Otten Truck Line; United Star Express, Inc.; And Clude Hayes

National Labor Relations Board - Board Decisions

Dec 22, 1986

282 N.L.R.B. 494 (N.L.R.B. 1986)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Often Truck Line; United Star Express, Inc.; and
Claude Hayes and Teamsters, Chauffeurs,
Warehousemen and Helpers , Local Union No.
833. Cases 17-CA-12053-1, 2, 3
22 December 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 19 November 1985 Administrative Law
Judge James L. Rose issued the attached decision.
The General Counsel filed exceptions and a sup-
porting 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 brief and has
decided to affirm the judge' s rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
On 3 August 1983 H & S Motor Freight, Inc.
filed a petition under Chapter 11 of the United
States Bankruptcy Code. At that time H & S was a
party to a collective-bargaining agreement with the
Union with an expiration date of 31 March 1985.
On 8 December 1983 the bankruptcy judge entered
an order to show cause why the petition should
not be dismissed because of H & S's failure to
submit the required operating reports. On 11 De-
cember 1983 Claude Hayes, president and principal
owner of H & S, contacted unit employees individ-
ually to inform them that he would no longer be
doing business as H & S but would continue to op-
erate. Hayes announced to the employees that
wages and certain benefits would remain the same
and that other benefits would change. He invited
them to report for work the following day under
those conditions . On 12 December 1983 H & S no-
tified the bankruptcy court that it had closed its
business on 9 December and requested leave to file
its "liquidating plans" under Chapter 11.
The judge found that the Respondents were at
all relevant times a single integrated enterprise and
an alter ego successor to H & S and that under
NLRB R Bildisco & Bildisco, 465 U.S. 513 (1984),
Hayes violated Section 8(a)(5) by bypassing the
Union and dealing directly with the employees on
and after 11 December 1983. We adopt these find-
ings in the absence of exceptions.
We disagree however with the judge's disposi-
tion of the complaint allegation that since about 12
December 1983 the Respondent has failed and re-
fused to abide by the terms of the collective-bar-
gaining agreement between H & S and the Union.
282 NLRB No. 73
The judge correctly stated Bildisco's holding that
from the filing of a petition in bankruptcy until
final acceptance a collective-bargaining agreement
is not an enforceable contract within the meaning
of Section 8(d) of the Act and that a debtor in pos-
session does not commit an unfair labor practice
when it unilaterally rejects or modifies a collective-
bargaining agreement before final rejection is ap-
proved by the bankruptcy court." However, in
finding that the Respondent, as an alter ego succes-
sor of a debtor in possession, shared H & S's Bil-
disco rights and in thereby dismissing the 8(a)(5) al-
legation as to contract abrogations, the judge erro-
neously relied on BDJ Contracting Co., 273 NLRB
1858 (1985).
BDJ is clearly distinguishable. In that case the
operations of the alter egos themselves were sub-
ject to the supervision of the bankruptcy court. In
the instant case there is no evidence that the Re-
spondent has been brought within the jurisdiction
of the bankruptcy court. Thus the policy underly-
ing Bildisco provides no ground to release the Re-
spondent from its 8(d) obligation as an alter ego to
give effect to the terms and conditions of the 1982-
1985 collective-bargaining agreement. See Edward
Cooper Painting, 273 NLRB 1870 at fn. 8 (1985),
enfd. 804 F.2d 934 (6th Cir. 1986).
Accordingly, we must now address the merits of
the 8(a)(5) allegation that the Respondent since 12
December 1983 has failed to abide by the terms of
the 1982-1985 collective-bargaining agreement be-
tween H & S and the Union. As set forth by the
judge, Hayes began on 12 December 1983 to oper-
ate under the names of the Respondent using H &
S trucks and routes and serving former H & S cus-
tomers.
Hayes testified without contradiction that the
wage rate after 12 December 1983 continued to be
$10 per hour, the same rate H & S had been paying
since late 1982.2 Hayes further testified that he
continued to grant all holidays called for in the
collective-bargaining agreement. However, he also
confirmed the testimony of employees Larry Pryor
and Larry Arni that, as of 12 December 1983 he
ceased deducting union dues from the paychecks of
employees who had authorized such deductions.
Union Business Representative Larry Ballew testi-
1 The judge noted that the modifications of Bildisco contained in the
Bankruptcy Amendments and Federal Judgeship Act of 1984 do not
apply to this case since the petition was filed prior to its enactment.
2 This amount was less than the contractual minimum wage rate.
Hayes testified that the employees had agreed to this reduction and that
Union Business Representative Larry Ballew had stated that "Whatever
you all agree to is fine by me." Ballew testified that he told Hayes the
decision was "strictly up to " the employees. We find no violation as to
this departure from the collective -bargaining agreement since the evi-
dence does not show that it was imposed unilaterally by the Respondent.
OTTEN TRUCK LINE
fried, and Hayes agreed, that September` 1983- was
the last month for which the Union received dues
moneys owing under the contractual dues-checkoff
clause from H & S or any of the alter ego succes-
sors.
Pryor also testified without specific contradiction
by Hayes that after 13 December 1983 the Re-
spondent provided no contractual sick leave and
that the vacation time he was granted was less than
that he was entitled to under the collective-bar-
gaining agreement.
Finally, it is undisputed that sometime in 1982
Hayes unilaterally - ceased making remittances to
the Union's health and welfare fund and pension
fund on behalf of his H & S employees and that the
failure to meet this contractual obligation contin-
ued after 12 December 1983.3
Thus the record shows that the Respondent has
failed to abide by the terms and conditions of em-
ployment asset forth in the relevant collective-bar-
gaining agreement after 12 December 1983 as al-
leged in the complaint and has violated Section
8(a)(1) and (5) of the Act,
AMENDED CONCLUSIONS OF LAW
1. Otten Truck Line; United Star Express, Inc.;
and Claude Hayes, an individual , as alter egos of H
& S Motor Freight , Inc., constitute a single em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Teamsters , Chauffeurs, Warehousemen and
Helpers , Local Union No. 833 is a labor organiza-
tion within the meaning of Section 2(5) of the Act
3 The judge is correct at fn . 3 of his decision in stating that since the
initial charge was filed on 17 February 1984, Sec. 10(b) bars finding vio-
lations as to failures to abide by the colllective -bargaining agreement prior
to the bankruptcy petition that was filed 2 weeks before the 10(b) period
began. We note, however, that the General Counsel has alleged viola-
tions only since 12 December 1983 , a date well within the 10(b) period.
However with respect to the Respondent's failures to make benefit fund
payments since that date, each failure to make contractually required
periodic payments can constitute a separate and distinct violation of an
employer's bargaining obligation . Farmingdale Iron Works, Inc., 249
NLRB 98 (1980), enfd. mein. 661 F .2d 910 (2d Cir. 1981), and Abbey
Medical/Abbey Rents, Inc., 264 NLRB 969 (1982). Therefore we find that
notwithstanding , the time-barred nature of H & S's original 1982 refusals
to make fund payments , the failures to pay encompassed by the complaint
do constitute violations of Sec. 8(5).
Chairman Dotson agrees with his colleagues that the Respondent 's fail-
ure to make benefit fund payments since 12 December 1983 constitutes a
violation of Sec. 8(aX5) of the Act for the following reasons. As he
stated in his dissent in Rapid Fur Dressing, 278 NLRB 905 (1986), Chair-
man Dotson would find that H & S 's failure to make the fund payments
in 1982 constituted nothing more than a contract violation. However,
when Hayes, president and principal owner of H & S, 'on 11 December
1983 contacted the employees and informed them that he would no
longer do business as H & S but would continue to operate as the Re-
spondent with stated different terms and conditions of employment,
Hayes in essence repudiated the agreement between H & S and the
Union. Under these circumstances , the Respondent's subsequent failure to
make the fund payments , which occurred within the 10(b) period, ceased
being a mere breach of contract but rather constituted a violation of 'Sec.
8(a)(5) of the Act. Accordingly, Chairman Dotson finds it unnecessary to
pass on the rule of Farmingdale Iron Work..
495
and- at- all= material times herein has been the exclu-
sive representative for the purposes of collective
bargaining within the meaning of Section 9(b) of
the Act of the following employees of the Re-
spondent:
All drivers, warehousemen and dock workers,
excluding, all office clerical employees, sales
employees, guards and supervisors as defined
in the Act.
3. At all times material herein the Respondent
and the Union have been bound by the terms and
conditions of a collective-bargaining agreement for
the period from 1 March 1982 through 31 March
1985 and covering all employees in the unit de-
scribed above.
4. The Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and
(5) of the Act by bypassing the Union and dealing
directly with the employees on and after 11 De-
cember 1983 and by failing and refusing to bargain
with the Union as the exclusive collective-bargain-
ing representative of the employees in the unit de-
scribed above and by failing and refusing on and
after 12 December 1983 to abide by certain terms
of its collective-bargaining agreement with the
Union.
5. The unfair labor practices described above
affect commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER-
The National Labor Relations Board orders that
the Respondent, Otten Truck Line; United Star Ex-
press, Inc., and Claude Hayes, an Individual,
Eldon, Missouri, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Dealing individually since 11 December 1983
with employees who are represented by the Union
for purposes of collective bargaining.
(b) Since about 12 December 1983 failing and re-
fusing to bargain with Teamsters, Chauffeurs,
Warehousemen and Helpers, Local Union No. 833,
and to abide by the terms of the collective-bargain-
ing agreement to which the Respondent, as H & S
Motor Freight, Inc.'s alter ego, was a party.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize , and, on request , bargain collec-
tively with the Union as the exclusive bargaining
representative of its employees in the following
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit appropriate for purposes of collective bargain-
ing and abide by the terms of the collective-bar-
gaining agreement with the Union:
All drivers, warehousemen and dock workers,
excluding all office clerical employees, sales
employees, guards and supervisors as defined
in the Act.
(b) Make whole the employees who have in-
curred losses since 12 December 1983 because of
the Respondent's failure to abide by certain terms
and conditions of employment of the collective-
bargaining agreement with the Union, with the ex-
ception of wage rates . Such monetary amounts are
to be computed in accordance with the Board's de-
cision in Ogle Protection Service, 183 NLRB 682
(1970), with interest thereon as prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977). In addition,
the Respondent shall pay the contractually agreed-
on health and welfare and pension trust funds in
the amounts of the contributions that the Respond-
ent failed to make on behalf of the unit employees
since 12 December 1983 in accordance with the
Board's decision in Fox Painting Co., 263 NLRB
437 (1982), with any additional amounts applicable
to such payments to be computed in accordance
with the Board's decision in Merryweather Optical
Co., 240 NLRB 1213 (1979). The Respondent shall
reimburse its employees for any expenses resulting
from its failure to make fund payments in the
manner set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981). The Respondent shall also remit to the
Union the dues amounts that 'the Respondent failed
to make since 12 December 1983 for each employ-
ee who had executed a dues-deduction authoriza-
tion. Interest shall be computed in the manner set
forth in Florida Steel Corp., supra.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Eldon, Springfield, Kansas City,
and, St. Louis, Missouri facilities copies of the at-
tached notice marked "Appendix."4 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 17, after being signed by the Re-
spondent's authorized representative, shall be
posted by, the Respondent immediately upon re-
4 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."
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.5
5 The judge included in his recommended Order a visitatorial clause
authorizing the Board , for compliance purposes , to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure under the su-
pervision of the United States court of appeals enforcing the Order.
Under the circumstances of this case a visitatorial clause is not warrant-
ed.
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 bargain with Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 833, as the duly designated
representative of our employees in a unit appropri-
ate for purposes of collective bargaining; and WE
WILL NOT fail and refuse to abide by the terms of
our collective-bargaining agreement with the
Union.
WE WILL NOT deal directly with our employees
who are represented by Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 833, concerning wages and hours or
other terms and conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request, bargain col-
lectively with the Union as the exclusive collec-
tive-bargaining representative of our employees in
the unit described above, and WE WILL abide by
the terms of our collective-bargaining agreement
with the Union.
WE WILL make whole the employees who have
incurred losses of benefits because of the failure to
abide by the terms and conditions of our collective-
bargaining agreement with the Union, and WE
WILL pay the contractually agreed-upon trust funds
in the amounts of the contributions that we failed
to make on behalf of our employees. WE WILL re-
OTTEN TRUCK LINE
imburse our employees for any expenses resulting
from our failure to make the required payments.
WE WILL reimburse the Union for losses suffered
because of our failure to remit authorized dues de-
ductions. The computations of the monetary
amounts and appropriate interest thereon will be
made in accordance with applicable decisions of
the National Labor Relations Board.
OTTEN TRUCK LINE; UNITED STAR
EXPRESS INC.; AND CLAUDE HARES,
AN INDIVIDUAL
Julie K. Hughes, Esq., for the General Counsel.
Mr. Claude Hayes, of Eldon, Missouri, pro se.
DECISION
STATEMENT OF THE CASE
JAMES L. RosE, Administrative Law Judge. This
matter was tried before me on 17 September 1985 at Jef-
ferson City, Missouri, on the General Counsel's second
amended consolidated complaint.! It is alleged that the
Respondent (collectively Otten Truck Line; United Star
Express, Inc; and Claude Hayes), along with H & S
Motor Freight, Inc. (H & S), constitute a single integrat-
ed business enterprise and a single employer within the
meaning of the Act and are alter egos. It is alleged that
since on or about 12 December 1983, the Respondent has
failed and refused to abide by the terms of a collective-
bargaining agreement with Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local Union No. 833 (the Union)
and on 11 December bypassed the Union in dealing with
employees, thus violating Section 8(a)(5) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq.
None of the entities named filed a formal answer in
this proceeding nor otherwise denied the allegations of
the second amended consolidated complaint. However,
Claude Hayes did appear and participated in the hearing.
Though given an opportunity, Hayes declined to be rep-
resented by counsel.
Rather than move for default, the General Counsel
presented testimony and documentary evidence in sup-
port of the allegations of the complaint. Hayes cross-ex-
amined some of the witnesses and was given the oppor-
tunity to present evidence and testify on his own behalf,
which he did.
On this record, including a memorandum from the
General Counsel, Hayes having failed to submit any
written statement, and based on my observation of the
witnesses , I issue the following:
' The charge in Case 17-CA-12053-1 was filed on 17 February 1984,
the first amended charge therein was filed on 29 August 1984, and the
second amended charge on 20 September 1984. The charge in Case 17-
CA-12053-2 was filed on 17 February 1984 , the first amended charge
therein was filed on 29 August 1984, and the second amended charge 20
September 1984 The charge in Case 17-CA-12053-3 was filed on 17
February 1984, and the first amended charge therein was filed on 20 Sep-
tember 1984 The second amended consolidated complaint was filed on 8
August 1985.
FINDINGS OF FACT
497
The material facts of this matter are undisputed and
may be summarized: In 1956, H & S was incorporated in
the State of Missouri to do business primarily as an intra-
state common carrier with routes around central Missou-
ri. By the time of the events here, H & S operated a
principal terminal in Eldon, Missouri, and had terminals
in St . Louis, Kansas City, and Springfield as well. H & S
drivers would pick up freight from customers in the cen-
tral Missouri area and take it to Kansas City or St. Louis
for interlining with major interstate carriers depending
on the destination of the freight. Similarly, H & S would
pick up freight at one of its border terminals for trans-
portation to the central Missouri destination.
When H & S was first incorporated, the president, and
apparently principal owner and chief executive, was
Claude Hayes' father. Sometime in the late 1970s, Claude
Hayes took over these functions and at the times material
herein was the president, principal owner, and chief ex-
ecutive of H & S.
In addition to operating H & S, Hayes was also en-
gaged in intra- and interstate trucking doing business as
Hayes Trucking Company, Otten Truck Line (using
route authority he had purchased from one Peter Otten),
and Hayes Truck Lines Inc. (not a named Respondent
nor apparently involved in this matter).
For many years the Union represented H & S employ-
ees in a traditional drivers and warehousemen bargaining
unit.2
H & S and the Union were parties to a series of collec-
tive-bargaining agreements, the most recent of which
was the National Master Freight Agreement and Central
States Local Cartage Supplemental Agreement negotiat-
ed between the International Brotherhood of Teamsters
and various employer organizations effective from 1
March 1982 through 31 March 1985. Among other
things, this collective-bargaining agreement provided for
certain minimum wages for employees in the bargaining
unit as well as contributions to the Central States Health
and Welfare Trust Fund and the Central States Pension
Fund. It also provided for vacations, holidays, and other
terms and conditions of employment of employees, in-
cluding, the deduction and remittance of dues for em-
ployees so authorizing.
According to Hayes, some time in late 1982 he met
with his H & S employees and told them that he could
pay only $10 an hour (which was less than the minimum
contractual wage) and they agreed to accept. About this
time , if not before, Hayes quit making remittances on
behalf of his employees to the health and welfare and
pension funds.
In a letter dated 3 April 1983, from one of the officials
of the Central States Southeast and Southwest Areas
Health and Welfare and Pension Funds, it was noted that
H & S was substantially delinquent in fund payments. In
II The following is the appropriate unit within the meaning of Sec. 9(b)
of the Act
All drivers, warehousemen and dock workers , excluding all office
clerical employees, sales employees, guards and supervisors as de-
fined in the Act.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the subsequent bankruptcy action filed by H & S on 3
August 1983, these funds led the list of H & S's top 10
unsecured creditors . At that time there were arrearages
to the pension fund in the amount of $84,703 .08 and to
the' health and welfare fund of $66,677,68.
On 14 February 1983, according to Hayes ' testimony,
he "shut the doors" and ceased operating Hayes Truck
Line Inc. The employees of Hayes Truck Lines were not
members of the Union but had been represented by, the
Brotherhood of Railroad and Airline Clerks . One em-
ployee of Hayes Truck Line Inc. became an employee of
H & S.
Then; on 15 June 1983, with Hayes as the president
and principal stockholder, United , Star Express, Inc.
(United Star) was formed.
On 3 August 1983 Hayes filed a, certificate of corpo-
rate resolution and a petition under Chapter XI of the
United States Bankruptcy Code. On 8 December the
bankruptcy judge entered an order to show cause why
the case should not be converted to a Chapter VII pro-
ceeding because Hayes had failed to file the required re-
ports.
On Sunday, 11 December, Hayes called all the em-
ployees of H & S and advised each that he was ceasing
to do business as H & S, but that he would continue to
operate. If the employee wished to work, he was to
report the next day. The-pay and benefits offered by the
new employing entity were to be the same.
In fact all but two H & S employees continued to
work. They serviced the same customers and operated
the same equipment under the same supervision out of
the same terminal as they had in the past. But secretaries
were instructed to answer the telephones as Hayes
Trucking rather than H & S. On 1 January 1984, the
nom de plume of the operation was changed to United
Star Express.
From 12 December 1983 until 30 March 1984 Hayes
did business as Hayes Trucking, Otten, and United Star
using H & S trucks and routes and servicing former H &
S customers . On March 30, however, the bankruptcy
court issued an order prohibiting use of H & S assets by
a third party without approval of the court.
In fact, according to Hayes' testimony, all the equip-
ment , was owned by him personally , never having been
titled in H & S. Hayes further testified that neither H &
S nor Otten nor United Star nor any of his other compa-
nies ever ,'had any kind of a written lease agreement for
the use of equipment nor was Hayes ever paid for such.
Hayes further testified that as to all these companies, he
personally was co-obligated for debt.
Hayes admitted that H & S, Otten, United Star, and he
individually and they collectively, annually derived gross
revenues in excess of $50,000 from the transportation of
commodities in interstate commerce . He admitted that
during the 12-month period ending 1 June 1985, United
Star, in the conduct of its trucking operation, also de-
rived gross revenues in excess of $50,000 in the transpor-
tation of commodities in interstate commerce.
CONCLUSIONS OF LAW
I. JURISDICTION
On the jurisdictional facts admitted by Hayes and the
clear interrelationship between the various entities Hayes
operated, they are, collectively and singularly , employers
engaged in interstate commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The testimony of Larry Ballew, the Union's business
agent, establishes that employees are members of the
Union that represents them for purposes of collective-
bargaining with employers engaged in interstate com-
merce concerning wages, hours, and other terms and
conditions of employment. The Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
M. SINGLE EMPLOYER AND/OR ALTER EGO
On the undisputed facts ,outlined above, it is clear that
during the times material Hayes was a sole or principal
owner of Hayes Truck Line Inc., Hayes Trucking, Otten
Truck Line, United Star Express, Inc.,, and H & S Truck
Line, Inc. For all ' these enterprises Hayes was the chief
executive officer. In short, for many years Hayes was in
the trucking business , using route authority acquired
under various names. He pursued this activity under var-
ious business forms including corporate and noncorpor-
ate.
It appears from the testimony that the principal com-
pany through which Hayes operated until December
1983 was H & S, which at its peak employed some 120
individuals. On this record, there is little question that
the day-to-day business decisions, ownership, labor rela-
tions policy, and general direction of .all these various
business entities were controlled by Claude Hayes, and
thus all these companies, including Hayes as an individ-
ual, formed a single integrated enterprise , and were in
fact alter egos. And when H & S as a debtor in posses-
sion ceased doing business , Hayes Trucking, Otten, and
finally United Star became its successor, employing sub-
stantially the same employees who do the same work
under the same supervision, using the same equipment,
and servicing the same customers. See Allcoast Transfer,
271 NLRB 1374 (1984), and cases cited therein.
IV. THE UNFAIR LABOR PRACTICES
Hayes signed a collective-bargaining agreement with
the Union covering the employees of H & S, which pro-
vided for the payment of certain minimum wages as well
as contributions to fringe benefit funds. The contract also
provided that in the event the business structure of the
employing company should change, the successor would
be bound by its terms.
Hayes ceased performing under the collective-bargain-
ing agreement some time in 1981. Yet he continued to
operate his trucking business , as H & S until 12 Decem-
ber 1983, and thereafter as Hayes Trucking, Otten,
and/or United Star. He continued not to abide by the
OTTEN TRUCK LINE 499
terms of the collective -bargaining agreement that he had
signed with the Union.
Further, on 11 December he talked to his various em-
ployees individually , announced to them the cosmetic
changes and the way in which he intended to do business
in the future , and offered them wages at the rate of $10
an hour and other terms and conditions of employment.
It is clear that Hayes dealt individually with his em-
ployees, notwithstanding that they were , and had been,
represented by the Union for purposes of collective bar-
gaining.
In NLRB v. Bildisco & Bildisco, 465 U.S. 513 (1984),
the United States Supreme Court held , inter alia, that
when an employer files a bankruptcy petition , any col-
lective-bargaining agreement to which it is a party is un-
enforceable within the meaning of Section 8(d) from the
date of such filing . Thus, the employer/debtor in posses-
sion cannot be found to have violated Section 8(a)(5) if it
changes the terms and conditions of the agreement be-
tween filing the petition and approval or rejection of that
agreement by the bankruptcy court. Edward Cooper
Painting, 273 NLRB 1870 (1985); El San Juan Hotel, 274
NLRB 13 (1985).
Congress overruled this portion of Bildisco with the
Bankruptcy Amendments and Federal Judgeship Act of
1984, 11 U.S.C. § 1113, for those matters filed after its
effective date of 10 July 1984. Phoenix Co., 274 NLRB
995 (1985).
But in BDJ Contracting Co., 273 NLRB 1858, 1860 fn.
3 (1985), the Board held, "The statute does not apply,
however, to cases such as this where the bankruptcy pe-
tition was filed prior to its enactment."
Chairman Dotson specifically stated that BDJ should
be without precedential value because the Board ruled
on a motion for summary judgment when the respondent
had failed to answer . However, a majority of the Board
did not join in this view . Thus the Board's interpretation
of the effect of the Bankruptcy Amendments is binding
on me , and is dispositive of the instant case.
In BDJ, as here, the business entity in bankruptcy was
an alter ego of the successor entity and they constituted
a single integrated business enterprise. The Board found
the successor was "a continuing employing entity of and
a successor to" the company in bankruptcy . 273 NLRB
1858, 1859. The Board concluded that the rule of Bildisco
applied to the successor . Thus, I reject the General
Counsel 's argument that Bildisco is appplicable only to
entity filing bankruptcy.
H & S filed its bankruptcy petition on 3 August 1983,$
at a time when Bildisco was viable. Thus H & S as a
debtor in possession had the right under Section 8(d) to
change the terms of the collective-bargaining agreement
without being in violation of Section 8(a)(5), as did its
alter ego successors. I therefore conclude that the allega-
tions concerning altering the collective -bargaining agree-
ment should be dismissed.
However, in Bildisco the Supreme Court also held that
the employer continued to have the duty to bargain with
the representative of its employees . Because Hayes' deal-
ings with employees on 11 December bypassed the
Union as their bargaining representative , such violated
Section 8(a)(5). Cf. United Technologies Corp ., 274 NLRB
609 (1985). An appropriate remedy for this will be rec-
ommended.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The unfair labor practice found above , occurring in
connection with the business described above, has a
close, intimate , and substantial relationship to trade, traf-
fic, and commerce among the several States and tends to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having concluded that the Respondent has violated
Section 8(a)(5) of the Act in certain respects, I shall rec-
ommend that it cease and desist therefrom and take cer-
tain affinnative action.
[Recommended Order omitted from publication.]
8 The initial charge was filed on 17 February 1984, more than 6
months later Thus prepetition acts could not be found violative of the
Act, even had they been alleged.