Kenton Transfer Co., Maxline Express, Inc. And Bolt Express, Inc.

National Labor Relations Board - Board Decisions

May 14, 1990

298 N.L.R.B. 487 (N.L.R.B. 1990)

KENTON TRANSFER CO.
Kenton Transfer Co., Maxline Express, Inc. and
Bolt Express , Inc. and Truck Drivers, Ware-
housemen and Helpers Union Local No. 908, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America, AlFL-CIO.1 Case 8-CA-
16599
May 14, 1990
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On March 29, 1985, Administrative Law Judge
Walter J. Aiprin issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondents filed cross-exceptions
and brief in support and in answer to the General
Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions only to the extent consistent with this
Decision and Order.
1. We agree with the judge's determination that
Respondents Maxline and Bolt are not alter egos of
or a single employer with Respondent Kenton and
that Kenton did not unlawfully transfer work to
Maxline and Bolt to avoid its bargaining obliga-
tions with the Union.
In making an alter ego determination the Board
looks at whether there is substantial similarity in
management, ownership, business purpose, oper-
ation, equipment, customers, supervision, and, often
also at whether there was an unlawful motivation
for establishing the second entity. Advance Electric,
-268 NLRB 1001 (1984); Crawford Door Sales Co.,
226 NLRB .1144 (1976); Gilroy Sheet Metal, 280
NLRB 1075 fn. 1 (1986); Fugazy Continental Corp.,
265 NLRB 1301, 1302 (1982). No single factor is
controlling, and an examination of all relevant cir-
cumstances is necessary in each case.
As set forth fully in the judge's decision, Kenton,
Maxline, and Bolt were created, owned, and oper-
ated by various members of the Bailey family; all
i On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change.
2 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versmg the findings.
487
three companies were engaged in the transporta-
tion of commodities by truck; and they used some
of the same equipment and had a few of the same
customers. Despite the involvement of Robert,
Maxine, and their son, Bart Bailey, with all three
companies, the evidence establishes that effective
ownership of Kenton was with Robert and Maxine
Bailey, while Maxline and Bolt belonged to Bart.
Bart held only 3.2 percent of Kenton's outstanding
stock, with the remainder split between Robert and
Maxine on an approximately 60/40 basis. While at
the time of Maxline's and Bolt's incorporation
(May and August 1982, respectively) the elder Bai-
leys held substantial interests in both companies,
this was only a temporary arrangement that ended
completely in January 1983, when Bart assumed
total ownership of the new companies. There is no
evidence that the elder Baileys exercised any con-
trol over either Maxline or Bolt during the months
in which they owned stock in them. Therefore,
while some ownership overlap existed, we find, in
agreement with the judge, that it does not establish
an alter ego relationship. See Blue & White Cabs,
291 NLRB 1047, 1048 (1988); see also ,Derma Coat-
ings, 293 NLRB 803, 804 (1989).
Further, the companies were run independently,
by different individuals and out of separate offices.
Robert Bailey appears to have had exclusive oper-
ating authority at Kenton and was not shown to
have had any role in running Maxline or Bolt.
Bart's only arguably managerial duties at Kenton
were limited to dispatching, and even this ceased
entirely only a few months after Maxline and Bolt
were created.
In addition, Kenton's trucking operations were
primarily intrastate in scope, while interstate trans-
portation constituted 90 percent of Maxline's and
Bolt's business when they first were established.
Further, because Kenton's declining operations led
Robert Bailey to sell some of its equipment to a
separate leasing entity, B-Trans, and because nei-
ther Marline nor Bolt owned any trucks or trailers
themselves, the same equipment was ' often used by
all three companies. It is not the case, however,
that Maxline or Bolt used Kenton's previously
owned equipment exclusively, and it was not
shown that lease agreements for the equipment
were other than arm's-length.
These facts stand in marked contrast to the cir-
cumstances in Kenmore Contracting Co., 289 NLRB
336 (1988), in which the Board reversed the judge's
determination that no alter ego relationship existed
between Kenmore, a unionized steel construction
company owned by Hugh and Jacqueline Hanley,
and Sloan, a nonunion company engaged in the
same business and established by the Hanley's two
298 NLRB No. 61
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
children. In that case, Sloan's incorporators, unlike
Bart Bailey, were financially dependent on their
parents both personally and in their business oper-
ation. Also unlike Bart Bailey, who had worked in
the trucking business for a number of years and
had established an independent motivation to enter
the transportation field on his own, neither of the
Hanley children had relevant business experience
prior to opening Sloan.
While Maxline and Bolt were run from Bart Bai-
ley's home, removed from the Kenton facility,
Sloan's office consisted of an 8- by 10-foot space
within Kenmore's premises , rented for $100 per
month. Though evidence showed that Sloan had
been up to 6 months late in paying the rent, Ken-
more nevertheless assessed no penalties nor did it
interrupt Sloan's free use of office equipment and
supplies. Because Sloan did not have its own con-
struction equipment, it rented all it needed exclu-
sively from Kenmore. Also, Sloan was Kenmore's
only equipment rental customer that was permitted
to sublease Kenmore cranes and equipment to third
parties and was not required to lease the services of
Kenmore operators to run the cranes. Further,
during its first year of operation, Sloan's sole cus-
tomer was also a Kenmore customer and in follow-
ing years Kenmore customers constituted the vast
majority (two-thirds to three-quarters) of Sloan's
business as well. In addition, the elder Hanleys
were actively involved in Sloan's operations, and
went so far as to quote prices to customers, resolve
customer complaints, and provide job estimates. Fi-
nally, testimony of the Hanley son indicated that
Sloan was created after Kenmore had lost some
nonunion work, which, by the extent of control the
Hanley parents exercised over Sloan's operation,
they still desired to perform. In these circum-
stances, the enmeshing of the two companies' oper-
ations went far beyond what might be construed as
reasonable business assistance among family mem-
bers, and instead established that the same individ-
uals were simultaneously running two ostensibly
separate entities in a noncompetitive way, as alter
egos.
Instead we find this case controlled by First
Class Maintenance, 289 NLRB 484 (1988), which
presented an alter ego issue involving two compa-
nies, First Class and Clean Sweep, owned by two
generations of the Held family. Despite their sub-
stantially identical businesses (commercial clean-
ing), equipment, and customers, the Board upheld
the judge's determination that no alter ego relation-
ship existed. It was established in that case that the
son's capitalization of Clean Sweep did not rely en-
tirely on assistance from his parents (albeit their
gift of equipment contributed to his ability to start
the business) and that his several years of practical
experience in the industry had prepared him to run
his company independently of his parents. The son
made his own decisions regarding hiring, schedul-
ing, employee training, use of a payroll service, se-
lection of a lawyer and accountant, and the open-
ing of new accounts with suppliers. In addition to
these management/entrepreneurial functions, he
personally oversaw all work shifts and engaged a
supervisory staff unconnected with his parents'
company, First Class. Finally, although as in Ken-
more the loss of an account by First Class contrib-
uted to the formation of Clean Sweep-which sub-
sequently bid successfully on that lost account-the
Board concluded that the evidence that the newly
formed company was an independent entity, sepa-
rate from First Class and its principals, overcame
any inference that the company was formed to
allow the original company to avoid its union obli-
gations. In those circumstances, which are much
like those presented in the instant case, the Board
found that family ties were not used as puppet
strings to control Clean Sweep.3
Accordingly, in the absence of a finding that
Maxline and/or Bolt were susceptible to actual
control or direction of Robert Bailey and were
thereby alter egos of Kenton, we conclude that the
Union was not the representative of the employees
of Maxline or Bolt, that there was no basis for ap-
plying the contract to terms and conditions of em-
ployment at those companies, and that Kenton did
not unlawfully transfer unit work from its own
unionized operation to the newly formed nonunion
companies in violation of Section 8(a)(5). We also
find explicitly what was implicit in the judge's de-
cision, i.e., that Kenton did not unlawfully lay off
unit employees, but took this action only because
of its decreased business needs and in furtherance
of its decision to downsize its operation and, ulti-
mately, to leave the truck transportation business.
Accordingly, we dismiss the allegations of 8(a)(3)
violations based on such conduct. Best Mechanical
Contractors, 273 NLRB 83, 86 (1984).
2. We adopt the judge's determination that Re-
spondent Kenton violated Section 8(a)(5) by its
blanket 'refusal to process grievances following the
expiration of the March 1982 collective-bargaining
agreement. It is undisputed that Kenton refused
even to address the Union's grievances, holding to
its claim that the expiration of the contract termi-
nated its obligation to consider them. Kenton's uni-
lateral and wholesale abandonment of the ' entire
grievance system is a clear breach of its obligation
3 See also Adanac Coal Co., 293 NLRB 290 (1989)
KENTON TRANSFER CO. 489
to bargain with the Union. Conoco, Inc., 287 NLRB
548 (1987), and cases cited there.4
3. We reverse the judge's determination that
Kenton engaged in bad-faith bargaining in Febru-
ary 1983 and dismiss the 8(a)(5) allegation in this
regard. In addition, we find that the parties' course
of bargaining establishes that Kenton's April 1983
unilateral implementation of terms of employment
was not an 8(a)(5) violation.5
As explained fully in the judge's decision,
Kenton and the Union were unable to reach an
agreement to succeed the contract that expired in
March 1982. While the parties had found some
common ground by virtue of wage concessions and
other special provisions set forth in a rider to the
master agreement, the duration of the rider's
terms-a vital aspect of the agreement-was never
agreed on. The February 23, 1983 session was the
first face-to-face negotiating session the parties had
held in months. At that meeting Kenton proposed a
change in the way to handle grievances, suggesting
they be processed at the local level rather than re-
maining under the panel system, which was used
by the larger carriers and which was part of the
then- current master agreement. The Union coun-
tered that a different kind of panel, like the one
used by the Private Carrier Conference, might be
appropriate, and that it would provide Kenton
with a list of that organization's members. The
meeting ended with no agreement and no date for
another meeting.
On March 14, 1983, Kenton wrote to the Union,
urging 'a response to its grievance proposal. In the
absence of a reply, on April 8 Kenton notified the
Union that on April 15 it would unilaterally imple-
ment that proposal, although it remained "willing
to meet . . . for the purposes of seeking an agree-
ment." Though the Union protested on April 11,
stating its belief that, following the February ses-
sion, the parties had intended to allow their attor-
neys to handle matters, Kenton followed through
with its unilateral implementation of terms.
The judge found that, while there was no meet-
ing of the minds on a complete contract prior to
4 We note that the judge erred at Conclusion of Law 5 in his descrip-
tion of the Respondent's unlawful conduct in this regard, by stating that
Kenton failed to process the Union's demands for arbitration of griev-
ances. As noted, Kenton refused to process grievances entirely. Accord-
ingly we correct this misstatement and issue an Amended Conclusions of
Law.
In his recommended remedy, the judge conditioned the Respondent's
obligation to process the grievances on its reentry into the motor carrier
industry or reemployment of bargaining unit members. We disagree with
the conditional nature of the Respondent's bargaining obligation and we
order the Respondent to process grievances on the Union 's request.
' Although alleged in the complaint, the judge did not analyze this
issue as a separate violation of Sec. 8(a)(5) or reach any conclusions re-
garding the issue Instead he merely discussed the circumstances leading
up to the implementation and the implementation itself.
the February meeting, all terms except the expira-
tion of the rider had been agreed on. He reasoned
that Kenton's injecting a new substantive topic
(grievance procedure) into negotiations was evi-
dence of an intent not to reach agreement, but in-
stead to reopen terms already settled and thereby
thwart the bargaining process. We disagree.
By the time of the February 1983 meeting the
parties were into their 11th month without a con-
tract. While efforts to reach agreement had been
made before the prior contract's expiration and
shortly thereafter, the process soon bogged down
over the duration of the rider. Both the Union and
Kenton were equally firm in their positions--not
only concerning the propriety of their views on the
length of its terms, but also concerning each one's
having effectively communicated to the other just
what its position was. The Union's repeated fruit-
less efforts at obtaining Bailey's signature on its
version of the rider makes clear that the parties had
not reached an understanding on that issue.
The parties set no limits on the scope of the
issues they would discuss at their February session.
During the extended bargaining respite, Kenton's
business conditions had deteriorated and, with
them, the circumstances of the unit members. In
light of the decline in Kenton's operation and the
loss of several unit positions, the parties clearly had
a potentially broad negotiating agenda before them.
The judge's reasoning, however, proceeds from
an assumption that negotiations were locked in
where they 'had been months earlier, and that the
rider. That approach fails to take account of their
substantially changed circumstances. Contrary to
the judge, we find that the parties were free to
modify their bargaining positions to reflect current
realities and that their efforts to reach agreement
nearly one year earlier did not forever bind them
to positions then espoused. See Rescar, Inc., 274
NLRB 1, 2 (1985).
Further, it is important to note that bad faith on
the part of the Respondent was neither asserted by
the Union, nor alleged in the complaint. In any
event, there is no evidence demonstrating that the
February meeting was anything but a legitimate
effort at reaching agreement on the long-unsettled
contract. Moreover, the Union's very response to
Kenton's proposal, i.e., suggesting a compromise
system of handling grievances, makes clear that it
did not view Kenton's proposal to revise the griev-
ance system as a matter inappropriate for discus-
sion much less a mark of bad faith.
The Board examines the totality of a respondent's
conduct in determining whether it has bargained in
bad faith, and we fmd this case presents insufficient
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence to support that finding.6 Accordingly, we
reverse the judge's finding that Kenton's bringing
the subject of grievance procedures into negotia-
tions supports a finding of bad faith and a desire to
avoid reaching agreement.
Finally, the judge failed to make a determination
on the allegation that Kenton's April 1983 unilater-
al implementation of contract terms violates the
Act. We find it does not.
Based on the evidence of the parties' course of
bargaining , reviewed briefly above, we find that
the General Counsel has not established that the
Respondent failed to bargain in good faith nor
overcome the evidence that impasse was not
reached by the time of implementation . There is no
evidence that Kenton's conduct fell short of a read-
iness and willingness to discuss contract terms with
the Union. It was facing economic problems and,
by meeting with the Union in February, showed a
desire to work with the Union in resolving them.
On the conclusion of the February meeting, how-
ever, the Union simply did not respond to Kenton.
Kenton contacted the Union after 2 weeks, urging
a reply, but to no avail. After nearly 4 more weeks
had elapsed, Kenton notified the Union of its desire
to meet again, but also warned that it was prepared
to go forward with its own proposals. At that
point the Union did not suggest another meeting,
but only protested Kenton's action, making no indi-
cation to Kenton that it would be amenable to fur-
ther bargaining. In these circumstances we con-
clude that the General Counsel has not carried his
burden of establishing a violation of Section 8(a)(5).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 5.
"5. Respondent Kenton has engaged in unfair
labor practices in violation of Section 8(a)(5) and
(1) by failing to process grievances brought by the
Union following the March 31, 1982 , expiration of
the collective bargaining agreement."
2. Substitute the following for Conclusion of
Law 6.
"6. This unfair labor practice affects commerce
within the meaning of Section 2 (6) and (7) of the
Act."
ORDER
The National Labor Relations Board orders that
the Respondent, Kenton Transfer Co., Kenton,
Ohio, its officers, agents, successors, and assigns,
shall
6 Atlanta Hilton & Tower, 271 NLRB 1600 (1984), Merrell M. Williams,
279 NLRB 82 (1986); Aero Alloys, 289 NLRB 497 (1988).
1. Cease and desist from failing and refusing to
process grievances of members of the bargaining
unit, described below, pursuant to the terms and
conditions of its last effective collective-bargaining
agreement with Truck Drivers, Warehousemen and
Helpers Union Local No. 908, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America AFL-
CIO. The bargaining unit consists of:
All truck drivers employed by Kenton Trans-
fer Co., but excluding office clerical employ-
ees and professional employees, guards and su-
pervisors as defined in the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, process grievances of members of
the above bargaining unit pursuant to the terms
and conditions of its last effective collective-bar-
gaining agreement with the above Union.
(b) Mail a copy of the attached notice marked
"Appendix" to each of its employees who was
employed at its terminal between March 31, 1982,
and January 1, 1984. Copies of that notice on forms
provided by the Regional Director of Region 8
shall, after being signed by the Respondent, be
mailed immediately upon receipt.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS ALSO ORDERED that all other alleged viola-
tions are dismissed.
° 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
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.
WE WILL NOT refuse to process grievances of
members of Truck Drivers, Warehousemen and
Helpers Union Local No. 908, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO, who are members of the bargaining unit
which includes
KENTON TRANSFER CO.
All truck drivers employed by Kenton Trans-
fer Co., but excluding office clerical employ-
ees and professional employees, guards and su-
pervisors as defined in the Act.
WE WILL, on request, process grievances of
members of the above bargaining unit pursuant to
the terms and conditions of the last effective col-
lective-bargaining agreement with Truck Drivers,
Warehousemen and Helpers Union Local No. 908,
affiliated with International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO.
KENTON TRANSFER CO.
Paul Lund, Esq., for the General Counsel.
William C. Moul, Esq. (Thompson, Hine and Floury), of
Columbus, Ohio, for the Respondent.
Mary Jo Korona, Esq. (Logothetis Pence), of Dayton,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. This
case was heard by me at Lima, Ohio, on September 17,
18, and 19, 1984. The complaint, issued April 23, 1984, is
based on a charge filed March 17, 1983, amended April
29, 1983, by Truck Drivers, Warehousemen and Helpers
Union Local No. 908, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union). The complaint alleges
that Kenton Transfer Co. (Kenton), Maxline Express,
Inc. (Maxline), Bolt Express, Inc. (Bolt), and, by amend-
ment made during the hearing, B-Trans Leasing , Inc. (B-
Trans), collectively the Respondent, as a single employ-
er, joint employers or alter egos, violated Section 8 (a)(1),
(3), and (5) of the National )Labor Relations Act (the
Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross ex-
amine witnesses , to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed by the
General Counsel, Charging Party, and Respondent on or
before the extended due date of November 29, 1984.
On the entire record, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
1. JURISDICTION
By their answer to the complaint, Kenton, Maxline,
and Bolt admit that the Union is a labor organization
within the meaning of Section 2(5) of the Act. By stipu-
lation entered into during the hearing they also admit
that they are within the jurisdiction of the Board by the
meaning of Section 2(2), (6), and (7) of the Act. Jurisdic-
tion of the Board over B-Trans independently was not
admitted or proven, but alleged as an alter ego of
Kenton.
II. THE ALLEGED UNFAIR LABOR PRACTICES
491
A. Background
Robert Bailey (Robert) and his wife, Maxine, have
three sons, Bart, Brad, and Brent. Robert acquired
Kenton in 1974, and operated it with his wife and, in
later years, with Bart. As of May 1982' Robert, as presi-
dent, owned 584 shares of Kenton stock, Maxine, as sec-
retary, owned 384 shares, and Bart, as vice president,
owned 32 shares.
Kenton's drivers were represented by the Union, and
Kenton was a party to the National Master Freight
Agreement (Master Agreement) and supplements, in
force from April 1, 1979, to and including March 31,
1982. In the face of deregulation of the industry, eco-
nomic recession and sharply increased interest rates, by
1980 and 1'981 Kenton began to suffer significant losses,
and determined that it desired to negotiate with its orga-
nized employees on a separate, local basis rather than on
a national multiemployer basis. By letters of October 19,
1981, and January 4, 1982, Kenton notified the Union of
its intention to leave the multiemployer group at the end
of the contract on March 31. A meeting was arranged
between Kenton and the Union for March 17 at which
the Union expressed a desire to retain Kenton in the
Master Agreement, but offered economic concessions to
be included in a rider. It was agreed that the proposed
rider be presented to Kenton employees, which was
done on March 20 in the presence of'Local Union Presi-
dent Groves and of Robert and Bart. Though there is a
dispute whether the rider was actually accepted, later
discussed, Kenton implemented and the Union accepted
the terms of the rider on April 1.
On May 25, Maxline was organized as a corporate
entity. The original stock ownership, excluding the
"dummy" incorporators, was in equal 200-share blocks
held by Robert, Maxine, and Bart. Bait was and re-
mained president and director while Robert was secre-
tary-treasurer and director until August 30, and Maxine
was a director from incorporation to January 7, 1983,
and secretary-treasurer between September 30 and Janu-
ary 7, 1983. The stock of Robert and Maxine was can-
celed on January 10, 1983, and reissued to Bart, who was
thereupon sole stockholder.
On August 30, Bolt' was organized as a corporate
entity. The original stock ownership, excluding the
"dummy" incorporation, was in Bart with 350 shares,
and in Robert and Maxine with 125 shares each. Bart
was and remained president and director, while Robert
was secretary-treasurer and director until October 15, at
which time also his stock was canceled and reissued to
Bart. Maxine was a director from incorporation to Janu-
ary 10, 1983, and secretary-treasurer from October 18 to
January 10, 1983, at which time also her stock was can-
celed and reissued, to Bart, who was thereupon sole
stockholder.
1 All dates are in 1982 unless otherwise indicated
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Transfer of Operating Rights
The testimony of Robert and of Bart is that in view of
Robert's disenchantment with the business and of Bart's
desire to strike out on his own in the transportation field,
in April or May they decided that a new corporate
entity, Maxline, would be organized for Bart to operate
independently. Maxline would purchase operating au-
thority from Kenton, enabling Kenton to reduce its
debts. The contract of sale was executed on May 31. The
authority to be purchased was contained in certificate
488-I of the Public Utilities Commission of the State of
(Ohio PUC) covering service from and to a large portion
of central Ohio, including the commercial zone of Co-
lumbus, for which Kenton retained no duplicating au-
thority. The purchase price was set at $125,000, that
being the amount for which Kenton had originally pur-
chased it. The purchase was to be financed by Maxline
with a loan from Bank One, a financial institution of
which Robert was a director, but the loan was not grant-
ed. Maxline , by Bart, then agreed to assume existing in-
debtednesses of Kenton to that amount, and in fact Rob-
ert's verified statement presented in May to the Ohio
PUC for consent to the transfer cites this consideration.
The Ohio PUC approved the transfer on July 28, and
certificate issued September 22. No assumption of debt
took place, however, and it was not until December 31
that Maxline executed a demand note for $125,000 to
Kenton. Interest on the debt was 9 percent, which at the
time was well below even the prime rate and was the
minimum interest rate that the Internal Revenue Service
would recognize. No payments were made on this in-
debtedness until July 29, 1983, when interest for the first
two quarters of 1983 was paid.
Bolt was organized for similar reasons about 1 month
later, to purchase Kenton's certificate 1790-I, authorizing
general commodity service from and to Marion, Ohio,
and points in its commercial zone , and also authorizing
service on specified commodities from and to all points
in Marion County, Ohio.
Kenton held duplicating authority for this transporta-
tion, which authority it retained. Purchase price, similar-
ly valued, was $50,000 which, again according to a veri-
fied statement from Robert to the Ohio PUC on Septem-
ber 3, was to be paid by an assumption of Kenton's out-
standing indebtedness. The Ohio PUC approved the
transfer on October 13, and certificate issued October 28.
In fact there was no assumption of debt, and Bolt bor-
rowed the money from Bank One on a note cosigned by
both Bart and Robert at interest 2 percent over prime.
Payment was made to Kenton in full on February 1,
1983.
Maxline or Bolt also obtained other certificates from
Kenton, numbered 1282-I and 11630-I. The details of
these transactions are not clear, but apparently because
of the Ohio PUC redefinition of scope they became con-
current with other authority held and thus subject to
cancellation. In order to protect them from such fate
they were transferred from corporate ownership to Bart,
in one instance, and, in another instance, to Robert.
C. Transfer of Equipment
There was no transfer of equipment to Maxline or
Bolt. In December, B-Trans was incorporated as a leas-
ing entity , with Robert holding 49 percent of the stock,
and Cheryl, wife of Brent Bailey , another son, holding
51 percent. Some time in 1984, under circumstances not
here of record , B-Trans stock was redistributed so that
Robert and Bart each owned 26 percent and Brent and
Brad each owned 24 percent.
B-Trans purchased the 6 or 7 tractors and 50 trailers
owned by Kenton , and also purchased the equipment
owned by Bail Bros., a separate corporation owned by
Bart and Brent . Robert managed B-Trans, which leased
equipment to Kenton , Maxline, Bolt, and other carriers
not here involved . Maxline and Bolt leased equipment
from B-Trans and from a number of other sources not
here involved.
D. Operations of Kenton, Maxline, and Bolt Prior to
Kenton's Discontinuance
Bart continued acting as Kenton's dispatcher and
freight solicitor after the formation of Maxline and Bolt
and the transfer to them of operating authority, until the
end of October. During that time he also began soliciting
freight for his nascent operation, though not in conflict
with Kenton. Kenton continued its operations until Janu-
ary 1984, laying off drivers as they became redundant.
Four drivers (Dyer, Hudson, Simpson, and Hoffman)
were laid off November 22. Two of these (Simpson and
Hoffman) purchased rigs, resigned from the Union, and
around the end of November began operating for Max-
line and or Bolt. After the equipment was transferred by
Kenton in December, Kenton's mechanic left, to be em-
ployed by Maxline and/or Bolt.
In a significant number of instances the bills of lading
for transportation alleged to have been performed by
Maxline or Bolt indicated on their faces, with or without
correction, that the transportation had been performed
by Kenton, or vice versa.
Bart testified that from the time he left Kenton at the
end of October, until Kenton discontinued operations in
January 1984, he conducted the business of Maxline and
Bolt from his home, which was adjacent to the Kenton
facility. Driver Gillen, who was employed by Kenton
until December 1983, and who was a union steward, tes-
tified that Bart continued dispatching for Kenton until
January 1983, that Bart was in the Kenton office "every
so often" thereafter though he did not speak to the driv-
ers, and that from the early part of November on he saw
Maxline and Bolt vehicles at the Kenton facility pulling
Kenton trailers2 or dropping or picking them up, or fuel-
ing at the Kenton fuel pump. me bills of lading on loads
driven by Gillen which had been made out to indicate
Maxline or Bolt but changed to Kenton were for ship-
ments pursuant to authority held by Kenton, performed
while Gillen was employed by Kenton. Kenton driver
Hudson, laid off in January 1983, testified that Bart con-
tinued dispatching for Kenton until January 1983.
2 The trailers marked "Kenton" were later marked "B-Trans "
KENTON TRANSFER CO
Kenton driver Sams, laid off in April 1983, testified to
the same effect, adding that Bart was periodically at
Kenton's facility even after January. Bart and Robert tes-
tified that Bart had discontinued dispatching for Kenton
when he resigned the end of October.
E. Customers
Kenton's principal customer was Rockwell Interna-
tional, from its Ohio locations at Maryville and Kenton.
Rockwell's decision to close its Maryville plant was one
factor in Robert's decision to get out of the transporta-
tion business . On the formation of and transfer of operat-
ing authority to Maxline and Bolt, much of Rockwell's
outbound freight was tendered to the new companies. At
the inception of operations, however, 90 percent of Max-
line's and Bolt's business was in interstate commerce,
under authority obtained from the Interstate Commerce
Commission and not purchased from Kenton. The per-
centage of interstate business later went down to about
50 percent . Kenton had not engaged in meaningful inter-
state transportation since 1976.
Kenton's sale of its authority forced it to forgo intra-
state movements to Kenton, Ohio, from points to which
outbound shipments previously took its equipment, an
example of which was grocery shipments on behalf of
Quaker Oats. Maxline and Bolt obtained outbound busi-
ness servicing not only prior customers of Kenton, but
new customers as well, in intra and interstate move-
ments. Maxline and' Bolt served customers previously
served by Kenton, but that was not all, or even a major
portion of their business.
F. Collective Bargaining and Providing Information
As noted above, the 3-year existing labor contract, the
appropriate National Master Freight Agreement, was to
expire on March 31, 1982. As early as October 19, 1981,
by letter of that date, Kenton advised the Teamsters Na-
tional Freight Industry Negotiating Committee that it de-
sired to terminate the contract on its expiration date, and
to negotiate a successor agreement, apart from the
Master Agreement, to be effective April 1. It reiterated
its intent by letter of January 4. By letters of January 7
and February 2, 10, and 16, the Teamsters Central and
Ohio Conferences acknowledged the request for separate
negotiation and began steps to implement it. On March
17 negotiations took place. The resultant proposal by
Kenton was presented by it to its drivers at a meeting on
March 20.
The proposal consisted of two double-spaced typed
pages , designated as a "Rider" to become an integral
part of the National Motor Freight Agreement . . . for
the period April 1, 1982, and shall supercede and prevail
over the specific terms of the Agreement only to the
extent specifically provided herein." The second page of
the rider contained only designated spaces for two signa-
tures on behalf of the Union, and one on behalf of Re-
spondent Kenton.
After discussing the provisions of the "Rider" and dis-
playing economic data to support the request for conces-
sions, Kenton representatives were asked to leave the
room while the drivers considered the matter and voted.
493
The drivers voted to accept the rider, but witnesses fa-
voring the Union testified that it was noted that there
was no termination date in the rider and that when quer-
ied about this the Baileys responded that it was possible
that Kenton's business would decline further and it
would seek additional concessions. These witnesses testi-
fied that Kenton agreed, however, that the rider should
have a 1-year life, and that the written form should re-
flect this. Bart and Robert, on the other hand, deny that
there was any 1-year agreement. Kenton's representa-
tives, however, redrew the rider, inserting a clause that:
This rider may be reopened for renegotiation . . .
by written notice of either party served . . . thirty
days prior to April 1, 1983 or April 1 of any subse-
quent year, provided the financial status of Kenton
Transfer has substantially improved or further dete-
riorated.
The date of delivery of this draft was not, however, es-
tablished in the record . Kenton implemented and the
drivers accepted payment in conformance to the rider on
April 1.
A new Master Agreement was negotiated by carriers
other than Kenton to run from March 1 , 1982, to March
31, 1985 . Kenton never executed the Master Agreement
or any version of the rider . On September 8 the Union
sent Kenton a letter putting it on notice that it was
aware of the transfer of operating authority from Kenton
to Maxline and Bolt, and that it would not condone any
transfer of bargaining unit work. In November Kenton
began laying off drivers , ant on November 30 the Union
began filing grievances for alleged transfer of unit work
to Bolt and Marline . Kenton responded with a lengthy
letter stating , inter alia , that Kenton was not a signatory
to any effective labor agreement and that it ' had no con-
trol over Bolt or Maxline . It truthfully advised that
Robert was , at the time, a minority stockholder, but
denied the ability to control . On December 2, Robert
Groves, president of the Union, wrote to Kenton 's repre-
sentative , Walter Brewster of the Ohio Motor Carriers,
stating in regard to the rider "In reference to Section 4,
where you wanted to change the language, please note
that this is (supposed to be) only a one-year Addendum.
WALTER, PLEASE TAKE CARE OF THIS IMME-
DIATELY." Attached was another copy of the rider, in
which the addition to the first copy was reduced to the
following:
This Rider will be opened for negotiations prior to
April 1st, 1983. (This Rider is for one (1) year).
The next day, December 3, Groves wrote to Kenton,
enclosing what is obviously a letter drafted by counsel,
stating, inter alia, that it believed there were or might be
violations "of the current collective-bargaining agree-
ment." It states its belief that there existed a financial
and/or managerial "connection" between Kenton and
Bolt "and we believe that the object of creating Bolt was
to circumvent the provisions of our collective-bargaining
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement." The letter then lists 14 detailed questions to
"assist us in processing the grievance."s
After additional correspondence, on January 6, 1983,4
Groves sent Kenton two Master Freight Agreements,
and riders5 with request for signature. Meanwhile, the
Union continued filing grievances based on transfer of
bargaining unit work.
At a negotiating session on February 25, Kenton was
represented by Robert and by his transportation counsel,
Muldoon. The Union was represented by the Local's
counsel and Graves, as well as a representative of the
Ohio Teamsters Council and a driver stewart. Kenton
presented economic data, and a proposal, which was
considered by the Union point by point. The proposal
provided for handling grievances locally between the
presidents of Kenton and of Local No. 908, with re-
course to the American Arbitration Association if no
agreement was reached. Kenton continued to take the
position on pending grievances that no contract had been
in effect from April 1, 1982. Kenton also argued, though
it is not clear whether this refers to pending or future
grievances, that the Union's regular grievance panel
would be inappropriate because it was geared to handle
disputes involving larger carriers. The Union then sug-
gested that a grievance panel of the Private Carrier Con-
ference could be used, and volunteered to provide Ken-
ton's counsel with a list of the members of that organiza-
tion.
By letter of March 14, Kenton reminded the Local
Union that it had not received a decision on its February
25 proposal, and by letter of April 8 advised it was uni-
laterally implementing the proposal on April 15, though
"we remain willing to meet with you for purposes of
seeking an agreement." On April 11 the Union protested,
on the grounds that it had been agreed on February 25
that "all meetings pertaining to negotiations was to be
handled between the attorneys." Meantime and subse-
quently, the Union filed charges with this Board. The
Union's charge certified by counsel as being correct on
March 15, alleged, inter alia, that "since on or about No-
vember 1, 1982, and thereafter, [Renton, Maxline, and
Bolt] have refused to bargain collectively with and rec-
ognize [the Local union]." The charge certified by coun-
sel on April 27 repeated the prior allegations and added
one involving a violation by unilaterally implementing
changes in wages, hours, and other terms and conditions
of employment "since on or about March 1, 1983."
G. Threats
The complaint alleges that in December 19826 Robert
threatened and coerced a Kenton employee by stating
that his being hired by Bolt was contingent upon his
withdrawing from Local 908. The unit of Kenton em-
ployees represented by that local consists of "All truck-
3 By letter dated December 30, Kenton responded to each of these 14
questions, and propounded of the Union, as to which the record shows
no response
4 All further dates in this section are in 1983 unless otherwise indicat-
ed.
5 The record does not disclose the form of the rider-the first, second,
or third-which was sent
6 All dates in this section are in 1982 unless otherwise indicated.
drivers employed by Kenton Transfer Co." but an
owner-operator can retain union membership.
Kenton's former driver, Dyer, testified that in the
second week of December, having been laid off several
weeks earlier, he went to the Kenton terminal and spoke
to Robert about reemployment, and that Robert:
told me that I could take the same route Bob Simp-
son did. I asked what he meant. He said I could buy
a truck, drop out of the Union, and we will put you
on Bolt Express.
Simpson had purchased one of Kenton 's tractors in mid-
November, with credit guaranteed by Robert.
Robert did not deny making the statement to Dyer,
but his explanation of the circumstances was that:
being interested in selling a truck, and knowing
that the chances of Mr. Dyer being called back to
Kenton were slim, and knowing that he had, at one
time, been an owner-operator and I think he indicat-
ed many times that he was happier then than6 All
dates in this section are in 1982 unless otherwise in-
dicated. he was (as) an hourly man, possibly, he
would like to do that again.
Of course, he could do that with-over Maxline.
I think, probably, what I told him was that belong-
ing to a labor organization, wouldn't be a require-
ment there, although I had no position to speak for
either one of these companies in this regard.` I knew
they were looking for drivers, and I thought this is
an opportunity for me to, once again, sell another
truck.
III. DISCUSSION
The determinative issues here are (1) whether Maxline,
Bolt, and B-Trans, individually or jointly, are alter egos
of Kenton; (2) whether there was a meeting of the minds
between Kenton and the Union extending the collective-
bargaining agreement which expired on March 31, 1982,
and, if not; (3) whether Kenton failed and refused to bar-
gain in good faith; and finally (4) whether Kenton threat-
ened and coerced an employee in violation of the Act.
A. Alter Ego Status
1. Applicable principles
A succinct statement of those principles applicable to
the issue of alter ego status can be found in Frederich
Truck Service, 259 NLRB 1294, 1300 (1982), as follows:
the Board looks to four principal factors in deter-
mining whether two arguably separate employers
will be treated as a joint employer. These factors
are: (1)interrelation of operations, (2) centralized
control of labor relations, (3) common management,
and (4) common ownership or financial control.
While no individual factor has been held to be con-
trolling, emphasis is placed on the first three factors,
particularly centralized control of labor relations.
Alter ego status will generally be found where the
two enterprises have "substantially identical man-
KENTON TRANSFER CO.
agement, business purpose, operation , equipment,
customers, and supervision as well as ownership."
Crawford Door Sales Company Inc. and Cordes Door,
Company, Inc., 226 NLRB 1144 (1976).
2. Ownership and financial control
While Robert, with his wife, at all times was virtually
the sole owner of Kenton, and while Bart was from Jan-
uary 10, 1983, the sole owner of Maxline and Bolt, there
is a "grey area," after Maxline and Bolt had obtained and
were operating authorities previously held by Kenton,
during which Robert and his wife held substantial or
controlling stock interests in the new entities. Robert and
his wife owned two-thirds of Maxline's stock until Janu-
ary 10, 1983, though Maxline held Kenton's former oper-
ating authority from September 22, 1982. Robert and his
wife owned over 40 percent of bolt's stock until October
15, 1982, and Robert's wife continued owning over 20
percent until January 10, 1983, though Bolt held Ken-
ton's former operating authority from October 12, 1982.
In terms of financial ownership and control, it is clear,
that transactions between Robert and Bart were gov-
erned more by familial considerations than by a strict re-
quirement of quid pro quo. In any event, Bart's owner-
ship and control of Kenton was always minimal, and
Robert's ownership and control of Maxline and Bolt, but
for a short period at inception and as a creditor to his
son, was likewise always minimal. I do not find the
factor of ownership or financial control to be sufficiently
strong to support an assumption of alter ego status.
3. Interrelation of operations
Motor transportation of freight, both inter and intra-
state, is subject to governmental regulation. When the
new entities were first organized they engaged over-
whelmingly in interstate operations, in which the older
entity had not appreciably engaged for 6 years The new
entities also engaged in intrastate operations pursuant to
authority purchased from the older entity as to which to
some extent the older entity was still able to compete,
but the new entities increasingly obtained new business,
never previously enjoyed by the old entity.
Physical operations continued to be conducted by
Kenton out of its facility, which consisted of office, park-
ing area, and fuel pump. The new entities used Bart's
home as their office. Utilizing owner-operators and
leased equipment, Maxline and Bolt had no need for a
parking area or a fuel pump. Since some, though not all
trailers were rented from B-Trans, which purchased
Kenton's vehicles and used Kenton's parking facilities,
vehicles used in Maxline or Bolt operations were fre-
quently, if not invariably, parked on Kenton's facility.
Though there is testimony that owner-operators may
have obtained fuel for their vehicles from Kenton's fuel
pumps, there is no evidence as to what arrangements if
any existed between Kenton, Bolt, and the owner-opera-
tors as to the fuel costs.
There is a testimonial dispute as to when Bart discon-
tinued dispatching vehicles on behalf of Kenton. I credit
the testimony of drivers Hudson, Sams, and Gillen that
Bart continued such dispatching, though on a reduced
495
level, during November and December 1982, and into
January 1983. Though these drivers have an economic
interest in the outcome of this case, since their griev-
ances for compensation for transferred bargaining unit
work were filed, I find their straightforward demeanor
during testimony, enhanced by the reasonableness of the
story they tell, to be more believable than the testimony
of Bart and Robert that Bart ceased all work for Kenton
at the end of October, 1982. It is only for this short
period that I find any interrelationship of the operations
of the various carriers.
4. Common management and centralized control of
labor relations
Possibly the most central of the criteria considered by
the Board in determining whether multiple business enti-
ties constitute multiple employers or only a single em-
ployer is the issue of common management, and particu-
larly whether there is centralized control over labor rela-
tions. We must therefor determine whether Robert man-
aged both the old entity, Kenton, and the new entities,
Maxline and Bolt, and in addition whether Bart managed
both the new entities and the old.
The only evidence of Bart's intervention in the oper-
ations of Kenton after October 1982, is that of his contin-
ued work, together with Robert, in dispatching during
November, December, and part of January, discussed
above. It is obvious that the extent of this as "manage-
ment" is minimal in scope and of a short duration.
Though dispatching involves selection among drivers to
perform specific functions, it does not involve hiring,
firing, establishing rates of pay or conditions of employ-
ment, or any form of labor relations. It is thus clear that
Bart did not, even during this limited peri od of Novem-
ber 1982-January 1983, engage in managing both the old
and the new employees.
The only direct evidence of Robert's intervention in
the management of Maxline or Bolt comes in the unden-
ied testimony of driver Dyer that Robert said he could
"buy a truck, drop out of the union, and we will put you
on Bolt express." (Emphasis added.) Such statement,
taken at face value, would mark ' Robert as being in a
managerial position and with control of Bolt's labor rela-
tions. Robert's testimony regarding the conversation,
however, set forth such circumstances, undeniably true,
regarding his desire to sell his trucks, the improbability
of Dyer being rehired by Kenton, Dyer's prior owner-
operator status, and the need of Bolt for owner-operators
as to convince me that Robert's use of the pronoun "we"
was a misstatement and did not indicate an actual, power
by Robert in the management or labor relations of Bolt.
5. Summary
I find, as matters of fact, that there was no common
ownership, financial control, interrelation of operations,
or management or control of labor relations as to estab-
lish an alter ego status between Kenton, on the one hand,
and, on the other, Maxline, Bolt, B-Trans, or any combi-
nation thereof. There ' is no evidence that the new entities
were established to relieve the old entity of its obligation
to deal with the Union. To the contrary, the evidence in-
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dicates that Robert had valid business and personal rea-
sons for not continuing is the transportation business
with Kenton and that Maxline and Bolt were established
solely to enable Bart to go into business for himself
within that industry. See Victor Valley Heating & Air
Conditioning, 267 NLRB 1292, 1296-1297 (1983). That
Robert afforded Bart favorable financial treatment is not
so unexpected in view of the familial relationship as to
constitute evidence of a desire to establish an alter ego,
or single employer status in an industry which Robert,
and Kenton, were in the process of abandoning.
B. Extension of Collective-Bargaining Agreement After
March 31, 1982, and Bad-Faith Bargaining
I find that there was not a meeting of the minds be-
tween Kenton and the Union as to constitute a bargain-
ing agreement after termination of the existing agreement
on March 31, 1982.
The proposed rider, to continue Kenton's being bound
by an industry Master Agreement, was presented to the
drivers on March 20. I credit testimony on behalf of the
Union that they recognized the proposed rider as being
incomplete without a provision for reopening, since Ken-
ton's representative thereafter redrafted the proposal,
providing for annual renegotiation. I also credit Robert's
and Bart's denials, however, that they agreed on March
20 to limit the proposed rider to a 1-year period, as this
would then have left them subject to the Master Agree-
ment for the last 2 years of its effectiveness which was
never their intention. There apparently was nothing done
by the Union after receiving the proposed change to the
proposed rider, for annual renegotiation, until the Union
began filing grievances on November 30 and was re-
minded by Kenton that there was no agreement in effect
calling for settlement of grievances. On December 2,
over 8 months after the Union claims there had been a
meeting of the minds and after having stated matured
grievances, the Union prepared a third form of proposed
rider, sent it to Kenton's representatives with a request
that it be taken care of "IMMEDIATELY." The follow-
ing day the Union gave Kenton notice by letter that it
considered there were or might be violations of a "cur-
rent collective-bargaining agreement." At a meeting on
February 25, 1983, 11 months after the purported meet-
ing of the minds, the parties were discussing alternative
grievance panels not provided in the Master Agreement
or any of the prior proposed riders thereto, and in
March 1983, the Union was certifying not that there was
a meeting of the minds, but that Respondent Kenton had
been bargaining in bad faith since "on or about Novem-
ber 1, 1982."
To sort this all out, there was obviously no meeting of
the minds at the first meeting, March 20, 1982, as evi-
denced by the failure to agree to terms of future renego-
tiation. Recognizing that there was no existing agreement
the Union "fudged" by seeking a written agreement on
December 2 while contemporaneously on December 3,
claiming the existence and violation of a current agree-
ment. The following March the Union charged a failure
to bargain in good faith, in complete contradistinction to
a claim of an existing agreement. Whether or not in good
faith, the Employer and the Union had engaged in nego-
tiations the prior month, further indicating that the
Union was aware that no collective-bargaining agree-
ment was in effect.
When Kenton undertook to bargain with the Union in
February 1983, however, as it was bound to do since
Kenton was still operating and the Union continued to
represent Kenton's three drivers, it clearly did so in bad
faith. All issues had previously been determined between
the parties but for the renegotiation and termination
dates of the rider. By introducing still another issue in
February 1983, Kenton indicated that it was at that time
no longer seeking to reach an agreement, but to extend
the negotiations while it terminated its business.
C. Failing to Provide Information
The prior statements of fact show that Kenton re-
sponded on December 30, 1982, to each of the 14 re-
quests for information made by the Union on December
3, 1982. The questions as to Bolt and/or Maxline were
answered by Kenton only to the extent of its knowledge,
and the Union was invited to address such questions di-
rectly to the corporate entities involved, which it never
did. As I have recommended finding no alter status in
the proceeding, I find no requirement that Kenton re-
spond to the Union's inquiries any further than it did.
D. Failure to Process Grievances
There is no factual issue as to Kenton's failure to proc-
ess grievances filed after the expiration on March 31,
1982, of the last bargaining agreement. Kenton justifies
its refusal on the grounds that the grievance procedure
had been established by that contract, which was no
longer in effect. It cites O'Connor Co. v. Carpenters Local
1408, 702 F.2d 824 (9th Cir. 1983), which, together with
other cases cited, so holds. The Board, however, since at
least 1962 has held that refusal to continue a prior prac-
tice of grievance settlement, even after the expiration of
the contract establishing the practice, constitutes a viola-
tion of Section 8(a)(5) of the Act. Bethlehem Steel Co.
(Shipbuilding Division), 136 NLRB 1500, 1501 (1962), enf.
denied on other grounds sub nom. Shipbuilders v. NLRB,
320 F.2d 615, 616 (3d Cir. 1963); Times Herald Printing
Co., 221 NLRB 225, 229-230 (1975); Meilman Food In-
dustries, 234 NLRB 698, 700 (1975).7
E. Threats
The General Counsel alleges that Robert's statement
to Dyer, discussed above, constitutes a threat in violation
of the Act. Since the Board holds that a threat, as an
unfair labor practice, must have been made by an agent
of the employers it is clear that General Counsel is rely-
ing for this allegation on a finding that Kenton and Bolt
constitute a single employer. Its has already recommend-
ed, however, that no single-employer or alter ego status
be found, and it is therefor here recommended that
Robert not be considered an agent of Bolt so that even a
7 Similar reasoning, though not relating specifically to grievances, can
be found in Ortiz Funeral Home Corp., 250 NLRB 730 (1980), and Struth-
ers Wells Corp., 262 NLRB 1080 (1982)
8 Gabriel Co, 137 NLRB 1252 (1962).
KENTON TRANSFER CO.
"threat" to employment by Bolt could not constitute a
violation . Had there been an alter ego status existing then
Robert's suggestion would have to be construed as indi-
cating Dyer would be required to both purchase a truck
and drop out of the Union in order to be employed.
Since there was no alter ego status , however, Robert's
statement should be considered in the noncoercive factu-
al context of his explanation as an outside party-that as
an owner-operator Dyer would not be required by the
Union to remain a member.
CONCLUSIONS OF LAW
1. Respondents Kenton, Maxlime, and Bolt are, individ-
ually, employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. Respondent B-Trans is not an employer engaged in
commerce within the meaning of Section 2 (2), (6), and
(7) of the Act.
3. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
4. Respondents Maxline, Bolt, and B-Trans, individual-
ly or jointly, are not successor businesses or alter egos of
Kenton, and do not constitute a single employer with
Kenton.
5. Respondent Kenton has engaged in unfair labor
practices in violation of Section 8(a)(1) and (5), and Sec-
tion 8(d) of the Act, by failing to process demands for
arbitration of grievances , and by failing to engage in col-
lective bargaining in good faith.
6. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
497
Having found that Respondent Kenton has engaged in
certain unfair labor practices , I find it necessary to rec-
ommend that it be ordered to cease and desist and to
take certain affirmative actions designed to effectuate the
policies of the Act . Though Respondent Kenton has
abandoned its operations it remains necessary to require
affirmative actions so long as there exists an entity capa-
ble of performing them . "It is well settled that mere dis-
continuance in business does not render moot issues of
unfair labor practices alleged against a respondent." Con-
struction Erectors , 265 NLRB 786, fn . 6 (1982), and cases
cited thereat.
Since the Respondent is no longer engaged in a busi-
ness in which it can employ members of the bargaining
unit, and hence would not ordinarily be required to
engage in collective bargaining with the Union or to
process grievances of bargaining unit members, it is rec-
ommended that the Board "condition the bargaining
order on (a) finding in the compliance stage of this pro-
ceeding that Respondent resumed the (business) oper-
ation or is otherwise the Employer of the employ-
ees." Hollywood Roosevelt Hotel Co., 235 NLRB 1397 fn.
2 (1978). Also, it has been found that while Respondent's
act of failing to process grievances was an unlawful labor
practice, the grievances themselves, of transferring bar-
gaining unit work to an alleged alter ego employer, were
without merit . On the same reasoning of Hollywood Roo-
sevelt Hotel Co., supra, the Board should condition en-
forcement of the provision requiring processing of griev-
ances to a reentry into the motor carrier industry by
Kenton or its reemployment of members of the same bar-
gaining unit.
[Recommended Order omitted from publication.]