agreement, under
which NW Sportsbar surrendered all its businesses assets,
including the business name and goodwill, and relinquished
possession of the personal property left in the building to
CPU. In exchange, CPU released NW Sportsbar from its obli-
gations under the lease and sales agreements. Drago then
left town without paying the four employees.
About a week later, Janet Penner registered
Blachana, LLC, with the Oregon Corporation Division, list-
ing herself as a manager and member2 and stating Blachana’s
assumed business name as “Penner’s Portsmouth Club.”
Blachana then obtained a liquor license and other required
permits and licenses and on June 26, 2006, opened its busi-
ness in the building that CPU owned and that had been
leased to NW Sportsbar. Blanchana operated “Penner’s
Portsmouth Club” as a bar; its business did not initially
provide meals. By late summer, the business included live
musical entertainment3 and, by May 2007, also included
a restaurant that used the new assumed business name
“Portsmouth Pizza and Pub.” Blachana did not employ any
of the same employees as NW Sportsbar. It used most of the
same bar equipment and used the same beer vendor that
NW Sportsbar had used, but used a different food vendor.
2
The record reflects that Chris Penner also is a member of Blachana, LLC.
3
By the time of the hearing before BOLI, the business had stopped offering
live music.
680 Blachana, LLC v. Bureau of Labor and Industries
Meanwhile, on May 18, 2006, one of NW Sportsbar’s
employees filed a wage claim with BOLI. The investigator
assigned to the employee’s case twice called the telephone
number on file for NW Sportsbar and, each time, Chris
Penner answered the phone by identifying the business
as “Portsmouth Club.” Three other former NW Sportsbar
employees eventually also filed wage claims; the four wage
claims totaled just over $7,000. The investigator attempted
unsuccessfully to locate Drago and ultimately determined
that the wage claims were valid, that NW Sportsbar had
ceased doing business, and that NW Sportsbar’s former
employees’ wage claims could not be fully and promptly paid
except through the Wage Security Fund, a fund established
to pay wage claimants if the employer no longer is in busi-
ness or is without sufficient assets to pay the claims. See
ORS 652.409 (establishing Wage Security Fund for that pur-
pose); ORS 652.414(1) (authorizing payment of wage claims
in those circumstances). BOLI paid the claims through the
Wage Security Fund and then notified Blachana that it was
responsible for the unpaid wages under ORS 652.414(3)
(authorizing commissioner to take appropriate action to
recover from “employer, or other persons or property liable
for the unpaid wages” amounts paid from Wage Security
Fund) and ORS 652.310(1) (defining “employer” for purposes
of ORS 652.414 to include “any successor to the business of
any employer, or any lessee or purchaser of any employer’s
business property for the continuance of the same business”).
After a contested case hearing before an administra-
tive law judge, BOLI’s commissioner concluded that Blachana
was a “successor to the business of” NW Sportsbar. In his Final
Order, the commissioner explained that BOLI consistently
had held that the test to determine whether an employer is a
successor in a wage claim case is “whether it conducts essen-
tially the same business as conducted by the predecessor.” In
re Blachana, LLC, 30 BOLI 197, 221 (2009). The commissioner
then listed several factors that the agency considers in deter-
mining whether an employer is conducting “essentially the
same business,” including the name or identity of the business,
its location, the lapse of time between the previous operation
and the new operation, whether the businesses employed sub-
stantially the same workforce, whether the same product was
Cite as 354 Or 676 (2014) 681
manufactured or the same services offered, and whether the
same machinery, equipment, or methods of production were
used. Id. The commissioner further explained that, under the
agency’s jurisprudence, he need not find every factor to be
present to conclude that a business is a successor employer
but, instead, considers the factors together to reach a determi-
nation. Id. Based on his evaluation and weighing of those fac-
tors, the commissioner concluded that, during its first year in
business, Blachana conducted essentially the same business
as NW Sportsbar and was, therefore, a “successor to [that]
business” as that phrase is used in ORS 652.310(1). Id. at 225.
Thus, the commissioner ruled, Blachana was responsible for
reimbursing the Wage Security Fund for the amount that had
been paid to NW Sportsbar’s former employees, plus penalties
authorized under ORS 652.414(3) (authorizing a penalty of up
to $200). Id. at 226.
Blachana sought review of that determination in
the Court of Appeals. In that court, Blachana argued that
BOLI’s interpretation of the statutory phrase “successor
to the business” was not within the legislature’s intended
meaning of that phrase and that Blachana was not a suc-
cessor to NW Sportsbar, because it was a separate corpo-
rate entity with no connection to NW Sportsbar. The Court
of Appeals agreed. After considering dictionary definitions
of the operative words of the statute, the court concluded
that those definitions did not resolve the issue. The court
observed that the legislature could have intended a suc-
cessor to be a “legal” substitute, which the court described
as “a party that succeeds, by some operation of law, to the
legal rights and obligations of the predecessor,” meaning
that only parties that “could be held liable for the predeces-
sor’s liabilities as a function of law outside ORS chapter 652,
such as contract, agency, common-law successor liability, or
other statutory law” would be liable for a predecessor’s wage
claims as a successor “employer” under ORS 652.310(1) and
ORS 652.414(3). Blachana, 250 Or App at 87. Or, the court
continued, the legislature could have intended a broader
meaning, imposing liability on any “functional” successor,
which the court described as any business that “replaces the
predecessor business in a functional sense but does not nec-
essarily assume the predecessor’s rights and liabilities as a
matter of any law other than ORS 652.310(1).” Id.
682 Blachana, LLC v. Bureau of Labor and Industries
To resolve the question, the court turned to the con-
text of the phrase “successor to the business” as used in ORS
652.310(1). According to the court, that context includes the
second clause of the definition of employer—“or any lessee or
purchaser of any employer’s business property for the contin-
uance of the same business”—as well as the common law in
1931, when ORS 652.310(1) was enacted. In the court’s view,
because the common law in 1931 provided that “the transfer
of assets between corporate entities does not automatically
make the transferee liable for the transferor’s debts and
liabilities,” any “lessee or purchaser of any employer’s busi-
ness property for the continuation of the business” would
not be liable for the debts and liabilities of the predecessor.
Blachana, 250 Or App at 88.4 Thus, the court stated, an
interpretation of the text of ORS 652.310(1) that would give
meaning to both parts of the definition of “employer” is that
“the legislature intended to impose liability in the first
clause [‘successor to the business’] on a party that succeeds
to the rights and liabilities of the predecessor as a matter of
law and, in the second clause, defined an additional circum-
stance—when a party purchases or leases the employer’s
business property to continue the same business—in which
a party that would not be liable as a ‘legal successor’ could
still be culpable for a wage claim.”
Id. It followed, the Court of Appeals concluded, that the
legislature intended the definition of “successor to the busi-
ness” to be “limited to a party that has succeeded by law to
the legal rights and obligations of the predecessor in that
business.” Id. at 88-89.
After applying that interpretation to the facts
of the case, the Court of Appeals held that the record did
not establish that Blachana was the “legal successor” to
NW Sportsbar. The court stated:
“Blachana and NW Sportsbar were separate corporate
entities and there was no contractual relationship between
them. Blachana had no financial or ownership interest
4
Although not necessary to our decision in this case, we question whether
that premise is correct. As we will explain, at common law, a lessee or purchaser
of business property could be liable for the debts of a predecessor in certain cir-
cumstances, including when the purchasing entity is a “mere continuation” of the
selling entity. See below, 354 Or at 690.
Cite as 354 Or 676 (2014) 683
in NW Sportsbar. NW Sportsbar surrendered some, but
not all, of the assets of the Portsmouth Club and Anchor
Grill to [CPU], but there is nothing to indicate that any
other interest of NW Sportsbar was surrendered. Nothing
indicates that Blachana could be considered liable for
NW Sportsbar’s debts and liabilities under the common-law
successor liability rule, and there does not appear to be any
other source of law under which Blachana could be consid-
ered to have succeeded to the legal rights and obligations of
NW Sportsbar. Accordingly, we conclude that BOLI erred
in concluding that Blachana was a ‘successor to the busi-
ness’ of NW Sportsbar under ORS 652.310(1).”
Id. at 89.
As we explain below, we disagree with the Court
of Appeals’ conclusion that an entity is liable as a “succes-
sor to the business” under ORS 652.310(1) only when the
entity would be liable for a predecessor employer’s unpaid
wages under some law other than that statute. We begin
our analysis by describing in greater detail the statutory
scheme governing this dispute.
In 1931, the legislature enacted a statute provid-
ing for the payment and collection of wages, including the
enforcement of employees’ rights to make wage claims
against employers that had not paid employees’ wages in full.
Or Laws 1931, ch 287. Under the original statutory scheme,
and until 1985, the statute required the commissioner of
the bureau of labor5 to enforce employees’ rights to make
wage claims and gave the commissioner the authority to
investigate wage claims and negotiate settlements between
employers and employees. In those instances when settle-
ment could not be reached, the commissioner was authorized
to take assignments of wage claims in trust for assigning
employees. Id., § 6; ORS 652.330 (1985). The commissioner
then had the authority to take action against “employers” to
collect unpaid wages.6 Id. As we will explain, “employer” is a
defined term, which, since 1931, has included entities other
than the entity that engaged the personal services of one
5
BOLI was not established as a separate department until 1979. Or Laws
1979, ch 659, § 2.
6
In 1979, the legislature provided for alternative enforcement through admin-
istrative proceedings. Or Laws 1979, ch 695, § 4; ORS 652.332.
684 Blachana, LLC v. Bureau of Labor and Industries
or more employees. In 1957, the legislature created a Wage
Collection Account (which still exists today), into which any
money that the commissioner collects in trust for a wage
claimant, including fines, is deposited “and appropriated
continuously for the purpose of payment to the persons enti-
tled thereto.” Or Laws 1957, ch 465, § 8; ORS 652.400.
Under that scheme, if the commissioner could not
collect unpaid wages from an “employer” for employees who
had worked without compensation, then those employees
would have no recourse. In 1985, the legislature addressed
that problem by creating the Wage Security Fund, funded
by employer taxes, to pay wage claims in those cases in
which the commissioner determined that the employer
against whom the claim was filed had ceased doing business
and was without sufficient assets to pay the wage claim. Or
Laws 1985, ch 409, § 4; ORS 652.409 (establishing Wage
Security Fund); ORS 657.439(2)(a) (providing for funding
of Wage Security Fund through employer tax, collected in
conjunction with unemployment taxes).
Today, under ORS 652.414, when an employee has
filed a claim for unpaid wages and BOLI has determined
that the employer is incapable of paying the wage claim, the
commissioner will pay the claim—up to $4,000—out of the
Wage Security Fund. ORS 652.414 provides, in part:
“(1) When an employee files a wage claim under this
chapter for wages earned and unpaid, and the Commissioner
of the Bureau of Labor and Industries determines that the
employer against whom the claim was filed has ceased
doing business and is without sufficient assets to pay the
wage claim and the wage claim cannot otherwise be fully
and promptly paid, the commissioner, after determining
that the claim is valid, shall pay the claimant, to the extent
provided in subsection (2) of this section:
“* * * * *
“(2) The commissioner shall pay the unpaid amount of
wages earned as provided in subsection (1) of this section
only to the extent of $4,000[.]”
Subsection (3) of that statute permits the commissioner to
take legal action to recover amounts paid from the Wage
Security Fund from the employer:
Cite as 354 Or 676 (2014) 685
“The commissioner may commence an appropriate
action, suit or proceeding to recover from the employer,
or other persons or property liable for the unpaid wages,
amounts paid from the Wage Security Fund under subsec-
tion (1) of this section. In addition to costs and disburse-
ments, the commissioner is entitled to recover reasonable
attorney fees at trial and on appeal, together with a pen-
alty of 25 percent of the amount of wages paid from the
Wage Security Fund or $200, whichever amount is the
greater. All amounts recovered by the commissioner under
this subsection and subsection (4) of this section are appro-
priated continuously to the commissioner to carry out the
provisions of this section.”
For purposes of ORS 652.414, “employer” is defined as
“any person who in this state, directly or through an agent,
engages personal services of one or more employees and
includes any successor to the business of any employer, or
any lessee or purchaser of any employer’s business property
for the continuance of the same business, so far as such
employer has not paid employees in full.”
ORS 652.310(1).
It is that definition of “employer” that is at issue
in this case. The wage claimants in this case worked for
NW Sportsbar. Blachana did not employ them directly or
through an agent; Blachana obtained NW Sportsbar’s busi-
ness assets, including its business name, goodwill, and the
property left in the building, through repossession. BOLI
relies on the first clause of the definition of “employer” in ORS
652.310—“any successor to the business of any employer”—
in arguing that Blachana is liable for NW Sportsbar’s unpaid
wages under the wage hour statute.7
The phrase “successor to the business” is not defined
in the statutes, and BOLI’s regulations define the word
“successor” in essentially the same terms as are used in the
7
BOLI may have relied on the first clause because it assumed that the acqui-
sition of assets by repossession does not constitute the “purchase” of assets and,
thus, does not strictly fit within the second clause in the definition of employer:
“any lessee or purchaser of any employer’s business property.” The parties do not
raise that issue, and we do not decide it.
686 Blachana, LLC v. Bureau of Labor and Industries
statute.8 However, BOLI has interpreted the phrase “suc-
cessor to the business” through adjudication, in final orders
issued in contested cases. See Trebesch v. Employment
Division, 300 Or 264, 273, 710 P2d 136 (1985) (“Agencies
generally may express their interpretation of the laws they
are charged with administering either by adjudication or by
rulemaking, or both.”); Springfield Education Assn. v. School
Dist., 290 Or 217, 226, 621 P2d 547 (1980) (“An agency may
express its determination of which interpretation effec-
tuates the statutory policy either by rule or, as here, by
order in a contested case.”). In 1987, BOLI announced that,
“[t]o decide whether an employer is a ‘successor,’ the test is
whether it conducts essentially the same business that the
predecessor did.” In re Anita’s Flowers & Boutique, 6 BOLI
258, 267-68 (1987). Having articulated that test in Anita’s
Flowers, BOLI then set out a nonexclusive list of factors that
it would consider in deciding whether a company conducts
“essentially the same business” as a predecessor:
“The elements to look for include: the name or identity of
the business; its location; the lapse of time between the
previous operation and the new operation; the same or sub-
stantially the same workforce employed; the same prod-
uct is manufactured or the same service is offered; and,
the same machinery, equipment, or methods of production
are used. Not every element needs to be present to find an
employer to be a successor; the facts must be considered
together to reach a decision.”
Id. Since 1987, when it decided Anita’s Flowers, BOLI consis-
tently has applied that test and considered those factors to
determine whether a business is a successor under the wage
claim law. See, e.g., In re Bukovina Express, Inc., 27 BOLI
8
BOLI has promulgated a regulation defining various terms. OAR 839-001-
0500 provides, in part:
“* * * * *
“(6) ‘Employer’ has the same meaning given it in ORS 652.310(1).
“* * * * *
“(10) ‘Successor’ means one who follows an employer in ownership or con-
trol of a business so far as such employer has not paid employees in full. A
successor employer may be any successor to the business of any employer, or
any lessee or purchaser of any employer’s business property for the continua-
tion of the same business.”
Cite as 354 Or 676 (2014) 687
184, 201 (2006); In re Fjord, 21 BOLI 260, 286 (2001); In re
Tire Liquidators, 10 BOLI 84, 93 (1991). And, as explained
above, BOLI used that test and applied that nonexclusive
list of factors in this case.
In this court, as it did in the Court of Appeals,
Blachana argues that BOLI’s interpretation of the phrase
“successor to the business” in ORS 652.310(1) is outside the
legislature’s intended meaning of that phrase. When a dis-
puted statutory term is part of a regulatory scheme to be
administered by an administrative agency, this court first
determines whether that term is an “exact” term, an “inex-
act” term, or a “delegative” term—that is, how much interpre-
tive authority the legislature delegated to the agency when
using that term. Springfield Education Assn., 290 Or at 223.
“Exact” terms are terms of precise meaning. Id. “Inexact”
terms communicate a complete policy statement, but the
words used may be imprecise, requiring further interpre-
tation. Id. at 224-25; Schleiss v. SAIF¸ 354 Or 637, 642, 317
P3d 244 (2013) (explaining that inexact term is “neither a
term so precise that no interpretation is necessary nor a
term (such as ‘good cause’) indicating that the legislature
intended to delegate the determination of its meaning to an
agency charged with implementing the statute”). Finally,
“delegative” terms require the agency to make policy deter-
minations in the first instance. Springfield Education Assn.,
290 Or at 223.
The Court of Appeals held, and the parties agree,
that, as used in ORS 652.310(1), the phrase “successor to
the business” is an inexact term. We also agree. It embod-
ies a complete legislative policy, but it is not so precise as
to be an “exact” term. The words are capable of more than
one meaning, and, therefore, BOLI was required to inter-
pret them in order to effectuate the legislative policy.
Accordingly, this court must review BOLI’s interpretation
to ensure that it is consistent with the legislature’s intent.
Coffey v. Board of Geologist Examiners, 348 Or 494, 502-06,
235 P3d 686 (2010) (so analyzing agency action). In that
regard, the agency’s interpretation of the statute is not enti-
tled to deference on review. Schleiss, 354 Or at 642. The court
interprets the relevant statute using the usual methods for
statutory interpretation. Coast Security Mortgage Corp. v.
688 Blachana, LLC v. Bureau of Labor and Industries
Real Estate Agency, 331 Or 348, 354-55, 15 P3d 29 (2000)
(applying usual interpretive paradigm to determine mean-
ing of inexact term). We examine the text and context of the
statute and, if helpful, legislative history. State v. Gaines,
346 Or 160, 171-72, 206 P3d 1042 (2009).
As noted, the phrase “successor to the business,”
ORS 652.310(1), is not defined in the statutes. In constru-
ing that phrase, we seek to discern the intent of the legisla-
ture that enacted the statute. State v. Perry, 336 Or 49, 52,
77 P3d 313 (2003). As we have explained, the legislature
enacted the original version of ORS 652.310(1) in 1931. Or
Laws 1931, ch 287. That statute has not been amended in
any way pertinent to this case since then, and this court has
not before construed the phrase at issue here. As the court
stated in Perry, in construing statutes that were enacted
many years ago, we consult dictionaries that were in use
at the time. 336 Or at 53. Moreover, if a word has a well-
defined legal meaning, we give the word that meaning in
construing the statute. Id.
At the time that the legislature enacted ORS
652.310(1), law dictionaries generally defined “successor” as
one who follows another. See, e.g., John Bouvier, 3 Bouvier’s
Law Dictionary and Concise Encyclopedia 3176 (3d ed 1914)
(defining “successor” as “[o]ne who follows or comes into
the place of another”); Stewart Rapalje, II Dictionary of
American and English Law 1233 (1883) (defining “succes-
sor” as “[o]ne that follows in the place of another”); Henry
Campbell Black, A Dictionary of Law 1134 (1891) (defining
“successor” as “[o]ne who succeeds to the rights or the place
of another; particularly the person or persons who consti-
tute a corporation after the death or removal of those who
preceded them as corporations”). The contemporaneous gen-
eral dictionary definition of successor was:
“one that succeeds or follows; one who takes the place which
another has left, and sustains the like part or character;
one who takes the place of another by succession.”
Webster’s New Int’l Dictionary 2073 (1910).
Blachana emphasizes the part of those definitions
that requires that the entity that follows another must
Cite as 354 Or 676 (2014) 689
“sustain[ ] the like part or character.” It argues that it should
not be enough for an entity simply to follow another in time;
to be a successor, the entity must, in some way, step into the
shoes of its predecessor. BOLI agrees, as do we. To be a “suc-
cessor,” as that term is used in ORS 652.310(1), an entity
must do more than merely follow its predecessor chronologi-
cally; it must conduct a business that “sustains the like part
or character” of the previously conducted business.
We reach that conclusion not only from the dictionary
definition of the word “successor,” but also from the context
in which the legislature used it. As the Court of Appeals
correctly explained, that context includes the second part of
the definition of employer in ORS 652.310(1)—“any lessee or
purchaser of any employer’s business property for the con-
tinuance of the same business.” Under that clause, a lessee
or purchaser of an employer’s business property is liable for
wages owed by a predecessor only when the lessee or pur-
chaser uses that property “for the continuance of the same
business.” That is, under that clause, more than merely fol-
lowing in another’s place is required. We think it likely that
the legislature likewise intended to use the word “successor”
in the first clause to mean more than one that merely follows
another.
Blachana further argues, however, that, to be a “suc-
cessor” for the purposes of ORS 652.310(1), an entity that
succeeds another must do so in circumstances in which the
succeeding entity would be liable for the promises or obliga-
tions of its predecessor under law other than the wage stat-
ute. Yet the dictionary definitions of the term “successor” do
not import that requirement. And, notably, ORS 652.310(1)
does not define the word “employer” to include those who
succeed to the obligations of a prior employer; rather, the
definition includes those who succeed to the “business” of the
prior employer.
At the time that the legislature enacted ORS
652.310(1), “business” was defined as “a commercial or indus-
trial establishment or enterprise; he sold his business.”
Webster’s at 296-97 (emphasis in original). By defining an
“employer” to mean a successor to the “business” of a prede-
cessor, the legislature indicated an intent to include a broad
690 Blachana, LLC v. Bureau of Labor and Industries
class of successors—all those who continue to operate the
same establishment or engage in the same enterprise. It fol-
lows that, to succeed to the “business” of a predecessor, an
entity need not, necessarily, be liable for the obligations of
the predecessor. As the parties recognize, the common law
as it existed in 1931 did not impose liability for a predeces-
sor’s debts on all successors. The general rule is described
in William Meade Fletcher, VII Cyclopedia of the Law of
Private Corporations § 4751, 8388-91 (1919) as follows:
“The general rule, which is well settled, is that where
one company sells or otherwise transfers all its assets to
another company, the latter is not liable for the debts and
liabilities of the [transferor]. Stating the rule more fully, it
is generally held that a separate and distinct corporation,
which has succeeded, by a valid purchase and transfer, to
the property and franchises of another corporation, is not
liable, merely by reason of its succession, for the general
debts or on the general contracts of the other corporations.
It is not liable at all for such debts or on such contracts, in
the absence of a special agreement to pay or assume the
same, nor is the property in its hands liable to be subjected
to the same, in the absence of a valid lien thereon, unless it
affirmatively appears that the transfer of the property and
franchises of the other corporation constitutes, in fact or in
law, a fraud upon its creditors, or the circumstance attend-
ing the creation of the new corporation, and its succession
to the property and franchises of the old corporation, are
such as to warrant a finding that it is in reality a mere
continuation of the old corporation.”
There are four important exceptions to this rule as fol-
lows, viz.:
“1. The transfer or sale must not constitute a statutory
consolidation or merger. If it does, then the liability exists.
“2. There must be no agreement to assume such liabil-
ities, either express or implied.
“3. The transaction must not be such as to warrant a
finding that the purchasing corporation was a mere contin-
uation of the selling corporation.
“4. The transaction must not be fraudulent in fact
* * *.”
Cite as 354 Or 676 (2014) 691
(Footnotes omitted.) Thus, under the common law, where
one company transferred all its assets to another company,
the successor to the business generally was not responsible
for the liabilities of the predecessor.9 We presume that the
legislature was aware of existing law, including the gen-
eral rule that some successors would be liable for debts of
their predecessors and some would not. See State v. Stark,
354 Or 1, 10, 307 P3d 418 (2013) (court presumes Oregon
legislature aware of existing law). The legislature enacted
the statutory precursor to ORS 652.310(1) as part of an act
“[t]o more fully provide for the payment and collection of
wages and the enforcement of the rights of employees in
such matters,” Or Laws 1931, ch 287, and did not explicitly
limit the businesses liable for wage claims to only one class
of successors—those that, even in the absence of the statute,
would be liable for the debts of a predecessor under the com-
mon law. Consequently, we cannot infer, solely from the use
of the phrase “successor to the business,” an intent to limit
the term “employer” to those succeeding entities that would
be liable for the debts of a predecessor under the common
law.
The Court of Appeals found the intent to impose
that limitation not in that phrase, but by looking to the sec-
ond clause in the definition of employer in ORS 652.310(1)—
“or any lessee or purchaser of any employer’s business prop-
erty for the continuance of the same business.” The court
examined that clause in the context of the first clause of
that definition—“successor to the business” of any employer.
Blachana, 250 Or App at 87-88. As noted, the court stated
that a plausible interpretation giving meaning to both clauses
is that
“the legislature intended to impose liability in the first
clause on a party that succeeds to the rights and liabilities
of the predecessor as a matter of law and, in the second
clause, defined an additional circumstance—when a party
purchases or leases the employer’s business property to
continue the same business—in which a party that would
9
In Erickson v. Grande Ronde Lbr. Co., 162 Or 556, 568, 92 P2d 170 (1939),
decided not long after the legislature enacted ORS 652.310(1), this court summa-
rized and explained, in generally the same terms, the common law rule that we
have quoted in the text.
692 Blachana, LLC v. Bureau of Labor and Industries
not be liable as a ‘legal successor’ could still be culpable for
a wage claim.”
Id. at 88. According to the court, if it were to interpret the
first clause to mean a business that merely followed a prede-
cessor (in the court’s words, a “functional” successor), then
the two clauses would be duplicative insofar as, in that case,
both clauses would refer to businesses that, in the court’s
view, would not otherwise be liable to pay wages owed by a
prior employer. Id.
We interpret the statute differently. As we have
explained, to be a “successor to the business” under ORS
652.310(1), an entity must do more than merely follow a pre-
decessor chronologically; it must conduct a business that is
of like part or character to the predecessor’s business. Thus,
the first clause of the definition of “employer” requires a suc-
cessor to conduct a business of like part or character to the
predecessor’s. The second clause requires a lease or purchase
“for the continuance of the same business.” It follows that
neither the first nor the second clause refers to or imposes
liability on an entity merely because it follows a predecessor.
Rather, both clauses require the successor entity to conduct
a business similar to that of the predecessor, or, as BOLI
has interpreted the statute, to “conduct essentially the same
business as conducted by the predecessor.” Anita’s Flowers,
6 BOLI at 267-68.
We recognize that interpreting the first clause—
“successor to the business”—to mean an entity that “con-
ducts essentially the same business as conducted by the pre-
decessor” could be seen to render the second clause—“or any
lessee or purchaser of an employer’s business property for
the continuance of the same business”—redundant. That is,
a lessee or purchaser that acquired a predecessor’s business
property for the continuance of the same business neces-
sarily would “conduct essentially the same business” as the
predecessor and would, therefore, fall within that definition
of “successor to the business.” That redundancy, of course,
is a consequence that this court must avoid if possible. See
ORS 174.010 (where statute contains several provisions,
courts should, if possible, construe statute so as to give effect
to all).
Cite as 354 Or 676 (2014) 693
There is, however, at least one interpretation of the
two clauses that would give meaning to both. The legislature
may have intended to include within the scope of the phrase
“successor to the business” entities that operate essentially
the same business as a predecessor, but do so without enter-
ing into a formal agreement, such as a lease or purchase,
to acquire the business property of the predecessor. For
example, such an entity might, as Blanchana did, obtain the
business property of the predecessor by repossession, or it
might obtain the predecessor’s stock or legal interest in the
business rather than the business property per se. Although
a broad interpretation of the first clause necessarily would
encompass the circumstance expressed in the second, the
legislature could have considered it appropriate to identify
that circumstance specifically. The legislature could have
reasoned that a lessee or purchaser of business assets might
not be considered a successor to the preceding entity, and it
may have intended to ensure that such a lessee or purchaser
be liable for wages that the preceding entity failed to pay, as
long as the entity acquiring the assets did so for the contin-
uation of the prior business.
Given that the proper interpretation of the second
clause is not at issue in this case, however, we need not
definitively discern the legislature’s intent in wording the
second clause in the way that it did. Rather, it is sufficient
for us to conclude that the legislature intended, in the first
clause, to include within the definition of those “employers”
liable for wage claims those “successors to the business” that
conduct essentially the same business as conducted by the
predecessor.
In so reasoning, we think it significant that, before
the legislature enacted the statutory predecessor to ORS
652.310(1) in 1931, employees who had not been paid by
their direct employers could collect unpaid wages only by
judicial action and only against those employers or entities
that would have been liable for those wages under the com-
mon law. See, e.g., Cummings v. Central Oregon Bank, 110 Or
101, 223 P 236 (1924) (action by employee against employer
to recover unpaid wages); Olson v. Heisen, 90 Or 176, 175 P
859 (1918) (same). When it enacted the statute now codified
694 Blachana, LLC v. Bureau of Labor and Industries
at ORS 652.310(1), the legislature came to the aid of such
employees. As we explained above, the legislature authorized
the commissioner of the bureau of labor to sue employers
to recover unpaid wages on behalf of wage claimants, and it
authorized the commissioner to bring those claims not only
against the workers’ direct employers, but also against a
broader class of entities. Or Laws 1931, ch 287, §§ 1, 6. And
the legislature expressly stated that the remedy that it pro-
vided was in addition to all other remedies. See id., § 7 (“The
remedies provided by this act shall be additional to and not
in substitution for and in no manner impair other remedies
now or hereafter existing or provided, and may be enforced
simultaneously or consecutively so far as not inconsistent
with each other.”); ORS 652.380 (to same effect). It is possible
that the legislature intended to expand an employee’s reme-
dies only by providing them with assistance in enforcement
and, for purposes of the first clause of the statute, to limit
those remedies to claims against those entities that would
have been subject to liability without the enactment of ORS
652.310(1). But the legislature did not use words that clearly
imposed such a limitation, and, given that the legislature
specified that its purpose was “[t]o more fully provide for the
payment and collection of wages and the enforcement of the
rights of employees,” Or Laws 1931, ch 287, we do not infer
a limitation that the words of the statute do not require.10
As we have explained, BOLI has interpreted ORS
652.310(1) to include successors that conduct “essentially
the same business as conducted by the predecessor.” For the
reasons stated, we conclude that BOLI’s interpretation is
consistent with the legislature’s intent.
We turn, now, to consider whether BOLI correctly
applied its interpretation of ORS 652.310(1) to the facts
of this case. As this court stated in Springfield Education
Assn.,
10
Blachana contends that the purpose of ORS 652.414(3) is not to ensure
that employees are paid for their work, but to ensure that the government recoups
benefits that it has paid from the Wage Security Fund. In this case, BOLI is seek-
ing such recoupment. However, the Wage Security Fund did not exist in 1931,
and, at the time that the legislature enacted the statute for the enforcement of
wage claims, now codified at ORS 652.310 et seq., the legislature sought to benefit
employees, not the state government.
Cite as 354 Or 676 (2014) 695
“[w]hen applying [inexact] terms to specific facts, whether
by order or by rule, the task of the agency, and ultimately of
the court, is to determine whether the legislature intended
the compass of the words to include those facts. The deter-
mination of the meaning of a statute is one of law, ulti-
mately for the court.”
290 Or at 224. As we have discussed, BOLI considers the
following factors in determining whether a corporation con-
ducts essentially the same business as a predecessor: the
name and identity of the business, its location, the lapse of
time between the previous operation and the new operation,
whether the businesses employed substantially the same
workforce, whether the same product was manufactured or
the same services offered, and whether the same machinery,
equipment, or methods of production were used.
Blachana has not articulated any specific criticism
of those factors and all are logically relevant to a determi-
nation of whether a successor operates “essentially the same
business” as a predecessor. Other factors also may be log-
ically relevant to that determination; as BOLI has stated,
the listed factors are not exclusive. Nothing in the record
suggests that BOLI did not give due consideration to any
other factor that Blachana considered applicable. BOLI has
been interpreting the statutory phrase “successor to the
business,” ORS 652.310(1), and using the same factors to
determine whether an entity is a successor since 1987; we
conclude that its consideration of those factors was appropri-
ate in this case.
In applying its interpretation of ORS 652.310(1) to
the facts of this case, BOLI considered those factors and con-
cluded that all but one of the factors indicated that, in its first
year of business, Blachana conducted essentially the same
business as had NW Sportsbar. In reaching that conclusion,
BOLI relied on the similarity in the name and identity of the
business under Blachana’s and NW Sportsbar’s ownership;
the fact that the businesses were located in the same prem-
ises; that only 47 days elapsed from the date NW Sportsbar
closed its doors until Blachana reopened for business; that
both businesses offered food, alcoholic drinks, and music
in a club atmosphere; and that Blachana used much of the
same equipment in running its business that NW Sportsbar
696 Blachana, LLC v. Bureau of Labor and Industries
surrendered to it when it closed. BOLI acknowledged that
Blachana employed a different work force to operate its busi-
ness, but, taking the circumstances as a whole, it concluded
that Blachana was a “successor to the business” that had
been operated by NW Sportsbar.
We conclude that BOLI did not err in reaching that
conclusion. Although the employment of a different work
force may indicate that a successor is not conducting essen-
tially the same business as a predecessor, other facts may
militate in favor of the opposite conclusion, as they did in
this case. The legislature intended to make a successor that
conducts essentially the same business as its predecessor
liable for wages owed to employees of the predecessor, and
BOLI did not err in concluding that Blachana was such a
successor. Therefore, Blachana must reimburse BOLI for
wages paid from the Wage Security Fund on behalf of
NW Sportsbar’s four wage claimants under ORS 652.414(3)
and ORS 652.310(1).
The decision of the Court of Appeals is reversed.
The final order of the Bureau of Labor and Industries is
affirmed.