Engineered Steel Concepts

National Labor Relations Board - Board Decisions

May 30, 2008

352 N.L.R.B. 589 (N.L.R.B. 2008)

ENGINEERED STEEL CONCEPTS
352 NLRB No. 73
589
Engineered Steel Concepts, Inc. and ESC Group Lim-
ited, alter egos and General Drivers, Ware-
housemen, and Helpers Union Local 142, Inter-
national Brotherhood of Teamsters. Case 13–
CA–43235
MAY 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On July 3, 2007, Administrative Law Judge Eric M.
Fine issued the attached decision. The Respondents
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.
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,1 and conclusions2 and to adopt the recommended
Order.3

1 In adopting the judge’s finding that the laid-off union drivers were
entitled to perform the work that the Respondents contracted out, we
rely solely on his findings that the Respondents failed to show that they
had a history of subcontracting unit work while the union drivers were
in layoff status, and failed to show that they would have subcontracted
the work in dispute in the absence of the drivers’ unlawful termination.
In adopting the judge’s finding that Martin Surdell was a supervisor
within the meaning of Sec. 2(11) of the Act, we rely solely on the
judge’s finding that Surdell hired and discharged employees.
The Respondents have implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In adopting the judge’s finding that the parties’ collective-
bargaining agreement was governed by Sec. 9(a) of the Act, we agree
with his finding that Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C.
Cir. 2003), is inapposite. Under the Act, collective-bargaining agree-
ments generally are governed by Sec. 9(a). Sec. 8(f) creates an excep-
tion for certain collective-bargaining agreements between employers
engaged primarily in the building and construction industry and unions
having members employed in that industry. Thus, the threshold ques-
tion in determining the applicability of Sec. 8(f) is whether the em-
ployer is engaged primarily in the building and construction industry.
The burden of establishing that status lies with the party seeking to
avail itself of the 8(f) statutory exception. Bell Energy Management
Corp., 291 NLRB 168, 169 (1988). The employer in Nova Plumbing
met that burden. The Respondents, which principally haul steel by-
product between steel mills, did not. Thus, Sec. 8(f) is inapplicable.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Engineered Steel Concepts,
Inc., and ESC Group Limited, East Chicago, Indiana,
their officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Lisa Friedheim-Weis, Esq., for the General Counsel.
Steven A. Johnson, Esq. and Jennifer J. Monberg, Esq., of Mer-
rillville, Indiana, for the Respondents.
Steve Parks, of Gary, Indiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was tried
in Chicago, Illinois, on February 12 and 13, 2007. The charge
and amended charge were filed by the General Drivers, Ware-
housemen, and Helpers Union Local 142, International Broth-
erhood of Teamsters (the Union or Local 142) on March 13 and
17, 2006, respectively, against Engineered Steel Concepts, Inc.
(ESC) and ESC Group Limited (Group), alter egos (jointly
referred to as Respondents).1 The complaint was issued on
November 30, alleging that ESC established Group for the
purpose of evading its responsibilities under the National Labor
Relations Act (the Act), and that ESC and Group are alter egos.
The complaint, as amended at the hearing, alleges that Respon-
dents through Martin Surdell promised employees jobs with
Group on the condition that they work for nonunion wages and
without union benefits in violation of Section 8(a)(1) of the
Act, that in February, Respondents discharged/laid-off employ-
ees Anthony Miletich, Marc Roop, and Steve Wagner in viola-
tion of Section 8(a)(1) and (3) of the Act; that in February or
early March, Respondents continued their operation of ESC in
the disguised continuance of Group, in order to avoid their
collective-bargaining obligation with the Union, that since that
time Respondents have refused to recognize the Union, have
refused to abide by and repudiated their collective-bargaining
agreement with the Union, and have subcontracted bargaining
unit work, all without prior notice to the Union or giving it the
opportunity to bargain over the decisions or their effects on
employees, and that this conduct was violative of Section
8(a)(1) and (5) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondents, I make the fol-
lowing2

1 All dates are in 2006, unless otherwise indicated.
2 In making the findings herein, I have considered all the witnesses’
demeanor, the content of their testimony, and the inherent probabilities
of the record as a whole. In certain instances, I have credited some but
not all of what a witness said. See NLRB v. Universal Camera Corp.,
179 F.2d 749, 754 (2d Cir. 1950), reversed on other grounds 340 U.S.
474 (1951). All testimony has been considered, if certain aspects of a
witness’ testimony are not mentioned it is because it was not credited,
or cumulative of the credited evidence or testimony set forth above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD590
FINDINGS OF FACT
I. JURISDICTION
ESC, a corporation, with a place of business in East Chicago,
Indiana, has been engaged in the business of hauling by truck
steel-related by products within the steel industry. Group, a
corporation, with an office and place of business in East Chi-
cago, Indiana, has been engaged in the business of hauling by
truck steel-related by products within the steel industry. During
the past calendar year, ESC and Group have each provided
services valued in excess of $50,000 for Mittal Steel USA (Mit-
tal), an enterprise itself directly engaged in interstate commerce
within State of Indiana. Respondents admit and I find that ESC
and Group are each employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Tom Anderson is the founder and sole owner of ESC.
Anderson met Martin Surdell and Ronald Callihan as fellow
members of management while they were working in the steel
industry. Anderson’s most recent employer in the steel indus-
try was a company called LTV. Anderson left LTV in 2002 as
a result of a plant shutdown. Anderson started ESC after leav-
ing LTV. Anderson testified ESC remained in existence at the
time of the unfair labor practice trial in February 2007. At that
time, ESC supplied drill bits and shafts to some Mittal Steel
plants and to some other steel companies. Anderson testified
that ESC also provides technology to US Steel such as thermal
and visual cameras, tour monitoring devices, refractory moni-
toring, and furnace technology.
Anderson was in an automobile accident in April 2003, sus-
taining a brain injury. He testified the injury affects his short-
and long-term memory, temperament, and tolerance levels.
Anderson testified that, after the injury, Surdell helped him
with the operation of ESC. Anderson testified that Surdell
“would drive me around and attempt to help me in whatever
needed to be done.” Anderson testified Surdell was never em-
ployed by ESC and he never received a salary or any compen-
sation for his work. Anderson testified Surdell helped him out
until December 2006, when Surdell had back-related surgery.
Anderson estimated Surdell is 77 or 78 years old. Surdell was
given a business card and title with ESC. Anderson testified
Surdell made calls on behalf of the Company, but claimed Sur-
dell did not make the calls independently stating, “He’d always
checked with me first.”
ESC purchased 100,000 tons of c-fines on October 7, 2004,
from International Steel Group (ISG). C-fines are finely granu-
lated steel refuse that are recycled by steel mills. ISG was
eventually sold to Ispat-Inland, a steel company which at the
time of the hearing was taken over [by] Mittal. ESC did not
have its own trucks or drivers at the time it purchased the c-
fines. Anderson used other trucking companies to deliver the
material. Anderson concluded if he delivered the material with

Further discussions of the witnesses’ testimony and credibility are set
forth throughout this decision.
his own trucks there would be better service and possible cost
savings. As a result, ESC purchased three trucks and trailers.
Anderson contacted Local 142 to inquire about drivers for
the trucks and he, along with Surdell, met with Local 142 Busi-
ness Agent Steve Parks on March 8, 2005, at the union hall.
On that date, Anderson, on behalf of ESC, signed a contract
with Local 142, entitled “General Construction of Building,
Heavy & Highway Projects.” The contract’s effective dates
were June 1, 2003, to May 31, 2006. During the meeting,
Anderson and Surdell presented their ESC business cards to
Parks listing Anderson as the general manager and Surdell as
the national sales manager. Parks credibly testified that it was
explained to him by Anderson and Surdell that Surdell would
be taking care of the day-to-day operations of ESC.3 Parks did
not sign the collective-bargaining agreement on behalf of the
Union. Rather, it was presigned by the Union’s principal offi-
cers who did not attend the meeting.
Parks credibly testified that: During the March 8, 2005 meet-
ing, Anderson and Surdell asked Parks what contracts were
available for the type of work they were going to do. They
explained that they were going to be hauling commodities from
one steel mill to the other, which at the time was between ISG
and Inland Steel.4 Anderson mentioned something about hav-
ing a contract for a large of amount of work, that this was just
going to be the first contract and that he hoped to have a good
relationship with the Union in the future.5 Parks explained the
Union had a commodity hauling agreement or ESC could also
be placed under the Union’s general construction agreement.
Parks stated he would rather see a commodity agreement for
this type of work because it really was not onsite construction
work. Anderson did not like the wage and benefit structure in
the commodity agreement for which employees are paid on a
weekly basis as opposed to the construction agreement in which
they are paid for the hours worked. The commodity agreement
also had seniority, holiday, and vacation language not con-
tained in the construction agreement. Anderson preferred the
construction agreement since if he only had work for 3 or 4
days, then he only had to pay the benefits on the hours actually
worked. Parks went along with Anderson’s request for the
construction agreement because he was trying to accommodate
the Company’s needs, and the wages were similar for hauling
commodities from mill to mill in both agreements. Parks testi-
fied that he did not take any notes during the meeting. When
asked on cross-examination if Anderson took notes, Parks testi-
fied, “I, I don’t, I have no awareness of that.” When asked on
rebuttal whether he saw Anderson taking notes during the meet-
ing on March 8, 2005, Parks testified, “No.”
Parks testified Anderson did not bargain any provisions in
the contract he signed. Rather, Parks just gave him a choice of
two contracts. Parks testified that he described each of the
contracts, but he did not steer Anderson to either one of them.

3 I found Parks to be a credible witness considering his demeanor,
recall, and the content of his testimony.
4 The meeting took place prior to Mittal’s eventual takeover of both
steel operations.
5 Parks testified he did not recall Anderson specifying 100,000 tons
in describing ESC’s hauling contract.
ENGINEERED STEEL CONCEPTS 591
Parks testified that he told Anderson that if he signed the con-
struction contract he could compete for construction work and
that if he signed the commodity contract with the construction
addendum, he could also compete for construction work. Parks
testified that under either contract it was anticipated that ESC
might do construction work to keep the drivers busy. Parks
testified that, after the deal was completed, Anderson and Sur-
dell asked that now that they had the agreement if they could
get some highway work on I-94 as work was going to begin
soon on the interstate. Parks responded they would have to talk
to the contractors doing the work, and that they should contact
them. Parks testified there was no discussion about the contract
being an 8(f) contract prior to Anderson signing it. Parks de-
nied telling Anderson that one of the benefits of the construc-
tion contract was that he could walk away at the end of the
agreement. Parks denied telling Anderson that when he sold
his 100,000 tons he could terminate the collective-bargaining
agreement. Parks, a business agent with Local 142 for 8 years
at the time of his testimony, testified, “I’d be foolish to say
something like that.”
Parks testified that he did not remember either Anderson or
Surdell telling him that ESC had previously used union com-
modity haulers from P&C and Jack Gray Trucking to deliver
their product. Parks testified Jack Gray is a 50/50 company
with 15 trucks in Gary, Indiana, which are union and the other
200 trucks out of Detroit which are nonunion. Parks testified
he did not know ESC was in existence before Anderson con-
tacted him. Parks testified he was given the impression at the
meeting that ESC was just starting with Local 142 drivers.
Parks testified that, during the March 8, 2005 meeting, either
Anderson or Surdell informed him that Surdell would be Parks’
contact person for ESC hiring drivers, as well as for union mat-
ters. Parks testified that to his knowledge ESC did not have
any employees at the time Anderson signed the contract. He
testified it was his understanding that, subsequent to the meet-
ing, Parks referred ESC their initial employees through the
Union. Parks testified that, after the drivers were hired, Parks
had little if any contact with Anderson. Rather, Parks’ contact
was with Surdell about ESC’s need for drivers. Parks testified
he received calls when ESC needed a fill-in driver for someone
taking off, or if they were in need of another driver. Parks testi-
fied there was one occasion when the Union placed nine drivers
for ESC for work at U.S. Steel on an around the clock shift.
Parks testified he dealt with Surdell on all of these calls. Parks
testified the Union’s construction agreement does not contain
an exclusive hiring hall provision. Parks testified that, prior to
2006, Parks had one or two contacts with ESC on behalf of
employees with a work-related problem. On one of the occa-
sions, one of drivers did not get his check in a timely fashion.
Parks called Surdell and Surdell corrected the situation. Parks
testified that during the fall of 2005 and early winter 2006, ESC
employed three Local 142 members who were doing commod-
ity hauling.
Steve Wagner worked for ESC from March 2005 to February
2006 as a truckdriver. Parks told Wagner about ESC and Wag-
ner was the first driver hired there. Marc Roop was the second
driver to be hired.6 Parks made arrangements for Wagner’s
interview with ESC officials to be conducted at Local 142’s
hall. Wagner was interviewed by Anderson and Surdell. Wag-
ner testified it was his understanding that Surdell was part of
management. Surdell told Wagner that he was hired either the
day of the interview or the next morning.7 Wagner has been a
member of Local 142 on and off since 1977. He testified there
was a collective-bargaining agreement between Local 142 and
ESC and that his hourly rate at ESC was the contractual rate
equal to 80 percent of the rate for semitruckdrivers. He testi-
fied that he was correctly receiving the 80-percent rate under
the Union’s contract because they were performing stockpile
work. Wagner testified his health and welfare and insurance
were also paid.8
Wagner testified that he hauled different products from one
steel mill to the other for ESC. Wagner drove a semitruck and
the products he hauled were loaded in a dump trailer. He testi-
fied the drivers get it loaded, take it, and dump it off. They
would usually pick up the materials from MultiServ, a steel
processing plant that processes slag and other products for the
steel mill. MultiServ is located inside the ISG plant (Mittal
West). From MultiServ the drivers took the material to the
Inland Steel plant 2 (Mittal East). As set forth above, at the
time of the hearing both plants had been taken over by Mittal.
While working for ESC, Wagner performed hauling for Mul-
tiServ on a daily basis. Wagner drove a red and black Volvo
truck for ESC. Wagner’s truck number was 311 which ap-
peared on the side of the truck. There were also Engineered
Steel Concepts magnetic signs on the doors of the cabs of the
ESC trucks, of which there were three of the same make,
model, and color. The other two ESC trucks were numbered
301 and 221.
Wagner testified that: On a typical day, the ESC drivers
picked up their trucks and trailers at the MultiServ yard inside
of ISG. Upon arriving at the yard, most of the time drivers
were issued an all day pass by Surdell giving them permission
to go in and out of the plant, or else Surdell issued them any
alternative assignment. Most of the time the drivers hauled c-
fines on a 5-mile route between the two steel plants. Wagner
testified Surdell told him what to do on a daily basis, and
Anderson only gave him a daily gate pass when Surdell was not
present, which was around 2 or 3 percent of the time. Wagner
testified he did other work at ESC besides hauling c-fines. He
testified they hauled scrap, iron ore pellets, and slag. He testi-
fied they worked once at U.S. Steel hauling iron ore pellets
inside the plant. He testified there was there was an occasion

6 Both Roop and Wagner testified on behalf of the General Counsel.
I found each, considering their demeanor, to be credible witnesses and
to have testified in a consistent fashion concerning the content of the
testimony, which I have credited.
7 Roop testified he filled out a job application for ESC given to him
by Surdell. Roop testified he thought Surdell was their boss. Roop
testified Surdell interviewed Roop to work for ESC, by phone, and no
one else was on the call. Surdell told him that he was hired during the
same conversation as the interview.
8 Roop testified his benefits included health and welfare, health in-
surance, life, eye, dental, and pension. The employees paid their union
dues on their own.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD592
when they hauled some dirt for another company.9 On a typical
day, Wagner made about seven or eight round trips between the
steel plants loading and dumping the materials there. The other
ESC drivers performed the same work as Wagner. At the end
of the day, Wagner parked his truck in the MultiServ yard.
Wagner left all the scale tickets in the truck, or Surdell would
pick them up. Wagner called off work once or twice and spoke
to Surdell. Surdell approved the time off during the call.10
Wagner testified that, prior to November or December 2005,
the ESC drivers usually worked 5 days a week, at least 40
hours. Beginning in November or December 2005, the work
slowed down, and they went down to about 3 or 4 days a week.
Wagner testified that during this time period neither Anderson
nor Surdell said anything about closing ESC, laying off the
drivers, or having no more work for them.
Wagner credibly testified that on February 8, Surdell called
him at home after work. Surdell told Wagner ESC had no more
work for the drivers as Inland was complaining about the price
of the material and they were going to try to get authorization
to buy the material and then the drivers could go back to
work.11 On February 9, Surdell came to Wagner’s home to
drop off his paycheck. Surdell told Wagner that he hoped it
would not take too long, that they had nothing the drivers could
do until they got authorization. Wagner testified that after this
conversation he never worked for ESC again. Roop testified
that on February 8, Surdell called Roop at home. Surdell told
Roop that there was no work the rest of the week and possibly
the following week. Surdell said they had some contracts com-
ing up they were hoping to close and Surdell would call Roop if
there was any work.
Roop credibly testified Surdell called Roop at home on
March 6. Surdell told Roop that they were reorganizing ESC
and were going to start it over under another name, nonunion.
Surdell told Roop the name of the company, but Roop could
not recall it. Surdell told Roop they hired someone out of a
temp agency, and Surdell offered Roop a job as a truckdriver
for $18 an hour, nonunion, no benefits. Roop declined the
offer. Roop testified he called Wagner and Parks notifying
them of Surdell’s call.
Wagner credibly testified he called Surdell in the morning on
March 13, and asked him what was going on. Surdell replied

9 Similarly, Roop testified Surdell usually obtained the passes for the
drivers. When Surdell was not present to give Roop the passes then
Anderson gave them to him, which was not too often. Roop confirmed
that most of his work for ESC was hauling c-fines for MultiServ from
Mittal West to East. He testified he drove an older Volvo truck with a
red cab which had an ESC sign and truck 301.
10 Roop described a similar route and procedure for hauling c-fines
as the one described by Wagner. When Roop called off work at ESC,
he called Surdell. Surdell approved the leave request while they were
on the phone. Roop testified he saw Surdell almost every day.
11 Wagner knew ESC had a contract to haul about 100,000 tons of c-
fines from one place to another. Wagner did not have an understanding
that when the contract was over that he would be terminated. Wagner
testified he was told that when this contract was done ESC would get
another one, that there would be other things to do. Roop testified he
heard there was a contract for ESC to deliver 100,000 tons of c-fines.
Roop testified he asked Surdell if he was out of a job after they hit the
100,000 ton mark and Surdell said no they would find work for him.
they had filed for bankruptcy, opened up under a new company
called Engineered Group Limited, and that they could not af-
ford to pay union benefits any more. Surdell said they had
work for Wagner if he was willing to work nonunion at $18 an
hour, but that was all they could offer him. Surdell said he
wanted Wagner to come to work for the new company. Wag-
ner said that he could not do that because he worked too hard to
get his benefits and retirement from the Union. Surdell said
they had hired a new driver from a temp agency and they had
90 days to keep him or get rid of him.
Wagner went to the union hall on March 13, where he spoke
to Parks. Parks testified that Wagner informed him of the con-
tent of Wagner’s call with Surdell. Parks credibly testified that:
Parks called Surdell from the speaker phone in Parks’ office, in
Wagner’s presence. Parks asked Surdell why he laid off Parks’
drivers. Surdell said the Company was going out of business,
they were bankrupt, and they no longer were going to be a un-
ion company. Parks asked what Surdell meant, and Surdell
said there was a new company called Engineered Group Lim-
ited. Parks said thank you and that now he knew what to put on
the picket signs. Parks told Surdell that he never notified the
Union of the closing, gave the Union an opportunity to bargain,
or for recognition with the new company. Surdell said he had
one employee working that day for the new company, who was
from a temporary service. Parks told Surdell there would be
grievances and probably Labor Board charges filed immedi-
ately.12 Parks testified that following the phone call, Wagner
filed a grievance against ESC, which Parks faxed to ESC on
March 13. The cover letter was addressed to Anderson’s atten-
tion. The grievance, signed by Wagner, stated, “Non union
drivers doing my job.”
After sending the grievance on March 13, Wagner and Parks
drove to Mittal West, to the MultiServ parking lot. Parks testi-
fied they saw two ESC red Volvo truck cabs and about five
trailers parked in the yard. Parks testified he saw truck cabs
221 and 301 there. He testified the truck cabs had ESC signs
on them. Parks testified they also saw ESC truck 311 driving
past the scales at MultiServ loaded with c-fines. Parks testified
that both he and Wagner identified the product. Parks testified
the cab on truck 311 was red, with ESC signs on the doors.
Parks did not recognize the driver. Parks took four pictures of
truck 311, with a trailer attached thereto on March 13. Parks
took notes on the pictures to identify the date and location of
the truck confirming truck 311’s operation and route.13 Parks
testified they observed truck 311 exit the gate at Mittal West.
They followed the truck out of the plant through public streets
to the Inland plant (Mittal East), where the truck proceeded to
dump the product. They followed the empty truck back to ISG,
or Mittal West. After taking the pictures and following the
truck, Parks and Wagner returned to the union hall, where

12 Wagner corroborated Parks’ testimony concerning Parks’ call with
Surdell.
13 One of the pictures was inside ISG or Mittal Steel West; the next
was of the truck leaving ISG to go to Inland (Mittal East); another
picture was of the truck going into Inland or Mittal East to empty the c-
fines; and the last was the truck on the road traveling between the steel
plants.
ENGINEERED STEEL CONCEPTS 593
Parks wrote and faxed the initial charge against the Respon-
dents to the NLRB.14
The Union received a fax from ESC later on in the afternoon
on March 13. The fax was sent from Surdell, stating ESC
Trucking has gone out of business and the following drivers are
laid off: Wagner, Roop, and Anthony Miletich. On March 14,
Parks met with Roop at the union hall at which time Roop filed
a grievance stating, “nonunion workers in trucks.” Parks faxed
the grievance on that date to ESC to Anderson’s attention. On
March 15, Parks saw two ESC trucks in the morning loaded
with what appeared to be c-fines on a public road in East Chi-
cago. The trucks were red and had ESC Steel signs on them.
Parks did not recognize either of the drivers. On March 17,
Wagner and Roop filed separate grievances alleging “unjust
termination.” The grievances were faxed on March 17, to ESC
to Anderson’s attention. Parks received no response from ESC
to any of the grievances that were filed. On March 17, Parks
faxed a letter to ESC and Group to Anderson’s attention. Parks
stated it was the Union’s position that Group is an alter ego of
ESC, and was covered by the current labor agreement. Parks
stated the Union was requesting recognition by Group, and that
the Union’s members be returned to work immediately. Parks
received no response.
By letter to the Union, dated March 28, sent by overnight
mail, Paul Cummings of Blankenship Associates, stated, “I
have been authorized and instructed” by ESC to serve notice
that it was terminating the collective-argaining agreement with
the Union, “as of its termination on May 31, 2006,” pursuant to
aticle 30 of the agreement. The letter was copied to Anderson
and the FMCS. Cummings asked in the letter that the Union
notify the Health & Welfare and Pension Fund. Parks testified
that since the uion members were laid off, ESC did not apply
the collective-argaining agreement, and he has received no
contact from Group. By letter dated September 12, ESC in-
formed the Union’s pension plan that it had no hours to report
since February 2006. Parks identified checks to the pension
plan from ESC dated March 13. He testified those checks
would have been for February hours, and that it was his under-
standing those were the last checks the pension plan received.
On April 5, 2006, Parks was at Mittal East (Inland). Parks
saw two of ESC’s trucks, 301 and 311, operating there as he
saw ESC signs on the trucks red cabs. Parks took pictures of
the trucks. Roop, while working for another trucking company,
saw trucks containing signs listing ESC’s new name perform-
ing hauling work at Mittal West in November and December
2006. Roop saw, depending on the day, one to two ESC trucks
loading red dust. The trucks had ESC Group on them, but were
using the same truck numbers they had with ESC. One of the
trucks had the same 301 number that Roop had driven for ESC.
Roop did not recognize any of the drivers. The Group drivers

14 Similarly, Wagner testified that ESC trucks 221 and 301 were sit-
ting in the MultiServ lot, and 311 was working. The trucks had ESC
signs on their doors. There was a driver in the 311 truck hauling mate-
rial that looked like c-fines. The 311 truck was the same truck Wagner
had driven. The driver was not one of the Teamster drivers who had
previously worked with Wagner. Parks and Wagner followed the truck
to Inland Steel where it dumped its load and back to MultiServ.
were hauling red dust from Mittal West to the Newton County
Landfill.
Harland Ronk works for MultiServ at the Mittal West facil-
ity. Aside from the various name changes at Mittal West, Ronk
has worked at that location for over 33 years as a loader opera-
tor. Ronk testified ESC trucks are parked at the mill across
from MultiServ’s office. Ronk started loading ESC trucks in
the latter part of 2005. During the November 2005 to early
2006 timeframe the trucks said ESC on the cab. Ronk thought
trucks 301 and 311 were also on the side of two of the trucks.
He testified that ESC had three red trucks during that time pe-
riod. Ronk testified that, after February 2006, the ESC trucks
had different drivers. Ronk testified that, at the time of the
hearing in February 2007, two of the red trucks were still oper-
ating at the mill. He testified the third red truck remained
parked at the mill with a tarp over it. Ronk testified that in
addition to the two red trucks, the Company had a couple of
white trucks in operation at the mill. Ronk testified all the
trucks now have Group’s name on them rather than ESC. The
yard where the ESC then Group trucks and trailers are kept
parked is close to MultiServ’s office. Ronk testified that, at the
time of the hearing, there were four trucks being used by Group
off and on, depending on the amount of material to be loaded.
Ronk testified that the Group trucks were hauling case iron
loaded by cranes, and B scrap which Ronk loads. Ronk thought
they were hauling to Mittal East. Ronk testified that, prior to
February 2006, the ESC trucks were hauling c-fines the major-
ity of the time. Ronk testified that after February 2006, he did
load c-fines in ESC or Group trucks and that this occurred dur-
ing the summer of 2006. He testified the last time he loaded c-
fines in the ESC or ESC Group trucks was around a month
prior to the hearing.
Ed Teffeau works for Mittal as the transportation sourcing
manager for three steel plants, two of which are Mittal East,
formerly Inland, and Mittal West, formerly LTV and ISG.
Teffeau negotiates freight rates and executes contracts with
motor carriers for various transportation services. Teffeau testi-
fied Mittal purchased ISG in April 2005. As part of his job,
Teffeau contacts a transportation company to solicit a rate by
email, phone, in person, or in writing. A quote from a carrier is
generally faxed to Teffeau. He is the only person for the three
Mittal facilities who negotiates freight rates with carriers.
Teffeau testified that ESC had a contract for hauling with the
ISG plant prior to Mittal taking over the plant. Teffeau learned
of ESC around the middle of 2005 when an invoice for freight
services arrived at his office. Upon Mittal’s receipt of ESC’s
invoice, ESC was contacted and the process began of obtaining
a Mittal vendor code for ESC so ESC could get paid for its
services. Teffeau testified a new carrier for Mittal has to fill
out a supplier application form in order to receive a vendor
code. Anderson signed this form as the general manager and
contact person for ESC on May 19, 2005, and Teffeau signed
on behalf of Mittal on May 20, 2005. ESC was provided sepa-
rate Mittal vendor codes for the Mittal East and West facilities
because each Mittal facility has its own computer system. Tef-
feau testified that Mittal does not permit one company to use
the vendor codes of another company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD594
Teffeau testified Anderson is his primary contact for ESC
when Teffeau wants to use ESC’s services. At the time of the
hearing, Teffeau last called Anderson in January 2007 pertain-
ing to work for Mittal. Teffeau testified that when he called
Anderson in January 2007, he understood Anderson was work-
ing for ESC stating, “In my mind, there had been no change.”
Teffeau testified he was never informed of a change of ESC to
Group, although Teffeau testified that “[w]e did receive some
different stationary later on in our relationship, around January
of 2007.” Teffeau testified that he was never informed there
was a new company replacing ESC or asked for a new vendor
code for Group from Mittal. Teffeau testified Group is still
using the same supplier number as that given to ESC.
Teffeau received a price quote from ESC, dated January 5,
2006, for some hauling requested by Mittal. Surdell signed the
quote of behalf of ESC. Teffeau testified he signed off on and
accepted ESC’s quote for this work. Teffeau testified Surdell is
“another one of the contacts that I am familiar with at Engi-
neered Steel Concepts.” Teffeau testified Surdell was Tef-
feau’s secondary contact for ESC. He testified he would call
Surdell if he could not reach Anderson. Teffeau testified that
the work in question was to be hauled between different sec-
tions of Mittal. Teffeau received another quote from ESC un-
der Surdell’s signature dated February 24, 2006, for the hauling
of c-fines for MultiServ Mittal West to Mittal East. Surdell’s
letter was in response to a verbal request for a quote that Tef-
feau made to Anderson. Teffeau approved ESC’s quote and
they received the work. Surdell also signed off on quotes to
Teffeau on documents dated April 24 and November 1, 2006.
Teffeau testified he met Ron Callihan once when Callihan
came to Teffeau’s office to obtain a drive-in pass allowing his
entrance into the plant. Callihan was accompanied during the
visit by Anderson and Surdell. Teffeau was told during the
meeting, “This is Ron Callihan, he works for Engineered Steel
Concepts.” Teffeau testified that they did not say anything
about a company called ESC Group, LLC. Teffeau identified
Callihan’s application for a driving pass with Mittal, dated June
28, 2006, the company identified on the application was “Engi-
neered Steel Concepts, Inc.”
By letter dated December 12, 2006, under company name of
Group, Teffeau received and approved a quote for work under
the signature of Callihan. Teffeau testified he was not familiar
with a separate company called Group. He testified Mittal has
never received a supplier application from a company with that
name. Teffeau testified that aside from issuing the June 28,
driving pass, he never had any contact with Callihan prior to
Teffeau’s receipt of the December 12 letter. Teffeau testified
that, prior to December 12, he primarily spoke to Anderson,
and occasionally Surdell when Teffeau solicited a bid for work.
Teffeau testified that when he spoke to Anderson in December
2006 to solicit the bid, Anderson did not say anything about
ESC going out of the hauling business or about the existence of
a company called Group. Teffeau initially testified he never
had contact with Callihan after he received the December 12,
2006 letter. However, he admitted to receiving another re-
sponse to a request for a quote, dated January 31, 2007, under
Callihan’s signature, under the company name Group. Teffeau
testified he talked to Anderson to solicit the price quote, and
that Teffeau did not speak to Callihan.15 Teffeau testified that
when he saw Group on the company letter head, he did not
require the company to obtain a new Mittal invoice number
because, “In my eyes, I was still dealing with Engineered Steel
Concepts.” Teffeau explained, “I’d never been notified to the
contrary.”
Teffeau had prepared an invoice summary of the work per-
formed by Respondents for Mittal from June 2005 to January
23, 2007. He testified that each vendor has its own unique
vendor identification for motor carriers which he called the
SCAC code, which Teffeau thought was issued by the National
Trucking Association. He testified that one company cannot
use another’s SCAC code. Teffeau testified the SCAC code for
ESC was the same from 2005 to 2007, and that Group contin-
ued to use ESC’s SCAC code. He also testified that Group
continued to use ESC’s vendor codes issued by Mittal through-
out the time period.
ESC sent an invoice, dated March 15, to Mittal for work per-
formed from March 9 to 13, 2006. The invoice lists ESC as the
employer with ESC’s SCAC code on the invoice, as well as
ESC vendor number issued by Mittal. The product moved was
c-fines. Jack Gray is the trucking company shown on most of
the gate passes attached to the invoice, meaning that although
ESC billed for the work Jack Gray actually performed the haul-
ing for the dates it is listed on the gate passes. The gate passes
show that ESC driver Dion Thomas hauled several of the loads
in truck 311 on Marc 13. Teffeau testified that it was Mittal’s
assumption that the work was subcontracted to Jack Gray by
ESC on the dates that Jack Gray’s name appeared on the gate
passes. Since the bill was submitted on ESC’s invoices, ESC
was paid by Mittal for all of the work.
Respondents continued to submit payment invoices to Mittal
with ESC letterheads through May 2006. In June 2006, the
letterhead on the invoices changed to ESC Group, LLC and that
letterhead was used through December 2006. However, the
Group invoices contained the same SCAC code and Mittal
vendor identification number that had been used by ESC. The
Group invoices contained the same post office box, phone, and
fax numbers previously used on the ESC invoices. Teffeau
testified that Group was never issued a new vendor code by
Mittal, nor did Mittal ever receive a new remit address for
Group. He testified that ESC was paid for all the work billed
Mittal by Group.
A. Respondents’ Witnesses
Anderson testified that when ESC was operating in 2005 and
early 2006, the primary material ESC hauled was c-fines.
Anderson testified that the majority of the work performed by
ESC drivers in 2005 was hauling material from one steel facil-
ity to another. Anderson testified he contacted Local 142 and
set up a meeting with Parks to obtain drivers. Parks, Surdell,

15 Teffeau testified that he did not recall having conversations with
Callihan concerning hauling lime from Milwaukee, or about the hauling
of heavy melt. However, he did not deny those conversations occurred.
He testified that he had very few conversations with Callihan, and that
the only one he could recall was the day in Teffeau’s office.
ENGINEERED STEEL CONCEPTS 595
and Anderson attended the March 8, 2005 meeting.16 Anderson
testified to the following: During the March 8, 2005 meeting
Anderson explained to Parks that he had a contract to deliver
100,000 tons of material. Anderson told Parks that Anderson
had been using subcontractors, but Anderson felt he could be
more reliable in meeting the customer’s needs if Anderson
delivered the material himself. Anderson told Parks the deliv-
ery schedule was somewhat erratic that the customer may need
5000 tons in a few days and then a couple days they would not
take anything. Anderson asked Parks what contracts were
available. The response was the Union had a commodity
agreement and a construction agreement. Parks told Anderson
the commodity agreement paid on a weekly basis the same
amount of pay regardless of the number of hours worked.
Parks told Anderson the construction agreement would cover
the type of material Anderson was moving and that, with the
80-94 highway construction going on, there would be some
work opportunities possible to keep the trucks and drivers busy.
Parks told Anderson that Parks knew some of the companies
working the construction job and if necessary, Parks could give
Anderson some phone numbers. Parks told Anderson that sec-
tion 7 of the construction agreement covered stockpile to stock-
pile movement, which was ESC’s hauling contract. Parks told
Anderson that, under the construction contract, the pay was 80
percent of the construction hourly rate for commodities hauling,
which would have been $21.72 per hour and the benefits were a
100 percent per hours worked. Anderson testified that Parks,
“said the construction agreement was—could be ended at any
time. Contract completion, equipment sold, business shut
down, et cetera. He said the contract ends May 31st of ‘06. No
wait he said that or I picked it out of the agreement that he had
in front of me.” Anderson testified Parks told him that the con-
struction agreement might be the most economical for the work
ESC was doing. Anderson testified Parks told him there was
there was no seniority for drivers. Anderson testified Parks told
them that if they wanted to replace drivers just tell them there
was no more work, and call Parks for a replacement, or if Parks
was not available call the union president. Anderson testified
Parks said he would arrange for interviews with the drivers for
March 9, and that ESC would pick which ones to employ.
Anderson testified he returned to the union hall on March 9,
2005, to interview drivers. Anderson testified that ESC primar-
ily relied on Parks for drivers during the time ESC had a rela-
tionship with the Union.
Anderson testified it was important to him at the conclusion
of the sale of the 100,000 tons of c-fines to be able to terminate
the agreement with the Teamsters. He testified he did not an-
ticipate the need for Teamsters drivers once the sale of the
100,000 tons was completed. Anderson testified, in response to
a leading question, that Parks told him the construction agree-

16 Respondents did not call Surdell as a witness at the hearing.
Anderson testified Surdell had back surgery in December. Anderson
testified since Surdell’s surgery, “He can’t walk. Has weakness in the
knee and now he can’t lift more than eight pounds. He just started
driving I believe in, recently. Last couple weeks or so.”
ment was an 8(f) agreement that could be ended at any time.
Anderson testified he selected the construction agreement.17
I did not find Anderson’s testimony concerning the content
of the March 8, 2005 meeting to be credible. He testified it was
his practice, due to his accident, to take notes of meetings. He
testified he took notes during the March 8, meeting, and he
identified detailed notes, and claimed that due to his accident he
could not testify about the substance of the meeting without
reliance on the notes. Yet, Anderson admittedly failed to men-
tion that he had notes of the meeting when he gave his pre-
hearing affidavit to the Board agent on October 23, 2006,
wherein he also testified about the March 8, 2005 meeting. I
find his contention that he made notes during the meeting to be
highly unlikely given his failure to apprise the Board agent that
the notes even existed, when he gave prior sworn testimony
about the meeting. Considering the witnesses’ demeanor, I
have credited Parks’ testimony that Anderson did not take notes
during the March 8, 2005 meeting over Anderson’s claim to the
contrary. Despite having 8(f) referenced in his notes, Anderson
testified, only in response to a leading question, that Parks said
the construction agreement was an 8(f) agreement that could be
ended at any time. In fact, Anderson admitted he was aware at
the meeting that the contract had a May 31, 2006 termination
date. I find by Anderson’s admission that he was informed by
Parks or noticed on his own that the construction contract had a
May 31, 2006 termination date and this serves to undercut his
incredible claim that Parks told him the contract could end at
any time. Anderson’s claim that he was told by Parks that
Anderson could terminate the contract at any time is further
undermined by ESC’s March 28, 2006 letter to the Union
through ESC’s then representative seeking to end the contract
as of its May 31, 2006 termination date referenced in article 30
of the collective-bargaining agreement. Thus, no claim was
made in the letter that ESC had a right to terminate the contract
other than by the means and date set forth in the agreement.18

17 Anderson testified ESC did do some construction type work by
hauling clay for the Calumet drainage dredging facility. Anderson
testified it was construction work because they were building a dam.
Respondent submitted five invoices into evidence pertaining the haul-
ing of the clay showing the material was to be delivered from July 1
through August 25, 2005, with deliveries also taking place on Septem-
ber 7, 2005.
18 In assessing Anderson’s credibility, I am not insensitive to the fact
that he was in an accident which did impact on certain aspects of his
functioning including the pace of his testimony. On the other hand, he
was functioning at a high level, in that he contracted with both Mittal
and it predecessor steel companies in the negotiation of numerous
contracts for large sums of money for hauling of steel by products,
provided technology to the steel industry through ESC, purchased
trucks and trailers, hired subcontractors to haul steel by products, and
contacted the Union and clearly picked the collective-bargaining
agreement that he felt was most advantageous to his operation in terms
of pay and benefits. Thus, I reject Respondents’ contention in its brief
that “Anderson had no capacity to contract” with the Union. In fact, by
Anderson’s testimony he was still running ESC which was supplying
technology to the steel industry. It is clear, that Anderson has and
continues to enter into a multitude of contracts within and outside the
trucking industry, including the purchase agreement for Group and
subsequent lease agreement with Callihan. Apparently, it is Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD596
Accordingly, I have credited Parks’ testimony that he never
discussed Section 8(f) of the Act or informed Anderson that
Anderson could terminate the agreement at any time prior to
Anderson’s signing the contract. I also credit Parks’ testimony
that Anderson elected to sign the Union’s construction contract
over the commodity contract solely because of the pay and
benefit structure of that agreement, as opposed any 8(f) consid-
erations that Anderson has subsequently claimed.
Anderson testified he began taking delivery of the 100,000
tons of c-fines around November or December 2004. Anderson
testified that, after the 100,000 thousand tons of c-fines had
been delivered, ESC had no other contracts, “so we told the
drivers that there was no more work until we could find some-
thing else.” Anderson testified that he instructed Surdell to tell
the Teamster drivers that ESC had no more work at the time
and that this was Surdell’s only instruction. However, Ander-
son also testified that Surdell did not act independently and that
Anderson gave Surdell instructions when to talk to people and
he told Surdell what to say. Given the fact that I found Roop
and Wagner to be credible witnesses, and considering the tim-
ing of Surdell’s conversations with the employees, and the
witnesses’ demeanor, I do not credit Anderson’s claims that he
was not aware of and did not authorize the content of Surdell’s
conversations with Roop and Wagner. Particularly, since Sur-
dell made offers of employment to the two individuals if they
would shed their union status and work without the benefit of a
union contract, wages, and fringe benefits. In this regard, Sur-
dell gave Wagner and Parks the name of the new company, and
then sent a fax to the Union on March 13 stating that ESC was
going out of business, and that the three employees referred by
the Union were laid off. Given the nature of Surdell’s actions, I
have concluded that Anderson told Surdell more than Anderson
was willing to admit at the hearing, and that Anderson author-
ized Surdell to make the remarks to Roop and Wagner that they
testified to. I also find that he had been apprised of the content
of Surdell’s phone call with Parks shortly after the conversation
took place, and that he authorized Surdell’s March 13 fax to the
Union announcing that ESC had gone out of business and that
the three employees were laid off.
Anderson testified that, after the completion of the delivery
of the 100,000 tons of c-fines, he wanted to sell the equipment
and get out of the trucking business. Anderson testified ESC
owned the trucks. He testified they were used trucks, and that
there were three of them. Anderson identified a one-page
typewritten documented entitled “Purchase Agreement of ESC
Group LLC,” dated March 6, 2006, and signed by Anderson
and Callihan. Anderson testified he drafted the agreement and
Callihan reviewed it. In the agreement, ESC is referred to as
the Seller and Callihan is the buyer. The agreement states in
consideration of $5000 paid by the buyer to the seller, the re-
ceipt of which is acknowledged the seller grants the buyer the
right to acquire ESC Group LLC located at 3001 Dickey Road
East Chicago, Indiana. It is stated the buyer will acquire all
stock in ESC Group, equipment, good will and other assets. It

dents’ contention that Anderson only lacks capacity to contract when it
is convenient to raise that argument in defense of Respondents’ unfair
labor practices. Therefore, I reject Respondent’s contention.
states equipment shall include three white GMC trucks, and
three dump trailers with the VIN numbers of each listed. The
agreement states that the sales price shall be $60,000, with the
balance due on or before June 30, 2006. The agreement pro-
vides that the buyer shall carry on the business in the usual
manner to and including the closing date of the sale, and that
the agreement could only be amended in writing signed by both
parties.
Despite the fact that purchase agreement stated it could only
be amended in writing, Anderson testified that, “in transferring
the assets to ESC Group, Engineered Steel retained 55 percent
of the stock and gave the rest away to Mr. Callihan.” Anderson
testified that in his mind he owned 55 percent until Callihan
paid for the equipment. Anderson was not precise on the split
testifying at one point that he owned 50 to 55 percent of Group.
Respondents’ counsel stipulated that there was no written
documentation of a percentage split of ownership between
Anderson and Callihan. Anderson claimed that Callihan man-
ages Group. He testified that neither Anderson nor Callihan
were taking a salary from Group as expenses were very high
due to attorney’s fees, litigation costs, and maintenance costs.
Anderson testified that the purchase by Callihan of Group
was never completed in that it was put on hold when Anderson
received the NLRB charge on March 13. He testified that
whether Callihan elects to go ahead with the purchase of Group
is dependent upon the outcome of the NLRB litigation. When
asked what consideration Callihan had given for the 45 percent
of the business, Anderson testified, “I think he paid $5,000 for
consideration.” Anderson testified that, at the time they entered
into the agreement, Callihan owed him $60,000 for the trucks
and the name of the business. Anderson testified he was not
receiving payments at the time of the hearing. When asked if
Callihan opts out if Anderson had to give him the $5000 back,
Anderson replied, “We haven’t gotten that far.” Anderson
could not recall if Callihan gave him the $5000 by check or
cash. Anderson testified that Group owns the trucks now, al-
though Anderson had received no additional payments beyond
the $5000. Anderson testified he still owned 55 percent of
Group at the time of the hearing in February 2007. He testified
that as result of the Board charge, they did not change the com-
pany stationary from ESC to Group, and they did not change
ESC’s trucking codes for the new company, and as well as a
number of issues because they did not know the status of the
company. Anderson testified rather than selling the trucks, he
now leased the trucks to Callihan until the charge was resolved.
Anderson identified a document entitled “Indiana Agreement
to Lease Equipment (with Limited Warranty) dated March 31,
2006, as the agreement he and Callihan used to replace the
purchase agreement due to the filing of the unfair labor practice
charge. The Lease Agreement, states it is an agreement to lease
equipment between ESC the lessor and Group, the lessee. Yet,
a subsequent provision of the agreement states that the equip-
ment is and shall at all times be and remain the sole and exclu-
sive property of Group. The term of the lease was from March
6 to December 31, 2006, or as agreed by the parties. The rate
of the lease was $20 per truck per day. Anderson signed the
agreement on behalf of ESC and Callihan signed on behalf of
Group. Anderson testified that the $20-a-day rental fee was not
ENGINEERED STEEL CONCEPTS 597
actually being paid. Rather, credits for the use of the trucks
were being accrued, and Callihan was going to pay the lease
rate credits if he ended up purchasing the company for the time
that Group used the trucks. Anderson testified that if Callihan
did not purchase Group, the $20-a-day accumulation rate would
remain with Group, and it would go back to whoever buys it or
becomes the new owner. Anderson testified they had not
reached the point of deciding whether Callihan would owe the
rental money if he decided not to purchase Group.
Anderson testified he created Group, but that previously it
had performed no work, and was just a corporate shell.19
Anderson testified he sold Group to Callihan when he sold the
three trucks and trailers to Callihan. While Anderson testified
the management or control of Group was under Callihan, he
admitted that Teffeau had contacted Anderson concerning busi-
ness since Anderson sold Group to Callihan. Anderson testi-
fied Teffeau called and asked if Anderson knew of any trucks
available to move some material because he needed a quote.
Anderson testified that he would call Callihan and tell him they
were looking for a quote on some material. Anderson testified
that, depending if he was busy, sometimes Callihan would say
could you send it for me.
Anderson testified that Anderson has the exclusive authority
to sign checks for ESC. He testified that both he and Callihan
can sign checks for Group. Anderson testified that ESC did not
have a location, but that they parked the trucks primarily wher-
ever the work was located to minimize travel time. ESC and
Group share a post office box, and Anderson thought they share
the cost of the box. Anderson testified that the trucks were
purchased by ESC and that the title for the trucks transferred to
Group in February or March 2006. Respondent entered into
evidence five State of Indiana vehicle registrations for trucks.
One was addressed to ESC, with a purchase date of March 2,
2005, with a transaction date of February 28, 2006. While
addressed to ESC, it was signed by Group. Two of the other
registrations were addressed to Group, with a purchase date of
February 27, 2006, and a transaction date of February 28, 2006.
The last two registrations were addressed to Group with a pur-
chase date of May 3, 2006, and a transaction date of May 4.
Anderson could not explain why the VIN numbers in the State
registrations did not match any of the VIN numbers in the
March 6 purchase agreement.
Callihan testified he is retired from LTV Steel and that he
has known Anderson since 1998, through their employment at
LTV. Callihan testified that he and Anderson are friends and
that their business arrangements are informal.20 Callihan testi-
fied Anderson told him that he had a contract that was expiring
in his trucking business. Callihan testified they reached an
agreement that Callihan would buy the trucking part of the
business. Callihan testified, “I bought ESC Group which pri-

19 Anderson testified ESC still exists and continues to supply parts
and technology to customers in the steel industry. At the time of the
hearing, customers included: U.S. Steel, Service Stall Steel, Republic
Technology, WCI Steel, and Mittal Steel. Anderson testified that ESC
has no employees.
20 Callihan testified since Anderson’s car accident in 2003, Callihan
has noticed a difference in Anderson’s sharpness and memory.
marily consisted of three trucks, three semi tractors and three
trailers.” Callihan testified the $5000 referenced in the pur-
chase agreement was paid in cash by Callihan to Anderson, and
that Callihan was unsure but did not think he had a receipt for
the payment. Callihan testified he did not think they had an
agreement as to the ownership split during the pendency of the
purchase agreement. He testified, “It was just going to go from
zero to a hundred percent when the purchase was complete.”
Callihan testified they worked out a 55- and 45-percent split
when they put the purchase agreement on hold, and they
worked out a lease agreement. The lease agreement was to
allow them to mark time until the NLRB case was resolved. He
testified he did not consummate the purchase agreement be-
cause he learned the NLRB issues may be more financially
significant than originally thought.
Callihan testified the most notable difference between ESC
and Group is that Group hauls material for a customer and de-
livers it. While ESC’s primary contract was to haul material
that ESC owned. Callihan testified the title to the three trucks
may have been transferred from ESC to Group. He testified he
thought the documents would show the transfer. In terms of
registrations, Callihan testified, “The intention was to have the
three trucks and the three trailers transferred to ESC Group,
LLC. And I think that’s been done. I’m not absolutely cer-
tain.” He testified, “The insurance should be in the name, I
think it is in the name of ESC Group, LLC.” Despite his uncer-
tainty about Group’s holding and it operations, Callihan
claimed he manages Group by himself. Yet, Callihan testified
that Surdell continued to help with Group while claiming Sur-
dell’s role was greatly diminished since Callihan took over.
Callihan testified he never gave Surdell authority to act as his
agent. Callihan testified that he handles labor relations for
Group. Callihan testified that they have added some customers
since he has been involved with Group including: Allied Waste,
Scoria Iron, and have off and on dealings with Indian Trucking.
Callihan testified that Group purchased three trucks from
ESC, with two being operational, and the third being used for
parts. Callihan testified Group has purchased two additional
trucks. Callihan testified the trucks are currently located in the
area adjacent to MultiServ’s office at the Mittal West. Callihan
testified that Group does not have an office. He testified there
is a common post office box between Group and ESC. Calli-
han testified he did not think there was a common phone num-
ber. Callihan claimed calls for Group usually go to his cell
phone. However, Callihan signed off on a price quote to Tef-
feau with a Group letter head, dated December 12, 2006, using
the same phone, fax, cell phone numbers, post office box, and
email address as those on an ESC letter head signed off on by
Surdell to Teffeau in April 2006. The phone numbers on the
ESC and Group’s letterheads were Anderson’s number, not
Callihan’s. Callihan testified that Anderson was the recipient
of the phone call for the December 12 price quote Callihan
signed, and that Anderson prepared the letter. Callihan testified
he did not think there was ever a separate Group letterhead with
his phone number on it. Callihan testified Group never applied
for a supplier application with Mittal Steel, and it never re-
ceived its own vendor number from Mittal. He testified Group
is using ESC’s vendor number.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD598
Callihan testified he had met Teffeau once and that Teffeau
called Callihan on a couple of occasions. He testified that Tef-
feau called him soliciting a bid on hauling limestone from a
Milwaukee supplier to Mittal East. Callihan testified Group
received that job. Callihan testified another occasion Teffeau
called about hauling heavy melt from Mittal West to Mittal
East. Callihan testified they also got that job. Callihan testified
that while they provided Teffeau with a new letterhead for
Group, they never gave him a verbal explanation of the change
in the companies. Callihan testified that since they put the
purchase of Group on hold they thought changing the name and
representatives to Teffeau would create confusion especially if
the sale did not go through. Callihan testified they did not try
to explain to Teffeau or their other customers that there was a
new company due to the uncertainty created by the unfair labor
practice charge. Callihan testified he was, at the time of the
hearing, still not sure of whether he was going to consummate
the deal to purchase Group. Callihan testified he became in-
volved with Group and started his activity with the business
around March 2006, and Callihan was the sole manager and
supervisor since that time. Yet, Surdell was still signing off on
an ESC bid dated April 24, 2006, to Teffeau. Callihan testified
this was work for Group although the bid contained an ESC
letterhead. Surdell also signed off on a quote to Teffeau dated
November 1, 2006. Callihan testified it was a quote for Group.
Callihan claimed that ESC ceased its hauling operations some
time prior to Callihan’s involvement in March 2006.
Callihan testified the March 6 purchase agreement was
placed on hold and replaced by the March 31, lease agreement.
The March 31 lease agreement states at page three that the
trucks at all times and remain in the sole and exclusive property
of Group. However, on the first page of the lease agreement it
states that Group is leasing the trucks. Callihan admitted that
there was confusion in the document. Callihan testified that
what was intended was that Group lease the trucks from ESC.
Yet, Callihan testified that Group owned the trucks at some
point in time as evidenced by the truck registrations, and that
the trucks were transferred to Group, at which point Group was
leasing the trucks from itself. Callihan testified there was sup-
posed to be a payment of $20 a truck used per day. However,
the money was not actually being paid, and was just an ac-
counting notation in that its accrual was dependent on resolu-
tion of the unfair labor practice charge when the purchase and
lease agreement would be concluded. Callihan testified that he
is a 45-percent owner and Anderson is a 55-percent owner of
Group for the duration of the lease agreement. Callihan testi-
fied that when the lease agreement ends, he has the option of
purchasing all of Group, and that if he decides not to go
through with the purchase he would not own any of it. Callihan
testified that to purchase Group, “I’d have to pay the balance of
the $60,000 purchase agreement and significant additional
monies offset by the expense itself. The dollar amount is defi-
nitely not certain in my mind at this point.” Callihan testified
he would have to make the truck rental payments to consum-
mate the purchase. He testified that the only thing that he has
paid is the $5000. Callihan testified that since he was brought
aboard with Group in March 2006, he did not think there were
any documents filed with the Indiana Secretary of State’s office
for that company.
I do not credit either Anderson or Callihan’s claims that Cal-
lihan ran Group following the March 6 purchase agreement.
First, minimal if any funds changed hands between Anderson
and Callihan for Callihan’s alleged acquisition of Group.
Anderson testified he received $5000, from Callihan, but could
not recall if it was by cash or check, and Callihan claimed it
was by cash for which he did not believe he had a receipt. Ad-
mittedly no other purchase funds were paid, and any truck
rental fees also were not being paid and in all probability will
never be paid. Thus, Anderson for all intents and purposes is
the owner of all the trucks and trailers operated by Group, as he
was for ESC.
Moreover, Teffeau, the chief contracting officer for Mittal,
which was both ESC and Group’s primary customer, testified
Anderson remains his primary contact for soliciting work, and
that Teffeau considered ESC and Group to be the same opera-
tion. At the time of the hearing, Teffeau last called Anderson
in January 2007 pertaining to work for Mittal. Teffeau testified
that when he called Anderson in January 2007, he understood
Anderson was working for ESC stating, “In my mind, there had
been no change.” Teffeau testified he was never informed of a
change of ESC to Group. Teffeau testified that Surdell was his
secondary contact, and that he would call Surdell when he
could not reach Anderson. Teffeau met Callihan on only one
occasion, when Callihan applied for a driving pass with Mittal
on June 28. He testified that Anderson and Surdell introduced
Callihan to him, and told him that Callihan works for ESC,
which was the company identified on Callihan’s driving pass.
Teffeau testified that he had minimal contact with Callihan.
While Mittal had over 80 invoices with Respondents from
March 6, 2006, to the time of the hearing. Callihan, himself,
only claimed to have spoken to Teffeau on three occasions, one
of which was when he received his driving permit. Thus, I do
not credit either Anderson or Callihan’s testimony that Callihan
ran Group beginning in March 2006. Rather, I find that Ander-
son remained the owner of Group, and was the principle contact
in terms of soliciting bids, and formulating invoices as Teffeau
testified. Anderson’s phone, fax number, and address remained
as the sole listing on Group’s invoices. I also do not credit
Callihan’s claim that he was involved in the labor relations of
Group. He gave no specifics in support of this testimony, and it
was Surdell who offered Wagner and Roop jobs for Group, as
Surdell had previously done for ESC.
B. Legal Analysis
1. Surdell’s supervisory and agency status
A “supervisor” is defined in Section 2(11) of the Act as:
. . . any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
ENGINEERED STEEL CONCEPTS 599
The enumerated powers listed in Section 2(11) of the Act are
to be read in the disjunctive. NLRB v. McEver Engineering,
Inc., 784 F.2d 634, 642 (5th Cir. 1986). Thus, if an individual
possesses any one of the 13 kinds of authority set out in Section
2(11), they are a “supervisor” for purposes of the Act assuming
that such authority is not routine or clerical in nature.
I conclude that Surdell is a supervisor within the meaning of
Section 2(11) of the Act in that he has the authority to exercise
independent judgment in the hiring of employees, and that he
responsibly directs employees. While no evidence was pre-
sented that Surdell received compensation for his services, he
was given a business card for ESC with the title of national
sales manager. Surdell attended the March 8, 2005 meeting
with Parks, along with Anderson, where Anderson executed the
collective-bargaining agreement for ESC with the Union.
Parks’ credited and uncontradicted testimony reveals that dur-
ing the meeting Surdell presented Parks with Surdell’s business
card, and it was explained to Parks by Anderson and Surdell
that Surdell would be taking care of the day-to-day operations
of ESC. During the meeting, either Anderson or Surdell in-
formed Parks that Surdell would be Parks’ contact person for
ESC’s hiring drivers, as well as for union matters. Parks testi-
fied that, after ESC hired its drivers, Parks had little if any con-
tact with Anderson. Rather, Parks’ contact was with Surdell
about ESC’s need for drivers. Surdell called Parks when ESC
needed a fill-in driver for someone taking off, or if they were in
need of another driver. There was one occasion when the Un-
ion placed nine drivers for ESC for work at U.S. Steel on an
around the clock shift. Parks testified he dealt with Surdell on
the call for those drivers. Parks testified that, prior to 2006,
Parks had one or two contacts with ESC on behalf of employ-
ees with a work-related problem. On one of the occasions, one
of drivers did not get his check in a timely fashion. Parks
called Surdell and Surdell corrected the situation.
Wagner and Roop were the first two drivers hired by ESC.
Wagner was interviewed by Anderson and Surdell at the union
hall on March 9. Wagner testified it was his understanding that
Surdell was part of management. Surdell told Wagner that he
was hired either the day of the interview or the next morning.
Roop testified he filled out a job application for ESC given to
him by Surdell. Roop testified he thought Surdell was their
boss. Roop testified Surdell interviewed Roop to work for
ESC, by phone, and no one else was on the call. Surdell told
him that he was hired during the same conversation as the in-
terview. Anderson testified that Parks told him during the
March 8, meeting that, although the Union would arrange for
interviews with the drivers that ESC could pick which ones
they wanted to employ. Thus, Wagner and Roop’s testimony
reveals that Surdell participated in ESC’s hiring process as a
member of management, and that Surdell exercised independ-
ent judgment in hiring Roop, who was hired by Surdell, without
consulting Anderson, during the course of Roop’s job interview
with Surdell.
The vast majority of work the Union referred drivers per-
formed for ESC was picking up materials from MultiServ lo-
cated at the Mittal West plant, and driving it to the Mittal East
plant. Respondent’s trucks were parked at the Mittal West
facility. Wagner testified that during his first week of employ-
ment with ESC, he went with Surdell and obtained the three
trucks the Company used, and dropped them off for repair.
Wagner and Roop’s testimony revealed that on most days they
met with Surdell each morning before starting work, and he
either obtained an all day pass for them to drive trucks from
one Mittal facility to the other, or Surdell issued them alterna-
tive assignments. Wagner testified Surdell told him what to do
on a daily basis, and that Anderson gave him a daily gate pass
when Surdell was not present, which was around 2 or 3 percent
of the time. Similarly, Roop testified Surdell usually obtained
the passes for the drivers. Wagner called off work once or
twice and spoke to Surdell. Surdell approved the time off dur-
ing the call. Similarly, when Roop called off work he called
Surdell and Surdell approved the leave request while they were
on the phone.
Wagner’s credited testimony reveals that on February 8,
Surdell called Wagner at home after work and told Wagner
ESC had no more driving work for the drivers as Inland was
complaining about the price of the material and they were go-
ing to try to get authorization to buy the material and then the
drivers could go back to work. On February 9, Surdell came to
Wagner’s home to drop off his paycheck. Surdell told Wagner
that he hoped it would not take too long, that they had nothing
the drivers could do until they got authorization. Roop credibly
testified that on February 8, Surdell called Roop at home on the
phone. Surdell told Roop that there was no work the rest of the
week and possibly the following week. Surdell said they had
some contracts coming up that they were hoping to close and
Surdell would be in touch with Roop if there was any work.
Surdell later made arrangements for Roop to pick up his pay-
check. In early March 2006, Surdell offered Wagner and Roop
jobs on behalf of Group. On March 13, ESC faxed a letter to
the Union under Surdell’s signature. The letter stated that ESC
Trucking has gone out of business and the following drivers are
laid off: Wagner, Roop, and Miletich.
Teffeau testified Anderson was the primary contact for busi-
ness with ESC and Surdell was Teffeau’s secondary contact.
Teffeau testified he would call Surdell concerning ESC, if he
could not reach Anderson. Teffeau received a price quote from
ESC, dated January 5, under Surdell’s signature and signed off
on and accepted ESC’s quote for this work. Teffeau received
other quotes from ESC under Surdell’s signature dated Febru-
ary 24, April 24, and November 1, 2006. Surdell also attended
a meeting with Teffeau, Anderson, and Callihan on June 28,
when Callihan was introduced to Teffeau. Clearly, Surdell was
a member of management for ESC and Group.
I therefore conclude that Surdell was a supervisor within the
meaning of Section 2(11) of the Act in that Surdell used inde-
pendent judgment to both hire and responsibly direct employ-
ees on behalf of the Respondents and that as a supervisor Sur-
dell was acting as an agent on behalf of the Respondents. In
this regard, Surdell was involved in the hiring process with
Wagner and told him he was hired. Surdell was the only one to
interview Roop, and told Roop he was hired during the inter-
view. Surdell was at the jobsite most every morning where he
gave employees their gate passes, and their assignments. He
approved leave for employees, and adjusted a grievance with
the Union concerning an employee’s paycheck. Parks was told
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD600
Surdell was running the day-to-day operations of ESC, that he
was ESC’s contact for the Union, and the employees consid-
ered Surdell to be their boss. Surdell contacted the Union when
ESC needed more drivers, he wrote the Union stating that the
employees were laid off and ESC had gone out of business, and
he offered Roop and Wagner positions on behalf of Group. He
acted on behalf of both companies in terms of business dealings
with Teffeau at Mittal, which was their principle customer. See
Grinnel Corp., 320 NLRB 817, 826 (1996) (Carter); and Ess-
bar Equipment Co., 315 NLRB 461 (1994) (Detweiler).
Even if contrary to my findings above, it could be deter-
mined that Surdell was not a supervisor, I find that he was an
agent of the Respondent under settled principles. In Zimmer-
man Plumbing Co., 325 NLRB 106 (1997), enfd. mem. in per-
tinent part 188 F.3d 508 (6th Cir. 1999), the Board set for the
following standard for assessing agency:
It is well established that apparent authority results
from a manifestation by the principal to a third party that
creates a reasonable basis for that party to believe that the
principal has authorized the alleged agent to perform the
acts in question. See generally Dentech Corp., 294 NLRB
924 (1989); Service Employees Local 87 (West Bay), 291
NLRB 82 (1988). Thus, in determining whether statements
made by individuals to employees are attributable to the
employer, the test is whether, under all the circumstances,
the employees “would reasonably believe that the em-
ployee in question [alleged agent] was reflecting company
policy and speaking and acting for management.” Water-
bed World, 286 NLRB 425, 426–427 (1987).
At a minimum, Surdell was responsible for relaying and en-
forcing the Respondents’ policies, views, and objectives at the
worksite. In this regard, Surdell told Roop and Wagner they
were hired, gave them their assignments on a daily basis, told
them they were laid off, made arrangements for them to collect
their paychecks, approved their leave requests, and signed the
letter to the Union stating they were laid off and ESC had gone
out of business. Therefore, independent of any finding with
respect to his supervisory status, I find that Surdell had appar-
ent authority to act for management, and he served as an agent
for the Respondents within the meaning of Section 2(13) of the
Act.
2. Respondents ESC and Group are not construction
industry employers
In Oklahoma Fixture Co., 333 NLRB 804, 807 (2001), it was
stated:
Under Section 8(f) of the Act, employers and unions in
the construction industry are permitted to enter into collec-
tive-bargaining agreements before the union has estab-
lished its majority status. Either party is free to repudiate
the collective-bargaining relationship once an 8(f) contract
expires by its terms. John Deklewa & Sons, 282 NLRB
1375 (1987), enfd. sub nom. Iron Workers Local 3 v.
NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S.
889 (1988). However, an automatic renewal clause in an
8(f) agreement will be given effect and operates to bind
the parties to a continuation of the agreement. Cedar Val-
ley Corp., 302 NLRB 823 (1991), enfd. 977 F.2d 1211
(8th Cir. 1992), cert. denied 508 U.S. 907 (1993); Fortney
& Weygandt, 298 NLRB 863 (1990). When an employer
repudiates a collective-bargaining agreement during its
term, it violates Section 8(a)(5) and (1) of the Act. See
John Deklewa, supra, 282 NLRB at 1385.
The determination of whether a collective bargaining agree-
ment is a 9(a) or an 8(f) agreement impacts the future obliga-
tions of the parties upon the contract’s expiration. Unlike an
8(f) agreement, under a 9(a) agreement, an employer would
have to demonstrate actual loss of majority status in order to
withdraw recognition from a union. Levitz Furniture Co., 333
NLRB 717 (2001).
The plain reading of Section 8(f) of the Act reveals that it is
applicable only to “an employer engaged primarily in the build-
ing and construction industry to make an agreement covering
employees engaged (or who, upon their employment, will be
engaged) in the building and construction industry with a labor
organization of which building and construction employees are
members. . . .” See Techno Construction Corp., 333 NLRB 75,
83–84 (2001). The burden of proof in determining whether an
employer is engaged primarily in the building and construction
industry lies with the party seeking to avail itself with the 8(f)
statutory exception. See Bell Energy Management Corp., 291
NLRB 168, 169 (1988); and Painters Local 1247 (Indio Paint
& Rug Center), 156 NLRB 951 fn. 1 (1966). In a nonconstruc-
tion situation in the Section 9(a) of the Act context, Section
10(b) of the Act precludes inquiry as to the lawfulness of rec-
ognition granted outside the 10(b) period that was not chal-
lenged within the 10(b) period. See Strand Threatre of Shreve-
port Corp, 346 NLRB 523, 536–537 (2006); Alpha Assoc., 344
NLRB 782, 782–784 (2005); Expo Group, 327 NLRB 413, 431
(1999); Royal Components, Inc., 317 NLRB 971, 972–973
(1995); Gibbs & Cox, Inc., 280 NLRB 953, 967 fn. 21 (1986);
International Hod Carriers (Roman Stone Constructions), 153
NLRB 659 (1965); and Machinists Local 1424 (Bryan Mfg.
Co.) v. NLRB, 362 U.S. 411 (1960).
In Teamsters Local 83, 243 NLRB 328, 331 (1979), the
Board stated the following in terms of the definition of the
building and construction industry:
The Act does not define the term “building and con-
struction industry.” However, the Board has dealt with the
term in a number of cases involving the question of
whether an employer is qualified for an exemption under
Section 8(f). In Carpet, Linoleum [&] Soft Tile Local No.
1247, (156 NLRB 951, 959 (1966)) the Administrative
Law Judge (then Trial Examiner) defined the industry,
with Board approval in the following manner:
Within these various definitions, whether technical,
common, or legal, substantial consensus seems clear.
Each formulation with respect to the so-called building
and construction concept subsumes the provision of
labor whereby materials and constituent parts may be
combined on the building site to form, make, or build a
structure. The various factors, therefore, define the
statutory “building and construction industry” with
which we are concerned.
ENGINEERED STEEL CONCEPTS 601
The Board in Teamsters Local 83, supra at 333, found that
certain employers were not engaged primarily in the building
and construction industry, and therefore certain hiring hall pro-
visions in their collective-bargaining agreements were not pro-
tected by Section 8(f)(4) of the Act. The Board did not strike
down the collective-bargaining agreements, but merely found
the maintenance, enforcement, and giving effect to the hiring
hall provisions of the collective-bargaining agreements was
violative of Section 8(b)(1)(A) and (2) of the Act. More spe-
cifically, in Flying Dutchman Park, Inc., 329 NLRB 414, 416
(1999), the Board held that a contract containing an unlawful
union-security clause did not so permeate the remainder of the
contract as to render the contract unenforceable. The Board
stated:
For in cases where the Board has found a union-
security provision unlawful because it did not provide
newly hired employees the legally established grace period
in which to become union members, the Board has not
found that such a provision so permeated a contract as to
render the contract unenforceable. See Royal Compo-
nents, Inc., 317 NLRB 971, 972 (1995). We likewise de-
cline to make such a finding here where the clause in ques-
tion is “not basic to the whole scheme of the contract, and
there is no provision that the contract is ‘integrated’ or that
its respective sections are ‘interdependent.’” NLRB v.
Tulsa Sheet Metal Works, 367 F.2d [55] at 59.
In Royal Components, Inc., supra at 972–973, an employer
that was not a construction industry employer entered into a
collective-bargaining agreement with a 7-day membership
grace period, allowed in the construction industry, but not for
employers outside that industry. The Board found the mainte-
nance of the union-security provision to be unlawful, but re-
fused to entertain the respondent’s contention that the union
lacked majority status at the time the contract was executed
since the asserted lack of majority status was not challenged
within the since month period from the time the contract was
executed. Thus, the respondent was barred from challenging
the union’s presumed majority status; although the contract
provision was found to be unlawful it was not held to vitiate the
remainder of the contract.
The Board has addressed the issue in detail with respect to
the construction industry status of employers who employ driv-
ers whose function it is to deliver materials to construction
sites. In J. P. Sturrus Corp., 288 NLRB 668 (1988), the em-
ployer operated a quarry, batch plant, and delivery service for
ready-mixed concrete. The employer argued it was engaged in
the construction industry and therefore was free to withdraw
recognition from the union under Deklewa & Sons, supra. The
ALJ noted that the employer supplied companies, some of
which may have been within the provisions of Section 8(f) of
the Act, “but that does not mean that Respondent is in the
building and construction industry.” Id. at 671. The administra-
tive law judge further stated, “The Board has held that redi-mix
concrete delivery companies are not engaged in the building
and construction industry within the meaning of either Section
8(e) and (f) of the Act, and those cases are controlling here.
Inland Concrete Enterprise, 225 NLRB 209 (1976); Island
Dock Lumber Co., 145 NLRB 484 (1983).” Id at 671.21 The
Board in J. P. Sturrus Corp., supra at 668, in affirming the
employer was not a building and construction industry em-
ployer, stated that although the employer’s drivers occasionally
assisted contractors at the construction site with the spreading
of concrete after they poured it, or hosed down the contractor’s
tools, they were engaged in incidental tasks which did not bring
the employer within the building and construction industry as
contemplated by Section 8(f). See also Mastronardi Mason
Materials Co., 336 NLRB 1296, 1306 (2001), enfd. mem. 174
LRRM 2927 (2d Cir. 2003); and St. John Trucking, 303 NLRB
723, 730 (1991).
The evidence in the instant case reveals that on March 8,
2005, Anderson and Surdell met Parks at the Union’s office,
and that following a discussion concerning the provisions of the
Union’s standard commodity and construction agreements,
Anderson elected to sign the construction agreement. I have
credited Parks’ testimony of the content and nature of the dis-
cussion in that meeting over Anderson’s.22 Parks’ credited
testimony reveals that Anderson elected to sign the construction
industry agreement over the commodity agreement because,
unlike the commodity agreement, the construction agreement
provided the employees were to be paid by the hour, and their
fringe benefits were also based on their hours of work. The
construction industry agreement also did not provide for vaca-
tions and seniority. During the discussion, Parks told Anderson
he would prefer to have him sign the commodity agreement
because Anderson had told Parks that the drivers would be
hauling product between steel mills, and Parks informed
Anderson this was not really construction work. However,
Parks agreed to Anderson’s election to sign the construction
agreement as an accommodation to Anderson, and because the
wages were similar in the commodity and construction agree-
ments.23 Thus, on March 8, 2005, Anderson, on behalf of ESC,

21 See also Techno Construction Corp., 333 NLRB 75, (2001), and
the cases cited at p. 82 of that decision and in particular at fn. 7, involv-
ing the interpretation of the construction industry proviso to Sec. 8(e) of
the Act, standing for the proposition that “the mere transportation of
goods or materials to or from a construction site is not onsite work and
therefore not covered by the construction industry proviso.”
22
Surdell did not testify at the hearing, although he attended the
meeting. I have found Surdell to be an agent and supervisor for Re-
spondents and the General Counsel asks for an adverse inference con-
cerning Surdell’s failure to appear. The hearing was in mid-February
2007, and Anderson testified Surdell, who was in his late 70s, had back
surgery in December 2006. Yet, he also testified that Surdell had be-
gun to drive a couple of weeks prior to the hearing. No medical evi-
dence was proffered by Respondents for their failure to call Surdell.
However, I do not need to decide this case premised on an adverse
inference. In this regard, the General Counsel’s witnesses testified in a
clear and credible fashion, while the testimony of Respondents’ wit-
nesses was vague, inconsistent, and simply not credible considering the
record as a whole.
23
The work jurisdiction described in art. 1, sec. 4 of the Union’s
construction industry agreement states that work under the agreement
was “not limited to” the work described in that section. Moreover,
Anderson’s testimony reveals that they discussed that the reduced wage
rates set forth in art. 11, sec. 7 of the agreement would be applying to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD602
signed the Union’s, “General Construction of Building, Heavy
& Highway Projects” contract. The contract’s effective dates
were June 1, 2003, to May 31, 2006. Parks credibly denied that
Anderson took notes during the meeting. Parks also credibly
denied telling Anderson that he could terminate the agreement
at the end of the collective-bargaining agreement or when
ESC’s then current contract for hauling c-fines ended. Parks
credibly denied that Section 8(f) of the Act was discussed prior
to Anderson’s signing of the Union’s contract.
I find that neither ESC nor Group are employers in the con-
struction industry. ESC purchased 100,000 tons of c-fines on
October 7, 2004, from ISG. C-fines are finely granulated steel
refuse that can be recycled by steel mills. ISG was eventually
sold to Inland, another steel company. Anderson testified that
when ESC was operating in 2005 and early 2006, the primary
material ESC hauled was c-fines. Anderson testified the major-
ity of the work performed by ESC drivers in 2005 was hauling
material from one steel facility to another. Similarly, Parks
testified that, during the March 8, 2005 meeting, Anderson and
Surdell explained they were going to be hauling commodities
from one steel mill to the other, which at the time was between
ISG and Inland Steel. The meeting took place prior to Mittal’s
eventual take over of both steel operations. Anderson testified
ESC did do some construction type work by hauling clay for
the building of a dam. Respondent submitted into evidence
four ESC invoices for Austgen Equipment Inc., showing deliv-
eries from July 1 to August 24, 2005, with a fifth invoice show-
ing deliveries on September 7, 2005, pertaining to the hauling
of clay. The total billing for the invoices was $20,020, which
was a small fraction of Respondent’s billing during 2005 and
2006, for its work at the steel mills, as revealed by Teffeau’s
invoice summary of the work Respondents performed for Mit-
tal from June 2005 through January 2007.24 Teffeau’s sum-
mary and his testimony is confirmed by the testimony of ESC
drivers Wagner and Roop, who credibly testified that the vast
majority of their work from March 2005 to February 2006 was
hauling of steel by products between steel plants. It is also
confirmed by Parks and Wagner’s testimony that they saw and
followed an ESC truck on March 13, hauling c-fines between
Mittal West and East; and Roop’s testimony that he saw two
Group trucks in November and December at Mittal West load-
ing red dust. Ronk, a loader operator, working at the Mittal
West facility confirmed that ESC and then Group trucks re-
mained parked at Mittal West and were hauling steel by prod-
ucts away from the facility throughout the whole time period up
until the hearing in 2007.
In sum, the vast majority of work performed by ESC and
Group from 2005 to 2007 was the hauling of steel byproducts
between, and to and from steel mills. ESC and Groups trucks

his employees indicating that he was aware that his employees were not
performing work otherwise typified by the construction industry
agreement.
24 Teffeau’s summary of ESC and Group invoices for steel mill haul-
ing shows work performed from June 22, 2005, to January 23, 2007.
The summary shows there were about 42 invoices between the period
of June 22, 2005, and February 14, 2006. There were about 93 invoices
from the period of February 24, 2006, to January 23, 2007.
were stored at Mittal West in 2005 through 2007, because they
were obtaining most of their work from that facility. While
ESC hauled clay to a dam construction site for a 7-week period
in 2005, this clearly was not the majority of ESC’s work.
Moreover, there was no showing that the ESC drivers did any-
thing at the dam site, other than dump the clay there. The
Board has consistently held that the nature of the work per-
formed by ESC, Group, and its drivers is not work in the con-
struction industry. See Mastronardi Mason Materials Co., 336
NLRB 1296, 1306 (2001), enfd. 174 LRRM 2927 (2d Cir.
2003); Techno Construction Corp., 333 NLRB 75, 82–84
(2001); St. John Trucking, 303 NLRB 723, 730 (1991); J. P.
Sturrus Corp., 288 NLRB 668, 671 (1988); Inland Concrete
Enterprise, 225 NLRB 209 (1976); and Island Dock Lumber
Co., 145 NLRB 484 (1983). Accordingly, neither ESC nor
Group are employers engaged primarily in the building and
construction industry.
Thus, the contract in the instant case was based on a 9(a) re-
lationship since Respondent was not a construction industry
employer it could not have entered into an 8(f) relationship.25
Thus, Section 10(b) of the Act prevents an inquiry into whether
the Union had majority status at the time the contract was en-
tered into since no unfair labor practice charge was filed within
since months of the parties entering into the contract. See
Strand Threatre of Shreveport Corp, 346 NLRB 523, 536–537
(2006); Alpha Assoc., 344 NLRB 782, 782–784 (2005); Techno
Construction Corp., supra; Expo Group, 327 NLRB 413, 431
(1999); Royal Components, Inc., 317 NLRB 971, 972 (1995);
Gibbs & Cox, Inc., 280 NLRB 953, 967 fn. 21 (1986); Interna-
tional Hod Carriers (Roman Stone Constructions, 153 NLRB
659 (1965); and Machinists Local 1424 (Bryan Mfg. Co.) v.
NLRB, 362 U.S. 411 (1960). Moreover, all three of ESC’s
employees at the time of their February 2006 termination had
been referred by the Union. The evidence reveals that Surdell
offered at least two of the three employees continued employ-
ment with Group in March 2006 without the benefit of union
representation and benefits. Both the employees declined and
contacted the Union to file grievances against the Respondent.
Thus, Respondents’ own unfair labor practices revealed that a
majority of its employees wanted the Union to represent them
at the time it formally terminated the three employees on March
13, and incorrectly declared to the Union that it had gone out of
business.26

25
That the agreement contains a 7-day union-security clause which
is not applicable in a non construction industry setting does not nullify
the otherwise valid provisions of the agreement. This is particularly so
since the agreement has a savings clause at art. 15. See Flying Dutch-
man Park, Inc., 329 NLRB 414, 416 (1999); Royal Components, Inc.,
317 NLRB 971, 972 (1995); and Teamsters Local 83, 243 NLRB 328,
333 (1979).
26
The case, NOVA Plumbing, Inc. v. NLRB, 330 F.3d 531 (DC Cir.
2003), cited by Respondents is inapposite to the facts presented herein.
There a construction industry employer claimed it entered into an 8(f)
rather than a 9(a) agreement, and therefore lawfully withdrew recogni-
tion from a union. The court, in reversing the Board, looked to the
facts behind the agreement to determine whether the union had ever
achieved majority status. The court stated at 539, “The fundamental
ENGINEERED STEEL CONCEPTS 603
3. Group is an alter ego and disguised continuance of ESC
In Diverse Steel, Inc., 349 NLRB 946 (2007), the Board
stated:
The Board generally will find alter ego status where
two entities have substantially identical management,
business purposes, operations, equipment, customers, su-
pervision, and ownership.4 Not all of these indicia need be
present, and no one of them is a prerequisite to an alter ego
finding.5 Although unlawful motivation is not a necessary
element of an alter ego finding, the Board also considers
whether the purpose behind the creation of the alleged al-
ter ego was to evade responsibilities under the Act.6
Where there is evidence that the second company was
formed to take over the business of the first in order to re-
duce its labor costs by repudiating the union’s collective-
bargaining agreement the Board has found that the second
company was formed with the unlawful motive of avoid-
ing the first company’s responsibilities under the Act.
Midwest Precision Heating & Cooling, Inc., supra, 341
NLRB [435] at 439. [Footnotes omitted.]
Wagner’s credited testimony reveals that on February 8,
Surdell called him and told Wagner ESC had no more driving
work for the drivers as Inland was complaining about the price
of the material and they were going to try to get authorization
to buy the material and then the drivers could go back to work.
On February 9, Surdell dropped off Wagner’s paycheck. Sur-
dell told Wagner that he hoped it would not take too long, that
they had nothing the drivers could do until they got authoriza-
tion. Wagner testified that after this conversation he never
worked for ESC again. Similarly Roop credibly testified that
on February 8, Surdell called Roop at home and told Roop
there was no work the rest of the week and possibly the follow-
ing week. Surdell said they had some contracts coming up that
they were hoping to close and Surdell would be in touch with
Roop if there was any work.
Roop credibly testified Surdell called Roop on March 6 and
told Roop they were reorganizing ESC and were going to start
it over under another name, nonunion. Surdell told Roop they
hired someone out of a temp agency, and Surdell offered Roop

issue at the heart of this case is whether the 1995 contract was subject
to section 8(f) or 9(a); only if the parties formed a section 9(a) relation-
ship in 1995 did Nova commit an unfair labor practice in 1997 and
thereby trigger the six-month time limit.” The court was referencing
the union’s argument that under Sec. 10(b) of the Act the employer
could not dispute that the contract, by its terms, created a 9(a) relation-
ship some 2 years after the contract was entered into. The court spe-
cifically declined to address the 10(b) question stating, “the Board did
not rely on section 10(b) and ‘(w)e cannot sustain agency action on
grounds other than those adopted by the agency in the administrative
proceedings.’” The court also looked to evidence therein that certain
employees were opposed to having the union at Nova, and stated,
“[T]he record contains no evidence of independent verification of em-
ployee support.” Id. at 537. Unlike in NOVA where there was evidence
that a majority of employees there did not want union representation, in
the instant case two of the three bargaining unit employees refused
Respondents’ offer of continued employment on condition that they
work nonunion, and in fact contacted the Union to grieve Respondents’
actions.
a job as a truck driver for $18 an hour, nonunion, no benefits.
Roop declined the offer. Wagner testified he called Surdell on
March 13. Wagner asked Surdell what was going on, and Sur-
dell said they had filed for bankruptcy, opened up under a new
company called Engineered Group Limited, and that they could
not afford to pay the union benefits. Surdell said they had work
for Wagner if he willing to work nonunion at $18 an hour, but
that was all they had to offer him. Surdell said he wanted
Wagner to come to work for the new company. Wagner said he
could not do that because he worked too hard to get his benefits
and retirement from the Union. Surdell said they had hired a
new driver from a temp agency and they had 90 days to keep
him or get rid of him. As set for above, I have found that Sur-
dell was a statutory supervisor and agent of Respondents. Ac-
cordingly, I find that his calling and conditioning continued
employment to Roop and Wagner on their working nonunion
and relinquishing union pay and benefits was coercive and
violative of Section 8(a)(1) of the Act. See Mastronardi Mason
Materials Co., 336 NLRB 1296, 1296 (2001), enfd. 174 LRRM
2927 (2d Cir. 2003). See also Colden Hills, Inc., 337 NLRB
560 (2002), where a statement that a union organizer’s applica-
tion was not taken seriously because of his union status was
found violative of Section 8(a)(1) of the Act; and J. S. Alberici
Construction Co., 231 NLRB 1038, 1042 (1977), enfd. 591
F.2d 463 (8th Cir. 1979).
Parks called Surdell on March 13, from the speaker phone in
Parks’ office, in Wagner’s presence. Parks asked Surdell why
he laid off Parks’ drivers. Surdell said the Company was going
out of business, they were bankrupt, and they no longer were
going to be a union company. Parks asked what Surdell meant,
and Surdell said there was a new company called Engineered
Group Limited. Parks said thank you and that now he knew
what to put on the picket signs. Parks told Surdell that he never
notified the Union of the closing, gave the union an opportunity
to bargain, or for recognition with the new company. Surdell
said he had one employee working that day for the new com-
pany, who was from a temporary service. Parks told Surdell
there would be grievances and probably Labor Board charges
filed immediately.27 Parks testified that following the phone
call, Wagner filed a grievance against ESC, which Parks faxed
to ESC on March 13. The cover letter was addressed to Ander-
son’s attention. The grievance, signed by Wagner, stated, “Non
union drivers doing my job.”
After sending the grievance on March 13, Wagner and Parks
drove to Mittal West, to the MultiServ parking lot where they
saw two ESC red Volvo truck cabs and about five trailers
parked in the yard. In addition to the two ESC parked trucks,
they saw ESC truck 311 driving past the scales at MultiServ
loaded with c-fines. All three trucks had ESC signs on them.

27 Wagner confirmed Parks’ version of the call testifying that Surdell
said the Company opened up under new name, Engineered Group Lim-
ited, and that they could not afford to pay union benefits so they filed
bankruptcy. Surdell said they hired a new driver from a temporary
service. Parks thanked Surdell for stating the name of the new com-
pany because he knew what he had to put on the picket signs. Parks
asked Surdell if he did not think he had an obligation to the Union, and
Surdell did not have much of an answer for that.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD604
Parks did not recognize the driver. They observed truck 311
exit the gate at Mittal West and followed it to Mittal East,
where the truck dumped its load, and then returned to Mittal
West. After taking the pictures of and following the truck,
Parks and Wagner returned to the union hall, where Parks wrote
and faxed the initial charge against the Respondents to the
NLRB. Despite ESC’s continuing to operate in plain view at
the Mittal plants, on March 13, Surdell faxed the Union a letter
stating ESC Trucking has gone out of business and the follow-
ing drivers are laid off: Wagner, Roop, and Miletich.28
On March 14, Parks met with Roop at the union hall at
which time Roop filed a grievance stating, “[N]onunion work-
ers in trucks.” Parks faxed the grievance on that date to ESC to
Anderson’s attention. On March 15, Parks saw two ESC trucks
in the morning loaded with what appeared to be c-fines on a
public road in East Chicago. Parks did not recognize either of
the drivers. On March 17, Wagner and Roop filed separate
grievances alleging “unjust termination.” The grievances were
faxed on that date to ESC to Anderson’s attention. Parks testi-
fied that he received no response from ESC to any of the griev-
ances that were filed. On March 17, Parks faxed a letter ad-
dressed to ESC and Group to Anderson’s attention. In the let-
ter, Parks stated it was the Union’s position that Group is an
alter ego of ESC, and was covered by the current labor agree-
ment. Parks stated the Union was requesting recognition by
Group, and the Union’s members be returned to work immedi-
ately. Parks received no response.
By letter to the Union, dated March 28, sent by overnight
mail, Paul Cummings of Blankenship Associates, stated, “I
have been authorized and instructed” by ESC to serve notice
that it was terminating the collective-bargaining agreement with
the Union, “as of its termination on May 31, 2006,” pursuant to
article 30 of the agreement. By letter dated September 12, ESC
informed the Union’s pension plan that it had no hours to report
since February 2006. Parks identified checks to the pension
plan from ESC dated March 13. He testified those checks
would have been for February hours, and that it was his under-
standing those were the last checks the pension plan received.
I find that Group is an alter ego and disguised continuance of
ESC, and that Group was specifically made into an active entity
in order to void ESC’s contract with the Union. Roop’s testi-
mony reveals that, on the day the March 6 purchase agreement
was entered into between Callihan and Anderson, that Surdell
called Roop and offered him a job. Surdell told Roop they
were reorganizing ESC and were going to start it over under

28
While ESC sent a fax to the Union on March 13, stating it had
gone out of business, ESC submitted invoices to Teffeau at Mittal,
dated: March 13, for the hauling of c-fines from March 9 to 13; March
17, for the hauling of skimmer iron material from March 15 to 17;
March 17, for the hauling of c-fines from March 14 to 17; March 26,
for the hauling of c-fines from March 21 to 23; and March 26, for the
hauling of skimmer iron material from March 20 to 23. All of the
invoices were on ESC letterheads. Additional invoices were submitted
dated March 29, April 12, and May 18 on ESC letterheads. Respon-
dents did not change to a Group letterhead for their invoices until June
22, 2006. Moreover, the Group letter head used the same address,
phone and fax number as the ESC letter head. An ESC letterhead was
again used for an invoice dated June 29, 2006.
another name, nonunion without union benefits. Roop declined
the offer. Wagner received a similar call from Surdell on the
morning of March 13, where Surdell said they had filed for
bankruptcy, opened up under a new company called Engineered
Group Limited, and that they could not afford to pay the union
benefits. Wagner also declined Surdell’s offer to work for
Group nonunion.
I find that the March 6 purchase agreement entered into be-
tween Callihan and Anderson for Callihan’s acquisition of
Group was a sham transaction. Anderson and Callihan were
longtime friends. The purchase agreement called for the im-
mediate payment of $5000 from Callihan to Anderson. How-
ever, I am not convinced that payment was ever made. Ander-
son could not recall whether it was made by cash or check,
while Callihan testified it was made by cash, for which he did
not believe he received a receipt. The agreement called for the
payment of $60,000, with the balance due on or before June 30,
2006. There is no contention that this money was ever paid. In
fact, at the time of hearing, Callihan was still testifying that he
had not made up his mind as to whether to purchase the com-
pany. The VIN numbers for the trucks listed in the purchase
agreement are also suspect in that they do not match any of the
VIN numbers on the records submitted by Respondent of any
of the trucks that were eventually transferred to Group, or ever
owned by ESC. Both Anderson and Callihan testified that by
verbal agreement, Anderson owned 55 percent of Group and
that Callihan owned 45 percent. However, the purchase agree-
ment specifically stated it could only be altered by a written
agreement.
The March 31 lease agreement entered into between Ander-
son and Callihan was similarly flawed. The lease agreement,
states it is an agreement to lease equipment between ESC the
lessor and Group, the lessee. Yet, a subsequent provision of the
agreement states that the equipment is and shall at all times be
and remain the sole and exclusive property of Group. Thus, in
essence Group was leasing the trucks from itself. The rate of
the lease was $20 per truck per day, but it was not actually paid.
Rather, it was just kept for accounting purposes should Callihan
ever decide to purchase. While in fact no consideration was
given for the transfer of trucks between Group and ESC, State
vehicle registration documents showed that two vehicles were
registered to Group as purchased on February 27, 2006, a date
preceding the March 6 purchase agreement between Anderson
and Callihan. Two more vehicles were registered as purchased
by Group on May 3, 2006. There is no showing that Callihan
ever paid anything for the purchase of the two additional vehi-
cles. I have concluded that Anderson purchased and owned all
the vehicles that were eventually transferred from ESC to
Group, or were directly purchased by Group. I have concluded
that he was and is the sole owner of Group, and that he received
no payments from Callihan for the company.
This conclusion is buttressed by documentary evidence and
Teffeau’s credible testimony. In this regard, while Surdell
wrote to the Union on March 13, that ESC Trucking had gone
out of business and that Wagner, Roop and Anthony Miletich,
were laid off, ESC invoices submitted to Teffeau at Mittal re-
vealed that ESC continued to operate and was making substan-
tial deliveries for Mittal on March 13, and thereafter. In fact,
ENGINEERED STEEL CONCEPTS 605
ESC in combination with Group tendered over 80 invoices to
Mittal from March 2006 to the time of the hearing in February
2007. Mittal remained ESC and Group’s principal customer, as
ESC’s trucks and trailers remained parked at Mittal West
throughout the period both before and after the alleged pur-
chase by Group, and Anderson testified they parked the trucks
where the work was. Moreover, ESC did not change its invoice
letterhead to show Group until June 2006, even after the switch
to the Group name it retained ESC’s mailing address, phone
and fax numbers on the letterhead, which testimony revealed
were in fact Anderson’s numbers. Teffeau also testified that
Group continued to use ESC billing numbers with Mittal, and
that he considered them to be one in the same operation be-
cause any new company would have had to apply for its own
billing number.
I have not credited Anderson’s or Callihan’s testimony that
Callihan ran Group. Teffeau testified that Anderson was his
prime contact for ESC and Group, and that he would phone or
otherwise contact Anderson when he wanted the company to
solicit a bid. He testified that Surdell was his secondary con-
tact, and the evidence showed that Surdell continued to submit
bids to Teffeau even after the operation allegedly switched to
Group. Teffeau testified he had minimal contact with Callihan.
When Callihan was introduced to Teffeau in a June meeting for
Callihan to obtain a drivers permit for entrance into the Mittal
facility, he was introduced as an employee of ESC, and such
was reflected on the permit. Callihan himself only claimed two
phone calls with Teffeau concerning Group’s business during a
period of time when over 80 invoices were submitted by
ESC/Group to Mittal. I have concluded that Anderson drafted
the invoices. Thus, I have concluded, as Teffeau credibly testi-
fied, that Callihan had very little to do with the operation of
Group, which continued to be run by Anderson, and secondar-
ily by Surdell.
In sum, I have concluded that ESC and Group had the same
ownership and management, and that both companies engaged
in the same business of transporting steel byproducts to and
from steel companies. I find that ESC’s trucks and trailers
were transferred to Group for no consideration, and that ESC
and Group’s business actually increased allowing them to in-
crease from operating three trucks to four, and that all addi-
tional trucks were paid for by Anderson the owner of both ESC
and Group. I find that ESC and Groups’ principal customer
was Mittal, and that ESC and Group’s trucks remained stored at
Mittal’s facility as they had before Group came into operation.
Both operations used the same phone and fax numbers and
same mailing address. They used the same billing codes to bill
Mittal, and the same truck codes in general. I do not credit
Callihan’s testimony that he played a significant role in the
labor relations in Group. No specifics were given supporting
this testimony as opposed to Callihan’s signing a few pay-
checks. It was Surdell who offered Roop and Wagner jobs on
behalf of Group, and told those employees that another individ-
ual had been hired from a temporary agency. Surdell played
that same role for ESC, and continued to sign job bids to Mittal
on behalf of ESC after that company had allegedly gone out of
the trucking business. Thus, I have concluded that ESC and
Group are alter egos in that they have substantially identical
management, business purposes, operations, equipment, cus-
tomers, supervision, and ownership. I also find that, as evi-
denced by Surdell’s statements to Roop and Wagner, the pur-
pose of the sham transfer of operations from ESC to Group was
to evade ESC’s responsibilities under the Act in an effort to
reduce its labor costs by repudiating the Union’s collective-
bargaining agreement. This becomes abundantly clear when
Surdell falsely informed the Union that ESC had gone out of
business when at the same time ESC was continuing to contract
and perform work for Mittal. Thus, I find that the sham trans-
fer of operations to Group was done with the unlawful motive
of avoiding the ESC’s responsibilities under the Act. See Di-
verse Steel, Inc., supra.29
It is undisputed that ESC ceased honoring its collective-
bargaining agreement with the Union with the layoff of the
Union referred drivers in February 2006.30 Both Wagner and
Roop testified that Surdell told them they were being laid off on
February 8, 2006.31 I find that ESC and Group, alter egos,
abrogated the collective-bargaining agreement with the Union
and terminated drivers Wagner, Roop, and Miletich in order to
avoid their collective-bargaining obligations with the Union
and that by such conduct the violated Section 8(a)(1), (3), and
(5) of the Act. See Mastronardi Mason Materials Co., 336
NLRB 1296 (2001); and Diverse Steel, Inc., supra.32 Respon-
dents officially notified the Union of the termination of all three

29 I do not find persuasive claims that Group’s business was different
than ESC because ESC owned the c-fines it was transporting, while
Group was hauling product owned by others. First, ESC transported
products other than c-fines, which were owned by other companies.
Moreover, I do not find controlling as to whether Group or ESC owned
the product as the work was essentially the same for the drivers of
hauling steel by products to and from steel mills. In fact, Wagner and
Roop were offered to continue on in the same capacity if they were
willing to work nonunion. I also do not find persuasive in distinguish-
ing the companies that ESC remained in existence after the transfer to
Group, in that ESC continued to perform other steel industry related
functions. The trucking aspect of ESC was a significant operation, and
the use of the Group name was in my view a sham transaction to void
the Union’s contract. Therefore, I have found ESC and Group to be
one of the same and that Group was bound by the Union’s contract as
well as by ESC’s continuing collective bargaining obligation with the
Union.
30 Teffeau’s invoice summary for ESC reveals that ESC tendered in-
voices to Mittal dated February 14 and 24, although the date the work
was performed for these invoices is unclear on the record.
31 Miletich did not testify so his last day of work for Respondents is
unclear. However, he was listed, along with Roop and Wagner, in
Surdell’s March 13, termination notice to the Union.
32 To the extent a Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), analysis
is required to support the 8(a)(1) and (3) findings for Wagner, Roop,
and Miletich’s termination, I note that Surdell’s statements to Roop and
Wagner revealed that ESC was transferring its operations to Group for
the expressed purpose of going non union and not paying union con-
tract rates and fringes. Respondent continued its operations as ESC,
and only later on attempted to superficially make it appear as if Group
in fact existed. Respondents offered no business justification for their
failure to continue to employ the Union referred drivers save for their
desire to void the Union’s contract, as they in fact offered at least two
of the three drivers continued employment without the benefit of union
representation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD606
drivers on March 13, and that ESC was going out of business,
while at the same time ESC continued to perform work for
Mittal. Respondent’s contract with the Union did not expire
until May 31, thus, Respondents unlawfully terminated the
contract during its term.33 Since I have concluded that Respon-
dents had a 9(a) relationship with the Union, they were obli-
gated to keep certain terms and conditions of the contract in
effect even after the contract’s termination date until bargaining
to impasse occurred or the contract was replaced by another
agreement. See University Moving & Storage Co., 350 NLRB 6
(2007).34
CONCLUSIONS OF LAW
1. Respondents Engineered Steel Concepts, Inc., (ESC) and
ESC Group Limited (Group) are each engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and
have engaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Group is a disguised continuance and alter ego of ESC.
3. General Drivers, Warehousemen, and Helpers Union Lo-
cal 142, International Brotherhood of Teamsters (the Union) is
labor organization within the meaning of Section 2(5) of the
Act.

33 While I have found Respondents to have a 9(a) relationship with
the Union, even if the contract were found to be 8(f) in nature, Respon-
dents violated Sec. 8(a)(1) and (5) of the Act by terminating it during
its term. See Oklahoma Fixture Co., 333 NLRB 804, 807 (2001); and
John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron
Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988).
34 It came up during the course of the hearing that following their
termination of their relationship with the Union, Respondents subcon-
tracted some of their work. Testimony was drawn from Parks that the
collective bargaining agreement allowed Respondent to subcontract
work as long as the contract employees received union wages and bene-
fits as required by the parties’ collective bargaining agreement. The
collective bargaining agreement’s Article 4 is entitled “Subcontract-
ing.” Respondent argued at the hearing that the subcontractor’s em-
ployees may have been covered by the Union’s contract. It was dis-
cussed that if that was the case, the facts pertaining to the employees’
contract coverage could be established in compliance proceedings.
However, the General Counsel argues that Respondents, having unlaw-
fully abrogated the collective-bargaining agreement, should not be
allowed to use its provisions as justification for subcontracting work
that had in the past been given to drivers directly referred to Respon-
dent by the Teamsters hall. I agree with the General Counsel’s posi-
tion. Roop and Wagner’s testimony reveals that they had been given
steady work through the course of their employment with ESC. There
was certainly no history shown of Respondent subcontracting work,
while they were in layoff status. I have concluded that despite any
language in the collective bargaining agreement, Respondents have not
shown that they would have subcontracted the work in dispute but for
the unlawful termination of the Union drivers. Parks’ testimony is
undisputed that during the course of the contract all of Respondent’s
employees were supplied through the union, and that the Union was
able to refer extra employees when Respondent needed them. Accord-
ingly, I find that the laid off Teamster drivers were entitled to perform
the work that Respondent contracted out, absent a showing that there
was more work than they could have performed and that the Union
would have been unable to directly provide any additional drivers
needed.
4. The employees described in the collective-bargaining
agreement between ESC and Group and the Union effective
from March 8, 2005, to May 31, 2006, constitute a unit appro-
priate for collective bargaining within the meaning of Section
9(b) of the Act.
5. Since March 8, 2005, the Union has been the exclusive
collective-bargaining representative of ESC and Group’s em-
ployees in the bargaining unit described above in paragraph 4
within the meaning of Section 9(a) of the Act.
6. Martin Surdell is a supervisor and agent of ESC and
Group within the meaning of Section 2(11) and (13) of the Act.
7. By conditioning job offers to employees upon their work-
ing for a nonunion company without union wages and benefits
Respondents have violated Section 8(a)(1) of the Act.
8. Respondents ESC and Group have violated Section 8(a)(1)
and (3) of the Act by:
(a) During February 2006, laying off employees Steve Wag-
ner, Mark Roop, and Anthony Miletich.
(b) On March 13, 2006, terminating the employment of em-
ployees Steve Wagner, Mark Roop, and Anthony Miletich.
9. Respondents ESC and Group have violated Section 8(a)(1)
and (5) of the Act by since February 2006:
(a) Failing and refusing to recognize and bargain collectively
with the Union in an appropriate unit of truckdrivers, by refus-
ing to apply the terms and conditions of their collective-
bargaining agreement with the Union, including wage rates,
fringe benefit fund contributions, hiring hall provisions to the
employees and by abrogating the agreement including the sub-
contracting of bargaining unit work.
(b) Laying off and then terminating its employees Steve
Wagner, Mark Roop, and Anthony Miletich.
9. The unfair labor practices described above affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
REMEDY
Having found Respondents ESC and Group, ESC’s alter ego
and disguised continuance, have engaged in certain unfair labor
practices, I find Respondents must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Respondents having unlawfully laid
off and then terminated Steve Wagner, Mark Roop, and An-
thony Miletich must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of their discharges to the date of
a proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The collective-bargaining agreement between the Union and
Respondents provides at article 3, section 1, “When the Em-
ployer needs additional employees he shall give the Local Un-
ion twenty-four (24) hours to provide suitable applicants, but
shall not be required to hire those referred by the Union. . . . If
the Union is unable to provide suitable applicants within
twenty-four (24) hours, the Employer may employ applicants
from any source.” The record reveals that until Respondents
abrogated the collective-bargaining agreement, they sought
ENGINEERED STEEL CONCEPTS 607
from the Union, and the Union was able to supply qualified
applicants through its referral system. Accordingly, I am rec-
ommending an instatement and make whole remedy to those
applicants who would have been referred to the Respondents
for employment through the Union’s hiring hall were it not for
the Respondents’ unlawful conduct. See Diverse Steel, Inc.,
349 NLRB 946 (2007); and Strand Theater of Shreveport
Corp., 346 NLRB 523 (2006). As set forth above, while the
collective-bargaining agreement between the parties expired on
May 31, 2006, the terms and conditions of that agreement re-
main in effect at least until the parties’ bargain in good faith to
a lawful impasse. See University Moving & Storage Co., 350
NLRB No. 2 (2007). These applicants should be made whole
for any loss of earnings and other benefits they may have suf-
fered by reason of the Respondents failure to hire them, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
supra, plus interest as computed in New Horizons for the Re-
tarded, supra.
ORDER
The Respondents, Engineered Steel Concepts, Inc., (ESC)
and ESC Group Limited (Group), located at in East Chicago,
Indiana, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Conditioning job offers to employees upon their working
for a nonunion company without union wages and benefits.
(b) Laying off and terminating employees because of their
membership in and activities on behalf of the General Drivers,
Warehousemen, and Helpers Union Local 142, International
Brotherhood of Teamsters, or any other labor organization.
(c) Failing and refusing to recognize and bargain collectively
with the General Drivers, Warehousemen, and Helpers Union
Local 142, International Brotherhood of Teamsters, in an ap-
propriate unit of truckdrivers, by refusing to apply the terms
and conditions of their collective-bargaining agreement with
the Union, including wage rates, fringe benefit fund contribu-
tions, hiring hall provisions to their employees, and by abrogat-
ing the agreement including the subcontracting of unit work.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer employ-
ees Steve Wagner, Mark Roop, and Anthony Miletich full rein-
statement to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, discharging any employee, if necessary.
(b) Make Steve Wagner, Mark Roop, and Anthony Miletich
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them in the manner set forth
in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoffs and terminations
of Make Steve Wagner, Mark Roop, and Anthony Miletich and
within 3 days thereafter notify them in writing that this has
been done and that the layoffs and terminations will not be used
against them in any way.
(d) Within 14 days of the date of this Order, offer full and
immediate employment to those work applicants who would
have been referred to the Respondents for employment though
the Union’s hiring hall were it not for the Respondent’s unlaw-
ful conduct.
(e) Make whole those work applicants who would have been
referred to the Respondents for employment through the Un-
ion’s hiring hall for any loss of earnings and other benefits they
may have suffered by reason of the Respondents’ failure to hire
them as set forth in the remedy section of this decision.
(f) Honor and abide by the terms and conditions of the their
collective-bargaining agreement with the Union and make
whole their employees represented by the Union, including
those hired during the period in which Respondents failed to
apply the collective-bargaining agreement, for any loss of pay
and other benefits suffered as a result of Respondents’ refusal
to apply the collective-bargaining agreement to all unit em-
ployees. See Expo Group, 327 NLRB 413 (1999). Backpay
shall be computed with interest as computed in New Horizons
for the Retarded, supra.
(g) Pay all contractually-required fringe benefit fund contri-
butions not previously paid, in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 (1979). In addition, make
all unit employees whole for any expenses resulting from the
failure to make such contributions, with interest, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
661 F.2d 940 (9th Cir. 1981).
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place to be designated by the
Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back pay
due under the terms of this Order.
(i) Within 14 days after service by the Region, post at their
place of business and at each of their jobsites of the attached
notice marked “Appendix.”35 Copies of the notice, on forms
provided by the Regional Director for Region 13, after being
signed by the Respondents’ authorized representative, shall be
posted by the Respondents immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondents have gone out of business or closed
its operations the Respondents shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and

35 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD608
former employees employed by the Respondent at any time
since February 1, 2006.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT condition job offers to employees upon their
working for a nonunion company without union wages and
benefits.
WE WILL NOT lay off or terminate employees because of their
membership in and activities on behalf of the General Drivers,
Warehousemen, and Helpers Union Local 142, International
Brotherhood of Teamsters, or any other labor organization.
WE WILL NOT fail and refuse to recognize and bargain collec-
tively with the General Drivers, Warehousemen, and Helpers
Union Local 142, International Brotherhood of Teamsters, in an
appropriate unit of truckdrivers, by refusing to apply the terms
and conditions of our collective-bargaining agreement with the
Union, including wage rates, fringe benefit fund contributions,
hiring hall provisions to our employees and by abrogating the
agreement including the subcontracting of unit work.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer employees Steve Wagner, Mark Roop, and Anthony Mi-
letich full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Steve Wagner, Mark Roop, and Anthony Mi-
letich whole for any loss of earnings and other benefits suffered
as a result of their unlawful termination in the manner set forth
in Board’s decision.
WE WILL, within 14 days from the Board’s Order, remove
from our files any reference to the unlawful terminations of
Steve Wagner, Mark Roop, and Anthony Miletich, and within 3
days thereafter notify them in writing that this has been done
and that their terminations will not be used against them in any
way.
WE WILL, within 14 days from the date of the Board’s Order,
offer full and immediate employment to those work applicants
who would have been referred to us for employment though the
Union’s hiring hall were it not for our unlawful conduct.
WE WILL make whole those work applicants who would have
been referred to us for employment through the Union’s hiring
hall for any loss of earnings and other benefits they may have
suffered by reason of our failure to hire them in the manner set
forth in Board’s decision.
WE WILL honor and abide by the terms and conditions of our
collective-bargaining agreement with the Union and make
whole our employees represented by the Union for any loss of
pay and other benefits suffered as a result of our refusal to ap-
ply the collective-bargaining agreement to all unit employees
and to unit work, plus interest.
WE WILL pay all contractually-required fringe benefit fund
contributions not previously paid and make whole unit employ-
ees for any for any expenses resulting from the failure to make
such contributions, with interest.
ENGINEERED STEEL CONCEPTS, INC., AND ESC GROUP
LIMITED, ALTER EGOS