Groves Truck & Trailer

National Labor Relations Board - Board Decisions

May 23, 1989

294 N.L.R.B. 1 (N.L.R.B. 1989)

GROVES TRUCK & TRAILER
Alaska Cummins Services, Inc., d/b/a Groves Truck
and Trailer and Joseph Blackard, Dan Black-
ard, Mat-Su, Inc. and Arctic Mack, Inc. Addi-
tional Respondents responsible for the purpose
of achieving compliance with the Board 's Order
and Alaska Petroleum Joint Crafts Council.
Case 19-CA-12263
May 23, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 3, '1988, Administrative Law Judge
George Christensen issued the attached supplemen-
tal decision i The Respondent filed exceptions and
a -supporting brief, and the General Counsel filed
an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light 'of the exceptions and briefs and has
decided to affirm the judge's rulings, ftndings,2 and
conclusions and to adopt the recommended Order3
as modified.
' The Board's Decision and Order is reported at 281 NLRB 1194
(1986)
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect 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
3 In his recommended Order the judge made the backpay owed Larry
Glover, who was unavailable at the time of the hearing, subject to the
conditions set forth in Brown & Root, Inc, 132 NLRB 486 (1961), enfd
311 F 2d 447, 456 (8th Cir 1963) Starlrte Cutting, 280 NLRB 1071 (1986)
(Starlite 1) stated that a respondent's backpay obligation in the absence of
the discrimmatee will lapse at the end of a 1-year escrow period and,
unless the discrimmatee shows by a preponderance of the evidence that
there were compelling reasons to justify the failure to come forward
during that period, a respondent shall not remain obligated for the gross
backpay amount specified for the discrimmatee after the end of the 1-year
escrow period Subsequently, the Board issued an order at 284 NLRB
620 (1987) (Starlrte II), clarifying the starting date of the 1-year escrow
period discussed in Starlrte I In Starhte II the Board majority held that
the 1-year escrow period shall begin either on the respondent's compli-
ance by payment of the backpay for deposit into escrow or on the date
the Board's Supplemental Decision and Order becomes final, including
enforcement thereof, whichever is later The provisions of Starlite I and
II are applicable in the instant case with regard to backpay owed to
Larry Glover Although Member Johansen dissented in Starlrte II, and
would find that such 1-year escrow periods should begin on the date of
issuance of the Board's order affixing backpay liability, he nevertheless
considers himself to be institutionally bound to apply the rule of Starhte
II in this case Chairman Stephens would not have Glover's backpay
lapse if he should be unavailable during the escrow period Similarly,
Member Cracraft, who did not participate in Starlite I, agrees with
former Member Dennis' dissent that backpay for unavailable discrimina-
tees should not lapse after 1 year However, so long as Starhte I remains
Board law, Chairman Stephens and Member Cracraft will apply the
remedy set forth in that decision
1
ORDER
The National Labor Relations Board adopts the
recommended Order of the 'administrative law
judge and orders that the Respondents, Alaska
Cummins Services, Inc., d/b/a Groves Truck and
Trailer, Joseph Blackard, Dan Blackard, Mat-Su,
Inc., and Arctic Mack, Inc., their officers, agents,
successors, and assigns, shall jointly and/or several-
ly pay the amounts set forth in the Order, except
that
(1) The Respondents shall pay to the Regional
Director for Region 19 the net backpay found due
employee Larry Glover. The Regional Director
shall place this backpay in escrow for a period not
exceeding 1 year from the date the money is depos-
ited. If the Respondents seek review and then de-
posit the money after court enforcement of the
Board's Order, the escrow period will end 1 year
after the money is deposited. Finally, if the Re-
spondents deposit the money and then seek review,
the escrow period will end 1 year after the Board's
Order is enforced. The Regional Director shall
make arrangements to afford the Respondents, to-
gether with the General Counsel, an opportunity to
examine Glover and any other witness with rele-
vant testimony, and to introduce any relevant and
material evidence bearing on the amount of back-
pay due. The Regional Director shall make a final
determination whether any interim earnings or
other factors are revealed that may reduce the
amount of backpay due under existing precedent.
In the event the Regional Director determines the
deductions are warranted, the amount so deducted
shall be returned to the Respondents.
(2) The backpay due Norman Stapleton is $232.
In his recommended Order, the judge has the 1-year escrow period
begin from the date of the Board's final Order in its Supplemental Deci-
sion and Order in this case In light of Starlrte II, we shall modify the
judge's recommended Order with respect to Glover to begin the 1-year
escrow period upon the Respondent's compliance by payment of the
backpay for deposit into escrow, however, if the Respondents seek
review and deposit the money after court enforcement of the Board's
Order, the escrow period will end 1 year after the money is deposited
James C. Sand, for the General Counsel.
Joseph W. Sheehan, of Fairbanks, Alaska, for Joseph
Blackard, Dan Blackard, and Mat-Su, Inc.
SUPPLEMENTAL DECISION
GEORGE CHRISTENSEN, Administrative Law Judge.
On February 2, 3, and 4, 1988, I held a hearing' at Fair-
banks, Alaska, to try issues raised by a backpay specifica-
tion (as amended) issued on December 21, 1987, by the
Regional Director for Region 19 on behalf of the Gener-
al Counsel of the National Labor Relations Board
' Errors in the transcript have been noted and corrected
294 NLRB No. 1
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Board) following enforcement by the A United States
Court of Appeals for the Ninth Circuit on June 17, 1987,
of the decision and order issued by the Board on Sep-
tember 30, 1986, and the answer to the specification filed
by Joseph Blackard, Dan Blackard, and Mat-Su, Inc 2
The September 30, 1986 Board decision ruled, inter
alia, Groves Truck violated the National Labor Relations
Act (Act) by threatening to discharge and discharging
employees to discourage their effort to secure representa-
tion by the Alaska Petroleum Joint Crafts Council
(Council) and, through the Council, a collective- bargain-
ing agreement covering their wages, etc., by withdraw-
ing promised wage increases because of the employees'
union activities and ordered, inter alia, employees
Charles Buchanan, Afton Clifford, Patrick Comeau, Wil-
liam Gilpin, Larry Glover, Norman Stapleton and Rex
Vandermeer be made whole for any wage losses they
suffered by virtue of the discrimination against them,
plus interest on the sums due, and that Groves Truck
bargain with the Council at its request.
Section 1 of the specification contained detailed allega-
tions to the effect J Blackard and Mat-Su dominated,
controlled„ and manipulated Groves Truck, Arctic Mack,
Mat-Su, and J Blackard to maintain a continuous busi-
ness enterprise in Fairbanks and to, inter alia, avoid
Groves Truck's liabilities resulting from its unfair labor
practices, therefore the surviving entities (J. Blackard, D.
Blackard, and Mat-Su) should be required to remedy
Groves Truck's unfair labor practice liabilities at least to
the extent J Blackard and/or one of the entities he con-
trolled received moneys in settlement of a contract dis-
pute between Alyeska Pipeline Services, Inc and Groves
Truck following the alleged sale by J. Blackard of his
stock and interests in Arctic Mack to Harvey and Eric
King, plus moneys J Blackard or one of the entities he
controlled received from the Kings either as payment for
the assets, business, and stock of Arctic Mack or by way
of attachment of the kings' assets in satisfaction of
moneys owed by the Kings as a result of their alleged
purchase of the assets, business, and stock of Arctic
Mack.
Section 2 of the specification alleged Buchanan, Clif-
ford, Gilpin, Glover, Stapleton, and Vandermeer are en-
titled to backpay from the dates they were discharged
either to the dates they were offered reinstatement or, if
never offered reinstatement, the date Arctic Mack ceased
operations,3 and that Clifford and Comeau are entitled to
backpay from the effective date of a promised increase
which was withdrawn because of the employees' union
activities to, in Clifford's case, the date he was dis-
charged and, in Comeau's case, to the date he quit
Groves Truck's employ, listing the following pertinent
dates
2 Since the issuance of the original complaint against Alaska Cummins
Services, Inc , d/b/a Groves Truck and Trailer (Groves Truck) Groves
and Arctic Mack, Inc have ceased doing business and their assets either
have been dissipated or distributed
3 Based on an admission by the Respondents (J Blackard , D Blackard,
and Mat-Su) to an earlier issued specification that Arctic Mack ceased
operations on March 31, 1984
Name Date Discharged
Date Offered
Reinstatement or Date
AM Ceased Operations
Buchanan 3/15/80 3/31/84
Clifford 3/18/80 3/31/84
Gilpin 3/15/80 ' 4/21/80
Glover 3/15/80 3/31/84
Stapleton 3/15/80 4/21/80
Vandermeer 3/22/80 4/4/80
plus $2 for each hour Clifford worked between the effec-
tive date of his promised $2-per-hour increase-March
10, 1980-to the date he was discharged-March 18,
1980, and 50 cents for each hour Comeau worked be-
tween the effective date of his promised 50-cent-per-hour
increase-March 10, 1980-and the date he quit Groves
Truck's employment-April 15, 1980
Section 3 of the specification alleged the gross back-
pay due to Buchanan, Clifford, Gilpin, Glover, Staple-
ton, and Vandermeer is an amount determined for each
calendar quarter by multiplying the number 'of hours
each normally worked at the time he was discharged (40
hours per week, Monday through Friday) for each quar-
ter of his respective backpay.period by the wage rate he
either was receiving or had been promised (in Clifford's
case) at the time of their respective discharges, cited the
applicable wage rates as $13 per hour for Buchanan, $12
per hour for Clifford, $13 50 per hour for Gilpin, $8 per
hour for Glover; $13.50 per hour for Stapleton, and $8
per hour for Vandermeer, and cited $2 per hour as the
amount per hour due to Clifford for the hours he
worked between March 10 and March 18, 1980, and 50
cents per hour as the amount per hour due to Comeau
for the hours he worked between March 10 and April
15, 1980
Section 5 of the specification alleged the interim earn-
ings of each dischargee during his respective backpay
period was the amount earned by each during each cal-
endar quarter of his backpay period, as adjusted by sub-
tracting any expenses incurred during each such quarter
in searching for work or maintaining such' employment,
and set forth the interim., earnings of each of the six
during each such quarter'in the appendices attached to
the specification
Section 6 of the specification 'alleged the dischargees
neither withdrew from the work force nor otherwise
failed to attempt to mitigate damages during their respec-
tive backpay periods.
Section 7 of the specification alleged the net backpay
due each dischargee is an amount determined for each
calendar quarter by subtracting from his gross backpay
for each quarter of his backpay period his interim earn-
ings during each quarter
Section 8 of the specification alleged as a result of
such calculation, to remedy Groves Truck's unfair labor
practices J. Blackard, D Blackard, and Mat-Su should
be required jointly or severally to pay the following
amounts, plus interest accrued to the date of such pay-
ments
GROVES TRUCK & TRAILER 3
Charles Buchanan $29,774
Afton Clifford 62,209
Patrick Comeau 120
William Gilpin 1,790
Larry Glover 67,264
Norman Stapleton 232
Rex Vandermeer 58
In their answer to section 1 of the specification, J.
Blackard, D Blackard, and Mat-Su (Respondents) denied
Groves Truck, Arctic Mack, Mat-Su, J Blackard, and
D Blackard constituted a single entity and thus liable to
remedy Groves Truck's unfair labor practices, denied
Respondents were successors4 or alter egos of Groves
Truck and liable to remedy Groves Truck's unfair labor
practices, further asserting liability, in any event, ceased
on J. Blackard's alleged sale of his stock and transfer of
Arctic Mack's assets and business to Harvey and Eric
King in June 1982
As to section 2, the Respondents alleged, on the basis
of "information and belief," (1) all six dischargees were
offered reinstatement (the General Counsel alleged Bu-
chanan, Clifford, and Glover were not) but failed to state
the dates of the alleged offers to Buchanan, Clifford, and
Glover based on an alleged inability to locate records or
their being in the General Counsel's possession; and (2)
no raise was ever promised to Comeau and Clifford, or,
if so, that it was withdrawn '
The Respondents answered section 3 of the specifica-
tion with a general denial the hours of work and wage
rates set out therein were accurate but failed to state
what hours and wage rates were allegedly correct, again
on the basis of "information and belief" and an alleged
inability to locate pertinent records
With respect to section 5, the`Respondents denied the
accuracy of the stated interim earnings on the ground
the General Counsel did not provide the Respondents
with evidence enabling the Respondents to determine
their accuracy and again failed to state what interim
earnings were allegedly correct
As to•section 6, the Respondents, again on the basis of
"information and belief," contended some of the dis-
chargees withdrew from the work'force during their re-
spective backpay periods, that there was work available
they could have performed during periods they showed
no interim earnings, and that they failed to make suffi-
cient effort to mitigate damages, but again failed to state
during what periods the employees withdrew from the
work force and what work they could have performed.
Answering section 7, the Respondents contended net
backpay should be calculated by calendar year, not quar-
terly, with interim earnings for each year set off against
total earnings for each year
As a consequence of the foregoing, the Respondents
denied the accuracy of the net backpay amounts set out
in section 8
The issues raised by the Respondents' answer to sec-
tions 2, 3, and 7 of the specification were resolved by my
grant of the General Counsel's motion to strike the Re-
spondents' answer to those sections and to enter summa-
ry judgment those sections of the specification that were
true and correct
Section 102 54 of the Board's Rules and Regulations
placed a duty on the Respondents to specify in their
answer to the specification the dates reinstatement offers
were made to the six discrimmatees, but failed to do so
The dates Gilpin, Stapleton, and Vandermeer were of-
fered reinstatement were set out in the underlying deci-
sion and from information in the General Counsel's pos-
session, Buchanan, Clifford, and Glover never were of-
fered reinstatement With respect to Comeau's and Clif-
ford's promised and withdrawn wage increases, specific
findings were entered in the underlying decision those in-
creases were promised and were subsequently withdrawn
because of the employees' union activities, thus on the
ground the Respondents were barred from relitigating
the dates of the reinstatement offers to Gilpin, Stapleton,
and Vandermeer and the wage increase promises and
withdrawals determined in the underlying decision5 and
failed to set out with the requisite specificity the dates of
any alleged reinstatement offers to Buchanan, Clifford,
and Glover," I granted the General Counsel's motion to
strike Respondents' answer to section 2 of the specifica-
tion and entered summary judgment section 2 of the
specification is true and correct. I therefore find and con-
clude the backpay periods of Buchanan, Clifford, Gilpin,
Glover, Stapleton, and Vandermeer are those set out in
section 2 of the specification and that Clifford's and Co-
meau's backpay periods for purposes of determining their
loss of their promised wage increase are also those set
out in section 2 of the specification
With respect to section 3 of the specification, I granted
the General Counsel's motion to strike the Respondents'
answer thereto and entered summary judgment section 3
of the specification was true and correct, in view of the
general nature of the Respondents' denial and their fail-
ure to specify any different workweek or rates on which
the calculation of the gross backpay due to the discrimin-
atees should be based I therefore find and conclude the
formulas set out in section 3 accurately determine the
amount of backpay due each discriminatee during his re-
spective backpay period
The underlying decision directed the backpay due
each discriminatee be computed in the manner prescribed
by the Board in F W Woolworth Co., 90 NLRB 289
(1950). The Woolworth decision states (at 293)•
Loss of pay shall be determined by deducting from
a sum equal to that which Helen Wells would nor-
mally have earned for each quarter or portion
thereof, her net earnings, if any, in other employ-
ment during that period Earnings in one particular
quarter shall have no effect upon the backpay liabil-
ity for any other quarter [Emphasis added I
On the basis of the foregoing, I granted the General
Counsel's motion to strike the Respondents' answer to
section 7 of the specification, wherein the Respondents
asserted backpay should be determined by setting off all
" Conceding, however, Arctic Mack was a successor to Groves Truck
5 Rick's Construction Co, 272 NLRB 424 (1984)
6 Aztec Concrete, 285 NLRB 1303 (1987)
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
interim earnings within each calendar year, rather than
by quarter, in determining net backpay and entered sum-
mary judgment section 7 of the specification was true
and correct. I therefore find and conclude the net back-
pay due to each discriminatee is correctly determined by
subtracting the interim earnings of each discriminatee
from his gross earnings by quarters during his respective
backpay period.
In their answer to the specification, the Respondents
set forth eight affirmative defenses.
The first defense alleged the' specification failed to
state a cause of action against the Respondents, the
second alleged the Board lacked jurisdiction over the
Respondents; the third alleged the specification was de-
fective, since the General Counsel failed to join indispen-
sable parties to the proceeding, namely, Arctic Mack and
the two Kings, the fourth alleged the specification was
barred by the statute of limitations in that the facts al-
leged as the basis for the derivative liability asserted
against the Respondents occurred more than 6 months
prior to the issuance of the specification; the fifth alleged
the specification was defective under the doctrine of res
adjudicata in that issues raised by the specification and
answer, particularly the derivative liability of the Re-
spondents to remedy Groves Truck's unfair labor prac-
tices, could and should have been raised by the General
Counsel and 'determined in the underlying proceeding;
the sixth alleged because of that alleged failure, the Gen-
eral Counsel was equitably estopped from proceeding
against the Respondents; the seventh alleged the General
Counsel was barred by the statute of frauds from seeking
to hold the Respondents responsible for remedying
Groves Truck's unfair labor practices, and the eighth al-
leged the discriminatees failed to mitigate their damages
by failing to seek available employment and/or abandon-
ing the job market.
The General Counsel moved to strike the affirmative
defenses set out above and the Respondents filed a cross-
motion for summary judgment dismissing the specifica-
tion on the grounds set out in its affirmative defenses
Section 1 of the specification clearly stated a cause of
action against the Respondents by alleging J Blackard's
control, domination, and manipulation of Groves Truck,
D. Blackard, Arctic Mack, and Mat-Su!to perpetuate and
continue Groves Truck's business and avoid remedying
its unfair labor practices exposed the Respondents to li-
ability for Groves Truck's unfair labor practices and the
Board uniformly has exercised jurisdiction over parties
who allegedly were parties thereto No useful purpose
would be served 6y attempting service on a defunct cor-
poration (Arctic Mack) and its fugitive owners (the
Kings) The limitations doctrine is inapplicable, inasmuch
as Arctic Mack and the Kings were not involved in the
underlying proceeding, therefore service on them within
6 months after the date Groves Truck committed the un-
derlying unfair labor practices was not required under
the Act. The issues raised by the specification and the
answer, particularly the derivative liability of the Re-
spondents did not arise until the entry of the Board deci-
sion finding Groves Truck committed unfair labor prac-
tices and efforts to remedy those unfair labor practices
began, so such issue was not properly determinable in
that proceeding None of the considerations cited by the
Respondents support a finding and conclusion the Gener-
al Counsel is estopped from proceeding in his effort to
remedy Groves Truck's unfair labor practices The stat-
ute of frauds is inapplicable here because this proceeding
is governed by the National Labor Relations Act, which
uniformly has been interpreted to permit actions against
successors, alter egos, or others pursuing a disguised con-
tinuance of the party which committed an unfair labor
practice to avoid remedying an unfair labor practice.
On the foregoing grounds, I granted the General
Counsel's motion to strike the first seven of the Respond-
ents' affirmative defenses7 and denied the Respondents'
motion for summary judgment dismissing the specifica-
tion
Following the General, Counsel's presentation of evi-
dence, the Respondents renewed their Motion for Sum-
mary Judgment dismissing the specification, particularly
the allegation that the Respondents should be held joint-
ly and severally liable to remedy Groves Truck's unfair
labor practices, on the ground the General Counsel
failed to establish a prima facie case for such derivative
liability. I took that motion under advisement and my
disposition of it appears hereafter.
The remaining issues are (1) whether further amounts
should be deducted from the gross backpay amounts due
to Buchanan, Clifford, and Glover for their alleged fail-
ure to mitigate damages during their respective backpay
periods,8 and (2) whether the Respondents are jointly
and severally liable to remedy Groves Truck's unfair
labor practices.
With respect to Buchanan, prior to his arrival in
Alaska (in 1979) he worked as a welder, mechanic, and
operator of heavy equipment and was a member of the
Operating Engineers International Union. He was em-
ployed by Groves Truck as a heavy duty welder/-
mechanic in the fall of 1979, laid off shortly thereafter,
recalled, and finally discharged because of his union ac-
tivities on March 14, 1980.
Following his discharge, he sought employment
through the hiring hall operated by the Operating Engi-
neers Union, through the employment office operated by
the State of Alaska, and by contacting employers direct-
ly.
Buchanan secured employment during 14 of the 17
quarters comprising his backpay period, in 9 of- those
quarters his earnings exceeded what he would have
earned by continuous employment by Groves Truck and
Arctic Mack, in 3 quarters his earnings were less, than
what he would have earned with Groves Truck and
Arctic Mack, and in 2 quarters he was unemployed.
-The Respondents point out Buchanan's total earnings
during his backpay period exceed what he would have
earned had he been employed by Groves Truck and
7 The eighth defense is a repeat of the Respondents' denial of secs 5
and 6 of the specification, those denials and the eighth affirmative defense
place in issue the question of whether the discriminatees made adequate
efforts to mitigate their damages and will be determined on the merits
a There is no dispute over interim earnings figures determined by the
General Counsel and set out in the appendices to the specification, nor
over the gross backpay interim earnings and net backpay figures set out
for Comeau; Gilpin, Stapleton, and Vandermeer
GROVES TRUCK & TRAILER 5
Arctic Mack through the period ($128,602 vs. $109,304)
and contend by virtue of that fact Buchanan should be
denied any backpay As I noted above, the Board deci-
sion enforced by the Ninth Circuit Court of Appeals re-
quires computation of backpay entitlement by quarter
during the backpay period and does not permit an excess
of interim earnings during one quarter to be offset
against the entitlement for another quarter. I therefore
reject that contention
The Respondents also note Buchanan quit one employ-
ment during his backpay period (on April 20, 1982, when
employed by Green, Reading & Rates on the North
Slope) His testimony he had good reasons for quitting
was undisputed, however, and is balanced by the fact he
sought and secured alternate employment thereafter to
mitigate his damages, in far more hazardous employment
and extreme weather conditions than he enjoyed in his
employment by Groves Truck I therefore find and con-
clude this one quit during his backpay period does not
thereby deprive Buchanan of entitlement to backpay
after April 26, 1982.9
Based on Buchanan 's testimony he worked on a log
cabin during his backpay period, the Respondents con-
tend his backpay entitlement should be reduced The tes-
timony, however, does not establish Buchanan withdrew
from the labor market to work on the cabin, but rather
that he kept busy between jobs by working sporadically
at building the cabin (which he stated is still unfinished).
I therefore reject this contention
Lastly, the Respondents produced help-wanted ads
from local newspapers advertising jobs requiring skills
Buchanan possessed during his backpay period and
argued this established Buchanan failed to avail himself
of those job opportunities and therefore failed to mitigate
his damages to the extent possible. The Board has fre-
quently held the existence of available jobs during a
backpay period fails to meet the Respondents' burden of
establishing Buchanan could have secured the jobs in
question had he applied i ° and is insufficient to offset his
testimony, which I have credited, he sought (and se-
cured) jobs throughout his backpay period.
I therefore reject this defense, and find and conclude
the Respondents failed to meet their burden of proving
additional offsets should be made in calculating the net
backpay due to Buchanan to remedy the discrimination
practiced against him
Prior to his hire by Groves Truck, Clifford was em-
ployed as a truckdriver in the Fairbanks area and was a
member of the Teamsters Local 959 Until 1978, he was
dispatched from the "A" list at the Teamsters hiring hall,
but was dropped to the "B" list due to a change in the
registration requirements for an "A" listing while he was
outside Alaska due to a death in his family. Previous and
subsequent to his truckdriver employment, Clifford
worked at whatever jobs he could find-tractor driver,
rough carpentry, electrician helper, painter helper,
miner, etc.
He was hired by Groves Truck as a mechanics helper
when shop manager Groves observed his diligence while
working for a painter who was repainting Groves
Truck's shop, and continued in that job until his March
18, 1980 discharge because of employee union activities
Following his March 18, 1980 discharge by Groves
Truck due to employee union activities, Clifford secured
employment with a former employer, Yukon Service,
Inc He was laid off by Yukon early in the third quarter
of 1980, and accepted an employment offer from Lee
Eastman of Triple M Mining to work on Eastman's gold
claim on a share basis, to be paid out of any profits de-
rived during the season He previously worked on a simi-
lar basis in other gold mining ventures in the area. When
operations ceased due to weather during the fourth quar-
ter of 1980, Eastman informed Clifford the operation had
been unprofitable and did not pay him anything. i i
Prior to his employment by Yukon, after his layoff
from that employment, and after Triple M ceased oper-
ations, Clifford made a practice of registering with the
state employment service for job referrals, registered on
the Teamsters "B" list for job referrals, and made per-
sonal calls on prospective employers.
During the last 2 months of the fourth quarter of 1980,
Clifford was employed by his landlord, Ron Berg, the
owner of North Pole Speedway and elevators in Fair-
banks, to drill two wells by hand, grade a parking lot,
and perform maintenance work in exchange for free rent
(the rent on his home was $250 per month, and $500 has
been set off as interim earnings for the fourth quarter of
1980) During the first 2 months of the first quarter of
1981, Clifford continued to work for Berg on the same
basis, prompting a setoff of another $500 for the first
quarter of 1981 In March 1981, Eastman offered Clifford
employment, in a new gold mining venture, the North
American International Corp In exchange for supervis-
ing the work of a crew of 8 to 10 men, Clifford was to
be paid $25 per hour, payable when work ceased on the
project He worked at that job until October 1981, when
operations ceased Unable to secure any cash payment
from Eastman, Clifford accepted a document wherein
the corporation acknowledged it owed Clifford $50,000,
the corporation and Eastman personally promised to pay
Clifford that sum for his services, and set forth in the
event of nonpayment Clifford could take possession of a
300-yard Ross Box (a sluice box used in mining gold)
and a 3406 Cat Diesel Pump (used to pump water
through the box) valued in excess of $50,000 The corpo-
ration ceased to exist and Eastman was later indicted for
allegedly defrauding investors and creditors. When Clif-
ford sought possession of the equipment, he was in-
formed a creditor with a superior lien already had taken
possession of it
In October 1981 Clifford resumed his job search
through the state employment service, the Teamsters
hiring hall, and personal contact, without success Berg
reemployed him at the Speedway in aiding the construc-
tion of a house, working on Berg's elevators in Fair-
,9 Fugazy Continental Corp, 276 NLRB 1334, 1339 (1985)
io OK Machine & Tool Corp, 279 NLRB 474 (1986), Murbro Parking,
276 NLRB 52, 56 (1985), Great Plains Beef Co, 255 NLRB 1410 (1981)
11 However, while working the claim, Eastman made advances or
loans against eventual payment to Clifford of $1200, which Clifford could
not and did not repay That sum has been declared as interim earnings
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
banks, etc , in return for free rent An offset of that
value, $750, has been offset against Clifford's gross enti-
tlement for the fourth quarter of 1981
In January 1982 Clifford's church began to employ
him part time as a janitor at $5 per hour, by the end of
1981, his employment by the church became full time (40
hours per week) at $10 per hour During this time Clif-
ford pursued a mail-order course leading to ordination as
a minister of his church and became an assistant pastor as
well as janitor at the church He continued in this joint
role through March 1984 at the $10-per-hour rate
The Respondents contend by accepting employment in
Eastman's two mining ventures, Clifford demonstrated a
"willful intention to remove himself from the job
market," "effectively removed him[self] from the job
market," and therefore should not be entitled to backpay
for the periods of those employments
I reject this contention, no one works nights running a
bulldozer at a remote camp (as Clifford did during the
first venture) nor works around the clock running a
mining venture (as Clifford did during the second ven-
ture) in order to stay out of the job market, rather, it was
an effort to secure income to support the Clifford family
(Clifford was married with two minor children and de-
pendent on his wife's meager earnings and gifts from
friends and church members for much of those periods)
As the First Circuit stated in the Cashman Auto case.12
The principle of mitigation of damages does not re-
quire success; it only requires a good faith
effort
The Respondents also rely upon newspaper advertising
of jobs available which Clifford may have been able to
perform during the backpay period as grounds for denial
of backpay liability; for the reasons cited in my discus-
sion of that contention vis-a-vis Buchanan, I reject that
argument as a basis for any offset against Clifford's back-
pay entitlement
Lastly, the Respondents argue Clifford's study for and
securing of employment as a clergyman constituted a
willful abandonment of the job market
Mitigation of damages does not require pursuit of the
same employment a discriminatee held prior to his dis-
charge, nor pursuit of equal or higher wages; in any
event, Clifford did not abandon the job market while he
pursued his studies by correspondence, rather, he was reg-
ularly employed in and after 1982 as a maintenance man,
in addition to functioning as an assistant pastor (after
meeting the requirements). I therefore reject this argu-
ment and find the Respondents failed to show any basis
for further offsets or interim earnings other than those
declared and deducted from Clifford's gross backpay en-
titlement.
Glover was discharged by Groves Truck on March
15, 1980, to discourage Groves Truck employees' union
activities
The General Counsel was unable to determine Glov-
er's interim earnings or evaluate his efforts to mitigate
12 Cashman Auto Co v NLRB, 223 F 2d 832, 836 (1955), quoted with
approval, Henrick Motors, 166 NLRB 783; 787 (1967), and Carter's Rent-
als, 250 NLRB 344 (1980)
damages during his backpay period because all efforts to
locate Glover were unsuccessftil and because no records
were obtainable to enable the General Counsel to secure
his social security number and, through that number, his
employments during his backpay period
The Respondents contend Glover's backpay entitle-
ment should be reduced because he would have been of-
fered reinstatement during his backpay period had he
been available and could have secured employment in
mitigation of his damages during his backpay period by
applying for jobs listed in the help wanted columns of
the local newspaper .
I reject both contentions; just as Respondents failed to
produce any evidence Buchanan and Clifford were never
offered reinstatement during their backpay periods, there
was an entire failure of proof the Respondents ever tried
to contact, Glover to offer him reinstatement during his
backpay period, nor is there any assurance Glover would
have been able to secure the advertised jobs
I therefore find no grounds for reducing Glover's
backpay entitlement.
The Liability of the Respondents
Groves Truck and Arctic Mack no longer exist.
Before and during the brief lives of Arctic Mack and
Groves Truck, and since their demise, J. Blackard from
his headquarters in Anchorage, Alaska, conducted a
number of businesses, including the ownership and oper-
ation through Mat-Su of a trucking fleet, plus truck
repair and maintenance, facilities and operations. t 3
Prior to Groves Truck's creation, Mat-Su either
manned the trucks with its own drivers or leased 'the
trucks to others and serviced the trucks with its ow'n me-
chanics and supervisors Mat-Su's stock was and is joint-
ly owned by J Blackard and his wife. J. Blackard was
and is its president and exercised overall direction and
control of its business, and his wife presided over its ad-
ministration at the Anchorage headquarters D Blackard
was and is an employee of Mat-Su
In the last 1970s, a portion of Mat-Su's truck fleet was
operating out of Fairbanks, either by lessees or Mat-Su,
while Alyeska Pipeline Service Company was building
the trans-Alaska pipeline' system Mat-Su serviced those
vehicles out of a shop located in Fairbanks
When Alyeska's pipeline construction , operations
neared completion in the last '1970s,14 and the use of
Mat-Su's vehicles declined, J. Blackard hired a master
mechanic with a local following (Groves) as Mat-Su's
local manager of its maintenance operations, expanded
shop operations to include offering its maintenance serv-
ices to any and all owners and/or operators (in addition
to continue the maintenance of Mat-Su's vehicles), and
persuaded Cummins Engine to grant an exclusive area
distributorship of its engines, parts and accessories. J.
Blackard then formed Groves Truck, with all its capital
stock held in D. Blackard's name. i 5 J. Blackard became
13 Mat-Su was generally engaged in construction
14 Alyeska continued to operate the pipeline after its completion, but
had use for far less vehicles
15 For which D Blackard paid nothing (as he testified, repudiating Re-
spondents' statements in Respondents' November 20, 1987 and January
Continued
GROVES TRUCK & TRAILER 7
Groves Truck's president and exercised the same overall
direction and control of its operations he exercised in
Mat-Su's affairs, including an active role in the commis-
sion of the unfair labor practices in the course of Groves
Truck's effort to avoid recognizing and bargaining with
the Council as the representative of a majority of Groves
Truck's employees within an appropriate unit (J Black-
ard violated Sec 8(a)(1) of the Act by threatening unit
employees with plant closure if they sought and secured
Council representation, a threat which was carried out
by a partial closure causing the discharges of the discri-
minatees herein).
All billing, receipts, disbursements, accounting, tax
payment, etc. of Mat-Su and Groves Truck were proc-
essed and maintained at J Blackard's direction and con-
trol The Mat-Su shop facilities, equipment, inventory,
management, work force, assets and business conducted
by Mat-Su at its Fairbanks shop, including the mainte-
nance of Mat-Su's' vehicles, were assumed by Groves
Truck and Mat-Su supplied all and any capital required
to keep the business going (Groves Truck required con-
stant infections of additional capital to continue in oper-
ation) 16
After closing part of Groves Truck's operations to
chill the employees' effort to secure Council representa-
tion and subsequently expanding operations to reduce its
liability therefor following the filing of the Council's
unfair labor practice charges,17 and following the 1981
issuance of Judge Stevenson's decision finding the dis-
charges unlawful and recommending Groves Truck not
only reinstate the dischargees and make them whole, but
also that Groves Truck bargain with the Council at its
request concerning the employees' wages, etc , J Black-
ard had D. Blackard transfer his Groves Truck's stock to
J Blackard,111 secured a second exclusive area distribu-
torship from Mack Truck for, sale and service of Mack
Truck vehicles, parts and accessories, dissolved Groves
Truck, formed Arctic Mack, had all of Arctic Mack's
capital ,stock issued to himself, assumed Arctic Mack's
presidency, transferred all of Groves Truck's assets, li-
abilities, etc to Arctic Mack, and continued to conduct
the same business in the same facilities with the same
management, work force, equipment, etc, serving the
same customers. As with Groves Truck, all of Arctic
Mack's receipts, etc were processed at J. Blackard's and
his wife's Anchorage headquarters and Mat-Su continued
to advance funds as needed to continue Arctic Mack in
business 19 In essence, J Blackard simply continued to
14, 1988 answers to sec 1(e) and (g) of the General Counsel's second and
third amended specifications wherein Respondents stated D Blackard
loaned $200,000 to Groves Truck to conduct its operations)
16 While testimony was offered to the effect Groves Truck issued
promissory notes to Mat-Su for each advance of capital during Groves
Truck's existence, no such notes were produced I do not credit that tes-
timony, as the evidence in general indicates the complete absence of any
arm's-length relationship between Mat-Su and Groves Truck but rather a
commingled operation
17 By offering some of the discharged employees reinstatement, includ-
ing Comeau, Stapleton, and Vandermeer
18 Again with no money exchange (see fn 15 above) and apparently
no payment of any gift or other taxes
19 A half interest in the Fairbanks' shop facilities was also purchased in
the name of J Blackard's wife and the rent to Arctic Mack substantially
operate the same business in the same facilities at the
same location with the same supervision (Groves) and
the same work force serving the same customers' under
the name Arctic Mack as he had under the names
Groves Truck and Mat-Su, utilizing Mat-Su throughout
to fund and administer the affairs of Groves Truck and
Arctic Mack.
Dissatisfied with his manager's (Groves') credit poli-
cies,20 J Blackard hired Harvey King as Groves' assist-
ant and gave King exclusive control over Arctic Mack's
credit policies. When Groves resigned over the reduc-
tion in his authority, J Blackard promoted King to the
manager position Following the creation of, Arctic
Mack, business expanded, at one time employing 20 me-
chanics 21
In June 1982, Judge Stevenson's decision was still
pending before the Board, but presented a liability of un-
known dimensions22 to Arctic Mack (as Groves Truck's
obvious successor, which the Respondents conceded in
their brief). Both J Blackard and Harvey King were
well aware of that pending liability Thus, despite his
ownership or an expanding business, in June 1982 J
Blackard conveyed to Harvey King and his son all of
Arctic Mack's stock, its assets (including receivables,
equipment, tools, inventory, etc ), agreed to continue
charging the Kings the bargain rental Arctic Mack had
been paying J. Blackard's wife, and agreed to write off
all of Groves Truck/Arctic Mack's debt to Mat-Su for
advances from Mat-Su during their respective existences
($319,000), for a sales price of $214,000, secured by a
promissory note with scheduled repayments of $6000 per
month and secured by the Arctic Mack stock, assets, and
a yacht owned by Harvey King
Assuming Arctic Mack continued in existence follow-
ing the issuance of the Board decision affirming Judge
Stevenson's recommended remedies for Groves -Truck's
unfair labor practices and court affirmance and the Gen-
eral Counsel limited his effort to secure compliance to
Arctic Mack's assets (as a successor to Groves Truck),
by this action J Blackard would have avoided and shift-
ed any liability to remedy Groves Truck's unfair labor
practices to Arctic Mack, recouped $214,000 of the
moneys invested in Groves Truck and Arctic Mack, se-
cured a tax benefit of $319,000,23 and left Arctic Mack
with insufficient means to satisfy the substantial liabilities
resulting from Groves Truck's unfair practices.
J. Blackard, however, never collected his $214,000,24
undercapitalized and with Harvey King's health deterio-
reduced thereafter, at a later time, the other half interest was also pur-
chased
20 Granting credit to small truck operators who frequently either
ceased doing business or left the area or simply defaulted on their bills
for maintenance services
21 Though Mat-Su continued to advance funds to Arctic Mack, as it
had to Groves Truck, to enable its continued operation
22 A reinstatement order, substantial backpay obligations, and a re-
quirement Arctic Mack bargain with the Council over the rates of pay,
etc of Arctic Mack's work force
23 By setting off this sum as a loss against Mat-Su's income
24 He possibly also used this additional loss as a setoff to income from
other sources for tax purposes
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rating, the Kings made no installment payments on the
note, the business deteriorated and failed in March 1984
J Blackard received approximately $5900 from the
Kings in payments between the date of the alleged sale
(June 1982) and the time Arctic Mack ceased operations
(March 1984), waived all installment payments on the
$214,000 note, received approximately $5000 by foreclos-
ing on the note and selling Arctic Mack's inventory fol-
lowing Arctic Mack's cessation of business operations,
and received approximately $14,000 by seizing the per-
sonal asset the Kings pledged as security on the note, fol-
lowing foreclosure on the note
Shortly after the purported June 1982 sale of Arctic
Mack to the Kings, J Blackard also received $57,500
from Alyeska (by a check made out to Groves Truck) in
a compromise settlement of claims by Groves Truck
versus Alyeska for services rendered while Groves
Truck was still in existence, deposited it in a dormant
Groves Truck account, and utilized the money to (1)
pay Groves Truck's attorney for services to Groves
Truck, (2) pay Groves Truck's suppliers; and (3) pay
rent allegedly owed by Groves Truck to J Blackard's
wife 25
The facts recited above amply support the conclusion
J Blackard controlled, dominated, and manipulated Mat-
Su, D Blackard, Groves Truck and Arctic Mack for his
own purposes, i.e, J Blackard.
1 At all times co-owned Mat-Su, was its president,
and directed its affairs
2 Part of Mat-Su's operations included the ownership,
operation and maintenance of a truck fleet with its own
facilities and personnel, including a maintenance facility
and personnel at Fairbanks.
3 Groves Truck was created by J. Blackard out of
Mat-Su's capital, assets, facilities, equipment, manage-
ment, and work force at Fairbanks to continue and
expand truck maintenance operations
4 While J Blackard caused the issuance of all of
Groves Truck's stock in D. Blackard' s name, D Black-
ard paid nothing therefore (despite assertions he paid
$200,000 therefor), D Blackard drew no income from
Groves Truck, D Blackard continued in the full-time
employ of Mat-Su in its construction activities, and D
Blackard conveyed his stock to J Blackard, without
compensation, shortly before J Blackard's creation of
Arctic Mack
5 During the entire time Groves Truck existed, J.
Blackard was its president, J Blackard had all its admin-
istrative functions performed by his Anchorage staff,26 J
Blackard exercised overall control of its operations, in-
cluding its labor relations (as evidenced by his directly
threatening Groves Truck's employees with discharge if
they sought and secured Council representation, a threat
which,was carried out by a partial closure and the dis-
25 Despite the fact J Blackard clearly conveyed all of Groves Truck's
assets , including its receivables , to Arctic Mack, and conveyed all of
Arctic Mack 's assets , including its receivables , to the Kings , and an ab-
sence of any evidence the Kings authorized J Blackard to take posses-
sion of the funds or received any credit therefor on his supposed debt to
J Blackard
26 Advancing funds as needed, handling all receipts and disbursements,
handling payroll , making tax payments , preparing reports, etc
charges of the discriminatees here involved), J Blackard
secured the Cummins Fairbanks distributorship for
Groves Truck, J Blackard recruited Groves as Mat-Su's
Fairbanks manager and retained him in the same position
at Groves Truck, along with Mat-Su's maintenance crew
at Fairbanks, and J Blackard dissolved Groves Truck
and transferred all its assets , liabilities, equipment, inven-
tory, facilities, managers and work force to Arctic Mack
after securing the Mack Truck distributorship
6 J Blackard created Arctic Mack, owned all its
stock; was its president, exercised overall control of its
affairs, continued Groves as its manager; transferred all
of Groves Truck' s assets (including receivables), liabil-
ities, inventory, equipment, facilities, managers and work
force to Arctic Mack, had his Anchorage clerical staff
perform the same administrative functions for Arctic
Mack they performed for Groves Truck, and continued
to offer the truck maintenance services in the Fairbanks
area previously offered by Groves Truck.
7 Faced with substantial unfunded liabilities under
Judge Stevenson's pending recommended remedies for
Groves Truck's unfair labor practices,27 J Blackard en-
tered into a purported sales agreement28 with the Kings,
thereby not only evading (and shifting to the Kings)29
the responsibility for remedying Groves Truck's unfair
labor practices, but also preserving capital30 and realiz-
ing a substantial monetary benefit 31
These facts establish sufficient ingredients-absence of
an arm's-length relationship between the various entities,
common ownership, control, domination, funding, ad-
ministration, etc. between the various entities and at-
tempted evasion of liability-to confer single employer
and/or alter ego status on the'survivors-Mat-Su and J
27 On the basis of the facts recited above and the Respondents' conces-
sions , I find and conclude Arctic Mack was a successor of Groves Truck
as that term is applied under the Act (Pepsi-Cola Bottling Co v NLRB,
414 U S 168 (1973), Croley Coal Co, 280 NLRB 899 (1986), enfd sub
nom South Harlan Coal, 844 F 2d 380 (6th Cir 1988), Evans Plumbing
Co, 278 NLRB 67 (1986), enfd 810 F2d 1089 (11th Cir 1987), E G
Sprinkler Corp, 268 NLRB 1241 (1984), enfd sub nom Goodman Piping
Products, 741 F2d 10 (2d Cir 1984), Premium Foods, 260 NLRB 708
(1982), enfd 709 F 2d 623 (9th Cir 1983), Market King, 282 NLRB 876
(1987), Rogers Cleaning Contractors, 277 NLRB 482 (1985)) As Groves
Truck's successor, Arctic Mack's assets, receivables, etc were subject to
levy to satisfy Groves Truck's backpay and interest liability and Arctic
Mack ' s owners were subject to an order requiring the reinstatement of
the discriminatees and requiring Groves Truck to bargain with the Coun-
cil concerning the rates of pay, etc of Arctic Mack's employees
28 It is questionable the same was bona fide, the Kings paid only about
$5900 for the assets , inventory , goodwill , equipment , tools , etc , assumed
no liabilities, J Blackard waived monthly installment payments on the
note, J Blackard wrote off all of Groves Truck's liabilities to Mat-Su, J
Blackard treated a Groves Truck/Arctic Mack's receivable 'supposedly
transferred to the Kings as his personally to dispense subsequent to the
sale of all of Groves Truck/Arctic Mack's receivables to the Kings, and
records which would show J Blackard's and Mat-Su's roles in the affairs
of Arctic Mack after its purported sale are allegedly unavailable
28 King was aware of Groves Truck's potential liability due to the
unfair labor practice proceeding and thus Arctic Mack under the Kings'
ownership would have been liable to remedy Groves Truck's unfair labor
practices had it been in existence at the time the Board sought compli-
ance with its decision
so Assuming the Kings paid off the $214,000 note
31 By treating his writeoff of Groves Truck ' s debt to Mat - Su at the
time of Arctic Mack's sale to the Kings as a loss to Mat-Su, thus lower-
ing Mat-Su 's tax liability
GROVES TRUCK & TRAILER 9
Blackard32-and consequent liability to remedy Groves
Truck's unfair labor practices 33
To similar effect, Better Building Supply Corp., 283
NLRB 31 (1987), affd 837 F 2d 377 (9th Cir 1988), Mid-
western Mining, 277 NLRB 221 (1985), Redlands Con-
struction Co., 265 NLRB 586 (1982), Penntech Papers, 263
NLRB 264 (1982), affd 706 F 2d 18 (1st Cir 1983),
Custom Mfg. Co., 259 NLRB 614 (1981), and Soule Glass
& Glazing Co, 246 NLRB 792 (1979), affd. 652 F.2d
1055 (1st Cir 1981)
Respondent Mat-Su contends its joinder with Groves
Truck and Arctic Mack as a single employer entity/alter
ego is improper on the ground Mat-Su preceded Groves
Truck/Arctic Mack in existence, Mat-Su at all times was
primarily engaged in construction throughout Alaska
serving different customers than those served by Groves
Truck/Arctic Mack; its affairs were allegedly managed
by a different person (D Blackard) from Groves
Truck/Arctic Mack's managers (Groves and King); and
it did not interchange employees with Groves
Truck/Arctic Mack. This contention ignores the fact at
all times J Blackard directed and controlled the affairs
of Mat-Su, Groves Truck, and Arctic Mack, including
direction and control of any D. Blackard managerial ac-
tivities at Mat-Su, and J Blackard directed and con-
trolled any Groves' and King's managerial activities at
Groves Truck/Arctic Mack, the administration of the
business of Mat-Su, Groves Truck, and Arctic Mack was
performed by J Blackard's (and his wife's) clerical staff,
Groves Truck and Arctic Mack were created through a
transfer and use of Mat-Su's capital, assets, equipment,
inventory, tools, facilities, manager and work force at
Fairbanks from Mat-Su to Groves Truck and subsequent-
ly to Arctic Mack, to continue in the same business-
truck maintenance and repair-under the continuing
overall direction and control of J Blackard, i e , as Mat-
Su's subsidiaries
Under the cases cited above, these factors are suffi-
cient to establish Mat-Su, Groves Truck, and Arctic
Mack as a single employer entity and as alter egos, as
32 I find the facts insufficient to confer such status on D Blackard, be-
cause he did not play an active role in the control, etc of Mat-Su,
Groves Truck, and Arctic Mack
33 O'Neill, Ltd, 288 NLRB 1354 (1988), Unbelievable Fashions, 286
NLRB No 78 (Oct 26, 1987) (not reported in bound volumes), JMC
Transport, 283 NLRB 554 (1987), Air Vac Industries, 282 NLRB 703
(1987), Las Villas Produce, 279 NLRB 883 (1986), Weldment Corp, 275
NLRB 1432 (1985), Dane County Dairy, 274 NLRB 291 ( 1985), supple-
mented by 283 NLRH No 36 (Mar 12, 1987) (not reported in bound vol-
umes ), Workroom for Designers, 274 NLRB 840 (1985), Advance Electric,
268 NLRB 1001 (1984), Lite Flite, Inc, 270 NLRB 815 (1983), enfd 746
F 2d 1478 (6th Cir 1984), William B Allen, 267 NLRB 700 (1983), affd
758 F 2d 1145 (6th Cir 1985), Campo Slacks, 266 NLRB 492 (1983),
Shearer Delivery Service, 262 NLRB 622 (1982), affd mem 714 F 2d 124
(3d Cir 1983), Master Food Services, 262 NLRB 804 (1982), F & F Con-
struction Co, 262 NLRB 735 (1982), Al Bryant, Inc, 260 NLRB 128
(1982), affd 711 F 2d 543 (3d Cir 1983), cert denied 464 US 1039
(1984), Spiegel Trucking, 257 NLRB 230 (1981), affd 696 F 2d 984 (3d
Cir 1982), Sally Lyn Fashions, 246 NLRB 542 (1979), affd 112 LRRM
3039 (3d Cir 1982), Carpet City Mechanical Co, 244 NLRB 1031 (1979),
Bryar Construction Co, 240 NLRB 102 (1979), D & I Trucking, 237
NLRB 55 (1978), Ski Craft Sales Corp, 237 NLRB 122 (1978), Burgess
Construction Co, 227 NLRB 765 (1977), affd 596 F 2d 378 (9th Cir
1979), cert denied 444 U S 940 (1979), Certified Building Products, 208
NLRB 515 (1974), enfd 528 F 2d 968 (9th Cir 1976)
those concepts have been developed under the Act (see
cases cited above)
Respondent J Blackard contends he cannot be classi-
fied as an alter ego to Groves Truck in the absence of
proof he formed Arctic Mack to avoid compliance with
the Board decision finding Groves Truck violated the
Act While he may have thought at the time he created
Arctic Mack and added the Mack Truck distributorship
he might avoid Arctic Mack's liability as a successor to
Groves Truck on the ground the acquisition of the addi-
tional distributorship changed the business, the question
of whether he created Arctic Mack with that purpose in
mind is academic in view of his clear motive in selling a
prospering business (Arctic Mack) to the Kings, i.e , to
regain the capital he had Mat-Su advance to Groves
Truck- and Arctic Mack and in the expectation his shift
of all Arctic Mack ownership to the Kings, as successor
purchasers of Arctic Mack with knowledge of the pend-
ing case against Groves Truck before the Board, would
result in a compliance action limited to whatever assets
remained in Arctic Mack at the time compliance was
sought, plus the securing of a tax benefit That motive is
sufficient to establish J Blackard's liability as an alter
ego, if establishment of such motive were to be consid-
ered a necessary factor for imposition of alter ego
status 34
The Respondents further contend they cannot be held
derivatively liable for Groves Truck's unfair labor prac-
tices because they (and, of course, Arctic Mack) were
not named as Respondents in the original unfair labor
practice proceeding, citing Rose Knitting Mills, 237
NLRB 1382 (1978) It is obvious they were not named in
the original proceeding because there was no reason to
include them at that time to remedy the unfair labor
practices committed by J Blackard to avoid dealing with
the Council as the collective-bargaining representative of
Groves Truck's employees Further, Rose Knitting Mills
has been overruled by Southeastern Envelope Co , 246
NLRB 423 (1979), and subsequent cases as
Lastly, the Respondents contend in no event could
their liability to remedy Groves Truck's unfair labor
practices extend beyond the date of J Blackard's sale of
Arctic Mack to the Kings (June 1982), on the ground
there is no assurance the Kings would have kept the dis-
criminatees in Arctic Mack's employ following their pur-
chase of Arctic Mack, they had no control over Arctic
Mack's employment policies following the sale, the con-
tinued employment of the discriminatees discharged by
Groves Truck is speculative and, in any event, only the
Kings should be held liable therefore as
34 A number of decided cases have held proof of such motive is not an
essential factor, but only one to be considered in resolving whether or
not alter ego status exists , McAllister Bros, 278 NLRB 601, 616 (1986),
enfd 819 F 2d 439 (4th Cir 1986), Allcoast Transfer, 271 NLRB 1374
(1984), enfd 780 F 2d 576 (6th Cir 1986), E G Sprinkler Corp, 268
NLRB 1241 (1984), enfd 741 F 2d 10 (2d Cir 1984)
35 G & M Lath & Plaster Co, 252 NLRB 969 (1980), enfd 670 F 2d
550 (5th Cir 1982), Las Villas Produce, supra , Air Vac Industries, supra
31 This contention lends further support to the finding and conclusion
the purported sale of Arctic Mack to the Kings was intended to evade
Mat-Su's and J Blackard's liability to remedy Groves Truck's unfair
labor practices
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Summary judgment has already been entered cutting
off the discriminatees' backpay period in March 1984 due
to the Respondents' failure to plead June 1982 as the
proper date in their answer to the section 2 of the speci-
fication.
It was J Blackard's purported sale of Arctic Mack's
ongoing business to persons who apparently were unable
to carry on successfully, to the consequent benefit of J
Blackard and his family corporation (Mat-Su), however,
which destroyed any likelihood of the discriminatees'
continued employment by Groves Truck and its succes-
sor Arctic Mack through the date the latter ceased oper-
ations
In view of the foregoing, I reject the Respondents'
contention their liability to make whole the discrimina-
tees should be cut off any earlier than March 1984
In view of my conclusion Mat-Su and J Blackard are
jointly and severally liable to remedy Groves Truck's
unfair labor practices, it is not necessary to resolve the
General Counsel's alternate theory that, at the very least,
J Blackard should be held liable to remedy the unfair
labor practices to the extent of the moneys he received
from the Kings on his purported sale of Arctic Mack to
the Kings ($5900), the moneys he received by selling the
inventory he secured by foreclosure action against the
Kings ($5000); and the moneys he received by foreclos-
ing on the Kings' yacht ($14,000) However, to provide
the Board with a complete disposition of the issues and
obviate any possible need to remand the case to resolve
this issue, I find and conclude that because J Blackard
received the moneys just described as a result of his at-
tempt to avoid and shift liability to remedy Groves
Truck's unfair labor practices, he should be held person-
ally liable to disgorge those sums in partial satisfaction of
the unfair labor practices committed in the event total
satisfaction from his and Mat-Su's assets is not decreed 37
37 Martin Arsham Sewing Co,-287 NLRB 923 (1987), Air Vac Indus-
tries, supra , F & W Oldsmobile, 272 NLRB 1150 (1984), Concrete Mfg
Co, 262 NLRB 727 (1982), Carpet City Mechanical, supra
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I recommend the issuance of the
following38
ORDER
Alaska Cummins Services, Inc , d/b/a Groves Truck
and Trailer, Joseph Blackard, Dan Blackard, Mat-Su,
Inc., Arctic Mack, Inc , their officers, agents, successors,
and assigns, shall jointly and/or severally pay to the indi-
viduals named below the sum listed opposite each name,
together with interest on the listed sum computed in ac-
cordance with the formulae set out in New Horizons for
the Retarded, 283 NLRB 1173 (1987), and Florida Steel
Corp., 231 NLRB 615 (1977):
Charles Buchanan $29,774
Afton Clifford 62,209
Patrick Comeau 120
William Gilpin 1,790
Larry Glover 3967,264
Norman Stapleton 232
Rex Vandermeer 58
38 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
as In view of Glover's unavailability, the payor and/or payors desig-
nated above are ordered to pay the sum due to Glover to the Regional
Director for Region 19 and the Regional Director is ordered to place the
payment in an escrow account and, if Glover is not located within 1 year
from the date of the final order for such payment, to refund the payment
to the payor or payors or, if Glover is located within that 1-year period,
to afford representatives of the General Counsel and the Respondents an
opportunity to examine Glover concerning his interim earnings and ef-
forts to mitigate his damages during his backpay period , with the Region-
al Director making a final determination as to what interim earnings or
other amounts shall be deducted from the escrowed payment, pursuant to
existing law, and making appropriate distribution following that determi-
nation See Brown & Root, 132 NLRB 486 (1961), enfd 311 F 2d 447, 456
(8th Cir 1963), and clarified (327 F 2d 958, 958-959 (8th Cir 1964)) for'
authority and guidance