Allcoast Transfer

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1374 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allcoast Transfer, Inc. and Ward Moving and Stor-
age, Inc. and Van Drivers, Furniture Ware-
housemen, Handlers, T.V.-Radio-Appliance-Air
Conditioning Servicemen and Piano Movers
Local Union No. 392, a/w the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America. Case 8-
CA- 16740
31 August 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 17 April 1984 Administrative Law Judge
Walter H. Maloney, Jr. issued the attached deci-
sion. The Respondents filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record' in light of the exceptions and brief and has
decided to affirm the judge's rulings,2 findings, and
conclusions and to adopt the recommended Order
as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Allcoast Transfer, Inc. and Ward
Moving and Storage, Inc., Cleveland, Ohio, their
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Delete paragraphs l(c) and (d) and 2(b) and
reletter the subsequent paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
I The Respondents have requested oral argument. The request is
denied as the record, exceptions, and brief adequately present the issues
and the positions of the parties.
2 In agreeing with his colleagues to adopt the findings of the judge,
Member Hunter does not agree with the judge that the statements by the
Respondents set forth in fn. II of the judge's decision establish a discrimi-
natory motive.
3 We shall delete pars. l(c) and (d) and 2(b) of the judge's recommend-
ed Order as unnecessary and inappropriate, and shall issue a new notice
to employees.
271 NLRB No. 210
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to recognize and bargain
collectively on request with Van Drivers, Furni-
ture Warehousemen Handlers, T.V.-Radio-Appli-
ance-Air Conditioning Servicemen and Piano
Movers Local Union No. 392, a/w the Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America as the exclusive
collective-bargaining representative of all of our
driver employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and bargain collectively, on
request, with Van Drivers, Furniture Warehouse-
men Handlers, T.V.-Radio-Appliance-Air Condi-
tioning Servicemen and Piano Movers Local Union
No. 392, a/w the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Help-
ers of America, as the exclusive collective-bargain-
ing representative of all of our driver employees,
and WE WILL apply retroactively to the time of its
inception the terms and conditions of a contract
concluded about 3 June 1983 by the Union and
Albert E. Ward, Inc. to all of our drivers.
WE WILL, jointly and severally, make whole all
of the driver employees of Ward Moving and Stor-
age, Inc. for any loss of pay or benefits, including
wages, overtime, holiday, vacation pay, and profit
sharing, which they have lost by virtue of our fail-
ure to apply to them the terms and conditions of
the union agreement, and WE WILL do so with in-
terest.
WE WILL also, jointly and severally, make whole
any jointly administered benefit trust funds for any
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ALLCOAST TRANSFER
contributions covering employees of Ward Moving
and Storage, Inc. which were not paid because of
our failure to apply to these employees the terms
and conditions of the union agreement, together
with any delinquency penalties which may be due,
and with interest.
ALLCOAST TRANSFER, INC. AND
WARD MOVING AND STORAGE, INC.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
This case came on for hearing before me at Cleveland,
Ohio, on an unfair labor practice complaint,' issued by
the Regional Director for Region 8 of the Board, which
alleges that Respondents Allcoast Transfer, Inc., and
Ward Moving and Storage, Inc.,2 violated Section
8(aX)(1) and (5) of the Act. More particularly, the com-
plaint alleges that the Respondents are alter egos of each
other and are a single employer. It further alleges that
they have illegally altered the terms and conditions of
employment of employees of Ward Moving and Storage,
Inc. (Ward Moving) by refusing to apply to those em-
ployees the provisions of a collective-bargaining agree-
ment which was then and there in full force and effect
between the Union and Allcoast Transfer, Inc. (All-
coast). Respondents deny that they are alter egos, deny
that Ward Moving has any obligation to recognize the
Union and abide by the terms of the union agreement,
and further assert that the application of the alter ego
and single employer doctrines to their small businesses is
a deprivation of their Federal constitutional right to do
business as they please. On these contentions the issues
herein were joined.
I The principal docket entries in this case are as follows:
Charge filed herein by Van Drivers, Furniture Warehousemen, Han-
dlers, Union No. 392, affiliated with International Brotherhood of Team-
sters, against both Respondents on May 16, 1983; amended charge filed
by Union against both Respondents on June 29, 1983; complaint issued
against both Respondents by the Regional Director on June 30, 1983;
answer of Respondents filed July 8, 1983; hearing held before me on
March 1, 1984.
2 Respondents admit, and I find, that Allcoast, formerly known as
Albert E. Ward, Inc. (Albert Ward), is an Ohio corporation which main-
tains an office and place of business near Cleveland, Ohio, where it is en-
gaged in the intrastate and interstate transportation of freight. Respond-
ent Ward Moving and Storage, Inc., is and at all times material herein
has been an Ohio corporation which maintains an office and place of
business near Cleveland, Ohio, where it is engaged in the interstate trans-
portation of freight. In the course and conduct of its business, Respond-
ent Allcoast has derived gross revenues in excess of S50,000 from the
transportation of freight and commodities from the State of Ohio directly
to points and places located outside the State of Ohio. Based on a projec-
tion of its operations since on or about March 1, 1983, at which time Re-
spondent Ward Moving and Storage. Inc. commenced operations in the
State of Ohio, said Respondent will annually derive gross revenues in
excess of $50,000 annually from the transportation of freight and com-
modities in interstate commerce. Accordingly, both Respondents are em-
ployers engaged in commerce within the meaning of Sec. 2(2), (6), and
(7) of the Act. The Union is a labor organization within the meaning of
Sec. 2(5) of the Act.
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
Albert Ward was an Ohio corporation which was en-
gaged for many years in the moving business in Cleve-
land, Ohio. It was purchased in 1976 by Robert E.
Harris, an attorney, who formerly practiced law in
Cleveland, and who is now engaged in the active prac-
tice of law in Boca Raton, Florida. Since 1976, Harris
has owned at least 90 percent of the stock in Albert
Ward and has been its principal officer and operating
chief. In June 1979 Albert Ward moved its office and op-
erating terminal to its present location at 23700 Corbin
Drive in Warrensville Heights, a suburb of Cleveland. In
January 1983, for reasons discussed later, Albert Ward
changed its name to Allcoast Transfer, Inc., and received
a certificate from the Ohio Secretary of State approving
the corporate name change. Other than the change of
name, nothing else changed with respect to its structure
or operations, and all agree that Allcoast is merely
Albert Ward under a different title. It should be noted
that for years Albert Ward operated under the trade
name of "Ward Moving & Storage" and many of its
trucks bore the insignia "Ward Moving & Storage." It
solicited business under both of these names. Its principal
salesmen were Harris, who acted in this capacity on a
part-time or occasional basis, and Lee Shank, a full-time
salesman.
For a number of years, Albert Ward, now Allcoast,
has maintained a collective-bargaining relationship with
the Union covering its drivers. The most recent contract,
a 3-year association agreement between the Cuyahoga
County Van Operators Association and the Union, was
adopted by Albert Ward and signed by Harris in 1982. It
expires on June 2, 1985, and contains provisions for
annual wage reopeners.
Albert Ward was, and Allcoast now is, a certificated
common carrier for general commodities and household
goods. It operated, and continues to operate, in interstate
commerce on certificate of convenience and necessity
issued by the Interstate Commerce Commission. It also
operated, and continues to operate, within the State of
Ohio on a state certificate issued by the Public Utilities
Commission of Ohio, and it did, and still does certain
local moving without any express public authorization in
portions of the Cleveland area which are exempt from
regulation. Most of its business was performed as the
Cleveland agent of Atlas Van Lines, Inc. (Atlas), a large
national moving company. When hauling goods for
Atlas, Albert Ward normally operated on the interstate
authority issued to Atlas by the ICC. A number of its
trucks bore the insignia "Atlas Van Lines." Its employ-
ees were regularly and interchangeably assigned to work
performed for Atlas as well as to work performed for a
variety of other customers.
On February 11, 1982, the board of directors of Atlas
adopted new rules and regulations applicable to all Atlas
agents throughout the United States, including but not
limited to Albert Ward. According to this new policy,
all moving companies who wished to continue as Atlas
agents had to surrender their own ICC authority and op-
1375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erate exclusively on the ICC authority issued to Atlas.
Harris objected to this new policy and even complained
to the ICC about it. His complaints, however, went un-
heeded and he was faced with the choice of seeing
Albert Ward either surrender its ICC certificate or losing
Atlas as a source of business.
Late in 1982 or early in 1983, Harris obtained the
name change for Albert Ward, noted above, and orga-
nized another corporation, Respondent Ward Moving.
The new corporation adopted as its formal corporate
title the trade name under which Albert Ward (now All-
coast) had been doing business for several years. Harris
is the sole shareholder and officer of Respondent Ward
Moving. Ward Moving has no operating authority of its
own and has become the Cleveland agent of Atlas, inas-
much as Harris decided that Allcoast should retain its
ICC authority and surrender the Atlas franchise. It oper-
ates either on Atlas' authority or on the authority re-
tained by Allcoast.
Shortly before these events occurred, Harris relocated
his home from Cleveland to Boca Raton, Florida, and
opened a law office. He transferred the Albert Ward-All-
coast records from the Cleveland terminal on Corbin
Drive to Boca Raton and maintains them, along with the
Ward Moving records, either in his law office or at his
home. Harris operates both companies by remote control
from Florida, in addition to practicing law, and admits
that he makes all major business decisions for both orga-
nizations, including, but not limited to, the establishment
and implementation of labor relations policies. Payroll in-
formation is transmitted to him by telephone and he
signs all paychecks for employees of both organizations
on checks which are drawn on a Florida bank. Account-
ing records are also maintained in Florida. Part of the
billing is done in Cleveland and part is done from Boca
Raton.
Since the creation of Ward Moving to accommodate
the demands of Atlas, Ward Moving has continued to
operate from the Corbin Drive terminal, a facility which
it rents on a month-to-month basis from Louis Litoff,
trustee. Ward Moving sublets portions of this terminal to
other companies, including competing moving compa-
nies. When Ward Moving was first established in Janu-
ary 1983, Harris moved the Albert Ward-Allcoast oper-
ation to a garage which was rented at 7000 Granger
Road in Independence, Ohio, another Cleveland suburb
located some 6 miles distant from the Corbin Drive ter-
minal. All of the rolling stock of both companies re-
mained titled in the Albert Ward name and much of it
was left at Corbin Road for use by the new Ward
Moving Corporation. 3 A tractor-trailer, a pack van, and
one other vehicle were repainted and were relocated at
Granger Road but all continued to be maintained by an
Allcoast mechanic. 4
3 Albert Ward owned six tractors, two straight trucks, nine trailers,
and four pack vans. Two of these vehicles had no insignias on the side.
The others bore the insignias of Albert E. Ward, Inc., Atlas Van Lines,
Inc., or the trade name Ward Moving and Storage Company.
4 The Allcoast equipment was repainted so that it would not have the
same colors or logos which are used by Atlas.
Albert Ward employees were notified of the changes
which were taking place by a letter issued on the letter-
head of Ward Moving & Storage. It was dated January
19, 1983, and was signed by Harris. It read:
As you have probably heard by now, Atlas Van
Lines, Inc. has issued a new policy to all their
agents, wherein agents can only represent Atlas
Van Lines, Inc. if they do not have their own oper-
ating authority. Since Albert E. Ward, Inc., has 48-
state operating authority for household goods and
general commodities, which is extremely valuable, I
have decided to sever relations with Allied Van
Lines, Inc.
Since a large part of our business is done on our
own authority, and perhaps the most profitable part
of our business is done on the same, it is not in our
best interests to relinquish this authority. We may,
at a later date, represent another van line under the
Albert E. Ward, Inc., name that does not have the
stringent requirements of Atlas Van Lines, Inc., and
I am investigating this matter.
Since we will not need all of the space we are
currently occupying, Albert E. Ward, Inc., which is
in the process of changing its name to Allcoast
Transfer, Inc., is moving out of the Corbin Drive
address to 7000 Granger Road, Independence,
Ohio. We currently will occupy a few thousand feet
but have the capacity of expanding our space needs,
as needed.
The date we are planning to be in full operation
at our new location is January 31, 1983. All Albert
E. Ward, Inc. (Allcoast Transfer, Inc.) employees
should report to Gary Kelly, and he will instruct
you where and when to report to work at our new
location.
When the second corporation was established,5 certain
employees of Albert Ward-Allcoast were given the
option of relocating to Granger Road as Allcoast em-
ployees and continuing to work under the union agree-
ment, or remaining at Corbin Drive as unrepresented
Ward Moving employees doing, in large part, work re-
ferred by Atlas. No Atlas work was done by Albert
Ward-Allcoast at Granger Road nor could it be done
under the new Atlas policy. Four employees moved to
the Grange Road location and continued to work for
Allcoast. They were Richard Eckhardt, Wallace Lyles,
5On March 4, Harris sent a form letter, addressed "Dear Vendor," on
the stationery of Allcoast Transfer, Inc., which read:
Please be advised that Albert E. Ward, Inc., recently changed its
name to Allcoast Transfer, Inc. Other than the change in names, all
matters with respect to the company remain the same.
Allcoast Transfer, Inc., Inc., has also moved its offices to 700
Granger Road, Cleveland, Ohio 44131.
Please correct your records, and if you have any questions, do not
hesitate to contact me.
Another corporation has been formed called Ward Moving &
Storage Company, which will continue to be the Atlas Van Lines
agent in Cleeland, Ohio. We would appreciate it if you would open
up a separate account for Ward Moving and Storage Company, in
addition to Allcoast Transfer, Inc. Ward Moving & Storage Compa-
ny will be located at 23700 Corbin Drive, Cleveland, Ohio 44128.
1376
ALLCOAST TRANSFER
Tom Cooper Jr., and John Aikens. Two of these individ-
uals have since left the Company. The balance of the
employees remained at Corbin Drive. Albert Ward had a
small office at Corbin Drive. None of the clerical em-
ployees at that office was transferred to Granger Road
and the size of the staff at Corbin Drive was reduced,
inasmuch as some of their work was transferred to Flori-
da. Ward Moving now has four or five regular drivers,
including two former Albert Ward drivers. They wear
uniforms which say "Atlas Van Lines," although they
are not, in fact, Atlas employees. Some are hourly rated
employees and some drive on a percentage basis.
On January 25, 1983, Thomas Cooper, secretary-treas-
urer of the Union, wrote Harris a letter, which was ad-
dressed to him as the president of A. E. Ward Moving &
Storage Company:
Recently; Teamsters Local Union No. 392 re-
ceived a copy of a letter dated January 19, 1983,
wherein it appears that you are going to establish a
company known as Allcoast Transfer, Inc., as a part
of your business enterprise. It is the Local's under-
standing that this change in you enterprise is a
result of a Policy decision made by Atlas Van
Lines. Local #392 has also learned that you are
going to maintain A. E. Ward Moving and Storage
Company as an Atlas Van Lines agent.
So that there is no confusion, it is the position of
Local #392 that the work to be done by both A.E.
Ward Moving & Storage Co. and Allcoast Transfer,
Inc. is bargaining unit work covered by the collec-
tive bargaining agreement currently in effect be-
tween Local #392 and your enterprise. All wages,
hours and other terms and conditions of employ-
ment set forth in the current collective bargaining
agreement shall be applied to the employees at both
Ward's and Allcoast.
Please be advised that Local #392 will take all
legal recourse to prevent you from circumventing
your contractual obligations.
If you disagree with our analysis, the Local will
be willing to review any information you may want
to submit.
On February 2, 1983, Harris replied to Cooper on the
letterhead of his Florida law office:
This letter will acknowledge receipt of your
letter of January 25, 1983, wherein you discuss the
collective bargaining agreement currently in effect
between Local 392 and Albert E. Ward, Inc.
Please be advised that Albert E. Ward, Inc. has
changed its name to Allcoast Transfer, Inc. and in-
tends fully to comply with its collective bargaining
agreement with Local 392. It is not my intent to
circumvent my contractual obligations.
However, any new corporation I form does not
mean that I inherit a 392 Local by virtue of my
business interests in a copy that has a union con-
tract.
As Atlas Van Lines has required Albert E. Ward,
Inc., to leave its agency network I have formed a
new corporation known as Ward Moving & Storage
Company. This new corporation is an Atlas Van
Lines agent.
If you have any questions regarding the above,
please feel free to contact either me or my labor
counsel, Bernard Goldfarb, in Cleveland.
On March 15 Cooper wrote Harris as follows:
Please be advised that Teamsters Local Union
No. 392 hereby demands that Ward Moving & Stor-
age Company honor the collective bargaining
agreement entered into with Local 392. It is the po-
sition of the Local that an employer cannot escape
its contractual obligations simply by setting up a
new corporation which, in effect, is the alter-ego of
the existing corporation that has a collective bar-
gaining arrangement with the Local Union.
Please advise the undersigned within seven (7)
days of receipt of this letter as to whether or not
Ward Moving & Storage will honor the collective
bargaining agreement entered into with Local 392
or wishes to bargain over an appropriate collective
bargaining agreement for the group of employees
employed by Ward. If the undersigned has no con-
tact from you within (7) days, we will assume that
you have refused to recognize Local 392 as the col-
lective bargaining representative for the employees
employed by Ward Moving & Storage.
Harris replied to Cooper's March 15 letter on March
21:
This letter will acknowledge receipt of your
March 15, 1983 letter regarding Allcoast Transfer,
Inc. and Ward Moving & Storage.
Since I am general counsel to both corporations,
I want to clarify our position regarding you local.
First, Allcoast Transfer, Inc., has a collective bar-
gaining agreement with your Local. It is the intent
of Allcoast to honor this contract to its entirety. In
no way whatsoever will Allcoast attempt to circum-
vent its contractual obligations entered into with
your Local.
Second, Ward Moving & Storage Company is a
completely separate corporation, duly organized
under the laws of Ohio. This corporation does not
have a collective bargaining contract with your
Local or any other Local Labor Unit [sic]. As you
know, the employees of this corporation certainly
are free to organize, if they choose. However, as
you also know, the employees do not want your
Union or any other one to represent them at this
time.
Please be advised that it will be the intent of
Ward Moving & Storage Company to hold your
Union liable for any legal defense or other damages
sustained by your actions you appear to be contem-
plating.
On May 16, the Union filed a charge against both corpo-
rations.
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the inception of Ward Moving in January 1983,
Gary Kelly has served as its supervisor at the Corbin
Road facility. Previously he was the Albert Ward super-
visor. Kelly asked Richard Eckhardt to be the supervisor
at the new Allcoast facility on Granger Road, but Eck-
hardt declined because he had been advised by the
Union that he could not remain in the Union and become
a supervisor. He agreed to become a working foreman
and did so, spending about 95% of his time doing bar-
gaining unit work. In this capacity he reported directly
to Kelly, although Kelly was on the payroll of Ward
Moving, not Allcoast. Eckhardt maintained a daily dis-
patch book, served as a go-between picking up and de-
livering papers to and from the Granger Road and
Corbin Drive locations, and assigning work to the two
or three drivers employed at Granger Road. For the
most part, these assignments were preordained, since cer-
tain Allcoast drivers regularly took local runs and one
driver regularly made over-the-road deliveries. 6
In October 1983, Harris closed the Granger Road
garage and moved the Allcoast operation back to Corbin
Drive. He had originally hoped to pick up additional
business by maintaining a separate location and had in
mind a possible affiliation by Allcoast with another na-
tional van line such as Allied. Such an affiliation would
have required Allcoast to operate from different premises
than those which served Atlas. The anticipated business
did not materialize, however, at least to the extent that it
warranted maintaining a separate facility. Now Ward
Moving and Allcoast operate from the same terminal.
Kelly supervises both of them and acts as a dispatcher
for both operations.7 Allcoast employees regularly phone
Kelly to see if there is work to be done and report for
work only if he instructs them to do so. From time to
time, Kelly utilizes employees of both companies inter-
changably, depending upon the work load and the type
of run which is being dispatched. Allcoast employees
continue to be paid pursuant to the contract while Ward
Moving employees are not. Harris admits that Ward
Moving employees receive different (and usually lower)
rates, which vary depending upon the run which is as-
signed. Benefits paid to both groups are somewhat differ-
ent. The fringe-benefit package paid to Allcoast employ-
ees is basically the teamster health and welfare program
for the Cleveland area, while Ward Moving employees
receive different benefits. Allcoast employees receive
profit sharing while Ward Moving employees do not.
E6 ckhardt did not hire, fire, or discipline employees. Whatever assign-
ments were given by him were normally either made by Kelly, in the
first instance, or were determined by whether the work in question was
local or long-distance hauling. He was paid the contract rate for a rank-
and-file employee and spent most of his time working in that capacity.
Harris argued that the Granger Road facility basically ran itself and that
he himself was Allcoast's supervisor, although Harris was normally more
than a thousand miles from the garage and rarely visited it. I conclude
that Eckhardt was at all times material herein an employee within the
meaning of Sec. 2(3) of the Act.
7 Harris admits that Kelly is a supervisor for Ward Moving but denies
that he was or is a supervisor for Allcoast. When asked what Kelly's
function was vis-a-vis Allcoast, Harris replied that Kelly was Harris'
agent on the premises who was responsible for doing what Harris told
him to do. The distinction noted is arcane, and I conclude that Kelly is a
supervisor within the meaning of Sec. 2(11) of the Act for both Respond-
entlis
Throughout this period of transition, Harris, and more
especially Shank, have continued to solicit business for
both enterprises. In normal practice, whoever secures a
job determines at the time of the bid whether the work
will be given to Allcoast or to Ward Moving. These de-
terminations are normally governed by the nature of the
moving job and its destination. The price is set by these
factors and by the costs to be incurred by the company
to whom the work is assigned.
Analysis and Conclusions
A. The Violations of Section 8(a)(1) and (5) of the Act
The criteria for determining whether two companies
are a single employer were set forth by the Supreme
Court in Radio Union v. Broadcast Service of Mobile, 380
U.S. 255 at 256 (1965), as follows:
[In] determining the relevant employer, the
Board considers several nominally separate business
entities to be a single employer where they com-
prise an integrated business enterprise. NLRB
Twenty-first Ann. Report, 14-15 (1956). The con-
trolling criteria, set out and elaborated in Board de-
cisions, are interrelation of operations, common
management, centralized control of labor relations
and common ownership.
These four criteria were reiterated by the Supreme
Court as the factors determining single employer status
in South Prairie Construction Co. v. Operating Engineers
Local 627, 423 U.S. 800 (1976). In addition to the single
employer doctrine, the Supreme Court has long recog-
nized another Board doctrine imposing liability on one
entity for the unfair labor practices of another. Where a
new business enterprise is merely the disguised continu-
ance of an older one, the Board, with Supreme Court ap-
proval, will find the new entity an alter ego of the earlier
one and impose on the new entity the liability or contin-
ued responsiblity pertaining to the former. Southport Pe-
troleum Co. v. NLRB, 315 U.S. 100 (1942). The question
of animus may have a bearing on the finding of alter ego
status.8 However, animus or antiunion motivation is not
an essential element for such a finding. Crawford Door
Sales Co., 226 NLRB 1144 (1976); Nelson Electric Co. v.
NLRB, 638 F.2d 965 (6th Cir. 1981). As the Supreme
Court put it in Howard Johnson Co. v. Detroit Joint Exec-
utive Board, 417 U.S. 249, at 259 (1974):
Such (alter ego) cases involve a mere technical
change in the structure of identity of the employing
entity, frequently to avoid the effect of the labor
laws, without any substantial change in its owner-
ship or management. In these circumstances, the
courts have had little difficulty holding that the suc-
cessor is in reality the same employer and is subject
to all the legal and contractual obligations of the
predecessor. [Emphasis added.]
8 See, for example, Naccarato Construction Co., 233 NLRB 1394 (1977);
P. H. Hayes, 226 NLRB 230 (1976); DMR Corp., 258 NLRB 1063 (1981).
1378
ALLCOAST TRANSFER
The Board has recently had occasion to pass on these
questions and distinctions and to find alter ego status in a
situation having facts far less compelling than those pre-
sented in this case. Samuel Kosoff & Sons, 269 NLRB 424
(1984).
Tested by the above-stated criteria, it is clear that All-
coast and Ward Moving are alter egos and merely twin
facets of a single business activity best described as
Harris enterprises. Harris is practically the sole owner of
Allcoast, is in fact the sole owner of Ward Moving, and
is also sole officer of both.9 Harris admits that he makes
all major business decisions pertaining to each organiza-
tion and that he establishes and effectuates the labor rela-
tions policies of both. Both companies are engaged in the
moving business at the same location and utilize the same
rolling stock for this purpose. Ward Moving is basically
a corporate shell having few assets. It utilizes Allcoast's
equipment and the trucking authority belonging either to
Allcoast or Ward Moving's principal customer, Atlas.
On the other hand, Allcoast, having abandoned the
Corbin Drive terminal it had rented for years, soon re-
turned to its old location and found a home as a subten-
ant of Ward Moving.
Ward Moving was established so it could handle the
business provided by Allcoast's prize customer, Atlas.
Allcoast's role was to handle the other customers who
were formerly serviced on its interstate and intrastate
certificates, as well as looking for additional business
which requires a certificated carrier. Harris and Shank
continue to solicit business for the total enterprise just as
they did before the creation of Ward Moving. They
decide, as each job is quoted, which company will
handle it, formulate their bid accordingly, and shunt the
work to Allcoast or to Ward Moving at their discretion.
In this manner, Harris maintains a truly "double breast-
ed" operation, 0° a term normally reserved to building
and construction entrepreneurs who seek to operate both
on a union and a nonunion basis but applicable in this
case to a motor carrier.
Not only do Allcoast and Ward Moving use the same
equipment in their joint operation, they have the same
supervisor and frequently interchange employees. Their
principal difference is that one company recognizes the
Union and complies with a collective-bargaining agree-
ment while the other does not. Harris insists that Ward
Moving was not established to avoid the requirements of
the contract but to comply with the arbitrary dictates of
a large client who would no longer permit Allcoast (and
its predecessor in title) to retain its business without sur-
rendering state and Federal operating authority. Thus,
Harris was forced to resort to the subterfuge described in
this record in order to remain the Atlas representative in
the Cleveland area without abandoning his other custom-
ers. I While these circumstances may explain the deci-
9 The Board has never required identical ownership as a prerequisite
for a finding of alter ego status. Campbell-Harris Electric. 263 NLRB 1143
(1983); Crawford Door Sales Co., supra.
10 See PA. Hayes, supra.
I I The General Counsel and the Charging Party point out in their
briefs that, since a violation of Sec. 8(aHI) and (3) of the Act was not
alleged in the complaint, it is not incumbent on the General Counsel to
prove a discriminatory motive. Such evidence can be found in the
sion to create Ward Moving as a separate corporation,
they do not explain a totally separate and subsequent de-
cision on Harris' part in refusing to apply to Ward
Moving employees the terms and conditions of employ-
ment which governed their performance of Atlas work
prior to the change in corporate structure. As an alter
ego of Allcoast and a thinly disguised continuance there-
of, Ward Moving was obligated to continue to recognize
the Union as the bargaining agent of its employees and
to apply to those employees the necessary consequence
of such recognition, namely, the agreement which Harris
had executed in the summer of 1982 with Local 392.
Harris refused to do so and is performing the same work
for Atlas and others that he undertook to do at union
rates for less than union scale whenever he assigns work
to Ward Moving. By these acts both Allcoast and Ward
Moving violated Section 8(a)(1) and (5) of the Act.
B. Respondents' Constitutional Argument
Both at the hearing and in the brief, the Respondents
have argued that it would be unconstitutional to apply to
it the Board's alter ego and single employer doctrines.
Since these doctrines are an integral part of the enforce-
ment of the Act, the Respondents are necessarily arguing
that the Act is unconstitutional, at least as applied to
them, although they have failed to distinguish their situa-
tion from other cases in which the Act has been found to
be constitutional. The essence of Harris' argument is that
the Act is invalid because it unconstitutionally prevents
him from doing what he want to do (Tr. 132, L. 22). 1
know of no such constitutional right.
The constitutional attack leveled herein on the Nation-
al Labor Relations Act and on one of the longstanding
interpretations thereof 2 comes late in the day. It also
comes from a peculiar source, namely, from two
common carriers who operate in large part by virtue of
authority conferred by a Federal agency. In 1937, the
Supreme Court held that the Act was a proper exercise
of powers conferred on Congress by the Commerce
Clause and one which fell within the limitations of the
Due Process Clause of the fifth amendment. NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1. Since that time,
nearly 270 volumes of Board cases and 30 volumes of
court cases (including 200 to 300 Supreme Court cases)
record, however, both in Harris' written statement to the Union on Feb-
ruary 2 ("any new corporation I form does not mean that I inherit a 392
Local by virtue of my business interests in a copy that has a union con-
tract") and his statements to the Board at the hearing in this case ("what
is being said in this case where, you know. I can't deny a lot of the
things that I was asked, is that Robert Harris can never, in the jurisdic-
tion of 392 Local, open a corporation in the same line of business in
Cleveland, Ohio. That's what the alter ego status is saying in its very nar-
rowest concept, that I could never be in the moving and storage business
in Cleveland, Ohio, without applying the collective bargaining contract
.... IJUDGE MALONEY: You can open any business you want. MR.
HARRIS: Not without the collective-bargaining agreement rammed
down my throat ... . JUDGE MALONEY: Well, why do you want to
escape it (the alter ego status), just to escape the union? MR. HARRIS: My
men don't want. I would be doing a disservice to them. JUDGE MA-
I.ONiY: And you don't want it. MR. HARRIS: And I don't want it, I'll be
honest with you. Who needs it? Who wants it?").
12 See Soufhport Petroleum, supra.
1379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been decided without disturbing this fundamental
holding. I decline to disturb it now.
On these findings of fact and on the entire record con-
sidered as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondents Allcoast Transfer, Inc., and Ward
Moving and Storage, Inc., and each of them, is now and
at all times material herein has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and are alter egos of Albert E.
Ward, Inc., and each other.
2. Van Drivers, Furniture Warehousemen, Handlers,
T.V.-Radio-Appliance-Air Conditioning Servicemen and
Piano Movers Local Union No. 392, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All drivers employed by Allcoast Transfer, Inc., and
Ward Moving and Storage, Inc., but excluding office
clerical employees, professional employees, and supervi-
sors within the meaning of the Act, constitute a unit ap-
propriate for collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein the Union has been the
exclusive collective-bargaining representative of all of
the employees in the unit found appropriate in Conclu-
sion of Law 3 for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By failing and refusing to recognize and bargain col-
lectively with the Union as the exclusive collective-bar-
gaining representative of the employees employed in the
unit described above in Conclusion of Law 3, and by
failing and refusing to apply to those employees the
terms and conditions of a collective-bargaining agree-
ment concluded by Albert E. Ward, Inc., and the Union
about June 3, 1982, the Respondents have violated Sec-
tion 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices have a close, in-
timate, and adverse effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have committed
certain unfair labor practices, I will recommend that
they be required to cease and desist therefrom and to
take other affirmative actions designed to effectuate the
purposes and policies of the Act. The recommended
Order will require both Respondents to recognize and to
bargain collectively in good faith with the Union as the
exclusive collective-bargaining representative of their
driver employees, and that they be required to apply to
all of their driver employees the terms and conditions of
the current collective-bargaining agreement which was
concluded by Albert E. Ward, Inc., and the Union about
June 3, 1983. The recommended Order will require both
Respondents, jointly and severally, to make whole the
employees of Ward Moving for any loss of wages and
benefits which they have suffered by reason of the unfair
labor practices found herein, including, but not limited
to, holiday and vacation pay, and contributions to health,
welfare, and pension funds required under the terms of
the above-recited agreement, together with any interest
or penalties due for late payments. FML Supply, 258
NLRB 604 (1981); Samuel Kosoff & Sons, supra. The
amounts due for loss of wages, overtime, holiday, vaca-
tion pay, profit sharing, and any other amounts of money
which can be easily computed will be paid, with interest
thereon at the adjusted prime rate used by the Internal
Revenue Service for computation of tax payments. Olym-
pic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing
Co., 138 NLRB 716 (1962). Inasmuch as a determination
of the amounts due to fringe benefit funds, both in con-
tributions and penalties, may be more difficult to com-
pute, I will leave the determination of interest due on
such payments to the compliance stage of this proceed-
ing. Merryweather Optical Co., 240 NLRB 1213 (1979). 1
will also recommend that both respondents be required
to post the usual notice advising their employees of their
rights and of the results in this case.
On these findings of fact and conclusions of law and
on the entire record, I make the following recommend-
ed'
ORDER
Respondents Allcoast Transfer, Inc., and Ward
Moving and Storage, Inc., Cleveland, Ohio, their offi-
cers, supervisors, attorneys, successors, and assigns, shall,
jointly and severally
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
Van Drivers, Furniture Warehousemen, Handlers, T.V.-
Radio-Appliance-Air Conditioning Servicemen and
Piano Movers Local Union No. 392, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America as the exclusive col-
lective-bargaining representative of all of the Respond-
ents' drivers, excluding office clerical employees, profes-
sional employees, and supervisors as defined in the Act.
(b) Refusing to apply the terms and conditions of a
collective-bargaining agreement concluded by the Union
and Albert E. Ward, Inc., about June 3, 1983, to all
driver employees of both Respondents.
(c) Unilaterally and without bargaining in good faith
with the Union, withdrawing from, annulling, nullifying,
abrogating, or changing said collective agreement or any
provision, term, or condition thereof, or attempting to do
so, in violation of the Act.
(d) Through the formation or utilization of a juridical
entity, or through shifting unit work to such other entity,
or otherwise in violation of the Act, unilaterally evading
or attempting to evade or to escape from the obligations
of said collective agreement while it is in force and
effect.
(e) By any like or related means interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
13 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1380
ALLCOAST TRANSFER
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act.
(a) Recognize and, on request, bargain collectively
with the Union as the exclusive collective-bargaining
representative of the Respondents' driver employees.
(b) Notify the Union, within 10 days, if they recognize
the Union as the exclusive collective-bargaining repre-
sentative of all of the Respondents' employees and that
they will apply to all of the Respondents' employees all
of the terms and conditions of the collective agreement
concluded by Albert E. Ward, Inc., and the Union about
June 3, 1983.
(c) Apply retroactively to the time of its inception to
all of the Respondents' driver employees all of the terms,
provisions, and conditions of the collective agreement
concluded between the Union and Albert E. Ward, Inc.,
on June 3, 1983.
(d) Make whole all of the employees of Respondent
Ward Moving and Storage, Inc., for any loss of pay or
benefits which they have suffered by reason of the unfair
labor practices found herein, and make whole all of the
jointly administered benefit trust funds established in the
contract between the Union and Albert E. Ward, Inc.,
for any contributions which have not been paid for the
benefit of employees of Respondent Ward Moving and
Storage, Inc., in the manner described above in the sec-
tion entitled "Remedy."
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at Warrensville Heights, Ohio terminal copies
of the attached notice marked "Appendix."' 4 Copies of
the notice, on forms provided by the Regional Director
for Region 8, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
14 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board.'
1381