DIAMOND TRUCKING, INC.

National Labor Relations Board - Board Decisions

Apr 25, 2017

365 NLRB No. 64 (N.L.R.B. 2017)

365 NLRB No. 64
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Diamond Trucking, Inc. and Teamsters Joint Council
No. 69 a/w International Brotherhood of Team-
sters. Case 25–CA–144424
April 25, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On November 24, 2015, Administrative Law Judge
Susan A. Flynn issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed a response.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to provide
information requested by Teamsters Joint Council No. 69
(the Union) during a strike. The judge found that the
Union had not established the relevance of the requested
information, which concerned asserted alter-ego relation-
ships of the Respondent and whether certain third-party
entities owned the Respondent’s trucks. For the reasons
stated below, we find, contrary to the judge and our dis-
senting colleague, that the General Counsel met his bur-
den of showing the relevance of the requested infor-
mation: (1) the Union had an objective, factual basis for
believing that an alter-ego relationship existed among the
Respondent and other entities, and (2) the requested in-
formation would have assisted the Union in determining
appropriate locations for picketing the Respondent’s
trucks during the strike. The Union was therefore enti-
tled to the requested information.
I.
The Respondent hauls stone and asphalt for highway
construction projects with its fleet of 50 trucks. It em-
ploys approximately 50 drivers, who are represented by
the Union. The Respondent is wholly owned by Teresa
Pendleton, who is also the sole board member. Pend-
leton’s brother, Mike Bowyer, operates Kokomo Gravel,
a nonunionized trucking company that performs trucking
operations similar to those of the Respondent. Bowyer
also acted as an agent of the Respondent during its con-
tract negotiations with the Union. The Respondent occa-
sionally subcontracted work it could not perform on its
own to Kokomo Gravel. The Respondent and Kokomo
Gravel maintained their primary offices in the same
building in Peru, Indiana, at which location the Respond-
ent kept most of its trucks.
In August 2014, the Union commenced a strike against
the Respondent amidst unsuccessful negotiations for a
successor collective-bargaining agreement, and began
picketing at the Respondent’s Peru location. In response,
the Respondent advised the Union that it had vacated its
Peru office and moved its trucks to an unspecified loca-
tion in Kokomo, Indiana. The Respondent asserted that
because it was no longer located at the Peru facility, any
continued picketing there would constitute unlawful sec-
ondary conduct. After the Union ascertained the location
of the trucks in Kokomo, it began picketing at their Ko-
komo location. When the Union subsequently observed
that the Respondent had returned approximately 44 of its
trucks to the Peru facility it notified the Respondent that
the Union would resume picketing there. In response,
the Respondent acknowledged that the trucks had been
returned to that location but stated that it did not own the
trucks, and that the signage was removed so that the
trucks could be leased or sold; the Respondent reiterated
that picketing at Peru would be unlawful.1
The Union thereafter requested that the Respondent
furnish it with information in response to eight questions
regarding the ownership of the Respondent, the owner-
ship of the Respondent’s trucks, and the locations where
the Respondent had conducted work in the previous ap-
proximately 11 months.2 The Respondent furnished the

1 The six remaining trucks were moved by the Respondent to space
it leased at Grissom Air Force Base, located between Peru and Koko-
mo. The Union picketed at that location without protest by the Re-
spondent.
2 The request stated that its purpose was to “determine the scope of
the Company’s business operations and its various locations.” It asked
for the following information:
1. Identify the owners of Diamond Trucking including any indi-
vidual or entity which has a minority ownership share from Jan-
uary 1, 2014 to present.
2. Identify the entity/individual which owns the trucks which have
been used by Diamond Trucking, Inc. in its operations from
January 1, 2014 to present.
3. For the trucks referenced in Request No. 2, provide the follow-
ing information for each truck:
a. Model and year of each truck
b. Owner of each truck
c. Vehicle identification number of each truck
d. Indiana license plate number for each truck.
4. For the trucks referenced in Request No. 2, provide the follow-
ing information for each truck:
a. The entity/individual in whose name the trucks are reg-
istered with the Indiana Bureau of Motor Vehicles from
January 1, 2014, to present
b. The entity/individual who purchased and/or obtained li-
cense plates used for the trucks from January 1, 2014 to
present.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union only with information responding to the eighth
question, concerning the location(s) where it conducted
business, and disputed the relevance of the other re-
quests. The Respondent further asserted that it had re-
turned the 44 trucks—which remained parked at the Peru
headquarters of the Respondent and Kokomo Gravel—to
the lessor of the trucks, whom the Respondent did not
identify.3 In response, the Union clarified its request by
stating that it sought to “confirm the accuracy” of the
Respondent’s “representations” concerning the owner-
ship of the trucks, and that it believed an alter-ego rela-
tionship existed between the Respondent and a “group of
entities under common control.” The Respondent re-
fused to furnish the remaining information.
II.
An employer has an obligation to furnish a union, on
request, with information that is relevant and necessary
to performing its role as the exclusive bargaining repre-
sentative of unit employees. Detroit Edison Co. v. NLRB,
440 U.S. 301, 303 (1979); NLRB v. Acme Industrial Co.,
385 U.S. 432, 435–436 (1967). Information related to
terms and conditions of employment of bargaining unit
employees is presumptively relevant. See Southern Cali-
fornia Gas Co., 344 NLRB 231, 235 (2005). When the
requested information does not involve the bargaining
unit, the Union bears the burden of establishing the rele-
vancy of the information. However, “[t]his burden is not
an exceptionally heavy one.” See Trim Corp. of America,
349 NLRB 608, 613 (2007). “[W]here . . . a union re-
quests information pertaining to a suspected alter-ego
relationship, it must establish the relevance of the re-
quested information and have an objective, factual basis
for believing that the relationship exists.” Piggly Wiggly
Midwest, 357 NLRB 2344, 2344 (2012). An alter-ego
relationship can be established if there are “substantially
identical ownership, business purpose, operations, man-
agement, supervision, premises, equipment, and custom-

5. Provide a copy of all contracts, memoranda of understanding,
purchase agreements or other documents which reflect the leas-
ing of trucks by Diamond Trucking, Inc.
6. Provide the names, business addresses and business phone num-
bers of all Diamond Trucking’s directors, stockholders, owners,
corporate officers and management personnel.
7. Provide the names, business addresses and phone numbers of all
directors, stockholders, owners, corporate officers and manage-
ment personnel of any individuals/entities which have leased
vehicles to Diamond Trucking, Inc. from January 1, 2014 to pre-
sent.
8. Identify each location (street address, city and state) where Dia-
mond Trucking has conducted business and/or where the trucks
used in its operations were and/or dispatched from January 1,
2014 to present.
3 At the hearing, the Respondent identified the lessor as “DT Truck-
ing.”
ers.” Island Architectural Woodwork, Inc., 364 NLRB
No. 73, slip op. at 4 (2016); Crawford Door Sales Co.,
226 NLRB 1144, 1144 (1976). Not all factors are re-
quired to be present. See Fugazy Continental Corp., 265
NLRB 1301, 1301 (1982). The facts establishing such a
belief that an alter-ego relationship exists need not be
communicated to the employer at the time of the request;
it is sufficient that the “‘General Counsel demonstrate at
the hearing that the union had, at the relevant time, a
reasonable belief.’” Piggly Wiggly Midwest, above, at
2344 (quoting Cannelton Industries, 339 NLRB 996, 997
(2003)). The “reasonable belief” standard does not re-
quire the union to show “that the requested information
would [have] established the existence of an alter ego
operation.” Trim Corp. of America, above at 613 (citing
Pence Construction Corp., 281 NLRB 322, 324–325
(1986); Bentley-Jost Electric Corp., 283 NLRB 564,
567–568 (1987); Reiss Viking, 312 NLRB 622, 625–626
(1993)). Moreover, “[t]he Board uses a broad, discovery-
type standard in determining relevance in information
requests, including those for which a special demonstra-
tion of relevance is needed, and potential or probable
relevance is sufficient to give rise to an employer’s obli-
gation to provide information.” Shoppers Food Ware-
house, 315 NLRB 258, 259 (1994)). We find that the
General Counsel has shown the relevance of the infor-
mation requested.
We find that the General Counsel established that the
Union had a reasonable, objective basis for believing that
an alter-ego relationship existed between the Respond-
ent, Diamond Trucking, and a third party or parties, Ko-
komo Gravel or the alleged owner of the trucks, the sug-
gestively named DT Trucking. Diamond Trucking and
Kokomo Gravel shared similar business purposes of
hauling stone. As in Cannelton Industries, above, Dia-
mond Trucking and Kokomo Gravel shared a common
address. The Respondent conceded that the owner of
Kokomo Gravel, Bowyer,—who is the brother of the
Respondent’s owner—acted as an agent of the Respond-
ent during its contract negotiations with the Union,
which immediately preceded the strike.4 Further, the

4 Our dissenting colleague acknowledges that “Bowyer has partici-
pated in contract negotiations with the Union and advised” Diamond
Trucking, but argues that this “does not constitute evidence that Bow-
yer was part owner of, or played any managerial or supervisory role in,
Diamond Trucking.” This overlooks the key role of Kokomo’s owner
Bowyer as an admitted agent of the Respondent in those negotiations.
Plainly, by playing a key role in those negotiations, Bowyer was in-
volved in the supervision or management of the Respondent’s labor
relations. Furthermore, Bowyer’s role in the Respondent’s affairs was
one of the facts underlying the Union’s reasonable belief that Kokomo
Gravel had an alter-ego relationship to the Respondent. Bowyer’s lack
of an official managerial or supervisory role at the Respondent does not
lessen the significance of that fact.
DIAMOND TRUCKING, INC. 3
Union had reason to believe that the Respondent, Koko-
mo Gravel, and/or DT Trucking shared the use and own-
ership of the Respondent’s critical equipment: its fleet of
trucks.5 When the Respondent assertedly returned its
trucks to the lessor—DT Trucking—it returned the
trucks to the common place of business of the Respond-
ent and Kokomo Gravel in Peru. Although there were
several other businesses located at that address, only Di-
amond Trucking and Kokomo Gravel used the type of
trucks at issue here. Moreover, the record does not show
and the Respondent does not identify any independent
truck leasing company, named DT Trucking or other-
wise, housed at that address. The Union was thus faced
with the Respondent’s assertion that it did not own the
trucks while the trucks nevertheless remained parked at
what, up until the start of the strike at least, was the Re-
spondent’s (and Kokomo Gravel’s) headquarters. These
circumstances validated the Union’s stated aim of con-
firming the accuracy of the Respondent’s representations
concerning the ownership of the trucks,6 and gave rise to
a reasonable belief by the Union that the Respondent and

5 Our dissenting colleague quotes heavily from the testimony of the
Union’s vice president, Jim Wilkinson, that he never saw the Respond-
ent’s trucks used on former Diamond Trucking jobs once the strike
began. As discussed infra, even if that testimony may be relevant to
our colleague’s more narrow disguised-continuance theory of this case,
it is not relevant to the Board’s established, broader alter-ego test, upon
which we rely. As indicated, the Board’s alter-ego test asks whether
two ostensibly independent businesses may be treated as one in a par-
ticular case because they share “substantially identical ownership,
business purpose, operations, management, supervision, premises,
equipment, and customers.” Island Architectural Woodwork, Inc.,
above, slip op. at 4; Crawford Door Sales Co., above at 1144. Whether
Wilkinson ever saw the Respondent’s trucks used on former Diamond
Trucking jobs has little relevance to those factors. But Wilkinson actu-
ally did give testimony that bears on those factors: specifically, whether
the Respondent and Kokomo were sharing equipment. Thus, Wil-
kinson testified that at least one of the Respondent’s trucks was operat-
ing for Kokomo Gravel during the strike:
Q. Now, during the period you were on the picket line did you ever
see any of the Diamond trucks in operation?
A. On U.S. 31 we seen (sic) - - it was an old Diamond truck with a
new name of the side of it.
Q. And what was the name on the side of it?
A. And it was Kokomo Sand and Gravel is what it said on the side.
Q. And when did you see that?
A. That was sometime during the strike in maybe October or some-
thing.
Q. How did you know it was an old truck?
A. It’s got a - - they have a number on the side of their trucks that’s
in a yellowish gold, and it was on that truck and matched all the other
Diamond truck numbers, the color.
(Tr. 64.)
The shared use of trucks was one of the facts that led to the reasona-
ble belief that an alter-ego relationship existed between the Respondent
and Kokomo Gravel.
6 Indeed, the Respondent in its response brief enigmatically states
that the Respondent returned the trucks “to the owner” and makes no
mention of DT Trucking.
a third party or parties, whether Kokomo Gravel or DT
Trucking, shared key equipment. In sum, considering
the ties between the owners of the Respondent and Ko-
komo Gravel, the status of Kokomo Gravel’s owner as
the Respondent’s agent for collective bargaining, the
similar business purposes and the shared address of the
Respondent and Kokomo Gravel, the likely shared use of
trucks, and the utter lack of evidence that DT Trucking—
the entity the Respondent asserted to be the trucks’ own-
er—actually existed, we find that the Union had an ob-
jective, factual basis for believing that an alter-ego rela-
tionship existed between the Respondent and Kokomo
Gravel and/or DT Trucking.7
We further find that the Union, in light of that reason-
able belief, established that the information was relevant
to determining appropriate picketing locations. A union
is entitled to engage in picketing at locations where an
employer or its related single employer or alter-ego enti-
ties conduct business. See, e.g., Mine Workers (Boich
Mining Co.), 301 NLRB 872, 873 (1991). The Union
sought to determine such lawful picketing sites here, and
crafted its information request for that purpose in light of
the Respondent’s asserted movement of its business loca-
tion and trucks. Through the parties’ communications,
the Union made that purpose manifestly clear to the Re-
spondent.8
Our dissenting colleague asserts that, for the requested
information to be relevant, the Union must have had a
reasonable belief that Kokomo Gravel was a “disguised
continuance” of Diamond Trucking. This mischaracter-
izes the Union’s information request and the argument
advanced by the General Counsel and the Union, neither
of whom argued that the trucks at issue were used by
Kokomo Gravel as a disguised continuance after the
strike began. Rather, as stated above, the trucks, with
one known exception, remained parked at the common
office location of the Respondent and Kokomo Gravel,

7 Contrary to the dissent’s implication, the Union is not required to
establish the actual existence of factors establishing an alter-ego rela-
tionship in order to meet its burden of showing the relevance of the
requested information.
8 The Union stated to the Respondent, when it sought the infor-
mation, that “Diamond Trucking is part of a group of entities under
common control,” and that the information was being sought to estab-
lish “possible alter ego/double breasted relationships” between Dia-
mond Trucking, Kokomo Gravel, or other “entities.” Other corre-
spondence between the parties shows that the Respondent was well
aware that the Union was seeking to verify the Respondent’s business
locations in order to determine lawful picketing locations. The Re-
spondent nevertheless asserts that the Union’s information request was
defective because it failed to disclose to the Respondent all underlying
facts supporting its request. But as stated above, it is sufficient that the
General Counsel demonstrate at the hearing that the Union had, at the
relevant time, a reasonable belief that an alter-ego relationship existed.
See Piggly Wiggly Midwest, above, at 2344–2345.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
even after the Respondent told the Union that the trucks
had been returned to alleged lessor DT Trucking. The
Union, in its request for information, characterized the
alleged relationship as a “group of entities under com-
mon control,” including multiple “alter ego/double
breasted relationships.9 The dissent’s attempt to limit the
scope of the inquiry to searching only for a disguised
continuance fails to reflect the Union’s concerns plainly
expressed to the Respondent.10
Accordingly, we find that the Respondent’s refusal to
provide the requested information violated Section
8(a)(5) and(1) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Diamond Trucking, Inc., Peru, Indiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Teamsters
Joint Council No. 69, affiliated with International Broth-
erhood of Teamsters, by failing and refusing to furnish it
with requested information that is relevant and necessary
to the Union’s performance of its functions as the collec-
tive-bargaining representative of the Respondent’s em-
ployees in the following appropriate unit:
The employees described in Article 1 of the most re-
cent Highway, Heavy, Railroad and Underground
Utility Contracting collective-bargaining agreement be-
tween Highway, Heavy and Utility Division - ICA, Inc.
and the Union which was effective from April 1, 2008
to May 31, 2014, and of which Respondent is signato-
ry.

9 As noted above, the dissent’s focus only on whether Kokomo
Gravel is a disguised continuance of the Respondent ignores other
situations in which an alter ego relationship may exist. “Absent a dis-
guised continuance,” an alter ego relationship may still be found when
the businesses “have ‘substantially identical’ ownership, business pur-
pose, management, supervision, customers, operation, and equipment.”
T.E. Elevator Corp., 268 NLRB 1461, 1461 (1984) (quoting Chippewa
Motor Freight, 261 NLRB 455, 458 (1982)). Unlawful motivation is
not necessary to establish an alter ego relationship. See e.g., Island
Architectural Woodwork, Inc., above, slip op. at 4.
10 Our dissenting colleague further argues that the Union and the
General Counsel failed to timely raise facts and argument, prior to the
exceptions to the judge’s decision, to support a belief that an alter-ego
relationship existed. The Union, however, expressly communicated to
the Respondent, when the information was sought, that “Diamond
Trucking is part of a group of entities under common control,” and that
the information was being sought to establish “possible alter
ego/double breasted relationships” between Diamond Trucking, Koko-
mo Gravel and/or other “entities.” The Union and the General Counsel
have continued to assert that justification for the information request
throughout the proceedings. All of the facts upon which we have relied
were established at the hearing.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union in a timely manner the infor-
mation requested by the Union in numbered items 1
through 7 in its letter dated November 20, 2014.
(b) Within 14 days after service by the Region, post at
its Peru, Indiana, facility copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms
provided by the Regional Director for Region 25, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately up-
on receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since November 20, 2014.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 25, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

11 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DIAMOND TRUCKING, INC. 5
CHAIRMAN MISCIMARRA, dissenting.
The sole issue in this case is whether the Respondent,
Diamond Trucking, violated Section 8(a)(5) of the Na-
tional Labor Relations Act (NLRA or Act) when it de-
clined to furnish information the Union requested after
the Respondent had ceased operations when its employ-
ees went out on strike. The information the Union asked
for did not concern employees the Union represents, and
it is undisputed that the information was not presump-
tively relevant to the Union’s representational duties.
Therefore, Diamond Trucking had no duty to furnish the
information unless the Union demonstrated its relevance.
As explained below, relevance was never demonstrated.
Very simply, the Union tendered the information re-
quest at issue here because it was looking for trucks to
picket. When the strike began, the Respondent ceased
operating, closed its office, and parked its trucks on a
rented lot away from its former office; and the Union
picketed the trucks at that lot. The Respondent leased its
trucks. As the strike dragged on, the Respondent decided
it made no sense to continue paying to lease trucks it was
not using. So the Respondent removed the “Diamond
Trucking” signs from the trucks, terminated the leases,
and returned the trucks to the company that owned them.
This created a picketing quandary for the Union. Its la-
bor dispute was with Diamond Trucking, not with the
company that owned the trucks. Therefore, after Dia-
mond Trucking relinquished the trucks to their owner,
picketing the trucks would have been unlawful secondary
activity—unless the entity that owned the trucks was an
alter ego of Diamond Trucking. That was the reason for
the information request: the Union wanted to find out
whether the Respondent, even though it had ceased oper-
ating when its employees went on strike, was continuing
to operate through an alter ego or disguised continu-
ance—because if it was, the Union could lawfully picket
that alter-ego entity.
These facts clarify the nature of the Union’s relevancy
burden. When a union requests information concerning a
suspected alter-ego relationship, it must show—or rather
the General Counsel, at the unfair labor practice hearing,
must show on the union’s behalf—that the union reason-
ably believed, based on objective facts, that an alter-ego
relationship existed.1 Here, this means the General

1 See, e.g., Cannelton Industries, 339 NLRB 996, 997 (2003). I dis-
agree with current Board law that permits the General Counsel to
demonstrate the relevance of requested information at the unfair labor
practice hearing, instead of requiring the union to demonstrate rele-
vance to the employer at the time of the request. I would apply Hertz
Corp. v. NLRB, 105 F.3d 868 (3d Cir. 1997), in which the court held
that an employer’s duty to furnish information that is not presumptively
relevant is conditioned on the union’s disclosure to the employer—at
the time it requests the information—of facts sufficient to demonstrate
Counsel had to show that the Union reasonably believed,
based on objective facts, that the entity that owned the
trucks was an alter ego of Diamond Trucking.
The administrative law judge dismissed the complaint,
concluding that the General Counsel had failed to make
the required demonstration of relevance. After carefully
reviewing the evidence, the judge found that the Union’s
alter-ego suspicions were “merely speculation, at best”
and that there was “not one iota of support for an alter-
ego theory” (emphasis added). Indeed, at the unfair labor
practice hearing and in his posthearing brief to the judge,
the General Counsel’s attorney did not even attempt to
establish a basis in objective fact for the Union’s suspi-
cions. It was not until he filed exceptions to the judge’s
decision that the General Counsel articulated any factual
basis whatsoever—and by then it was too late because
arguments raised for the first time on exceptions are un-
timely and thus waived.2 But even if this waiver were set
aside, it would make no difference to the conclusion I
would reach. The General Counsel’s relevancy showing
is too little as well as too late. It does not support a rea-
sonable, objective, fact-based belief that the Respondent
was continuing to operate through an alter ego. My col-
leagues attempt to bolster the meager facts cited by the
General Counsel, but in my view unsuccessfully. Ac-
cordingly, I respectfully dissent.
Facts
Before it ceased operating in 2014 after its drivers
went on strike, the Respondent hauled stone and asphalt
for highway construction projects in the State of Indiana.
Its drivers are represented by Teamsters Joint Council
No. 69 (the Union). The Respondent’s owner and presi-
dent is Teresa Pendleton. Pendleton’s brother, Mike
Bowyer, operates Kokomo Gravel, a nonunion company
that hauls stone and gravel for individuals. Diamond
Trucking and Kokomo Gravel have a common street
address—2653 South 400 West, Peru, Indiana—but they
maintained separate offices. Other businesses also share

relevance, unless the factual basis of the request is readily apparent
from the surrounding circumstances. See, e.g., Postal Service, 364
NLRB No. 27, slip op. at 1 fn. 3 (2016). As explained below, however,
the complaint in the instant case must be dismissed even under the
extant standard, since (i) at the unfair labor practice hearing, the Gen-
eral Counsel did not even attempt to demonstrate that the Union had an
objective, factual basis for believing that an alter-ego relationship exist-
ed between the Respondent and any other entity; and (ii) the facts cited
by the General Counsel—not to the judge, but for the first time in his
exceptions brief to the Board—fail to establish the required objective
basis.
2 See, e.g., Smoke House Restaurant, 347 NLRB 192, 195 (2006),
enfd. mem. sub nom. NLRB v. JLL Restaurant, Inc., 325 Fed. Appx.
577 (9th Cir. 2009); Yorkaire, Inc., 297 NLRB 401, 401 (1989), enfd.
922 F.2d 832 (3d Cir. 1990).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that address, including a recycling business and an exca-
vating company.
The Respondent operated approximately 50 trucks.
When it won a construction contract that required more
trucks than it could supply, the Respondent subcontract-
ed the overflow work to other unionized employers,
drawing from a list of 15 to 20 companies. When no
union subcontractor was available, the Respondent sub-
contracted work to Kokomo Gravel. Diamond Trucking
and Kokomo Gravel operated separate truck fleets, clear-
ly differentiated by distinctive signage, colors, and truck
identification numbers.
In 2014, the Respondent and the Union engaged in ne-
gotiations for a successor collective-bargaining agree-
ment.3 Pendleton had never engaged in collective bar-
gaining, and at her request, Bowyer participated in an
advisory capacity. The parties were unable to reach an
agreement. On August 20, the Respondent’s drivers
went on strike, and as stated above, the Respondent
ceased operating. The projects the Respondent had been
working on when the strike commenced were completed
by other unionized trucking companies. Jim Wilkinson,
the Union’s vice president, testified that (i) he knew Di-
amond Trucking’s trucks on sight from their identifying
numbers; (ii) after the strike commenced, he never saw a
Diamond Trucking truck doing work that Diamond
Trucking had previously performed; (iii) after the strike
commenced, he never saw a Kokomo Gravel truck doing
work that Diamond Trucking had previously performed;
and (iv) he had no reason to believe that after the strike
commenced, Diamond Trucking performed work through
Kokomo Gravel or any other company.4

3 All dates are 2014 unless otherwise indicated.
4 Wilkinson’s admissions were elicited under cross-examination by
the Respondent’s attorney, James Hanson. Here are the relevant ex-
changes:
Q. So you could always tell an old Diamond truck because it
had the same identifying truck number on it?
A. Yes.
. . . . . . . . . .
Q. And Diamond Trucking never operated again after you went
out on strike, correct?
A. I will say no, as far as I know.
. . . . . . . . . .
Q. And you had no evidence—you had no evidence that any
company—well, let me just make it specific. That Kokomo Gravel
was doing any of Diamond Trucking’s work that it had been doing
before the strike, correct?
A. No.
Q. No evidence of that, correct? I just want to make sure that
we’re clear on the record.
A. I don’t understand what you’re trying—what you’re trying to
say.
Q. You had no evidence that Kokomo Gravel, which had been
at the same location as Diamond Trucking, correct? They have two
different offices there at that 2653 South 400 West location, correct?
During the first week of the strike, the Respondent’s
idled trucks were parked at 2653 South 400 West, and
the Union picketed the Respondent’s trucks at that loca-
tion. Approximately 1 week later, the Respondent closed
its office at 2653 South 400 West and moved the trucks
to a rented parking lot on Grissom Air Force Base. Its
attorney, Hanson, notified the Union of these facts. The
Union ceased picketing at 2653 South 400 West and be-
gan picketing the Respondent’s trucks at the rented lot.
The Respondent leased 44 of its 50 trucks from anoth-
er company, identified in the record as DT Trucking. In
November, with the strike ongoing,5 the Respondent de-
cided it could not afford to continue leasing the trucks. It
removed the “Diamond Trucking” signs from the trucks,
returned the trucks to 2653 South 400 West, and handed
them over to DT Trucking.6
The Union informed Hanson that since the trucks had
been returned to 2653 South 400 West, it intended to
resume picketing at that location. Hanson replied that
the Respondent did not own those trucks and the “Dia-
mond Trucking” signs had been removed from them so
they could be sold or leased to someone else. The Union
then tendered the information request at issue here,
which for the most part sought information concerning
the entity that owned the trucks.7 Hanson provided in-

A. Yeah.
Q. And you have—you never saw Kokomo Gravel doing work
that Diamond Trucking had previously been doing, correct?
A. No.
. . . . . . . . . .
Q. The Diamond Trucking trucks that were being used on the
projects, the construction projects, the highway construction projects
before the strike began, you never saw any of those trucks being
used doing any type of work on those same projects after the strike,
correct?
A. No.
. . . . . . . . .
Q. And you had no reason to believe that Diamond Trucking
was doing the work that the strikers had previously been doing either
through Kokomo Gravel or any other company, correct?
A. Do what now?
Q. You had no reason to believe that Diamond Trucking was
doing an[y] of the work that the picketers—the people who were on
strike, your drivers—were doing any of the work with other compa-
nies or other people.
Mr. Williams [counsel for the GC]: Objection, Your Honor,
calls for a conclusion.
Mr. Hanson: I asked him if he had reason to believe.
Judge Flynn: Overruled. You can answer.
Oh, I reckon not.
(Tr. 65–71.)
5 As of the date of the hearing—August 25, 2015—the Respondent’s
drivers remained on strike, and the Respondent had not resumed opera-
tions.
6 The other six trucks were moved to another location on Grissom
Air Force Base.
7 The Union requested the following information:
DIAMOND TRUCKING, INC. 7
formation in response to one item of the request, but he
otherwise declined to furnish the requested information
on the basis that the Union had not established its rele-
vance. The Union answered that it had “reason to sus-
pect” that the Respondent was “part of a group of entities
under common control” and that “related third parties are
the owners of these trucks.” Hanson replied that if the
Union was requesting the information because it was
alleging the existence of an alter-ego relationship, the
Union had not demonstrated “a reasonable objective ba-
sis” for its suspicion that such a relationship existed.
Discussion
“The duty to bargain collectively, imposed upon an
employer by § 8(a)(5) of the National Labor Relations
Act, includes a duty to provide relevant information
needed by a labor union for the proper performance of its
duties as the employees’ bargaining representative.”
Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979).
Information concerning unit employees’ terms and con-
ditions of employment is presumptively relevant. See,
e.g., United Parcel Service of America, 362 NLRB No.
22, slip op. at 3 (2015). But when, as here, a union re-

1. Identify the owners of Diamond Trucking including any indi-
vidual or entity which has a minority ownership share from Jan-
uary 1, 2014 to present.
2. Identify the entity/individual which owns the trucks which have
been used by Diamond Trucking, Inc. in its operations from
January 1, 2014 to present.
3. For the trucks referenced in Request No. 2, provide the follow-
ing information for each truck:
a. Model and year of each truck
b. Owner of each truck
c. Vehicle identification number of each truck
d. Indiana license plate number for each truck.
4. For the trucks referenced in Request No. 2, provide the follow-
ing information for each truck:
a. The entity/individual in whose name the trucks are regis-
tered with the Indiana Bureau of Motor Vehicles from Jan-
uary 1, 2014, to present
b. The entity/individual who purchased and/or obtained li-
cense plates used for the trucks from January 1, 2014 to
present.
5. Provide a copy of all contracts, memoranda of understanding,
purchase agreements or other documents which reflect the leas-
ing of trucks by Diamond Trucking, Inc.
6. Provide the names, business addresses and business phone num-
bers of all Diamond Trucking’s directors, stockholders, owners,
corporate officers and management personnel.
7. Provide the names, business addresses and phone numbers of all
directors, stockholders, owners, corporate officers and manage-
ment personnel of any individuals/entities which have leased
vehicles to Diamond Trucking, Inc. from January 1, 2014 to pre-
sent.
8. Identify each location (street address, city and state) where Dia-
mond Trucking has conducted business and/or where the trucks
used in its operations were and/or dispatched from January 1,
2014 to present.
The Respondent furnished the information requested in Item #8.
quests information that is not presumptively relevant to
the union’s performance of its duties as bargaining repre-
sentative, the union bears the burden of demonstrating
relevance. See, e.g., Disneyland Park, 350 NLRB 1256,
1257 (2007). It is undisputed that the information the
Union requested in this case was not presumptively rele-
vant, and the Union had to demonstrate its relevance. It
is also undisputed that the Union wanted to determine
where it could lawfully picket in support of its strike
against the Respondent—and if the owner of the trucks
was the Respondent’s alter ego, the Union could lawfully
picket that entity.8 Thus, the Union asked for infor-
mation that it hoped might reveal an alter-ego relation-
ship. However, as the Union itself acknowledged, it
merely suspected that “related third parties are the own-
ers of these trucks”—and the law is clear that mere sus-
picion of an alter-ego relationship does not satisfy the
burden to demonstrate relevance. See Cannelton Indus-
tries, 339 NLRB 996, 997 (2003). Rather, the Union had
to have “an objective, factual basis for believing” that an
alter-ego relationship existed between the Respondent
and one or more allegedly related third parties. Id. Un-
der extant Board law, the Union was not obligated to
disclose those facts to the Respondent at the time it re-
quested the information. “Rather, it is sufficient that the
General Counsel demonstrate at the [unfair labor prac-
tice] hearing that the [U]nion had, at the relevant time, a
reasonable belief” that an alter-ego relationship existed.
Id.9
“To determine whether two employers are alter egos,
the Board considers several factors, including whether
they have substantially identical ownership, business
purpose, operations, management, supervision, premises,
equipment, and customers.” Island Architectural Wood-
work, Inc., 364 NLRB No. 73, slip op. at 4 (2016).
These factors are similar to those the Board applies in
deciding single-employer allegations; but in the alter-ego
context, the focus is on whether the suspected alter ego is
a disguised continuance of the respondent employer. See
Hotel & Restaurant Employees Local 274 (Warwick Ca-
terers), 282 NLRB 939, 943 (1987) (citing Carpenters
Local 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 507
(5th Cir. 1982)). Thus, in making an alter-ego determi-
nation, the Board also considers “whether the purpose
behind the creation of the suspected alter ego was to
evade another employer’s responsibilities under the Act.”
Island Architectural Woodwork, 364 NLRB No. 73, slip

8 Picketing of an alter ego of an employer with whom a union has a
labor dispute is lawful primary activity. Electrical Workers IBEW
Local 3 (Kidder Peabody), 270 NLRB 1025, 1029 (1984).
9 As stated above, I disagree with extant Board law in this respect.
See supra fn. 1.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
op. at 4 (citing Fugazy Continental Corp., 265 NLRB
1301, 1301–1302 (1982), enfd. per curiam 725 F.2d 1416
(D.C. Cir. 1984)). Summarizing, to establish that the
information at issue here was relevant to the Union’s
representational duties, the General Counsel had to
demonstrate that when the Union requested the infor-
mation, it reasonably believed, based on objective facts,
that Diamond Trucking and one or more other entities
met at least some of the factors relevant to alter-ego sta-
tus.10
For several reasons, the General Counsel failed to
make the required showing.
First, at the unfair labor practice hearing, the General
Counsel’s attorney did not even attempt to show that the
Union had a basis in objective fact for believing that an
alter-ego relationship existed between the Respondent
and any other entity. Under questioning by the General
Counsel’s attorney, Union Vice President Wilkinson
testified as to the reasons why the Union wanted each
item of information it requested—not as to any facts that
led him to believe an alter-ego relationship existed. The
judge summarized Wilkinson’s testimony in this regard
as follows:
[Wilkinson] said he wanted the information in Request
No. 1 to determine who actually owned Diamond
Trucking. Request No. 2 was to learn who owned the
trucks, because the Union had the right to picket the old
office [2653 South 400 West] if Diamond Trucking
still owned them. The same basis was given for Re-
quest No. 3, to determine ownership of each truck. Re-
quest No. 4 was intended to find out who the trucks
were registered to, which would also explain who
owned them. Request No. 5 would show whether they
were, in fact, leased. Request No. 6 was to learn where
Diamond Trucking was conducting its day-to-day
business. The Union sought this, since the lots at Gris-
som [Air Force Base] where the trucks were parked
had no offices, no telephones, no staff. Request No. 7
was to determine the identity of the purported lessor.
Request No. 8 was to determine where Diamond
Trucking was operating from, since they weren’t dis-
patching any trucks, and the old office was empty. Ul-
timately, [Wilkinson’s] stated reasons for the requests
are simply a restatement of the requests themselves.
Judge’s decision, infra, slip op. at XX (emphasis added).
Second, in his posthearing brief to the judge, the Gen-
eral Counsel’s attorney failed to cite any facts allegedly

10 I say “at least some” of the factors because “[n]o single factor is
determinative, and not all are necessary to establish alter ego status.”
T.E. Elevator Corp., 268 NLRB 1461, 1461 (1984).
furnishing an objective basis for believing that an alter-
ego relationship existed between the Respondent and any
other entity. Readers of the judge’s decision may ques-
tion why the judge did not mention any of the facts my
colleagues rely on to find that the relevancy of the re-
quested information was adequately established. The
reason is that the General Counsel did not cite any of
those facts in his posthearing brief to the judge. Instead,
like his principal witness Wilkinson, the General Coun-
sel’s attorney merely reiterated the reasons why the Un-
ion wanted the information—primarily, to determine
whether an alter-ego relationship existed. He wrote:
Item 1 is relevant and necessary for the Union to de-
termine whether an alter-ego relationship existed. Item
2 is also relevant and necessary for the Union to deter-
mine whether an alter-ego relationship existed. Item 3
is relevant and necessary for the Union to determine
and confirm appropriate picketing locations. Item 4 is
relevant and necessary for the Union to determine
whether an alter-ego relationship existed. Item 5 is rel-
evant and necessary for the Union to confirm that the
Respondent was leasing its trucks . . . . Item 6 is rele-
vant and necessary for the Union to determine whether
an alter-ego relationship existed. Item 7 is relevant and
necessary for the Union to determine whether an alter-
ego relationship existed. Item 8 is relevant and neces-
sary for the Union to determine and confirm appropri-
ate picketing locations.
Posthearing Brief of Counsel for the General Counsel, at 14.
The General Counsel recited the applicable legal stand-
ard, but his application of the standard was limited to the
vague and general statement that the Union had an objective
factual basis for its belief that a “possible” alter-ego rela-
tionship existed “based upon the Respondent’s assertions
about picketing locations and ownership and leasing of
trucks.” Id. at 15.
Third, in his exceptions brief to the Board, the General
Counsel’s attorney finally cited specific facts and argued
that they furnished an objective basis for the Union to
believe an alter-ego relationship existed. Setting aside
the merits of the General Counsel’s argument in this re-
gard, it is well established that “‘[a] contention raised for
the first time in exceptions to the Board is ordinarily un-
timely raised and, thus, deemed waived.’” EZ Park, Inc.,
360 NLRB 672, 672 fn. 1 (2014) (quoting Yorkaire, Inc.,
297 NLRB at 401); see also, e.g., Strategic Resources,
Inc., 364 NLRB No. 42, slip op. at 1 fn. 2 (2016); Smoke
House Restaurant, 347 NLRB at 195. Accordingly, the
General Counsel’s untimely contention should be disre-
garded.
DIAMOND TRUCKING, INC. 9
Fourth, even reaching the merits of the General Coun-
sel’s contention, the facts the General Counsel cites do
not support a reasonable belief that an alter-ego relation-
ship existed between Diamond Trucking and any other
entity. In his exceptions brief, the General Counsel cites
the following.
• Mike Bowyer is Teresa Pendleton’s brother.
• Bowyer has participated in contract negotiations
with the Union and advised Pendleton regarding
those negotiations.
• Bowyer is affiliated with Kokomo Gravel, a non-
union company that hauls stone and gravel, and
Kokomo Gravel has an office and place of busi-
ness at the same address as Diamond Trucking’s
office and place of business.
• Diamond Trucking has used Kokomo Gravel as a
subcontractor.
These facts do not support a reasonable belief that any
of the factors relevant to an alter-ego determination ex-
isted here.11 Again, those factors are whether two em-
ployers “have substantially identical ownership, business
purpose, operations, management, supervision, premises,
equipment, and customers.” Island Architectural Wood-
work, Inc., supra, slip op. at 4.
• There is no evidence that Bowyer is part owner of
Diamond Trucking or that Pendleton is part owner
of Kokomo Gravel. There is no evidence that
Bowyer has ever played a managerial or supervi-
sory role in Diamond Trucking or that Pendleton
has ever played a managerial or supervisory role
in Kokomo Gravel. The mere fact that two differ-
ent companies are owned by siblings is irrelevant
to an alter-ego determination.
• That Bowyer attended Diamond Trucking’s col-
lective-bargaining sessions with the Union to ad-
vise his sister is also irrelevant to alter-ego status.
It certainly does not constitute evidence that Bow-
yer was part owner of, or played any managerial
or supervisory role in, Diamond Trucking.12

11 Contrary to my colleagues’ assertion, I do not imply that the Un-
ion must “establish the actual existence of factors establishing an alter
ego relationship in order to meet its burden of showing the relevance of
the requested information.”
12 My colleagues attempt to parlay Bowyer’s attendance at collec-
tive-bargaining sessions in an advisory capacity to his sister into a
finding that Bowyer played a managerial or supervisory role in Dia-
mond Trucking, claiming that he “was involved in the supervision or
management of the Respondent’s labor relations.” This strained appli-
cation of the alter-ego standard stretches the terms supervisor and man-
ager far beyond their well-established limits. Thus, NLRA Sec. 2(11)
defines the term supervisor, in relevant part, as any individual who
possesses one of 12 enumerated types of authority over “other employ-
ees.” There is no evidence Bowyer supervised any Diamond Trucking
• Kokomo Gravel and Diamond Trucking do not
have substantially identical operations. Although
both companies haul stone, Diamond Trucking
hauls asphalt, and Kokomo Gravel does not.
• Kokomo Gravel and Diamond Trucking do not
have substantially identical customers. Diamond
Trucking delivers to highway construction pro-
jects, while Kokomo Gravel delivers to individu-
als.
• Kokomo Gravel and Diamond Trucking do not
share the same premises. Before Diamond Truck-
ing ceased operations, they shared the same street
address—2653 South 400 West—but they main-
tained separate offices (as the Union was well
aware), and other companies also shared the same
street address, including a recycling business and
an excavating company. Everyday experience
shows that multiple businesses routinely share the
same street address—occupying separate offic-
es—and nobody would reasonably believe that
such businesses are alter egos of one another
merely on that account.
• Finally, that one business subcontracts work to
another business does not evidence an alter-ego
relationship between the two entities. Moreover,
Diamond Trucking only subcontracted with Ko-
komo Gravel as a last resort when none of the 15
to 20 unionized companies with which it typically
subcontracted was available.
The facts the General Counsel cites do not support the
requisite reasonable belief.
My colleagues attempt to bolster the General Coun-
sel’s rationale, but their effort fails. They write:
[T]he Union had reason to believe that the Respondent,
Kokomo Gravel, and/or DT Trucking shared the use
and ownership of the Respondent’s critical equipment:
its fleet of trucks. When the Respondent assertedly re-
turned its trucks to the lessor – DT Trucking – it re-
turned the trucks to the common place of business of
the Respondent and Kokomo Gravel in Peru. Although
there were several other businesses located at that ad-
dress, only Diamond Trucking and Kokomo Gravel
used the type of trucks at issue here. Moreover, the
record does not show and the Respondent does not
identify any independent truck leasing company,

employees. “Managerial employees are defined as those who formulate
and effectuate management policies by expressing and making opera-
tive the decisions of their employer.” NLRB v. Yeshiva University, 444
U.S. 672, 682 (1980) (internal quotations omitted). There is no evi-
dence Bowyer formulated and effectuated management policies of
Diamond Trucking by expressing and making operative its decisions.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
named DT Trucking or otherwise, housed at that ad-
dress. The Union was thus faced with the Respond-
ent’s assertion that it did not own the trucks while the
trucks nevertheless remained parked at what, up until
the start of the strike at least, was the Respondent’s
(and Kokomo Gravel’s) headquarters. These circum-
stances validated the Union’s stated aim of confirming
the accuracy of the Respondent’s representations con-
cerning the ownership of the trucks, and gave rise to a
reasonable belief by the Union that the Respondent and
a third party or parties, whether Kokomo Gravel or DT
Trucking, shared key equipment.
The problem with this rationale is that it is contradicted by
record evidence. Contrary to my colleagues, the Union did
not have reason to believe that Diamond Trucking, Kokomo
Gravel and/or DT Trucking “shared key equipment” or
“shared the use” of Diamond’s truck fleet. We know this
because Wilkinson, the Union’s vice president, so testified.
Again, Wilkinson testified that (i) he knew Diamond’s
trucks on sight from their identifying numbers;13 (ii) after
the strike commenced, he never saw a Diamond Trucking
truck doing work that Diamond Trucking had previously
performed;14 (iii) after the strike commenced, he never saw
a Kokomo Gravel truck doing work that Diamond Trucking
had previously performed; and (iv) he had no reason to
believe that after the strike commenced, Diamond Trucking
performed work through Kokomo Gravel or any other com-
pany.
As for shared ownership of Diamond Trucking’s fleet,
even assuming the Union had reason to believe—more
like reason to suspect—overlapping ownership of Dia-
mond’s trucks, mere overlapping ownership without use
is not probative of alter-ego status. Again, another name
for an alter ego is a disguised continuance. When, as
here, a respondent employer has ceased operating, the
purpose of an alter-ego inquiry is to determine whether it
is actually continuing to operate, disguised as another
entity. However, Union Vice President Wilkinson testi-

13 In addition, Pendleton testified that Diamond’s trucks were black
and white and Kokomo Gravel’s trucks are red.
14 My colleagues rely on Wilkinson’s testimony that, on one occa-
sion in October, a truck formerly used by Diamond Trucking was seen
operating with the name “Kokomo Sand and Gravel” on its side. This
testimony does not support my colleagues’ position because, as Wil-
kinson’s testimony later makes clear, the truck was not performing any
work on projects that Diamond Trucking had previously worked on.
Once Diamond Trucking returned its trucks to the lessor, it stands to
reason that the lessor would lease or sell them to another entity. Fur-
ther, Wilkinson testified that the name on the truck was “Kokomo Sand
and Gravel.” My colleagues find that the testimony suggests an alter-
ego relationship between the Respondent and Kokomo Gravel, but
there is no indication in the record that Kokomo Gravel is the same as
or in any way associated with Kokomo Sand and Gravel.
fied that he had no reason to believe that Diamond
Trucking was continuing to operate through Kokomo
Gravel or any other company. That admission effective-
ly negates any possibility that the Union reasonably be-
lieved, based on objective facts, that Kokomo Gravel or
DT Trucking was Diamond Trucking’s alter ego. Ac-
cordingly, the record evidence fails to establish the rele-
vance of the requested information, and the Respondent
did not violate Section 8(a)(5) when it refused to furnish
that information.15
CONCLUSION
For the reasons set forth above, I would affirm the
judge’s dismissal of the complaint. Accordingly, I re-
spectfully dissent.
Dated, Washington, D.C. April 25, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

15 My colleagues draw a distinction between “alter ego” and “dis-
guised continuance.” Typically, these terms are treated as synonymous.
See, e.g., Apex Electric Services, 350 NLRB 40, 45 fn. 3 (2007) (Mem-
ber Liebman , dissenting in part) (“An alter ego is often described as a
‘disguised continuance of the old employer.’ Southport Petroleum Co.
v. NLRB, 315 U.S. 100, 106 (1942).”). But even granting the distinc-
tion, the Union still lacked the necessary reasonable belief. My col-
leagues cite T.E. Elevator Corp., supra, for the proposition that an alter-
ego relationship may still be found “[a]bsent a disguised continuance.”
But as the Board in T.E. Elevator Corp. further stated, an alter-ego
relationship may be found “[a]bsent a disguised continuance . . . only
where the two enterprises have substantially identical ownership, busi-
ness purpose, management, supervision, customers, operation, and
equipment.” 268 NLRB at 1461 (emphasis added; internal quotations
omitted). Here, at most, the Union merely suspected one of these fac-
tors—overlapping ownership of Diamond’s trucks—which is an insuf-
ficient basis for a reasonable belief that an alter-ego relationship exists
absent a disguised continuance.
DIAMOND TRUCKING, INC. 11
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with
Teamsters Joint Council No. 69, affiliated with the Inter-
national Brotherhood of Teamsters, by failing and refus-
ing to furnish it with requested information that is rele-
vant and necessary to the Union’s performance of its
functions as the collective-bargaining representative of
the Respondent’s employees in the following appropriate
unit:
The employees described in Article 1 of the most re-
cent Highway, Heavy, Railroad and Underground
Utility Contracting collective-bargaining agreement be-
tween Highway, Heavy and Utility Division - ICA, Inc.
and the Union which was effective from April 1, 2008
to May 31, 2014, and of which Respondent is signato-
ry.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union in numbered items 1
through 7 in its letter dated November 20, 2014.
DIAMOND TRUCKING, INC.
The Board’s decision can be found at
www.nlrb.gov/case/25–CA–144424 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Raifael Williams, Esq., for the General Counsel.
James H. Hanson and Alaina C. Hobbs, Esqs. (Scopelitis,
Garvin, Light, Hanson & Feary, P.C.), for the Respondent.
Geoffrey Lohman, Esq. (Fillenwarth, Dennerline, Groth &
Towe), for the Charging Party.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was
tried in Indianapolis, Indiana, on August 25, 2015. The Union
filed the charge on January 15, 2015, and the General Counsel
issued the complaint on May 29, 2015.
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act)
when it refused to furnish certain information requested by the
Union. The Respondent filed an answer, denying all material
allegations.
After the trial, the General Counsel and the Respondent filed
briefs, which I have read and considered. Based on the entire
record in this case, including my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent operated its business out of 2653 South 400
West, Peru, Indiana, at the relevant time period. In the 12
months before May 29, 2015, the Respondent purchased and
received at that facility goods valued in excess of $50,000 from
other enterprises located within the State of Indiana, each of
which had received these goods directly from points outside the
State of Indiana. Accordingly, I find, and Respondent admits,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Respondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
The Respondent, Diamond Trucking, Inc., hauls stone and
asphalt for highway construction projects for the State of Indi-
ana. (Tr. 12.) Teresa Pendleton is the owner and president of
the Company. (GC Exh. 1(c).) There are no other Board mem-
bers. (Tr. 11.) Pendleton and Ted Peters, field supervisor and
dispatcher, worked at the office at 2653 South 400 West, in
Peru, Indiana. The Company employed approximately 50
truckdrivers.
Pendleton’s brother is Mike Bowyer. He operates Kokomo
Gravel, a nonunionized trucking company that hauls stone and
gravel, and that has an office at the same location as Diamond
Trucking.1 (Tr. 24, 26.) Bowyer is not an officer of Diamond
Trucking, but he did participate in contract negotiations be-
tween Diamond Trucking and the Union, along with Pendleton,
Peters, and the Respondent’s attorney. (Tr. 17.) Pendleton had

1 Other companies are also located at that address, including a recy-
cling business and an excavating company. (Tr. 32.)
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
requested his presence to advise her, since she had never nego-
tiated a contract before. (Tr. 25–26.)
Diamond Trucking used Kokomo as a subcontractor on cer-
tain jobs in the past. Normally, in situations where Diamond
Trucking had insufficient trucks to fulfill a contract, it would
subcontract with a unionized company, and it had a list of 15–
20 such companies for that purpose. However, when none
were available, it did subcontract with Kokomo. (Tr. 34–35.)
The Respondent’s employees are unionized. The Respond-
ent is a signatory to the Highway, Heavy, Railroad and Under-
ground Utility Contracting Agreement between the Highway,
Heavy and Utility Division of the Indiana Contracting Associa-
tion, Inc., and the Union. The most recent collective-
bargaining agreement was effective April 1, 2008 through
March 31, 2014. (GC Exh. 2.) Danny Barton is the president
and James Wilkinson is the vice president of Union Local 69.
Negotiations for a new contract began in May 2014. The
parties were unsuccessful in reaching an agreement. The Re-
spondent presented its best and final offer to the Union. Mem-
bership voted it down and authorized a strike on August 20,
2014. Picketing at the Respondent’s office then began. The
parties resumed negotiations thereafter, and in September the
Respondent made another best and final offer. That offer was
likewise rejected by the Union in October so the strike contin-
ued.
The Respondent’s Actions after the Strike
Diamond Trucking kept most of its 50 trucks at the 2653
South 400 West location. Some were parked at other locations,
at plants where they were performing work, or drivers might
take the trucks home overnight. (Tr. 36.) The Union set up
picket lines at each of the business locations where the trucks
were parked, including the jobsites. (Tr. 63, 68–69, 77.) After
the strike started, all trucks were returned to the office location,
and the Respondent conducted no further business.2 On or
about August 25, within a week of the beginning of the strike,
the Respondent closed the office and moved the trucks to
leased space on Grissom Air Force Base, in a fenced-in lot
owned by the County located on Hoosier Boulevard. On Au-
gust 25, the Respondent’s attorney notified Wilkinson by email
that the Peru office had been closed and the trucks moved to
Kokomo.3 (GC Exh. 3.) He further stated that, for those rea-
sons, picketing was no longer permitted at that location as it
would be unlawful secondary picketing. The Union then pick-
eted in front of the Hoosier Boulevard lot.
In November, the Respondent determined it could no longer
afford to rent that lot or keep the trucks. The Diamond Truck-
ing Company signage was removed from the doors of 44 of
those trucks. Those trucks were then returned to 2653 South
400 West and turned back over to the leasing company, DT
Trucking. (Tr. 38, 39.) The other six trucks were moved to
another lot on Grissom, at 1801 Thunderbolt Avenue; a week
later, those six trucks were moved approximately 50 feet, to
1701 Thunderbolt. The Union picketed each of these locations,
when the trucks were parked there.

2 The strike is ongoing, as the parties have not engaged in any fur-
ther negotiations since September 2014.
3 He did not indicate the specific location or street address.
On November 7, the union attorney sent Respondent’s attor-
ney an email stating that they had noticed that some of the
trucks were returned to the Peru office, and since the Respond-
ent had returned to its old office, the Union intended to resume
picketing that location. (GC Exh. 4.)
The Respondent’s attorney replied on November 10, ac-
knowledging that some trucks had been returned to that loca-
tion. He stated that the Respondent does not own those trucks,
that the signage had been removed so the trucks could be leased
to someone else or sold, and that the Respondent had not used
the trucks in 2 months. He reiterated that picketing was there-
fore not permitted at that location. (GC Exh. 5.)
Union President Barton wrote Pendleton on November 13,
requesting the Respondent’s new business address. (GC Exh.
6.)
The Respondent’s attorney responded on November 20. He
stated that trucks were parked at 1701 Thunderbolt Avenue in
Peru. (R. Exh. 1)
Union Request for Information
That same day, Union Vice President Wilkinson wrote Pend-
leton, requesting further information, in order to “determine the
scope of the Company’s business operations and its various
locations.”
1. Identify the owners of Diamond Trucking including
any individual or entity which has a minority owner-
ship share from January 1, 2014 to present.
2. Identify the entity/individual which owns the trucks
which have been used by Diamond Trucking, Inc. in
its operations from January 1, 2014 to present.
3. For the trucks referenced in Request No. 2, provide
the following information for each truck:
a. Model and year of each truck
b. Owner of each truck
c. Vehicle identification number of each truck
d. Indiana license plate number for each truck
4. For the trucks referenced in Request No. 2, provide
the following information for each truck:
a. The entity/individual in whose name the trucks
are registered with the Indiana Bureau of Motor
Vehicles from January 1, 2014, to present
b. The entity/individual who purchased and/or ob-
tained license plates used for the trucks from
January 1, 2014 to present.
5. Provide a copy of all contracts, memoranda of under-
standing, purchase agreements or other documents
which reflect the leasing of trucks by Diamond
Trucking, Inc.
6. Provide the names, business addresses and business
phone numbers of all Diamond Trucking’s directors,
stockholders, owners, corporate officers and man-
agement personnel.
7. Provide the names, business addresses and phone
numbers of all directors, stockholders, owners, corpo-
rate officers and management personnel of any indi-
viduals/entities which have leased vehicles to Dia-
mond Trucking, Inc. from January 1, 2014 to present.
8. Identify each location (street address, city and state)
DIAMOND TRUCKING, INC. 13
where Diamond Trucking has conducted business
and/or where the trucks used in its operations were
and/or dispatched from January 1, 2014 to present.
[GC Exh. 7.]
The Respondent’s attorney emailed Wilkinson on December
3, responding to Request No. 8. He stated that “until on or
about August 22, 2014, Diamond Trucking conducted business
and dispatched its trucks from an office located at 2653 S 400
W Peru, Indiana. After the strike began, Diamond Trucking
has not conducted business or dispatched its trucks from any
location, and the trucks have been parked at Grissom Air Force
Base, 1701 Thunderbolt Ave, Peru, Indiana 46970.” He indi-
cated that the Respondent refused to provide the other request-
ed information, because the Union had not established its rele-
vance. (GC Exh. 8.)
The Union’s attorney then emailed the Respondent’s attor-
ney on December 29, stating that the Union was “entitled to
know the physical locations where Diamond Trucking is doing
business including the storage of vehicles used in its opera-
tions.” He said that, since the Respondent asserted that the
trucks located at the old office location are not owned by Re-
spondent, and that Diamond’s trucks are at Grissom, the infor-
mation was necessary in order to confirm the accuracy of the
Respondent’s assertions as to the ownership and leasing of the
trucks. He further stated that
the Union has reason to suspect that the (sic) Diamond Truck-
ing is part of a group of entities under common control. The
Board has ruled that unions are entitled to information regard-
ing such possible alter ego/double breasted relationships. (ci-
tation omitted) To the extent that Diamond Trucking does not
own certain vehicles, the Union believes that related third par-
ties are the owners of these trucks through various leasing en-
tities. These third parties have ownership and management
roles with Diamond Trucking. The Union’s November 20 re-
quest has thus sought relevant information regarding these
business relationships between Diamond Trucking and third
parties.
[GC Exh. 9.]
The Respondent’s attorney replied on January 9, 2015, reit-
erating his position that the Respondent would not provide the
information requested in Requests No. 1–7 since it was not
relevant. He stated that
the trucks Diamond Trucking used were parked at 2653 S 400
W, Peru IN until approximately August 22, 2014. At that
point, the trucks were moved to Grissom Air Reserve Base as
I notified James Wilkinson in my letter of December 3, 2014.
In mid-November, Diamond Trucking determined it could no
longer afford to pay the lease on some of the trucks. It there-
fore returned the trucks to the lessors at 2653 S 400 W, Peru,
IN. The trucks Diamond Trucking continued to lease were
then moved to 1701 Thunderbolt Avenue, Peru, IN as Ms.
Pendleton informed Danny Barton in her letter of November
20, 2014.
The union is not entitled to the other information requested
about Diamond Trucking’s business relationships. Although
you quote a decision requiring the union to request infor-
mation that would be of use “in carrying out its statutory du-
ties and responsibilities,” you do not identify which statutory
duty or responsibility the requested information will help the
union fulfill. (citation omitted) You only allege that Diamond
Trucking “is part of a group of entities under common con-
trol,” but there is no control group concept in federal labor
law.
To the extent you instead meant to request this information
because of any alleged alter ego relationship, you still have
not demonstrated “a reasonable objective basis for believing
that” such a relationship exists nor have you demonstrated
why that would be relevant in this particular case. . . .
[GC Exh. 10.]
III. LEGAL STANDARDS AND ANALYSIS
The General Counsel contends that the information requested
is relevant and necessary. He asserts that each request is neces-
sary in order for the Union to determine where it could lawfully
picket the Respondent. Specifically, he argues that Requests
No. 1, 2, 4, 6, and 7 are relevant and necessary for the Union to
determine whether an alter-ego relationship exists; Request No.
3 is relevant and necessary for the Union to determine and con-
firm appropriate picketing locations; and Request No. 5 is rele-
vant and necessary for the Union to confirm that the Respond-
ent was in fact leasing its trucks as represented in Respondent’s
attorney’s November 10 email.
The Respondent agrees that the Union is entitled to the in-
formation in Request No. 8, regarding the location of Diamond
Trucking, for purposes of determining the appropriate location
for picketing, and it provided that information. It contends,
however, that the remaining requests are irrelevant to determin-
ing where to picket, and that there is no reasonable basis for an
alter-ego theory.
Pursuant to Section 8(a)(5) of the Act, it is an unfair labor
practice for an employer to refuse to bargain collectively with
the representative of its employees. The duty to bargain in-
cludes the duty to provide information that is necessary for the
union to perform its functions as representative of the bargain-
ing unit. Information pertaining to mandatory subjects of bar-
gaining is presumptively relevant to the union’s role. Southern
California Gas Co., 344 NLRB 231 (2005); NLRB v. Item Co.,
220 F.2d 956 (5th Cir.), cert. denied 350 U.S. 836 (1955).
Where, as here, a union requests information that does not
involve the bargaining unit, there is no presumption of rele-
vance. Rather, the union must establish the relevance and ne-
cessity of the information. Trim Corp., 349 NLRB 608 (2007)
(information request concerning the existence of an alleged
alter-ego operation is not presumptively relevant). Further, the
union must have a reasonable objective factual basis for the
information requested. Piggly Wiggly Midwest LLC, 357
NLRB 2344 (2012). A union cannot meet its burden based on a
mere suspicion that an alter-ego or single employer relationship
exists; it must have an objective, factual basis for believing that
the relationship exists. Cannelton Industries, 339 NLRB 996
(2003); see M. Scher & Son, Inc., 286 NLRB 688, 691 (1987),
citing Bohemia Inc., 272 NLRB 1128 (1984). On the other
hand, if a union has a reasonable objective basis for its belief
that several companies constitute a single employer, or a com-
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany is an alter-ego, it has met its burden of showing relevance.
Blue Diamond Co., 295 NLRB 1007 (1989); Shoppers Food
Warehouse, 315 NLRB 258 (1994); Contract Flooring Systems,
Inc., 344 NLRB 925 (2005).
A union generally has the right to picket at the site of the
dispute or where the employer is engaged in normal business
operations. See Operating Engineers Local 150 (Harsco
Corp.) 313 NLRB 659 (1994), affd. 47 F.3d 218 (1995).
Therefore, in the instant case, the Union is entitled to infor-
mation that would assist it in determining such locations. That
is precisely the information requested in Request No. 8—each
location (street address, city, and state) where Diamond Truck-
ing has conducted business and/or where the trucks used in its
operations were and/or dispatched from January 1, 2014 to
present. The Respondent provided that information and Request
No. 8 is not at issue herein.
In addition to the assertions in the correspondence between
the parties, we have Wilkinson’s testimony as to the reasons for
his information requests. (Tr. 55–59.) He said he wanted the
information in Request No. 1 to determine who actually owned
Diamond Trucking. Request No. 2 was to learn who owned the
trucks, because the Union had the right to picket the old office
if Diamond Trucking still owned them. The same basis was
given for Request No. 3, to determine ownership of each truck.
Request No. 4 was intended to find out who the trucks were
registered to, which would also explain who owned them. Re-
quest No. 5 would show whether they were, in fact, leased.
Request No. 6 was to learn where Diamond Trucking was con-
ducting its day-to-day business. The Union sought this, since
the lots at Grissom where the trucks were parked had no offic-
es, no telephones, no staff. Request No. 7 was to determine the
identity of the purported lessor. Request No. 8 was to deter-
mine where Diamond Trucking was operating from, since they
weren’t dispatching any trucks, and the old office was empty.
Ultimately, his stated reasons for the requests are simply a re-
statement of the requests themselves.
The General Counsel has failed to meet his burden as to the
seven requests at issue. The Union knew that the Respondent
was not conducting any business. The Respondent engaged in
no business activity once the strike began. Since it had no driv-
ers, it could not operate and it vacated its office. No explana-
tion was given for what business operations the Union thought
could possibly be going on under the circumstances. That left
the location of the trucks as the only possible picketing option,
which the Union seems to have considered unsatisfactory.
Nonetheless, there are trucks in the Respondent’s possession at
Grissom Air Force Base; the Union was notified of their loca-
tion and it picketed there. The Diamond Trucking signage was
removed from some other trucks that were moved back to the
old office location when the leases were terminated. The Union
claims to have been suspicious, apparently suspecting that
Pendleton’s brother had some ownership stake in Diamond
Trucking or owned the trucks used by Diamond Trucking, and
hoped to justify picketing at 2653 South 400 West if it could
establish a connection between Diamond Trucking and Bowyer
and/or Kokomo. However, the Union provided no objective or
reasonable or factual basis for such suspicion; it was merely
speculation, at best. In fact, at the hearing, Wilkinson testified
that he had no proof that Respondent’s counsel’s statements
were true, attempting to shift the burden to the Respondent
rather than demonstrate the Union’s objective factual basis for
its belief. Even if Bowyer or Kokomo owns those trucks, rather
than DT Trucking, that does not provide support for the Un-
ion’s position. There is not one iota of support for an alter-ego
theory. The trucks were not used by the Respondent after Au-
gust 2014, when the strike began. Kokomo did not perform any
work previously performed by the Respondent; the Union con-
ceded that all such work was performed by union companies.
The mere fact that the two companies had offices at the same
location, that Pendleton and Bowyer are siblings, and that
Bowyer attended contract negotiations with Pendleton is wholly
insufficient to meet its burden. The General Counsel has not
shown that the information requested would support an alter-
ego theory, even if there were a reasonable basis for such be-
lief, nor that it would in any way assist the Union in determin-
ing appropriate additional locations to picket.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The complaint is dismissed.
Dated, Washington, D.C., November 24, 2015

4 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.