P.J. Hamill Transfer Co., And Robert Blackwell, Trustee In Bankruptcy, Alter Ego And/Or Successor, And Brennan Express, Inc., Alter Egos

National Labor Relations Board - Board Decisions

Nov 15, 1985

277 N.L.R.B. 462 (N.L.R.B. 1985)

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P. J. Hamill Transfer Company , and Robert Black-
well, Trustee in Bankruptcy , alter ego and/or
Successor , and Brennan Express , Inc., alter egos
and Highway, City and Air Freight Drivers,
Dockmen and Helpers Local Union No. 600, af-
filiated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 14-CA-17811
15 November 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 29 May 1985 Administrative Law Judge
Thomas D. Johnston issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and Respondent Robert Blackwell,
Trustee in Bankruptcy, filed cross-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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions as modified and to adopt the recom-
mended Order as modified.
1. The judge found, inter alia, that Respondent
Brennan Express, Inc. (Brennan) was not an alter
ego of Respondent P. J. Hamill Transfer Company
(Hamill), and therefore Brennan was not legally
obligated to either recognize the Union or to
assume any obligations under the collective-bar-
gaining agreement between Hamill and the Union. I
The General Counsel has excepted to these find-
ings, contending that the two companies were sub-
stantially identical. We find no merit in these ex-
ceptions.
As found by the judge, Hamill ceased operations
on 21 December 1984 after its bank account was
garnisheed in satisfaction of a judgment obtained
against it by the Central States, Southeast and
Southwest Area Pension Fund. Brennan became
operational in January 1985 at the same facility and
under the same management as Hamill. Although
there were certain similarities between the two
companies-e.g., in management, business purpose,
premises, and equipment-there also were critical
differences-e.g., in ownership, nature of oper-
ations, and customers. In this regard, we particular-
ly note that there was no identity between the
actual stockholders of Hamill and Brennan, albeit
there were family relationships. Moreover, Brennan
started operations on a much smaller scale than
i The judge found, and we agree, that Brennan's operations standing
alone do not meet the Board's standards for asserting jurisdiction
Hamill, without Hamill's intrastate authority to
haul freight in Illinois, and providing employment
only for its owners. Most significantly, Brennan did
no business for Hamill's principal customers, and
whatever customers Hamill and Brennan had in
common were obtained by Brennan's competing
for jobs with other local trucking firms. In the con
text of the differences, and under the circumstances
of Hamill's cessation of operations, we find that the
General Counsel has not established by a prepon-
derance of the evidence that the Board's alter ego
criteria have been met. See, e.g., Eagle Express Co.,
273 NLRB 501 (1984); Chippewa Motor Freight, 261
NLRB 455 (1982).2
2. The judge found that Hamill did not violate
Section 8(a)(3) and (1) by laying off unit employees
and that Brennan did not violate Section 8(a)(3)
and (1) by failing and refusing to recall the laid-off
employees. The General Counsel, excepting to
these findings, contends that union animus was
demonstrated by Hamill and Brennan in the state-
ment of their vice president, Woods, to Union
Business Agent Kon that "they tried to do it union
and it didn't work and now they were going to do
it another way . . . [and] he was going to do it
however he felt would best make the company
function." The judge concluded that this statement
was in reference to the operation of Brennan which
had no legal obligation to bargain with the Union.
Unlike the judge, we view Woods' statement as re-
ferring also to the operation of Hamill. However,
in view of the judge's finding, with which we
agree, that Hamill's cessation of operations was the
direct result of the garnishment of its bank account
by the Union Funds, we find Woods' statement
equivocal and therefore insufficient to establish
animus.3
3. The judge found that Hamill violated Section
8(a)(5) and (1) by failing to afford the Union an op-
portunity to bargain over the effects on unit em-
2 Member Dennis, dissenting, agrees with the General Counsel's posi-
tion. Member Dennis would find alter ego status based on substantially
identical family ownership, management, business purpose, operation,
equipment, and customers. She finds Eagle Express Co, supra at 501 fn.3,
distinguishable, because in that case the first of the two companies in
issue "ceased operations for economic reasons unrelated to the Union."
The same cannot be said here, as Respondent Hamill's demise was a
result of its inability to meet its contractual obligations to the union
fringe benefit funds Indeed, Vice President Woods acknowledged to
Union Business Agent Kon that "they tried to do it union and it didn't
work and now they were going to do it another way " In addition, in
Eagle Express Co, unlike the situation here, the two companies' "business
purposes and methods of operation were dissimilar " Supra at 502
a In light of the General Counsel's failure to adduce more compelling
evidence of substantial identity between Hamill and Brennan, we further
find that the statement does not provide support for a finding of alter ego
status.
In light of her finding on the alter ego issue, Member Dennis con-
cludes that on resuming operations, Respondent Brennan was obligated
to recall the laid-off employees for any available unit work
277 NLRB No. 39
P. J HAMILL TRANSFER CO.
ployees of its decision to cease operations. The Re-
spondent Trustee excepts to this finding. We find
no merit in this exception for the following rea-
sons.
As found by the judge, it is well settled that an
employer is obligated to afford the union an oppor-
tunity to bargain over the effects of a closing on
unit employees. In First National Maintenance Corp.
v. NLRB ,4 the Court noted that "under § 8(a)(5),
bargaining over the effects of a decision [to close]
must be conducted in a meaningful manner and at a
meaningful time." 5 "Meaningful" bargaining has
been found to include clear and timely notice to
the union.6
Here, Hamill never notified the Union of its de-
cisiion to cease operations, and the information that
the Union received subsequently did not provide
clear and timely notice of Hamill's decision to
close. Thus, while the record indicates that the
Union was aware of the garnishment of Hamill's
bank account on 21 December 1984 and may have
had cause to question whether Hamill was closed
following the garnishment, the record also indi-
cates that in January 1985 the Union received in-
formation from several of the laid-off employees
that work was continuing to be performed at Ha-
mill's facility. Further, when the Union contacted
Hamill to find out what was going on, Hamill pre-
sented the closing as a fait accompli . Thus, Woods
acknowledged to Icon that several former employ-
ees were working, but stated that they were work-
ing for Brennan . Ikon responded that he felt what
Woods was doing was "irregular," that he would
be contacting the Union's attorneys, and that if
there were any irregularities Woods would be
hearing from them.
On these facts, we find that Hamill failed to give
clear and timely notice of the closing to the Union.
We further find that Hamill's failure to give clear
and timely notice was necessarily a failure to pro-
vide the Union an adequate opportunity to bargain
over the effects of the closing and, accordingly,
that the Union did not waive its statutory right to
bargain over the effects of Hamill's decision.? In
light of the foregoing, we agree with the 8(a)(5)
and (1) violation found by the judge.
4. The Trustee has excepted to the judge's appli-
cation of a limited backpay remedy under Trans-
marine Navigation Corp., 170 NLRB 389 (1968).
We note that the Board has adopted such a remedy
in similar bankruptcy situations. However, we shall
d 452 U.S . 666 (1981).
Id at 682.
Penntech Papers v. NLRB, 706 F.2d 18 (1st Cir. 1983), enfg. 263
NLRB 264 (1982). See also NLRB Y National Car Rental System, 672
F.2d 1182 (3d Car 1982), enfg 252 NLRB 159 (1980)
1 See Benchmark Industries , 269 NLRB 1096 at fn . 1 (1984)
463
modify the judge's remedy to clarify that backpay
is to accrue starting 5 days after the date of this,
i.e., the Board's decision. See, e.g., Authentic Furni-
ture Products, 272 NLRB 552 (1984). Further, we
reject the Trustee's argument that the judge's rec-
ommended Order violates the automatic stay provi-
sions of the Bankruptcy Code,' 11 U.S.C. § 362. It
is well settled that Board proceedings fall within
the exceptions to the automatic stay provisions.
See, e.g., Phoenix Co., 274 NLRB 995 (1985).
5. Finally, the General Counsel has requested
that the judge's recommended Order be modified
to require the mailing of copies of the notice to all
unit employees. In view of Hamill's cessation of
operations, we grant the General Counsel's request
and shall modify the Order accordingly.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, P. J. Hamill Transfer Company, St.
Louis, Missouri, and Robert Blackwell, Trustee in
Bankruptcy, its officers, agents, successors , and as-
signs, shall take the action set forth in the Order as
modified.
Substitute the following for paragraph 2(e).
"(e) Mail a copy of the attached notice marked
"Appendix" 13 to the Union and to all employees
employed by P. J. Hamill Transfer Company in the
appropriate unit. Such notice shall be mailed to the
last known address of each employee. Copies of
the notice, on forms provided by the Regional Di-
rector for Region 14, after being signed by the Re-
spondent's authorized representative, shall be
mailed immediately upon receipt by the Respond-
ent, as directed above."
Michael T. Jam ison, Esq., for the General Counsel.
W. W. Sleater, Esq. (Sleater and Sleater), of Clayton, Mis-
souri, for Respondent Brennan.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge.
This case was heard at St. Louis, Missouri, on 20 and 21
March 19851 pursuant to a first amended charge filed2
on 27 February by Highway, City and Air Freight Driv-
ers, Dockman and Helpers Local Union No. 600, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union) and a complaint issued on 28 February.
' All dates referred to are in 1985 unless otherwise stated.
a The original charge was filed on 21 January
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint, as amended at the hearing, alleges
Robert Blackwell as Trustee in Bankruptcy (the Trustee)
is a successor in bankruptcy to and/or alter ego of P. J.
Hamill Transfer Company (Respondent Hamill) and that
Brennan Express, Inc.3 (Respondent Brennan) was estab-
lished by Respondent Hamill as a subordinate instrument
to and disguised continuance of Respondent Hamill and
Respondent Hamill and Respondent Brennan are alter
egos and a single employer. It alleges Respondent
Hamill, Trustee, and Respondent Brennan (Respondents)
violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act) by Respondent Hamill laying off
all of its unit employees and by its alter ego Respondent
Brennan , which recalled the laid-off employees, failing to
recall the employees from layoff according to their
length of service with Respondent Hamill on their posi-
tion on Respondent Hamill 's seniority roster because said
employees joined, supported, or assisted a labor organi-
zation and engaged in concerted activities for the pur-
poses of collective bargaining or other mutual aid or pro-
tection and to discourage employees from engaging in
such activities or other concerted activities for the pur-
poses of collective bargaining or other mutual aid or pro-
tection; and violated Section 8(a)(1) and (5) of the Act
by Respondent Hamill, without prior notice to the Union
which represented the unit employees, ceasing operations
and laying off the unit employees and resuming its oper-
ations through its alter ego Respondent Brennan and by
Respondent Hamill and Respondent Brennan failing and
refusing to adhere to the terms of the collective-bargain-
ing agreement and by Respondent Brennan failing and
refusing to recognize and bargain with the Union as the
exclusive bargaining representative of the unit employ-
ees.
Respondent Hamill and the Trustee in their amended
answer served on 14 March deny having violated the
Act as alleged. Respondent Brennen in its answer filed
on 20 March denies having violated the Act as alleged
and asserts, as a affirmative defense, that the Board has
no jurisdiction over it.
The issues involved are whether the Trustee is a suc-
cessor in backruptcy to and/or alter ego of Respondent
Hamill; whether Respondent Brennan is subject to the
Board's jurisdiction; whether Respondent Brennan was
established by Respondent Hamill as a subordinate in-
strument to and disguised continuance of Respondent
Hamill ; whether Respondent Hamill and Respondent
Brennan are alter egos or a single employer; and whether
the Respondents violated Section 8(a)(1), (3), and (5) of
the Act, as alleged , by discriminatorily laying off the
unit employees and failed to recall them according to se-
niority because of union activities and unlawfully refused
to bargain with the Union by ceasing operations and
laying off unit employees without prior notice to the
Union and by failing and refusing to adhere to the terms
of the collective-bargaining agreement or to recognize or
bargain with the Union as the exclusive bargaining repre-
sentative of the unit employees.
a The correct name of Brennan Express, Inc appears as amended at
the hearing.
On the entire record in this case and from my observa-
tions of the witnesses and after due consideration of the
brief filed by the General Counsel4 I make the follow-
ing5
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Respondent Hamill, a Missouri corporation with its
office and place of business located at St. Louis, Missou-
ri, was engaged in business as a trucking company haul-
ing freight and general commodities. During the calendar
year 1984, Respondent Hamill in the course of its oper-
ations performed services, valued in excess of $50,000, in
States located outside the State of Missouri.
Respondent Hamill is an employer engaged in inter-
state commerce within the meaning of Section 2(6) and
(7) of the Act.
Respondent Brennan, a Missouri corporation with its
office and place of business located at St. Louis, Missou-
ri, is engaged in business as a trucking company hauling
freight and general commodities. Since it first com-
menced its business operations beginning in January, Re-
spondent Brennan, as reflected by its invoice records, has
performed services for various customers, valued at ap-
proximately $14,049 in January, $10,129 in February, and
$2030 in March up until the hearing held on 20 March
for a total of $26,208. During this same period, and in-
cluded within this amount of $26,208, it has performed
services for various customers including D.L. Austin
Steel Supply; Clayton Chemical Company; Grief Bros.
Corporation; ITT Grinnell Corporation; Mid-America
Metal, Inc.; Missouri Pipe Fittings Co.; Precoat Metals,
Inc.; Vincent Metals, Inventory Sales Company; and
Murphy Metals Inc. by making deliveries to or from
them from outside the State of Missouri or outside of the
State of Missouri itself valued at approximately $2600 in
January; $2549 in February and $1340 in March for a
total of $6489.
The Board asserts jurisdiction over all freight trans-
portation enterprises engaged in the furnishing of inter-
state transportation services and all transportation and
4 The date briefs were due, as reflected by the record, was 25 April
and no extension of time was either requested or granted. Respondent
Brennan's brief, as reflected in its certificate of service, was not mailed
until 3 May. On 7 May the General Counsel filed a motion to strike Re-
spondent Brennan 's brief as being untimely filed. Respondent Brennan
filed a response received on 15 May opposing the General Counsel's
motion to strike its brief, stating counsel was of the opinion the adminis-
trative law judge had given him 3 weeks after the filing of the General
Counsel's brief to make reply Brennan further requested, in the event the
filing time was misunderstood, that additional time be granted for filing
its brief. Respondent Brennan, in an accompanying letter also received or,
15 May, listed what it contended were inaccuracies contained in the Gen-
eral Counsel's brief.
Based on the fact Respondent Brennan's brief was filed late and no
timely request for an extension was made or granted, the General Coun-
sel's motion to strike Respondent Brennan's brief is granted and Respond-
ent Brennan 's motion to allow for late filing of its brief is denied Fur-
ther, Respondent Brennan's letter pointing out alleged inaccuracies in the
General Counsel's brief is in the nature of a reply brief which is not pro-
vided for in the Board's Rules and Regulations and it is also stricken.
5 Unless otherwise indicated, the findings are based on the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
P. J. HAMILL TRANSFER CO.
other enterprises which function as essential links in the
transportation of commodities in interstate commerce,
which derive at least $50,00 gross revenues per annum
from such operations, or which perform services valued
at approximately $2600 in January, $2549 in February,
and $1340 in March for a total of $6489.
The Board asserts jurisdiction over all freight trans-
portation enterprises engaged in the furnishing of inter-
state transportation services and all transportation and
other enterprises which function as essential links in the
transportation of commodities in interstate commerce,
which derive at least $50,000 gross revenues per annum
from such operations, or which perform services valued
al $50,000 or more per annum for enterprises over which
the Board would assert jurisdiction under any of its juris-
dictional standards, exclusive of the indirect outflow and
indirect inflow standards established for nonretail enter-
prises. H P 0 Service, 122 NLRB 394 at 395 (1985).
Based on a projection of Respondent Brennan 's oper-
ations, since it commenced operations in January until 20
March, by using the dollar figure of $6489 found it will
not annually perform services, valued in excess of
$50,000, in States other than in the State of Missouri, as
alleged. Accordingly, Respondent Brennan 's operations
standing alone do not meet the Board's standards for as-
serting jurisdiction and on this basis I find it not an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act."
II. THE LABOR ORGANIZATION INVOLVED
The Union, as described by Earnest Kon, who is its
business agent and recording secretary, is an organization
which exists for the purpose of dealing with employers
regarding grievances and labor disputes and it negotiates
with employers regarding the wages, rates of pay, hours
of work, and other terms and conditions of employees it
represents. Employees as members participate in the or-
ganization. For many years it has had collective-bargain-
ing agreements covering Respondent Hamill's employees.
A "'labor organization" under Section 2(5) of the Act
is defined as "any organization of any kind, or any
agency or employee representation committee or plan, in
which employees particpate and which exists for the pur-
pose, in whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages,, rates of pay,
hours of employment, or conditions of work."
Based on the undisputed testimony of Business Agent
Kon, which I credit, I find, as admitted by Respondent
Hamill and the Trustee and contrary to Respondent
Brennan's denial, that Highway, City and Air Freight
Drivers, Dockmen and Helpers Local No. 600, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America is a labor
organization within the meaning of Section 2(5) of the
Act.
6 The General Counsel's additional contentions that Respondent Bren-
nan and Respondent Hamill are alter egos and a single employer and
therefore Respondent Brennan is an employer engaged in commerce
under the Act are dealt with infra
III. THE UNFAIR LABOR PRACTICES
465
A. Background and Respondent Hamill's Operations
Respondent Hamill, with its office and place of busi-
ness located at 3225 Choteau, also known as 900 Virgin-
ia, St . Louis, Missouri, operated a trucking company
hauling freight, primarily steel , and general commodities.
It performed services for various companies located in
Missouri and in Illinois where it had intrastate authority
with the State of Illinois to pick up and deliver from
point to point in Illinois. The principal customer for
which it hauled steel was Granite City Steel which com-
prised an estimated 75 to 85 percent of its total business.
Another major customer it hauled for was Springmeier.
Respondent Hamill 's officers were President John A.
Hamill, Vice President Patrick Woods,' and Secretary
and Treasurer Mary Hamill . They also constituted the
members of the board of directors. The stock of the cor-
poration was owned by John N. Hamill, who died on 5
September 1980, and his sisters Mary Hamill and Loretta
Woods. John N. Hamill was the father of John A.
Hamill, and Loretta Woods is also the mother of Patrick
Woods. Neither Hamill nor Vice President Woods
owned any stock in Respondent Hamill.
President Hamill was basically a truckdriver for Re-
spondent Hamill . However, he performed other duties
including repairing and painting trucks, changing and re-
pairing tires , and dispatching. Vice President Woods,
who is also a truckdriver but did not drive very often,
primarily performed the office work and dispatched
trucks.
The facility used by Respondent Hamill, which has
been in existence for over 100 years and was incorporat-
ed in 1916, consisted of approximately 3 acres which
were fenced in; a building with an office and a repair
shop located inside; and a smaller metal building located
in back. The property is owned by Hamilcar Properties
(Hamilcar). Hamilcar is solely owned by Mary Hamill
and its officers are President Hamill, Vice President
Woods, and Secretary and Treasurer Mary Hamill.
Respondent Hamill leased the facility on a long-term
lease from Hamilcar . Although it was supposed to pay
Hamilcar approximately $1000 a month in rent for use of
the facility, no rent has been paid since 1977 because of
the poor financial condition of Respondent Hamill. No
action has been instituted by Hamilcar against Respond-
ent Hamill on the lease.
The employees of Respondent Hamill are and have
been for approximately 25 years or more 'represented by
the Union which has a collective-bargaining agreement
with Local Cartage Association, Inc., of Greater St.
Louis (the Association) which represents employer-mem-
bers engaged in the local cartage and short-haul trucking
industry in the greater St. Louis, Missouri area, including
Respondent Hamill in negotiating and administering col-
lective-bargaining agreements on their behalf. The most
recent collective-bargaining agreement effective by its
terms from 1 March 1982 through 31 March 1985 cov-
7 Both Hamill and Woods are supervisors under Sec 2(11) of the Act.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ered a unit described in an addendum to the agreement
as follows:
All truck drivers and helpers represented by the
Union, engaged in pickup, delivery, transporting
and assembling of freight in the area under the juris-
diction of the Local Union, providing such truck
drivers and helpers return to their point of origin at
the end of their work shift.
Agreements between parties on the appropriateness of
the unit have long been accepted by the Board which
gives then broad latitude in reaching such agreements
that will not be disturbed absent a showing that exclu-
sion or inclusion of certain employees contravenes the
Act or established Board policy. Harvey Russell, 145
NLRB 1486 (1964).
Because the unit contained in the collective -bargaining
agreement was a unit agreed to by the parties and does
not contravene the Act or established Board policy and,
based on the collective-bargaining agreement , I find, as
admitted by Respondent Hamill and the Trustee and
contrary to the denial of Respondent Brennan, that the
above-described unit constitutes a unit appropriate for
the purpose of collective bargaining within the meaning
of Section 9(b) of the Act and at all times material herein
the Union has been the exclusive representative of Re-
spondent Hamill's employees in the above-described unit
for purposes of collecitve bargaining within the meaning
of Section 9(a) of the Act.
On 1 February 1983 President Hamill lent Respondent
Hamill $28,014.57 on a promissory note secured by per-
sonal property including certain trucks, tractors, and tai-
lors. Respondent Hamill also owned other trucks and
tractors which were not subject to the security agree-
ment. Later on 1 February 1984 President Hamill also
lent-Respondent Hamill $ 13,000 on a promissory note se-
cured by accounts receivable, office equipment, and gen-
eral intangibles.
B. The Layoff and Cessation of Respondent's Hamill
Operations
Respondent Hamill became unable for financial reasons
to pay the contributions it owed under the collective-bar-
gaining agreement to the Central States , Southeast and
Southwest Area Pension Fund (the Fund) for the health,
welfare, and pension benefits of its employees. The trust-
ee for the fund obtained a judgment for approximately
$47,000 against Respondent Hamill. Although Respond-
ent Hamill did sell some of its equipment and paid part
of the judgment , it was unable to satisfy the judgment.
The trustee for the Fund was then successful in having
Respondent Hamill's bank account at the Mercantile
Bank in St. Louis , Missouri, on 21 December 1984 gar-
nisheed for at least $40,000.
According to President Hamill, whom I credit, on 21
December 1984 when its bank account was garnisheed,
Respondent Hamill no longer had funds to operate and it
ceased operations with the exception of some cleanup
work. Hamill stated that same day he informed a few of
the employees who worked late that day they were not
going to operate any longer and waited until 26 Decem-
ber 1984 when-the employees reported to work after the
Christmas holiday to tell the other employees. The
reason given to the employees was they had no money
to operate and they were out of business.
On 21 December 1984 the following employees listed
by their seniority were employed by Respondent Hamill:
Vice President Woods, Robert Thompson, John Kehoe,
James Johnson, Robert Fach , Gary Welsh , and President
Hamill. Three other employees Tilmon Olive, Jerry
Heiman, and Robert Sever were immediately above
Hamill on the seniority list in that order ; however they
worked only sporadically whenever they were needed.
Ralph Jones was listed right under Hamill on the seniori-
ty list and below him were Glenn Courtney, John
Wilson, Ray Hickman, and John Tayon who were on
layoff status and had been for at least a year because
business was poor.
Article 12 of the collective-bargaining agreement pro-
vides that seniority rights for employees shall prevail
unless otherwise specifically provided for in the agree-
ment.
Charles Calvert, who was one of the truckdrivers for
Respondent Hamill and a member of the Union, last
worked on 21 December 1984. He stated Vice President
Woods called him at home on 24 December 1984 and in-
formed him the Union had attached their bank account
and they were going out of business. Woods asked him
what he was going to do and when he replied he did not
know woods said he was going to look for a job and
they were all going to look for work. Pursuant to Cal-
vert's inquiry about his wages, Woods said he did not
have any money to pay him but when he got the money
he would.
James Johnson, another truckdriver and a union
member , stated on 26 December 1984 that after learning
from another truckdriver the previous day about the gar-
nishment and their being out of work, he went to Re-
spondent Hamill's facility and asked President Hamill
and Vice President Woods what was going on. Hamill
informed him about the health and welfare fund locking
up their money and both Hamill and Woods mentioned
they were going to look for a job. On asking them about
his wages due, Woods promised to pay Johnson when
they got the money. President Hamill acknowledged
Johnson may have come to the facility that day and
asked about what was going on.
On 28 December 1984 Charles Calvert said he went to
the facility and again asked Vice President Woods about
his check. Woods repeated he did not have any money
but promised to pay Calvert when he did. While there
Calvert asked Woods, who was in the process of clean-
ing out the safe, whether there was anybody working
whereupon Woods told him President Hamill and Robert
Thompson were cleaning up the loads before they went
out of business Calvert also thought Woods mentioned
those loads were at the barge line and were being hauled
for Grief Bros. Corporation.
Both President Hamill and Robert Thompson, who
was a truckdriver, drove trucks for Respondent Hamill.
P. J. HAMILL TRANSFER CO.
Thompson was listed second on the seniority list below
Vice President Woods.
On several other occasions Calvert testified he asked
Vice President Woods about his pay and each time
Woods informed him he did not have any money but
promised to pay him when he did. Calvert denied ever
receiving his back wages which secretary Virginia Gold-
smith had indicated to him were approximately $396.50.
According to Calvert, in early January he went to the
facility where he observed all kinds of trucks, including
tractors and trailers with Respondent Hamill's name of
them parked in the garage. The only person he saw in
the garage was Ralph Jones, who had a tractor and trail-
er with Sligo Iron's name on it . However, Calvert ac-
knowledged he did not know what Jones was doing. On
going to the office Calvert also saw Ray Hickman, who
used to be their shop steward and a truckdriver until he
was laid off about 18 months before, behind the desk.
Respondent Hamill had an agreement with Sligo Iron
to furnish it with a tractor and trailer and a driver,
Ralph Jones, who would report to Sligo Iron and per-
form services at their direction . Respondent Hamill was
paid by Sligo Iron and Ralph Jones , who is listed a con-
tract-driver, was paid by Respondent Hamill.
Following his visit to Respondent Hamill, Calvert tes-
tified he contacted Union Business Agent Kon and in-
quired about bidding on the job driving the Sligo Iron
tractor and trailer being performed by Ralph Jones and
bumping Jones off the job.8 Kon promised to look into
the matter.
Business Agent Kon, who acknowledged learning
from the Union's secretary-treasurer the last week in De-
cember 1984 that the Fund had garnisheed Respondent
Hamill's bank account for nonpayment of the health and
welfare and pension contributions due under the collec-
tive-bargaining agreement, corroborated Calvert's testi-
mony concerning his request to bump Jones. Kon also
said he informed Calvert he would check into it because,
to his knowledge, Respondent Hamill was out of business
and had closed its doors and was defunct because their
moneys were all tied up.
James Johnson also testified that about the first part of
January he went to Respondent Hamill's facility where
he observed some tractors , trailers, and trucks in the
garage on which hoods and other equipment were being
changed. Johnson denied this was unusual. This included
vehicles Johnson had driven for Respondent Hamill.
Johnson also observed Joseph Mizarro,9 who is the me-
chanic who had worked for Respondent Hamill, per-
forming mechanical work on the trucks. Johnson also
stated he saw Ray Hickman there who informed him
both President Hamill and Vice President Woods were
out and that Hamill was going to Jefferson City.
James Johnson stated after the first of the year or the
middle of January he again visited Respondent Hamill's
facility and asked Vice President Woods about his wages
which Woods said he did not have. He also asked
Woods how they could pay Ray Hickman, who was
8 Calvert had a seniority date with Respondent Hamill of 13 October
1966 whereas Jones' seniority date was 18 May 1970.
8 Mizarro was not a member of the Union 's bargaining unit at Re-
spondent Hamill but was represented by Machinists Local No. 37.
467
there and said he was answering the telephone , and not
pay him whereupon Woods replied Hickman was work-
ing for $8 an hour. Johnson said that on that occasion he
also saw some tractors and trailers there with Respond-
ent Hamill 's name on them and saw Joseph Mizarro
working on trucks.
Both Calvert and Johnson testified in January, the date
of which was not established, they went to the St. Louis
terminal barge line where warehouses used by various
companies to store things until their customers wanted
them are located. While there, they observed Ray Hick-
man with a trailer with Respondent Hamill's name on it
and a rented tractor. They also saw President Hamill's
tractor he always drove there which, along with the
trailer, had Respondent Hamill's name on them. Al-
though they stated that a driver for another company, D
& J, indicated to them Hamill and Hickman were going
to haul their loads to Precoat Metals, Inc., the driver did
not testify.
According to both Calvert and Johnson, while driving
for Respondent Hamill they had also hauled from that
terminal to Precoat Metals, Inc. as well as to other cus-
tomers.
Calvert testified he then went to Business Agent Kon's
office and reported what he had observed claiming they
had hauled to Precoat Metals, Inc. and Respondent
Hamill had never closed up. Kon said he would call,
which he then did, and talked to Vice President Woods.
Business Agent Kon, who acknowledged he had not
checked with Respondent Hamill after Calvert first com-
plained, testified when Calvert again complained that
Respondent Hamill was operating as usual and was
working people out of seniority, he called Respondent
Hamill at the usual telephone number1n and talked to
Vice President Woods. After mentioning the garnish-
ment by the Fund on Respondent Hamill's bank account,
Kon told Woods he thought they were down but were
still operating and he was getting word about a company
named Brennan Express and asked Woods what was
going on. Woods' response was they had tried to do it
union and it did not work and now they were going to
do it another way and he was going to do it how ever
he felt would make the company function. During the
conversation Woods mentioned he had licensed two
trucks and was leasing them from Hamill. Kan also told
Woods he was aware Hickman was working for him and
John Hamill was driving which he claimed were both
out of seniority and they also discussed Jones at Sligo
Iron. Woods acknowledged Hamill, Hickman, and Jones
were working but said they were driving for Respondent
Brennan. Woods also said Respondent Brennan would be
paying Jones if he was still working for him and Re-
spondent Hamill was out of business . Kon informed
Woods he thought what he was doing was irregular and
he would contact their attorneys. If there were any ir-
regularities, Woods would hear from him. Woods, who
is a member of the Union, also inquired about obtaining
his withdrawal card from the Union.
iO The same telephone and number used by Respondent Hamill was
subsequently used by Respondent Brennan . The telephone is owned by
Hamilcar
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Vice President Woods did not deny having
such a conversation with Business Agent Kon, James
Johnson , who said he was present with Woods while
Woods was talking to Kon on that occasion , also testi-
fied Woods told Kan if they got on their feet they were
going to go union again.
Charles Calvert further testified that on 14 March he
observed Ray Hickman driving a tractor -trailer hauling
lead pipe . Although Calvert stated he saw Respondent
Hamill 's name on the trailer he acknowledged he did not
have an opportunity to see whether there was a name on
the tractor.
Between 21 December 1984 and the filing of the back-
ruptcy petition discussed infra, the only business per-
formed by Respondent Hamill, as described by President
Hamill , whom I credit , consisted of approximately 2
days of cleanup work either in December 1984 or Janu-
ary. This work was performed by President Hamill, Vice
President Woods, and truckdrivers Robert Thompson
and Robert Fach , who were numbers two and five in se-
niority, respectively . Fach, who was a personal friend of
Hamill , was not paid in cash for this work but was given
an anvil belonging to President Hamill. Thompson was
paid by Woods and Hamill personally . Hamill, who
opeated a truck on that occasion , denied he was paid for
performing the work . Hamill also denied Mizarro per-
formed any services for Respondent Hamill after 21 De-
cember 1984.
Respondent Hamill , by letter to the Union dated 11
January with copies served on representatives of the
Union 's International , notified them it was serving notice
it was withdrawing from the Association and of its intent
to terminate the collective-bargaining agreement upon its
expiration date on 31 March . This letter was consistent
with the instructions provided by the Association to its
members for withdrawing from the Association. No re-
sponse to this letter was received from the Union which
had previously notified Respondent Hamill , by letter
dated 4 January , of its desire to revise or change terms
or conditions of the collective -bargaining agreement.
On 14 February Respondent Hamill filed a petition
with the United States Bankruptcy Court for the Eastern
District of Missouri for relief under 11 U . S.C. Chapter 7.
The reason given by President Hamill for filing was Re-
spondent Hamill did not have any money to operate with
and they were out of business.
Since about 14 February Robert Blackwell had been
designated by the bankruptcy court as the trustee in
bankruptcy with full authority to exercise all powers
necessary to the administration of the assets and business
of Respondent Hamill.
C. Respondent Brennan's Operations
Respondent Brennan was formed and incorporated on
13 ' July 1981. Its officers at that time were President
Hamill and Vice President , Secretary , and Treasurer
Woods who also constituted its board of directors. The
stock at the time of incorporation was equally owned by
Hamill and Woods who each had 50 shares.
This corporation was formed for the purpose, as ex-
plained by President Hamill , of obtaining new business
and purchasing new tractors and leasing them to other
employe'rs' including Respondent Hamill. However the
plans did not materialize and the corporation did not
become operational at that time.
Following the closing of Respondent Hamill 's oper-
ations on 21 December 1984, President Hamill testified
he and Vice President Woods decided in early January
to begin operating Respondent Brennan , which had
never been operated before, as a trucking company.
Joseph Mizarro (who had previously worked as a me-
chanic for Respondent Hamill ) and Ray Hickman (who
had previously worked as a truckdriver for Respondent
Hamill and who had been laid off for approximately 18
months) on learning about Respondent Brennan in early
January from Hamill and Woods , whom they contacted
about work, decided to become owners in the corpora-
tion. Mizarro purchased his stock for $4000 cash and an
arrangement, was made whereby Hickman agreed, on
executing a security agreement , to pay for his stock by
working for $2 an hour less (to be applied to the $4000
purchase price of the stock) than the other owners of the
corporation who each paid themselves $20 an hour, pro-
vided they made any money otherwise. They along with
Hickman , worked without pay. Hamill , Woods, Mizarro,
and Hickman all became equal owners, each owning 25
shares of stock apiece.
The current officers of Respondent Brennan are Presi-
dent Hamill and Vice President Woods and the members
of the board of directors are Ray Hickman and Joseph
Mizarro.
Respondent Brennan 's operations , as explained by
President Hamill, consist of picking up loads of freight
whereever it can by soliciting business and competing
with other trucking companies . Hamill denied Respond-
ent Brennan has any regular customers and claims it op-
erates the same way as Respondent Hamill did . Although
on occasions it has performed work for a number of var-
ious companies which Respondent Hamill had delivered
freight for, it has not, as denied by both Woods and
Hamill, performed any work for Respondent Hamill's
principal account, Granite City Steel, or its major ac-
count , Springmeier . Although Respondent Brennan,
when it began operations, furnished a tractor and a trail-
er and driver Ralph Jones to Sligo Iron, as had Respond-
ent Hamill, it lost that account in February.
The equipment being used by Respondent Brennan in-
cludes three tractors, a dump truck, a panel truck, and
four trailers. This equipment, except for the dump truck
and panel truck, which type vehicles had never been
used by Respondent Hamill, and one tractor, owned by
Respondent Hamill, belong to President Hamill who re-
possessed them in early January from Respondent Hamill
unde the security agreements for nonpayment of the
money owed to Hamill by Respondent Hamill. The trac-
tor owned by Respondent Hamill, for which $1050 had
been spent to acquire a license plate to use for the clean-
up work for Respondent Hamill, is leased by Respondent
Brennan from Respondent Hamill for $20 or $25 a day
whenever it is needed. The equipment which Respondent
Brennan has been operating, according to President
Hamill, whom I credit, had placards with Respondent
P. J. HAMILL TRANSFER CO.
name on them which were put on them shortly after the
first of the year. Respondent Hamill' s name was also
taken off the trailers used by Respondent Brennan short-
ly after the first of the year. There was some delay in
doing this, as explained by President Hamill , due to the
weather not being warm enough to paint using a primer-
based paint.
The equipment used by Respondent Brennan is kept
parked at the same facility which Respondent Hamill
used. Although Respondent Brennan is not paying rent
to Hamilcar, which owns the facility, arrangements for
doing so are still in the process of being worked out.
Files used by Respondent Brennan are kept at the homes
of both President Hamill and Vice President Woods.
While their home telephones are used to conduct busi-
ness on Respondent Brennan's behalf, Vice President
Woods, who has volunteered without pay to be at the fa-
cility for purposes of closing Respondent Hamill down
and getting the materials ready for the bankruptcy court,
also uses the telephone there which is owned by Hamil-
car.
Respondent Brennan has also traded with some of the
same businesses as did Respondent Hamill . This includes
purchasing parts at New Process Brake Company" and
Universal Equipment Company and obtaining shop
towels from Todd Company. However these businesses
are opened to the general public.
Respondent Brennan does not presently employ any
employees and its owners perform whatever duties need
to be performed. Hamill, Hickman, and, on occasion,
'Woods (who does bookkeeping and dispatching duties)
drive trucks while Mizarro usually repairs the vehicles.
D. The Refusal to Bargain
Business Agent Kon credibly testified without denial
that Respondent Hamill never gave the Union notice it
was going to close its operations and it never offered to
bargain and negotiate with the Union over the effects on
the employees in shutting down the operations. Kon also
denied Respondent Brennan ever contacted the Union
about operating Respondent Brennan.
E. Analysis and Conclusions
The General Counsel contends the Trustee is a succes-
sor in bankruptcy to and/or alter ego of Respondent
Hamill; that Respondent Brennan was established by Re-
spondent Hamill as a subordinate instrument to and dis-
guised continuance of Respondent Hamill and they con-
stitute alter egos or a single employer; Respondents vio-
lated Section 8(a)(1) and (3) of the Act by Respondent
Hamill discriminatorily laying off its unit employees and
by ita alter ego Respondent Brennan failing to recall the
laid-off employees according to their seniority with Re-
spondent Hamill because of union activities; and that Re-
spondents violated Section 8(a)(1) and (5) of the Act by
Respondent Hamill, without prior notice to the Union,
11 An invoice from New Process Brake Company dated 21 February
lists Respondent Hamill's name ; however Vice President Wogds credibly
explained this was for parts purchased aid paid for by Respgndeft Bren-
nan to repair a trailer. The listing of Respondent Hamill's name was ap-
parently an error made by a clerk at the New Process Brake Company&
469
ceasing operations and laying off the unit employees and
resuming its operations through its alter ego Respondent
Brennan and by Respondent Hamill and Respondent
Brennan failing and refusing to adhere to the terms of
the collective-bargaining agreement; and by Respondent
Brennan failing and refusing to recognize and bargain
witht he Union as the exclusive bargaining representative
of the unit employees.
The Respondents deny having violated the Act, as al-
leged, and Respondent Brennan asserts, as an affirmative
defense, it is not subject to the Board's jurisdiction.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Sec. 7 of the
Act. Section 8(a)(3) of the Act provides in pertinent part;
"It shall be an unfair labor practice for an employer .. .
by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encour-
age or discourage membership in any labor organiza-
tion." Section 8(a)(5) of the Act prohibits an employer
from refusing to bargain collectively with the representa-
tive of its employees.
The initial issues to be resolved are whether the Trust-
ee is a successor in bankruptcy to and/or alter ego of
Respondent Hamill; whether Respondent Brennan was
established by Respondent Hamill as a subordinate in-
strument to and disguised continuance of Respondent
Hamill; and whether Respondent Hamill and Respondent
Brennan constitute alter egos or a single employer.
The four key elements evaluated by the Board in de-
termining whether two entities constitute a single em-
ployer are common ownership and financial control;
common management; interrelation of operations; and
centralized control of labor relations. Alle Arecibo Corp.,
264 NLRB 1267 fn. 1 (1982); and Sakrete of Northern
California, 137 NLRB 1220 at 1222 (1962), enfd. 332
F.2d 902 (9th Cir. 1964), cert. denied 379 U.S. 961
(1965). The existence of an alter ego status between two
entities is determined by their having common manage-
ment and owership; common business purpose, nature of
operations, and supervision; common premises and equip-
ment; comon customers, i.e., whether the employers con-
stitute "the same business in the same market"; the
nature and extent of negotiations and formalities sur-
rounding the transaction; and whether the purpose
behind the creator of the alleged alter ego was legitimate
or whether, instead, its purpose was to evade responsibil-
ities under the Act. Fugazy Continental Corp., 265 NLRB
1301 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1983). To
find successorship supporting a bargaining obligation, the
totality of the circumstances must warrant a finding that
the purchase-sale transaction was merely a change in
ownership of an existing and continuing business oper-
ations. Northwest Galvanizing Co., 168 NLRB 26 at 29
(1967).
The above findings with respect to the operations of
Respondent Hamill and Respondent Brennan establish
that on 21 December 1984 Respondent Hamill, except
for 2 days of cleanup work subsequently performed but
not paid for by Respondent Hamill, ceased its operations
and laid off all of its employees. This occurred because it
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was financially unable to pay a judgment obtained
against it by the trustee of the Fund for nonpayment of
contributions for health, welfare, and pension benefits
due under the collective -bargaining agreement between
Respondent Hamill and the Union covering the unit em-
ployees. On 21 December 1984 Respondent Hamill's
bank account was garnisheed by the Fund to satisfy this
judgment. This action deprived Respondent Hamill of
funds with which to operate and resulted in its closing its
operations and laying off all of its employees.
Although Respondent Brennan was incorporated in
July 1981, it was never operational until January when it
began operating as a trucking company to provide em-
ployment for its owners. There is no common ownership
between the actual stockholders of Respondent Hamill
and Respondent Brennan . While two of the three officers
of Respondent Hamill, which is no longer operating
since closing its operations on 21 December 1984, hold
similar positions with Respondent Brennan and are mem-
bers of Respondent Hamill's board of directors, Re-
spondent Brennan had different members on its board of
directors. Although both companies operated as trucking
companies and made deliveries for some of the same
companies as other trucking companies did, Respondent
Hamill, unlike Respondent Brennan , had intrastate au-
thority with the State of Illinois to deliver from point to
point in Illinois. Respondent Brennan did not conduct
any business for Granite City Steel, which comprised an
estimated 75 to 85 percent of Respondent Hamill's busi-
ness, or serve Springmeier, which was another major
customer of Respondent Hamill. The businesses of the
same customers served by Respondent Brennan was not
obtained by taking over Respondent Hamill's operations
but resulted from competing for their business along with
other trucking companies performing similar work.
Respondent Brennan does use the same facility as Re-
spondent Hamill used, which is owned by Hamilcar, to
park its equipment. However, except for certain in-
stances in which Vice President Woods, who was at the
facility to assist in closing Respondent Hamill, may have
used the telephone there owned by Hamilcar, the busi-
ness of Respondent Brennan is conducted from the
homes of its officers where its records are also kept. Part
of the equipment used by Respondent Brennan, which
has other equipment of its own, had previously been
owned and operated by Respondent Hamill before it
closed its operations but has since been repossessed by
President Hamill who now owns the equipment after Re-
spondent Hamill was unable to pay money loaned to it
by President Hamill. The only piece of Respondent Ha-
mill's equipment now used by Respondent Brennan is a
leased tractor which is used on an as-needed basis for
which Respondent Hamill is reimbursed.
The business performed by Respondent Brennan is
conducted in its own name. Unlike Respondent Hamill
when it was in operation , Respondent Brennan does not
employ any rank-and-file employees but all the work is
performed by the four owners of the corporation.
The assets and business of Respondent Hamill, which
is in bankruptcy and no longer operating, is under the
control of its alter ego, Trustee Robert Blackwell , as dis-
cussed infra, and Respondent Brennan has nothing to do
regarding the disposition of such business or assets.
Under these circumstances as discussed and considered
in light of the various factors necessary to establish a
single employer or alter ego status, I am persuaded and
find Respondent Brennan was not established by Re-
spondent Hamill as a subordinate instrument to and dis-
guised continuance of Respondent Hamill and they do
not constitute alter egos or a single employer as alleged.
Rather, I find Respondent Brennan is a separate corpora-
tion operating as a single legal entity.
Having found Respondent Brennan is not an alter ego
of or single employer with Respondent Hamill and is
also not an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and is there-
fore not subject to the Board's jurisdiction, I find it was
not legally obligated to either recognize the Union as the
exclusive bargaining representative of the unit employees
or to assume any obligations arising under the collective-
bargaining agreement between Respondent Hamill and
the Union. Accordingly, I find Respondent Brennan did
not violate Section 8(a)(1) and (3) of the Act as alleged
by failing to recall Respondent Hamill's laid-off employ-
ees according to their seniority with Respondent Hamill
because of union activities or violate Section 8(a)(5) and
(1) of the Act as alleged by failing and refusing to adhere
to the terms of the collective-bargaining agreement be-
tween Respondent Hamill and the Union or by failing
and refusing to recognize and bargain with the Union as
the exclusive representative of the unit employees.
With respect to Robert Blackwell, who was designated
by the Bankruptcy Court as the trustee in bankruptcy
with full authority to exercise all powers necessary to
the administration of the assets and business of Respond-
ent Hamill, I find, as admitted by the pleadings, that Re-
spondent Blackwell, as Trustee in backruptcy, is an alter
ego of Respondent Hamill.
The next issue to be resolved is whether Respondent
Hamill discriminatorily laid off the unit employees be-
cause of union activities.
The law is well established that to discriminate against
employees in their employment because of union activi-
ties violates Section 8(a)(3) and (1) of the Act. Where
motivation is an issue in cases alleging violations of Sec-
tion 8(a)(3) and (1) of the Act, the General Counsel must
make a prima facie showing sufficient to support the in-
ference that protected conduct by the employees was a
"motivating factor" in an employer's decision to disci-
pline or take such other action against them and the em-
ployer then has the burden of showing that the employ-
ees would have been disciplined or such other action
taken against them even in the absence of the protected
activity. Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Direct evidence of discrimi-
natory motivation is not necessary to support a finding
of discrimination and such intent may be inferred from
the record as a whole. Heath International, 196 NLRB
318 (1972).
P. J. HAMILL TRANSFER CO
The above findings clearly establish the employees
were laid off as a result of Respondent Hamill's bank ac-
count being garnisheed by the Fund. This was done to
satisfy the judgment for failure to pay contributions
owed for health, welfare, and pension benefits under the
collective-bargaining agreement between the Union and
Respondent Hamill, thereby depriving Respondent
Hamill of funds on which to operate, causing it to cease
its operations and lay off all its employees. This was the
same reason given to the employees for their layoff. Al-
though Vice President Woods did inform Business Agent
Kan, pursuant to his inquiry about the operations, that
they had tried "to do it union" and it did not work and
now they were going to do it another way, I do not find
such statement in any way indicated the layoff was relat-
ed to the employees' union activities or to Respondent
Hamill evading its bargaining obligation with the Union.
Rather Woods' remark was in reference to the operation
of Respondent Brennan which had no legal obligation to
recognize or bargain with the Union and even then
Woods informed Kon if they got on their feet they were
going to go union again. Thus, I find the General Coun-
sel has failed to make a prima facie showing sufficient to
support the inference union activities were a motivating
factor in Respondent Hamill laying off the unit employ-
ees. Even assuming Vice President Woods' remark to
Business Agent Kon might be construed differently, I am
persuaded and find the layoff occurred solely as a result
of Respondent Hamill's bank account being garnisheed
and not for the employes' union activities. Therefore I
find Respondent Hamill did not violate Section 8(a)(3)
and (1) of the Act by laying off all its unit employees be-
cause of union activities as alleged.
The remaining issues are whether Respondent Hamill
violated the Act by unilaterally and without prior notice
to the Union ceasing its operations and laying off the
unit employees and, as urged at the hearing by the Gen-
eral Counsel, refused to bargain over the effects of the
decision on the unit employees.
Management decisions which affect the scope, direc-
tion, or nature of the enterprise are excluded from Sec-
tion 8(d) of the Act. Otis Elevator Co., 269 NLRB 981 at
893 (1984). The law is well settled that an employer's de-
cision motivated by economic considerations to cease op-
erations and close it business is completely within the
prerogative fo the employer. However, the law is equal-
ly well settled that the employer under these circum-
stances is obligated to afford the union an opportunity to
discuss the impact and effect of the closing on the bar-
gaining unit employees . Merryweather Optical Co., 240
NLRB 1213 at 1214 (1979).
The undisputed evidence here establishes on 21 De-
cember 1984 Respondent Hamill ceased its operations
and laid off all the unit employees without any prior
notice to or bargaining with the Union. While it was not
legally obligated to bargain with the Union over its deci-
sion to close its operations, Respondent Hamill was le-
gally obligated to bargain with the Union over the ef-
fects of the closing of its operations on the unit employ-
ees, which it failed to do. Although I do not find the
failure to bargain over the cessation of its operations by
Respondent Hamill resulting in the layoff of the unit em-
471
ployees to be unlawful, I am persuaded and find Re-
spondent Hamill, by failing to afford the Union an op-
portunity to bargain about the effects of its closing its
operations on the bargaining unit employees, violated
Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Hamill set forth in sec-
tion III, above, found to constitute unfair labor practices
occurring in connection with the operations of Respond-
ent Hamill described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to labor
disputes burdening and obstructing commerce and the
free flow thereof.
CONCLUSIONS OF LAW
1. P. J. Hamill Transfer Company and its alter ego
Trustee Robert Blackwell are employees engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Brennan Express, Inc. and P. J. Hamill Transfer
Company are not alter egos and do not constitute a
single employer under the Act.
3. Brennan Express, Inc. is not an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
4. Highway, City and Air Freight Drivers, Dockmen
and Helpers Local Union No. 600, affiliated with Inter-
national Brotherhood of Teamsters, chauffeurs, Ware-
housemen and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
5. Brennan Express, Inc. did not violate Section
8(a)(1), (3), and (5) of the Act as alleged.
6. All truck drivers and helpers of P. J. Hamill Trans-
fer Company represented by the Union, engaged in
pickup, delivery, transporting, and assembling of freight
in the area under the jurisdiction of the Local Union,
providing such truck drivers and helpers return to their
point of origin at the end of their work shift constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
7. The Union is now and has been at all times material
herein the exclusive representative of all the employees
in the above-described unit for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
8. By failing to afford the Union an opportunity to
bargain about the effects of closing its St. Louis, Missou-
ri facility on its unit employees Respondent Hamill vio-
lated Section 8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of section 2(6) and (7) of the Act.
THE REMEDY
Having found Respondent Hamill violated Section
8(a)(5) and (1) of the Act, I shall recommend that it
along with its alter ego Trustee Robert Blackwell cease
and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A bargaining order alone cannot serve as an adequate
remedy for Respondent Hamill's unlawful failure to offer
the Union an opportunity to bargain about the effects of
the cessation of its operations because at the time of the
shutdown the unit employees were denied an opportuni-
ty to bargain through their collective-bargaining repre-
sentative at a time when there would have been some
measure of balanced bargaining power. Therefore, in
order to effectuate the policies of the Act and to ensure
meaningful bargaining, a limited backpay requirement
shall be ordered fashioned to make whole the unit em-
ployees for losses suffered as a result of Respondent Ha-
mill's failure to bargain as well as to reestablish a bar-
gaining situation in which the bargaining position of the
parties is not entirely devoid of economic consequences
to Respondent Hamill and Trustee Robert Blackwell.
Accordingly, Respondent Hamill and Trustee Robert
Blackwell shall be ordered to bargain with the Union, on
request, concerning the effects of closing its operations
on its unit employees and to pay backpay to its employ-
ees in the manner similar to that required in Transmarine
Navigation Corp., 170 NLRB 389 (1968). Thus, Respond-
ent Hamill and Trustee Robert Blackwell shall pay the
unit employees, who were employed at the time of the
cessation of operations on 21 December 1984 amounts at
the rates of their normal wages when last in Respondent
Hamill's employ, from 5 days after the date of this deci-
sion until the occurence of the earliest of the following
conditions: (1) the date Respondent Hamill and Trustee
Robert Blackwell bargain to an agreement with the
Union on those subjects pertaining to the effects of the
closing of Respondent Hamill's operations on its unit em-
ployees; (2) a bona fide impasse in bargaining; (3) the
failure of the Union to request bargaining within 5 days
of this decision, or to commence negotiations within 5
days of Respondent Hamill's and Trustee Robert Black-
well's notice of their desire to bargain with the Union; or
(4) the subsequent failure of the Union to bargain in
good faith. In no event shall the sum paid to any of these
employees exceed the amount the employee would have
earned as wages from 21 December 1984, the date on
which Respondent Hamill ceased its operations, to the
time he secured equivalent employment elsewhere, or the
date on which Respondent Hamill and Trustee Robert
Blackwell shall have offered to bargain, whichever
occurs sooner; provided, however, that in no event shall
this sum be less than these employees would have earned
for a 2-week period at the rate of their normal wages
when last in Respondent Hamill's employ. Interest on all
such sums shall be paid in the manner described in Flori-
da Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962).
To further effectuate the policies of the Act if Re-
spondent Hamill or Trustee Robert Blackwell were to
resume operation of the St. Louis, Missouri facility, they
shall be required to offer the unit employees reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs and continue to rec-
ognize and bargain with the Union as the bargaining rep-
resentative of its unit employees.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The Respondent, P. J. Hamill Transfer Company, and
Trustee Robert Blackwell, their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Highway, City
and Air Freight Drivers, Dockmen and Helpers Local
Union No. 600, afffiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America as the exclusive representative of
their employees in the appropriate unit set forth below
with respect to the effects on the unit employees of its
decision to cease operations at its St. Louis, Missouri fa-
cility. The appropriate unit is:
All truck drivers and helpers represented by the
Union, engaged in pickup, delivery, transporting
and assembling of freight in the area under the juris-
diction of the Local Union, providing such truck
drivers and helpers return to their point of origin at
the end of their work shift.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with Highway,
City and Air Freight Drivers, Dockmen and Helpers
Local Union No. 600, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America with respect to the effects on the
unit employees of the cessation of operations of its St.
Louis, Missouri facility and, if any understanding is
reached, embody it in a signed agreement.
(b) Pay those unit employees who were laid off on 21
December 1984 when Respondent Hamill ceased oper-
ations at it St. Louis, Missouri facility their normal
wages, plus interest, in the manner set forth in the
remedy section of this decision.
(c) Should Respondent Hamill or Trustee Robert
Blackwell resume operations of the St. Louis, Missouri
facility, they shall offer all those employees in the appro-
priate unit, who were laid off on 21 December 1984, re-
instatement to their former jobs or, if those jobs no
longer exist, then to substantially equivalent jobs and
continue to recognize and bargain with the Union as the
bargaining representative of the unit employees.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
12 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
P. J. HAMILL TRANSFER CO. 473
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its St. Louis, Missouri facility copies of the
attached notice marked "Appendix." 13 Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent Hamill and
Trustee Robert Blackwell to ensure that the notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the amended complaint
is dismissed insofar as it alleges violation of the Act not
specifically found.
1' 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
WE WILL NOT fail and refuse to bargain with the
Union with respect to the effects on our employees in
the unit described below of our decision to cease oper-
ations of our St. Louis, Missouri facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively with the
Union as the exclusive representative of the employees in
the bargaining unit, described below, with respect to the
effects of our cessation of operations at our St. Louis,
Missouri facility and, if an understanding is reached,
embody it in a signed agreement . The appropriate unit is:
All truck drivers and helpers represented by the
Union, engaged in pickup, delivery, transporting
and assembling of freight in the area under the juris-
diction of the Local Union, providing the truck
drivers and helpers return to their point of origin at
the end of their work shift.
(Should we resume operations at our St. Louis, Mis-
souri facility), WE WILL offer all those employees in the
appropriate unit, who were laid off on 21 December
1984, reinstatement to their former jobs or, if those jobs
no longer exist, then to substantially equivalent jobs and
WE WILL continue to recognize and bargain with the
Union as the bargaining representative of the unit em-
ployees,
WE WILL pay our unit employees, who were laid off
on 21 December 1984 when we ceased operations at our
St. Louis, Missouri facility, their normal wages for a
period specified by the National Labor Relations Board,
plus interest.
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
P. J. HAMILL TRANSFER COMPANY
ROBERT BLACKWELL, TRUSTEE IN BANK-
RUPTCY