Commercial Cartage Corp.

National Labor Relations Board - Board Decisions

Feb 22, 1984

268 N.L.R.B. 1036 (N.L.R.B. 1984)

COMMERCIAL CARTAGE CORP.
Commercial Cartage Corporation and Eugene B.
Straley and Local 299, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Cases 7-CA-20692, 7-
CA-20969, and 7-CA-21257
22 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 August 1983 Administrative Law Judge
Benjamin Schlesinger issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing 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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Commercial
Cartage Corporation, Taylor, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.
The judge inadvertently omitted from his decision the admission of
Respondent Commercial Cartage Corporation (Respondent Commercial)
that it is a Michigan corporation with an office and place of business in
Taylor, Michigan, where it is engaged in the transportation of freight by
trucks, and that during the calendar year ending 31 December 1981,
which period is representative of its operations during all times material
hereto, Respondent Commercial, in the course and conduct of its oper-
ations, had gross revenues in excess of $500,000, of which in excess of
$50,000 was derived from the transportation of freight and commodities
from the State of Michigan directly to points outside the State of Michi-
gan. Accordingly, we find, as Respondent Commercial admits, that Re-
spondent Commercial is now, and has been at all times material herein,
an employer engaged in commerce within the meaning of Sec. 2(2), (6),
and (7) of the Act.
In the absence of exceptions thereto, the Board adopts, pro forms, the
judge's findings that Respondent Commercial violated Sec. 8(aXS) and (I)
of the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail and refuse to bargain with
Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, with respect to wages, hours, and other terms
and conditions of employment for the following
unit which is appropriate for collective bargaining:
All full-time and regular part-time truck driv-
ers, helpers, dockmen, warehousemen, check-
ers, power-lift operators, hostlers, and such
other employees as may be presently or here-
after represented by the Union, engaged in
local pick-up delivery, and assembling of
freight within the area located within the juris-
diction of the Local Union, not to exceed a
radius of twenty-five (25) miles; but excluding
all clerical employees, guards and supervisors
as defined in the Act.
WE WILL NOT refuse to bargain collectively with
the Union with respect to the effects upon our em-
ployees of our decision to close our operation.
WE WILL NOT fail and refuse to bargain collec-
tively with the Union by refusing to furnish it with
information that it requests which is relevant and
reasonably necessary to the Union's performance of
its duties on behalf of our employees in the admin-
istration of its collective-bargaining agreement.
WE WILL NOT fail and refuse to deduct dues
from our employees' wages as required by the col-
lective-bargaining agreement between us and the
Union, and to remit same to the Union.
WE WILL NOT threaten that our facility will
close if our employees do not accept a wage reduc-
tion.
WE WILL NOT threaten our employees that they
would be considered voluntary quits if they did not
accept a wage reduction.
WE WILL NOT bargain directly with our employ-
ees in the collective-bargaining unit described
above and bypass the Union, the designated exclu-
sive collective-bargaining representative of our em-
ployees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed them in Section 7 of
the National Labor Relations Act.
WE WILL NOT rescind our unilateral changes of
wages, hours, and other terms and conditions of
employment-to wit, WE WILL rescind our reduc-
268 NLRB No. 158
1036
COMMERCIAL CARTAGE CORP.
tion of the wages of our employees and our reduc-
tion of their vacation and sick pay benefits.
WE WILL comply with the terms and conditions
of our collective-bargaining agreement with the
Union.
WE WILL make whole our employees by paying
them the remainder of their wages which we ille-
gally reduced on 17 May 1982, with interest.
WE WILL make whole our employees by paying
those employees who were laid off on 18 July
1982, 2 days after we terminated our operations,
normal wages for a period specified by the Nation-
al Labor Relations Board, plus interest.
WE WILL, upon request, bargain collectively
with the Union with respect to the effects on our
employees of our decision to terminate our oper-
ations and reduce to writing any agreement
reached as a result of such bargaining.
WE WILL provide to the Union the following in-
formation: (1) whether or not we were engaged in
our prior business; (2) whether we still had any
equipment left with which we performed bargain-
ing unit work and, if so, what equipment; (3)
whether we sold, transferred, leased, or removed
any of our equipment to any other company or
entity and, if so, what equipment was involved and
what method of transportation was used and to
whom the equipment was transferred; (4) whether
our affairs have been terminated and whether our
assets have been distributed; (5) whether our busi-
ness or customers have been transferred to Conjo
Leasing, M-Bar Corp., Commercial Cartage Line
Haul Division, and/or Inter-City Ltd. and, if so,
what customers or businesses are involved; (6)
whether Conjo Leasing, M-Bar Corp., Commercial
Cartage Line Haul Division, and/or Inter-City Ltd.
are performing any of the work or providing any
of the services previously engaged in by our bar-
gaining unit employees and, if so, what work
and/or services are involved; (7) whether Eugene
B. Straley has any relationship with Conjo Leasing
and, if so, what type of relationship is involved; (8)
whether Connie Springer has any relationship with
Conjo Leasing and, if so, what relationship is in-
volved; and (9) what relationship we have with
Conjo Leasing, M-Bar Corp., Commercial Cartage
Line Haul Division, and/or Inter-City Ltd.
WE WILL provide to the Union all records indi-
cating any interest or relationship between Com-
mercial and Conjo Leasing, M-Bar Corp., Com-
mercial Cartage Line Haul Division, and/or Inter-
City Ltd.
COMMERCIAL CARTAGE CORPORATION
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge:
The National Master Freight Agreement covering over-
the-road and local cartage employees of private
common, contract, and local cartage carriers, including
Commercial Cartage Company (Commercial or Re-
spondent), expired on March 31, 1982. Previously, on
February 8, 1982,1 Commercial advised Charging Party
Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(Union), that it was withdrawing from multiemployer ne-
gotiations and that it desired to negotiate with the Union
directly. On February 16, the Teamsters National
Freight Industry Negotiating Committee advised Com-
mercial that it had designated Charles Lester to act as
chairman of a duly authorized subcommittee to negotiate
amendments and changes to the National Master Freight
Agreement with Commercial individually. Two weeks
later, Eugene B. Straley, Commercial's sole officer, di-
rector, and stockholder, received a letter from the ad-
ministrative assistant to the president and recording sec-
retary of the Union, requesting that he submit his pro-
posals to his designated chairman and "they will then at-
tempt to set up a specific time and date for a meeting by
and between yourself and Teamsters National Freight In-
dustry Negotiating Committee/Authorized Sub-Commit-
tee."
Subsequently, about March 17,2 Lester met with Stra-
ley, who explained some of his "needs" and showed him
Commercial's profit-and-loss statement. At the conclu-
sion of the meeting, Lester requested that Straley contact
Jerry McDonald, the Union's business representative,
who would better be able to reach agreement on the re-
duction of wages and some of the other benefits that
Straley was hinting at. McDonald, however, was dis-
pleased that Lester, who was entrusted with negotiations,
should parcel out work to McDonald that should right-
fully have been performed by Lester. About a week
later, Straley called Lester to complain that McDonald
would not sit down to negotiate. Lester replied that he
would talk to McDonald. Straley testified that frequently
thereafter he asked McDonald to negotiate with him and
discuss his "needs," but McDonald never agreed to do
so. McDonald denied this, but it seems clear, in any
event, that no negotiations took place thereafter.
The crux of the principal portion of the complaint
herein involves Commercial's threat and ultimate unilat-
eral action to impose its self-decreed reduction of wages
and other benefits. Preliminarily, commencing in Febru-
ary, Commercial ceased deducting dues from its employ-
ees' paychecks, notwithstanding its obligation under the
then subsisting collective-bargaining agreement to deduct
dues from its employees' wages and transmit them to the
Union. Straley stated to employee Archie Patterson that
he was no longer associated with the Union, apparently
All dates refer to 1982, unless otherwise stated.
2 Straley testified that this meeting took place prior to his receipt of
the second letter. However, in a letter dated May 24 he stated that he
met with Lester on March 17.
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believing that his withdrawal from multiemployer negoti-
ations somehow insulated him from compliance with his
contractual agreement.
Three months later, on May 14, Connie Springer,
Commercial's office manager and an admitted supervisor,
assembled the truck drivers and told them that she
wanted to "see if she could come up with an agreement
on ... wages." She stated that Commercial's bookkeep-
er had ascertained that drivers were bringing in only
enough business that the drivers should be paid $8.63 an
hour, and that she had examined the same books and
found that drivers were bringing in $9.50 an hour. She
asked the drivers to accept a reduction of their wages
from $12.94 per hour to one of the two other amounts.
The drivers refused. Springer then said that she had to
await a call from Straley but he had already said that, if
the drivers did not accept a reduction, Commercial
would close.
Patterson told Springer at the end of the meeting that
the employees would report to work on Monday morn-
ing at their regular scale of $12.94, unless the employees
received word that Commercial was closing. Not having
received such information, the employees returned to
work on the following Monday and continued to work
until Friday, July 16, at the reduced rate of $9.50 per
hour. However, on May 17, Straley stated that the work-
ers were going to be paid only $8.63 per hour.3 Patter-
son objected, to which Straley replied: "Well, if any
drivers don't go along with the rate cut, I will consider
them voluntary quits."
On May 18, after the wage reduction had already been
put into effect and after the employees had been individ-
ually told of the reduction in their wages, for the first
time, Commercial notified the Union of such changes.
Straley's letter to McDonald stated as follows:
Please be advised that we are in good faith bargan-
ing, [sic] submitting our needs for the next 12
months.
An analysis of our cost and profit indicate that we
will be able to pay an hourly rate of $8.63 per hour
for actual time worked to our employees for this
period of time. New employees will be paid at a
rate of $6.00 per hour during the first six months of
employment.
We also are willing to offer two weeks vacation
pay at forty hours each to those employees with
three years seniority. Employees with less than
three years seniority will be allowed one week va-
cation at twenty hours pay. We will offer three paid
sick days during a 12 month period. All other pro-
visions of the Master Freight Contract will apply.
Due to the economic conditions, we are making this
offer effective May 17, 1982.
In fact, rather than this letter being an offer, Commer-
cial conceded that all of the reductions were put into
effect as of May 17. The reduction of wages was actually
effected; the offer relating to vacation pay and sick days
3 Despite this threat and Straley's letter of May 18, infra, wages were
reduced to $9.50 per hour.
represented a reduction of benefits, but because Commer-
cial closed 2 months later no employee was adversely af-
fected thereby. However, the letter clearly constitutes a
threat to reduce those benefits. When McDonald re-
ceived Straley's letter, he replied by letter dated May 20
that he objected to Commercial's reductions. The Union
also filed an unfair labor practice charge in Case 7-CA-
20692 the same day.4 On May 21, Commercial con-
firmed, by hand-delivered letter to the individual em-
ployees, its "final offer" at the meeting of May 14, and
that as of May 17 the hourly wage would be S9.50.
On Sunday, July 18, Straley decided to close Commer-
cial's operation and so notified the employees by tele-
grams that day and by letters on July 19. The last day
that Commercial transacted business was July 16. Com-
mercial did not afford any opportunity to the Union to
bargain about the effects of its decision to close, First
National Corp. v. NLRB, 452 U.S. 666, 681-682 (1981);
and, when the Union requested certain information on
August 11 concerning the bona fides of the closure,
Commercial refused to comply therewith.
Section 8(aXS) of the Act requires that an employer
bargain with the collective-bargaining representative of
its employees pertaining to wages, hours, and other
terms and conditions of employment. There is no ques-
tion raised herein, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the
Act and that it represents the following unit which is ap-
propriate for collective bargaining:
All full-time and regular part-time truck drivers,
helpers, dockmen, warehousemen, checkers, power-
lift operators, hostlers, and such other employees as
may be presently or hereafter represented by the
Union, engaged in local pick-up delivery, and as-
sembling of freight within the area located within
the jurisdiction of the Local Union, not to exceed a
radius of twenty-five (25) miles; but excluding all
clerical employees, guards and supervisors as de-
fined in the Act.
It is also undisputed that "even after expiration of a
collective bargaining contract, an employer is under an
obligation to bargain with the Union before he may per-
missibly make any unilateral change in those terms and
conditions of employment comprising mandatory bargaining
subjects within the meaning of § 8(d) of the Act." Hen
House Market No. 3 v. NLRB, 428 F.2d 133, 137 (8th
Cir. 1970). Of course, the bargaining obligation does not
continue ad infinitum. Once the parties have reached an
impasse, it is permissible for an employer to change
terms and conditions of employment.
' The charge was amended on June 14 and complaint thereon issued
on June 22. The unfair labor practice charge in Case 7-CA-20969 was
filed on July 23 and, on September 15, the Regional Director issued an
order consolidating the cases and his amended complaint in both pro-
ceedings. The unfair labor practice charge in Case 7-CA-21257 was filed
by the Union on October 4, and another order consolidating cues and a
second amended complaint was issued on November 29. The latter
charge was amended on December 21, and another order consolidating
cases and a third amended complaint was issued on January 7, 1983. The
hearing was held on June 23 and 24, 1983, in Detroit, Michigan.
1038
COMMERCIAL CARTAGE CORP.
Here, there was almost a total failure to bargain. At
best, one meeting was held between Straley and Lester
in which Straley indicated that he desired some conces-
sions.5 Those concessions, however, were never spelled
out by him,6 notwithstanding that the Union specifically
requested Straley to supply his bargaining demands. Stra-
ley testified that he attempted to meet and negotiate with
the Union, but all his requests were ignored. However, I
do not credit his testimony generally, finding him eva-
sive (he had difficulty identifying even his own signa-
ture) and his testimony highly inflated. I find that
McDonald desired to negotiate with Straley, but Straley
had indicated that bargaining would be performed for
him by others, and no appointment was made to proceed
with those negotiations. Furthermore, McDonald tele-
phoned Straley on several occasions, but Straley pur-
posefully avoided those calls. To the extent that McDon-
ald on May 18 refused to negotiate, I credit his testimo-
ny that his refusal was based on Straley's discharge of
Patterson that day. McDonald believed that Patterson
had been discharged for protesting the reduced wages
and based his refusal on the ground that Patterson was
the union committeeman who was going to assist him in
negotiations. The refusal to negotiate was quickly reme-
died by Straley's reinstatement of Patterson.
In these circumstances, Commercial violated the Act
in numerous respects. It unlawfully and unilaterally
changed the checkoff requirement of its contract. Inde-
pendent Stave Co., 248 NLRB 219 (1980). Without having
negotiated at all with the Union and without having
made its "needs" known, Springer met with employees
for the purpose of reaching an agreement on their rates
of pay and thus avoided dealing with Commercial's ex-
clusive collective-bargaining agent, all in violation of
Section 8(a)(5) and (1) of the Act. D & H Mfg. Co., 239
NLRB 393, 403-404 (1978). At the same meeting,
Springer threatened that if the employees did not accept
the pay cut Commercial would close, a threat of reprisal
to coerce Commercial's employees into reaching an
accord with Commercial in derogation of the Union's
status as collective-bargaining agent, in violation of the
same subsections. International Paper Co., 228 NLRB
1137 (1977). I make a similar finding and conclusion of
law with respect to Straley's comment to Patterson on
May 17 that if the employees did not accept the pay cuts
they would be considered "voluntary quits."
However, I do not find that Straley's comment to
McDonald and Patterson on May 18 that "you guys are
going to break me-I can't afford you" is a threat. I find
that statement to be a harmless opinion made to the
union representatives, perhaps repeated by other employ-
ers in negotiations on literally thousands of occasions, to
' McDonald testified that Lester told him that Lester had met twice
with Straley. Straley, who had a penchant for self-serving declarations,
including testifying to helpful letters which he later could not find, stated
that there was only one meeting. Surely, if there were more meetings,
Straley would have freely admitted to them.
6 Only on cross-examination did Straley testify that he mentioned to
Lester the "eight dollar figure that our C.P.A. came up with." Lester did
not testify. However, I have difficulty understanding why Straley would
have mentioned this amount in March, 2 months prior to Springer's
threats in May, and why Straley never pursued the matter until May if
his accountant had given him such information prior to mid-March.
support their argument against increases or maintenance
of wage rates.
There is no question that Respondent unilaterally re-
duced its employees' rate of pay and announced that sick
leave and vacation pay would also be reduced, effective
May 17, 1982. Without an impasse, that constitutes a uni-
lateral change of wages and other terms and conditions
of employment in circumvention of the duty to negotiate
which frustrates the objectives of Section 8(a)(5). NLRB
v. Katz, 369 U.S. 736, 743 (1962). In determining whether
there is an impasse, the Board has held in Taft Broadcast-
ing Co., 163 NLRB 475, 478 (1967), enfd. sub nom. Tele-
vision Artists AFTRA, 395 F.2d 622 (D.C. Cir. 1968), as
follows:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
Utilizing these factors, I find that Respondent was
bound by collective-bargaining agreements with the
Union from 1976 until 1982. Even with Commercial's
withdrawal from multiemployer bargaining, there ap-
pears to be some indication that Commercial would have
been willing to bargain in good faith provided that its
"needs" were understood and agreed to. As noted, there
was only one negotiating session with respect to Com-
mercial's position, but Straley never indicated to the
Union what his "needs" were. Obviously, the issue of
wages was important to both parties, but Straley never
gave negotiations a minimal chance of success because
he never dealt personally with McDonald. Rather, he at-
tempted to force his bargaining demands upon the em-
ployees by bypassing the Union and, first, threatening
the employees and, second, unilaterally imposing the
terms which he wanted to impose without bargaining.
I cannot find that there remained no "ray of hope with
a real potentiality for agreement if explored in good faith
in bargaining sessions." NLRB v. Webb Furniture Corp.,
366 F.2d 314, 316 (4th Cir. 1966). The ultimate question
is whether further bargaining or, in this instance, any
bargaining would have been futile, Alsey Refractories Co.,
215 NLRB 785 fn. 1 (1974); and an impasse is not
reached by Straley's refusal to confer with McDonald
and to give him Commercial's proposals. Expressed an-
other way, there is no impasse where neither party "ex-
hausted bargaining possibilities nor reached the stage
where further meetings would have been fruitless."
NLRB v. Waycross Machine Shop, 283 F.2d 733, 740 (5th
Cir. 1960); Television Artists AFTRA v. NLRB, 395 F.2d
622, 628 (D.C. Cir. 1968); Taft Broadcasting Co., supra at
478. Even if Straley were to be believed, his unilateral
actions had no justification. He could have given the
Union some prior notification of what he intended to do
if faced with the Union's continuing refusal to negotiate.
Straley did not do so. The unilateral changes violate Sec-
tion 8(a)(5) and (1) of the Act.
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have previously found that Commercial never bar-
gained with the Union concerning the effects of the clo-
sure of its business on July 16, 1982. Board law requires
such bargaining, and I find a violation of Section 8(a)(5)
and (I) of the Act. In addition, on August 11, the Union
requested certain information to be supplied to it which
related to its contention that Straley, instead of closing
Commercial's business, continued or diverted its business
to other alleged alter ego enterprises controlled and
dominated by Commercial. "There can be no question of
the general obligation of an employer to provide infor-
mation that is needed by the bargaining representative
for the proper performance of its duties." NLRB v. Acme
Industrial Co., 385 U.S. 432, 435-436 (1967).
In particular, I find the following requests for informa-
tion were entirely appropriate and relevant, and it was a
violation of Section 8(a)(5) and (1) for Respondent to
refuse to provide: (1) whether or not Commercial was
engaged in its prior business; (2) whether Commercial
still had any equipment left with which it performed bar-
gaining unit work and, if so, what equipment; (3) wheth-
er Commercial sold, transferred, leased, or removed any
of its equipment to any other company or entity and, if
so, what equipment was involved and what method of
transportation was used and to whom the equipment was
transferred; (4) whether the affairs of Commercial have
been terminated and whether its assets have been distrib-
uted; (5) whether Commercial's business or customers
have been transferred to Conjo Leasing, M-Bar Corp.,
Commercial Cartage Line Haul Division, and/or Inter-
City Ltd. and, if so, what customers or businesses are in-
volved; (6) whether Conjo Leasing, M-Bar Corp., Com-
mercial Cartage Line Haul Division, and/or Inter-City
Ltd. are performing any of the work or providing any of
the services previously engaged in by Commercial's bar-
gaining unit employees and, if so, what work and/or
services are involved; (7) whether Straley has any rela-
tionship with Conjo Leasing and, if so, what type of re-
lationship is involved; (8) whether Connie Springer has
any relationship with Conjo Leasing and, if so, what re-
lationship is involved; and (9) what relationship does
Commercial have with Conjo Leasing, M-Bar Corp.,
Commercial Cartage Line Haul Division, and/or Inter-
City Ltd.
Furthermore, the Union was entitled to obtain all
records indicating any interest or relationship between
Commercial and Conjo Leasing, M-Bar Corp, Commer-
cial Cartage Line Haul Division, and/or Inter-City Ltd.
The Union sought this information to ensure that the ex-
isting terms and conditions of employment were being
maintained and to protect the interests of its bargaining
unit employees. NLRB v. Acme Industrial Co., supra;
Leonard B. Hebert, Jr., & Co., 259 NLRB 881 (1981),
enfd. 696 F.2d 1120 (5th Cir. 1983).
The above information becomes particularly important
and vital because of the fact that Straley has been named
a respondent in this proceeding. The consolidated com-
plaint alleges that Commercial and Straley were individ-
ual and joint employers, and at the hearing counsel for
the General Counsel moved to amend the complaint to
allege additionally that Commercial and Straley were
alter egos. By inadvertence, the record does not reflect
that I granted that motion; and, in the event that my
own recollections are in error, I do so now. 7 The issue
was fully litigated, and Straley has not been prejudiced
thereby. However, I conclude that Straley is neither a
joint employer with Commercial nor its alter ego and
should not be bound by the order which I shall recom-
mend herein.
There is no doubt that Straley is the sole officer,
stockholder, and owner of Commercial and that he alone
is responsible for the development of Commercial's labor
policy and for negotiations with the Union. It was he
who made the decision to reduce the wages of the union
employees; it was he who circumvented the collective-
bargaining process in order to implement the lower pay
scale; and it was he who made the decision to close
Commercial, as he had a right to do. First National Corp.
v. NLRB, supra.
On the other hand, Straley did not close Commercial
for "invalid reasons," nor is there any proof that Com-
mercial closed in order to avoid and evade its obligations
under the National Labor Relations Act. Additionally,
there is no evidence that Straley engaged in either illegal
or improper conduct with regard to his decision to close
Commercial. It may be that when the Union obtains the
information and records it requested in August it may be
able to make a case against Straley, individually, but
there is no relationship demonstrated at this time which
shows that the closing of Commercial was anything but
bona fide.
In Riley Aeronautics Corp., 178 NLRB 495, 501 (1969),
the Board adopted the statement of Trial Examiner
Samuel M. Singer, who wrote:
[T]he corporate veil will be pierced whenever it is
employed to perpetuate fraud, evade existing obliga-
tions, or circumvent a statute.... Thus, in the field
of labor relations, the courts and Board have looked
beyond organizational form where an individual or
corporate employer was no more than an alter ego
or a "disguised continuance of the old employer"
. . . or was in active concert or participation in a
scheme or plan of evasion . . . or siphoned off
assets for the purpose of rendering insolvent and
frustrating a monetary obligation such as backpay
. . .or so integrated or intermingled his assets and
affairs that "no distinct corporate lines are main-
tained."
See also Chef Nathan Sez Eat Here, Inc., 201 NLRB 343
(1973), enfd. 434 F.2d 126 (3d Cir. 1970); Metropolitan
Bureau of Investigation, 246 NLRB 544 (1979); Master
Food Services, 262 NLRB 804, 812 (1982); Campo Slacks,
Inc., 266 NLRB 492 fn. 1 (1983).
This quotation was cited with approval in Concrete
Mfg. Co., 262 NLRB 727 (1982), in support of a finding
of personal liability where two representatives, knowing
that their corporation owed backpay to certain discrimin-
atees under a Board decision, converted corporate assets
to their own use. See also Carpet City Mechanical Co.,
7 Respondent's counsel was aware that I had granted the motion to
amend.
1040
COMMERCIAL CARTAGE CORP.
244 NLRB 1031 (1979), where the sole owner and stock-
holder had knowledge of pending unfair labor practices,
yet filed dissolution papers disclaiming the existence of
any pending lawsuits. Similarly, personal liability has
been imposed where the owner and chief operating offi-
cer of one employer closes it and commences doing busi-
ness in the name of a new entity to avoid the effects of
the Act or of labor contracts. Ski Craft Sales Corp., 237
NLRB 122 (1978); G & M Lath & Plaster Co., 252
NLRB 969 (1980), enfd. 670 F.2d 550 (5th Cir. 1982); D
& I Trucking, 237 NLRB 55 (1978).
The General Counsel cites Ogle Protection Service, 149
NLRB 545, 546 fn. 1 (1964), enfd. in relevant part 375
F.2d 497 (6th Cir. 1967),8 to support his position that
Straley, being the sole officer and owner and the sole
person who made the decision to close Commercial,
must be held to be the alter ego of Commercial. In Ogle,
the Board made no finding of fraud or deceit or dis-
guised continuance or integration of assets, elements
which I conclude are almost always part and parcel of
an alter ego relationship. G & C Construction Corp., JD-
517-82. However, in Ogle, the Board specifically noted
that no exceptions had been filed to the trial examiner's
finding of an alter ego relationship. Furthermore, in Ogle,
both the Board and the trial examiner cited as sole au-
thority for their conclusions two Board decisions (Indus-
trial Fabricating, Inc., 119 NLRB 162 (1957); National
Garment Co., 69 NLRB 1208 (1946), enfd. 166 F.2d 233
(8th Cir. 1948), cert. denied 334 U.S. 845 (1948)), in
which the individuals found personally liable had estab-
lished businesses to divert work or siphon assets from en-
tities bound by collective-bargaining agreements.
In light of the latter authorities cited above, I conclude
that Ogle must be read to conform to the Riley test. If
this were not the case, personal liability could be as-
cribed to any corporate officers or stockholders who
made the legitimate decision to close their business and
would defeat one of the principal purposes of creating
corporations-to shield stockholders from the debts and
obligations of the corporation. NLRB v. Deena Artware,
361 U.S. 398, 402-403 (1960). That a closed corporation
loses money, has insufficient assets to pay its obligations,
and ceases to operate is insufficient to impose personal li-
ability. I will dismiss the complaint insofar as it alleges
that Straley violated the Act.
By virtue of the foregoing, I conclude that Commer-
cial violated Section 8(a)(5) and (1) of the Act. Commer-
cial's activities set forth herein, occurring in connection
with its operations described herein, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
THE REMEDY
Having found that Commercial has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend
that it cease and desist therefrom. I shall also recommend
that Commercial rescind its reduction of wages and va-
^ See also Certified Building Promducts, 208 NLRB 515 (1974).
cation and sick leave benefits and rescind its action
whereby it refused to deduct dues from the wages of its
employees. Furthermore, I will recommend that Com-
mercial be ordered to make whole all of its employees
for any loss of pay or benefits which they may have suf-
fered as a result of Commercial's unilateral actions by
payment to them of the amounts of the reduction in
wages from May 17 to July 16, 1982, with interest there-
on to be computed in the manner prescribed in Florida
Steel Corp., 231 NLRB 651 (1977).9 Furthermore, I shall
require Commercial to produce the information and doc-
uments listed supra.
Having found that Commercial failed to afford the
Union an opportunity to bargain about the effects of its
closing on bargaining unit employees in violation of Sec-
tion 8(a)(5) and (1) of the Act, I shall order the relief au-
thorized by Merryweather Optical Co., 240 NLRB 1213
(1979), as follows: I shall order Commercial to bargain
with the Union, upon request, about the effects on bar-
gaining unit employees of the closing of Commericial's
operations and to pay its employees amounts at the rates
of their normal wages (not reduced) when last in Com-
mercial's employment from 5 days after the date of this
Decison until the occurrence of the earliest of the fol-
lowing conditions: (1) the date Commercial bargains to
agreement with the Union on those subjects pertaining to
the effects of the closing on bargaining unit employees;
(2) a bona fide impasse in bargaining; (3) the failure of
the Union to request bargaining within 5 days of this De-
cision and Order, or to commence negotiations within 5
days of Commercial's notice of its desire to bargair..with
the Union; or (4) the subsequent failure of the Union to
bargain in good faith. In no event shall the sum paid to
any of these employees exceed the amount the employee
would have earned as wages from July 16, 1982, the last
date on which Commercial conducted its business, to the
time he secured equivalent employment elsewhere; pro-
vided, however, that in no event shall the sum be less
than these employees would have earned for a 2-week
period at the rate of their normal wages (not reduced)
when last in Commercial's employ. Interest on all such
sums shall be paid in the manner prescribed above.
Finally, Commercial's unilateral change of its contract,
bypassing of the Union, direct dealing with its employ-
ees, including threatening them with loss of their jobs
and closure of Commercial's business, and refusal to bar-
gain in good faith with the Union are all serious viola-
tions indicating Commercial's utter disregard for the Act.
I shall, therefore, recommend a broad injunctive order.
Hickmott Foods, 242 NLRB 1357 (1979).
On the foregoing findings of fact, conclusions of law,
and on the entire record, including my observation of
the witnesses as they testified, and on my consideration
of the briefs filed by General Counsel and Respondents,
I issue the following recommended
9 See generally Isis Plumbing Cao., 138 NLRB 716 (1962).
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER'
The Respondent, Commercial Cartage Corporation,
Taylor, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Local 299,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, with respect to
wages, hours, and other terms and conditions of employ-
ment for the following unit which is appropriate for col-
lective bargaining:
All full-time and regular part-time truck drivers,
helpers, dockmen, warehousemen, checkers, power-
lift operators, hostlers, and such other employees as
may be presently or hereafter represented by the
Union, engaged in local pick-up delivery, and as-
sembling of freight within the area located within
the jurisdiction of the Local Union, not to exceed a
radius of twenty-five (25) miles; but excluding all
clerical employees, guards and supervisors as de-
fined in the Act.
(b) Refusing to bargain collectively with the Union
with respect to the effects upon its employees of its deci-
sion to close its operation.
(c) Failing and refusing to bargain collectively with
the Union by refusing to furnish it with information that
it requests which is relevant and reasonably necessary to
the Union's performance of its duties on behalf of Re-
spondent's employees in the administration of its collec-
tive-bargaining agreement.
(d) Failing and refusing to deduct dues from its em-
ployees' wages as required by the collective-bargaining
agreement between it and the Union, and to remit same
to the Union.
(e) Threatening that its facility will close if its employ-
ees did not accept a wage reduction.
(f) Threatening its employees that they would be con-
sidered voluntary quits if they did not accept a wage re-
duction.
(g) Bargaining directly with its employees in the col-
lective-bargaining unit described above and bypassing
the Union, the designated exclusive collective-bargaining
representative of its employees.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Rescind its unilateral changes of wages, hours, and
other terms and conditions of employment-to wit, re-
scind its reduction of the wages of its employees and its
reduction of their vacation and sick pay benefits.
(b) Comply with the terms and conditions of its collec-
tive-bargaining agreement with the Union.
1' If no exceptions are filed as provided in 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.
(c) Make whole its employees by paying them the re-
mainder of their wages which it illegally reduced on
May 17, 1982, with interest in the manner set forth in the
section of this Decision entitled "The Remedy."
(d) Make whole its employees by paying those em-
ployees who were laid off on July 18, 1982, 2 days after
Commercial terminated its operations, normal wages plus
interest for the period and in the manner set forth in the
section of this Decision entitled "The Remedy."
(e) Upon request, bargain collectively with the Union
with respect to the effects on its employees of its deci-
sion to terminate its operations and reduce to writing any
agreement reached as a result of such bargaining.
(f) Provide to the Union the following information: (1)
whether or not Commercial was engaged in its prior
business; (2) whether Commercial still had any equip-
ment left with which it performed bargaining unit work
and, if so, what equipment; (3) whether Commercial
sold, transferred, leased, or removed any of its equipment
to any other company or entity and, if so, what equip-
ment was involved and what method of transportation
was used and to whom the equipment was transferred;
(4) whether the affairs of Commercial have been termi-
nated and whether its assets have been distributed; (5)
whether Commercial's business or customers have been
transferred to Conjo Leasing, M-Bar Corp., Commercial
Cartage Line Haul Division, and/or Inter-City Ltd. and,
if so, what customers or businesses are involved; (6)
whether Conjo Leasing, M-Bar Corp., Commercial Cart-
age Line Haul Division, and/or Inter-City Ltd. are per-
forming any of the work or providing any of the services
previously engaged in by Commercial's bargaining unit
employees and, if so, what work and/or services are in-
volved; (7) whether Eugene B. Straley has any relation-
ship with Conjo Leasing and, if so, what type of rela-
tionship is involved; (8) whether Connie Springer has
any relationship with Conjo Leasing and, if so, what re-
lationship is involved; and (9) what relationship does
Commercial have with Conjo Leasing, M-Bar Corp.,
Commercial Cartage Line Haul Division, and/or Inter-
City Ltd.
(g) Provide to the Union all records indicating any in-
terest or relationship between Commercial and Conjo
Leasing, M-Bar Corp., Commercial Cartage Line Haul
Division, and/or Inter-City Ltd.
(h) 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.
(i) Mail an exact copy of the attached notice marked
"Appendix"'I to the Union and to all employees who
were employed at its former place of business at 23845
Elcourse Road, Taylor, Michigan, on July 16, 1982, at
their last known addresses. Copies of said notices, on
I 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 National
Labor Relations Board."
1042
COMMERCIAL CARTAGE CORP.
forms provided by the Regional Director for Region 7,
after being duly signed by Commercial's authorized rep-
resentative, shall be mailed immediately upon receipt
thereof, as hereinabove directed.
(j) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint against
Eugene B. Straley be dismissed in its entirety.
IT IS ALSO FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
1043
-