Teamsters (Active Transportation Co.)

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 830 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
Teamsters National Automobile Transporters Indus-
try Negotiating Committee and International
Association of Machinists and Active Transpor-
tation Company and General Teamsters Local
No. 654. Case 16–CE–22
August 27, 2001
DECISION AND ORDER
BY CHIARMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On August 3, 1999, Administrative Law Judge Pargen
Robertson issued the attached decision. Respondent
Teamsters filed exceptions and a supporting brief, Charg-
ing Party Machinists and Active Transportation (Active)
filed answering briefs, and Teamsters filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings,1 findings, and conclusions only to the
extent consistent with this Decision and Order.
The judge found that the work-preservation agreement
between Teamsters and Active (the Agreement) violates
Section 8(e) of the Act because it restricts the work of
another company, Safety Carrier, over which the judge
found Active has no right of control, and thus it requires
Active to cease doing business with another entity. In its
exceptions, Teamsters asserts, inter alia, that the Agree-
ment is lawful under Section 8(e) because it is intended
to preserve the work of bargaining unit employees rather
than to achieve a secondary object. Teamsters further
argues that the judge erred in finding that Active does not
control Safety Carrier. We find merit in Teamsters’ ex-
ceptions. Thus, contrary to the judge, we find that the
Agreement is not unlawful on its face because it ex-
presses an intention to preserve bargaining unit work for
unit employees and because, by its terms, it restricts only
the work of entities over which Active exercises a right
of control.
I. FACTS
The allegations in the complaint relate to two busi-
nesses that are part of a complex of ventures owned, in
various combinations, by Charlie Johnson, Alice Hous-
ton, Wade Houston, and Dennis Troha. These individu-
als formed Active in November 1994.2

1 Because we find that the parties’ Agreement is not unlawful on its
face, we find it unnecessary to pass on Teamsters’ exceptions to the
judge’s rejection of certain exhibits and his denial of Teamsters’ motion
to reopen the record for evidence related to the parties’ negotiation of
the new work preservation agreement.
Active, a trucking firm engaged in the business of
transporting new automobiles and heavy-duty trucks, is a
party to a collective-bargaining agreement with Team-
sters. Active is a partnership owned indirectly by John-
son-Houston Corporation and by Seven T’s Corporation.
Johnson-Houston, in turn, is owned by Johnson and
Wade Houston, and Seven T’s is owned by Troha. John-
son serves as Active’s managing partner, chairman, chief
operating officer, and president.
Safety Carrier, a corporation engaged in hauling auto-
mobiles from railheads and plants, has a collective-
bargaining relationship with Machinists. Safety Carrier
is a wholly-owned subsidiary of Automotive Carrier Ser-
vices (ACS). ACS is ultimately owned by Alice Hous-
ton, Wade Houston, and Johnson, through HJ Industries,
and by Troha, through Seven T’s. Wade Houston and
Johnson’s shares of HJ Industries, however, are placed in
a blind voting trust represented by Alice Houston, who is
the president and chief executive officer of ACS and
controls Safety Carrier.
In December 1995, Teamsters and Active, through
Johnson, entered into the Agreement, which provides in
relevant part as follows:

This Work Preservation Agreement (the
“Agreement”) is made and entered into . . . by and
among (1) the undersigned employers party to the
1995–1999 National Master Automobile Transport-
ers Agreement (the “NMATA”) . . . (hereinafter re-
ferred to as (“Employer”), (2) the Employer’s corpo-
rate parent Active Transportation Company (“Ac-
tive”) (hereinafter referred to as “Parent”), which
controls or maintains the right to control Safety Car-
rier, Inc. (“Safety Carrier”) and (3) the undersigned
Local Unions affiliated with the International Broth-
erhood of Teamsters that are parties to the NMATA
. . . and the Teamsters National Committee Trans-
porters Industry Negotiating Committee
(“TNATINC”) (hereinafter collectively referred to
as “Union”).
1. Parent, Union and Employer enter into this
Work Preservation Agreement for the purpose of
protecting and preserving Carhaul Work for the Em-
ployer’s bargaining unit employees, eliminating con-
tracting and double breasting practices under which
Parent or Employer permit persons other than Em-
ployer’s bargaining unit employees to perform
2 Active was formed after the four-named individuals purchased the
stock of Jupiter Transportation Company, using the assets of the com-
panies they owned as collateral.
335 NLRB No. 68
TEAMSTERS (ACTIVE TRANSPORTATION CO.) 831
Carhaul Work, and preventing any scheme or subter-
fuge to avoid the protection and preservation of
Carhaul Work under this Agreement.
. . . .
3. Parent and Employer agree that neither Parent
nor Employer shall permit any Controlled Affiliate
other than Employer to perform any Carhaul Work
and that no Carhaul Work shall be performed by any
Controlled Affiliate other than Employer except as
permitted in paragraph 4 herein.
4. As a narrow exception to paragraphs 1, 2, and
3 above, the parties agree that Parent may permit
Safety Carrier, a controlled affiliate, to perform
Carhaul Work at its current facilities, so long as
Safety Carrier complies with the following separate
and independent additional restrictions: (a) it may
only operate from its current facilities . . .; (b) it may
not employ more than 115 drivers . . .; (c) it may not
bid for, perform or seek to perform any carhaul con-
tract presently, formerly, historically or hereafter
performed by Employer or any other signatory to the
NMATA under any circumstances . . . .
. . . .
11. . . . a. Carhaul Work. The term “Carhaul
Work” means and includes any and all present work
and future work opportunities of the kind, nature and
type currently, historically or traditionally performed
by the Employer’s bargaining unit employees in
connection with the over-the-road transportation of
motor vehicles. . . . The parties agree and confirm
that “Carhaul Work” is not limited to the specific
work assignments presently, historically and hereaf-
ter performed by the Employer’s bargaining unit
employees but also includes any and all future work
opportunities that are identical or similar in nature to
such work and that the Employer’s bargaining unit
employees have the necessary skills and ability to
perform.
b. Controlled Affiliate. Any person or entity
shall be deemed to be a “Controlled Affiliate” of
Parent and/or Employer if Parent or Employer,
whether directly or indirectly through common own-
ership or common management owns a majority
ownership or majority voting interest in such entity
and (i) maintains the power, right or authority to
control, manage or direct such entity’s day-to-day
operations, or (ii) maintains the power, right or au-
thority to assign, or direct the assignment, or veto or
block the assignment of Carhaul Work to such en-
tity, or to prevent such entity from performing
Carhaul Work.

On December 20, 1995, Teamsters Local 654 filed a griev-
ance seeking enforcement of the Agreement. Machinists
sought unsuccessfully to intervene in the impending arbitra-
tion. The grievance was denied at arbitration on procedural
grounds. Machinists filed the charge in the instant proceed-
ing on June 28, 1996, alleging that the Agreement is unlaw-
ful under Section 8(e).
The amended complaint alleges that Teamsters entered
into, and Local 654, as its agent, maintained and gave
effect to, an agreement that Active would not do business
with another employer or person, including Safety Car-
rier.3 We hold that, on this record, the Agreement is not
unlawful, and we dismiss the complaint.
II. DISCUSSION
A. Framework for analysis under Section 8(e)
Section 8(e) prohibits parties from entering into an
agreement under which the employer agrees to refrain
from or cease doing business with another.4 The Su-
preme Court, in National Woodwork Mfrs. Assn. v.
NLRB,5 held that, in enacting Section 8(e), Congress did
not intend to prohibit agreements to preserve for unit
employees work they have traditionally performed.
Rather, the Court found that Section 8(e) prohibits only
those agreements with a secondary purpose, i.e., those
directed at a neutral employer or entered into for their
effect on another employer.6 The Court found that the
relevant inquiry is

whether, under all the surrounding circumstances, the
Union’s objective was preservation of work for [bar-
gaining unit] employees, or whether the [agreement
was] tactically calculated to satisfy union objectives
elsewhere. . . . The touchstone is whether the agree-
ment or its maintenance is addressed to the labor rela-
tions of the contracting employer vis-à-vis his own em-
ployees.7

3 At the hearing, counsel for the General Counsel stated on the re-
cord that the grievance filed by Local 654 was not alleged to be an
unfair labor practice. Counsel for the General Counsel further stated
that the complaint recited the facts pertaining to the grievance only to
show that Machinists’ charge was timely filed.
4 Sec. 8(e) states in relevant part:
It shall be an unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied,
whereby such employer ceases or refrains or agrees to cease or refrain
from handling, using, selling, transporting or otherwise dealing in any
of the products of any other employer, or to cease doing business with
any other person, and any contract or agreement entered into heretofore
containing such an agreement shall be to such extent unenforceable and
void.
5 386 U.S. 612, 635 (1967).
6 Id. at 632.
7 Id. at 644.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
In NLRB v. Longshoremen ILA,8 the Court amplified
its decision in Woodwork Mfrs. by setting out two tests to
determine the lawfulness of a work-preservation agree-
ment. “First, it must have as its objective the preserva-
tion of work traditionally performed by employees repre-
sented by the union. Second, the contracting employer
must have the power to give the employees the work in
question—the so-called ‘right of control’ test . . . .”9 The
Court further explained that “[t]he rationale of the second
test is that if the contracting employer has no power to
assign the work, it is reasonable to infer that the agree-
ment has a secondary objective, that is, to influence
whoever does have such power over the work.”10
The Board set out its method of examining agreements
under Section 8(e) in General Teamsters Local 982 (J. K.
Barker Trucking Co.).11 In that case, the Board stated:

[I]f the meaning of the clause is clear, the Board will
determine forthwith its validity under 8(e); and where
the clause is not clearly unlawful on its face, the Board
will interpret it to require no more than what is allowed
by law. On the other hand, if the clause is ambiguous,
the Board will not presume unlawfulness, but will con-
sider extrinsic evidence to determine whether the
clause was intended to be administered in a lawful or
unlawful manner. In the absence of such evidence, the
Board will refuse to pass on the validity of the clause.12
[Emphasis added.]
B. Analysis
1. Scope of the complaint
As noted above, the complaint in this proceeding al-
leges that the Agreement is unlawful under Section 8(e)
of the Act, because it prevents Active from doing busi-
ness with another employer or person, including Safety
Carrier. The complaint does not allege that the grievance
filed by Local 654 was unlawful or that Teamsters or
Local 654 have attempted to enforce the Agreement in
any manner violative of Section 8(b)(4)(B).13

8 447 U.S. 490 (1980).
9 Id. at 504.
10 Id. at 504–505.
11 181 NLRB 515 (1970), affd. 450 F.2d 1322 (D.C. Cir. 1971).
12 Id. at 517 (fns. omitted).
13 See fn. 3, supra. In contrast to the analysis of agreements under
Sec. 8(e), when a complaint alleges that a union’s conduct in support of
such an agreement violates Sec. 8(b)(4)(B), the Board will find a viola-
tion if the actual conduct of the union demonstrates a secondary pur-
pose or takes place in circumstances in which the primary employer has
no right of control over the work sought. NLRB v. Pipefitters Local
638, 429 U.S. 507, 517–518 (1977). In these cases, the lawfulness of
the agreement provides no defense to the union’s secondary conduct.
In NLRB v. Pipefitters Local 638, the Court stated:
The substantial question before us is whether, with or without the col-
lective-bargaining contract, the union’s conduct at the time it occurred
Thus, only Section 8(e)’s strictures as to the content of
work-preservation agreements are involved. Under the
principles set out in ILA and J. K. Barker, we find that
the Agreement executed by Active and Teamsters is not
unlawful. For the reasons discussed below, we find that
the meaning of the Agreement is clear, and that it is not
clearly unlawful on its face because it satisfies both the
work preservation and the right of control tests of ILA.
2. Objective of the Agreement
In determining that the parties’ Agreement is unlawful,
the judge found that “paragraphs 3 and 4 of the Agree-
ment do not address preservation of work that is generi-
cally performed by members of a particular union (here
the Teamsters) [but instead] seek to limit current and
future work performed by employees of a specific single
employer that are represented by a union other than
Teamsters.” The judge further found that “the Agree-
ment includes language so broad as to prevent Safety
Carrier from engaging in any work regardless of whether
Active Transportation employees traditionally performed
that work.”
In excepting to the judge’s finding, Teamsters asserts
that the Agreement provides no evidence of any motive
other than the preservation of work for bargaining unit
employees, and that there is no pressure placed on Safety
Carrier to sign a collective-bargaining agreement with
Teamsters. In addition, Teamsters argues that the work
addressed encompasses that traditionally performed by
bargaining unit employees, as well as future opportuni-
ties that are fairly claimable as unit work.
Paragraph 1 states the objective of the Agreement as
follows: “protecting and preserving Carhaul Work for the
Employer’s bargaining unit employees, eliminating con-
tracting and double breasting practices . . . and prevent-
ing any scheme or subterfuge to avoid the protection and
preservation of Carhaul Work under this Agreement.”
Paragraph 11a. defines Carhaul Work as “any and all
present work and future work opportunities of the kind,
nature and type currently, historically or traditionally
performed by the Employer’s bargaining unit employ-
ees.” By paragraph 3, Active agrees not to permit a con-
trolled affiliate to perform the covered carhaul work.
The above provisions explicitly manifest an objective
to protect unit work from encroachment by controlled
affiliates. This objective is underscored by the definition
of the work covered by the Agreement. As the Supreme

was proscribed secondary activity within the meaning of [Section
8(b)(4)(B)]. If it was, the collective-bargaining provision does not
save it. If it was not, the reason is that § 8(b)(4)(B) did not reach it,
not that it was immunized by the contract. Thus, regardless of
whether an agreement is valid under § 8(e), it may not be enforced by
means that would violate § 8(b)(4). [Id. at 520–521.]
TEAMSTERS (ACTIVE TRANSPORTATION CO.) 833
Court found in ILA, “the first and most basic question is:
What is the ‘work’ that the agreement allegedly seeks to
preserve?”14 Provisions directed at protecting the tradi-
tional work of the bargaining unit suggest a primary
rather than secondary purpose. The Agreement in this
case expressly pertains only to carhaul work of the type
performed by bargaining unit employees under the col-
lective-bargaining agreement. This work is protected by
prohibiting the signatory employer from redirecting that
work to employees outside the unit. Moreover, the
Agreement does not influence the labor relations of any
other employer with respect to its own employees, for
example, by requiring a neutral employer to enter into a
contract with Teamsters.
Paragraph 4 contains specific conditions under which
Active may permit Safety Carrier, which is identified as a
controlled affiliate of Active, to perform the protected unit
work. This paragraph places limitations on the number of
Safety Carrier facilities and drivers, and prohibits Safety
Carrier from performing any specific carhaul contract
“formerly, historically or hereafter performed” by Active
or any other NMATA signatory employer.
Contrary to the judge, we do not find that these provi-
sions, as they relate to Safety Carrier, are in any way
inconsistent with the express work-preservation purpose
of the Agreement. Paragraph 4 states that, as an excep-
tion to the general prohibitions contained in the previous
paragraphs, Active may, under certain conditions, con-
tinue to permit Safety Carrier to perform carhaul work of
the type sought to be preserved for unit employees.
These restrictions, which limit Safety Carrier to its cur-
rent facilities and to a specific number of employees,
reasonably support the goal of protecting unit work from
possible encroachment by an expanding Safety Carrier.
Similarly, prohibiting Safety Carrier from bidding on
carhaul contracts performed by Active or other NMATA
signatories simply prevents Active from redirecting work
previously performed by unit employees under specific
contracts to employees outside the unit. We do not agree
with the judge’s finding that the Agreement prevents
Safety Carrier from performing work regardless of
whether the work had previously been done by Active or
by employees represented by Teamsters. The provision
on its face applies to work that, by the time of the poten-
tial bid by Safety Carrier, has already been performed by
unit employees or work that is identical or similar in na-
ture to such work. Although this restriction, as the judge
found, could have the effect of limiting the current and
future work of Safety Carrier’s employees represented by
Machinists, it demonstrates no purpose other than the

14 ILA, supra at 505.
stated work-preservation goal, and thus does not render
the Agreement invalid.15
3. Right of control
The judge found that, because the Agreement specifi-
cally prohibits Safety Carrier from engaging in Active’s
unit work, the validity of the Agreement under the right
of control test depends on whether Active controls the
work of Safety Carrier’s employees. Finding that Active
does not have a right to control Safety Carrier, the judge
concluded that the Agreement is unlawful.16
Contrary to the judge, we find it unnecessary to deter-
mine in this case whether Active in fact controls Safety
Carrier. Applying the principles set forth in J.K. Barker,
supra, we find that the meaning of the Agreement is clear
on its face and that it involves only work under Active’s
control. Thus, the provisions of the Agreement are not
ambiguous, and we find it unnecessary to resort to ex-
trinsic evidence as to the circumstances surrounding the
parties’ inclusion of those provisions or the actual exer-
cise of control by Active.17
The Agreement states expressly that “Active Transpor-
tation . . . controls or maintains the right to control”
Safety Carrier. The meaning of this statement is clear,
i.e., the parties agreed that Active controls Safety Carrier
and thus the work performed by Safety Carrier. Para-
graph 4 also refers to Safety Carrier as “a controlled af-
filiate” of Active, and imposes conditions under which
Active may “permit” Safety Carrier to perform the
carhaul work otherwise preserved for unit employees.
Moreover, paragraph 11b defines “controlled affiliate”
to apply only where Active has majority ownership or
majority voting interest in another business entity and
“maintains the power, right or authority to control, man-
age or direct such entity’s day-to-day operations, or . . .
to assign, or direct the assignment, or veto or block the
assignment of Carhaul Work to such entity, or to prevent
such entity from performing Carhaul Work.” Thus, the
15 See Pipefitters, supra at 526 (no violation of Sec. 8(b)(4)(B) where
cease-doing-business consequences are incidental to primary activity);
National Woodwork Mfrs., supra at 644–646 (product boycott require-
ment to preserve unit work does not violate Sec. 8(e)).
16 In its exceptions, Teamsters contends that Safety Carrier is a con-
trolled affiliate of Active, arguing that the companies are intertwined and
that control is maintained through a variety of leases and service agree-
ments, centralized administrative functions, consolidation of financial
reports, and cross-collateralization of equipment, as well as by their own-
ership by the same individuals. In response, Machinists argues that
Safety Carrier is not a controlled affiliate of Active, asserting that the
evidence does not show any actual control or transfer of work from Ac-
tive to Safety Carrier, and citing administrative and leasing agreements
with others as well as the credited testimony of Alice Houston.
17 J. K. Barker, supra; see also Carpenters District Council of North-
east Ohio (Alessio Construction), 310 NLRB 1023, 1026 (1993) (reli-
ance on extrinsic evidence improper except to resolve ambiguity).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
Agreement is facially clear and satisfies the right of con-
trol test of ILA.
Our finding in this regard is consistent with Board
precedent. For example, in Painters District Council 51
(Manganaro Corp., Maryland),18 the Board found lawful
on its face a work-preservation clause that required the
application of the collective-bargaining agreement when
unit work was performed by the signatory employer di-
rectly or through another entity where the employer “ex-
ercises . . . management, control, or majority owner-
ship. . . .” The Board found that the clause met the right
of control test, because it did not apply to affiliations
such as a parent-subsidiary relationship or minority own-
ership, which alone do not demonstrate control.
In Alessio Construction,19 by contrast, the Board con-
sidered a contract provision requiring in essence that if
partners, stockholders or beneficial owners participated
in the formation of another company engaging in the
same or similar business or employing the same or simi-
lar classifications of employees, the new business would
be covered by the contract. With respect to the right of
control, the Board found that, by applying to companies
bound to the signatory solely by common ownership,
rather than only to those over which the signatory had a
right of control, the agreement unlawfully reached em-
ployers that were neutrals in terms of labor relations.
The Board therefore concluded that the agreement fa-
cially violated Section 8(e).
By its terms, the Agreement here pertains exclusively
to entities in which Active has majority ownership or
majority voting interest, as well as a right to control day-
to-day operations or work assignments. Like Manga-
naro, this Agreement facially requires more than com-
mon ownership and does not extend to related employers
that are neutrals under the Act.
The Board in Manganaro also noted that the clause by
its terms applied only where the signatory “exercises”
control. The Board found that this indicated “more than
potential authority; it refers to actual or active control of
the work.”20 Likewise, in the instant case, we find that
the statement in the Agreement that Active “controls or
maintains the right to control” Safety Carrier, as well as
the restrictive definition of controlled affiliate, facially
denote actual control, as opposed to potential control
based on mere affiliation.
C. Conclusion
We conclude that the Agreement in this proceeding is
not unlawful on its face because, in accordance with the

18 321 NLRB 158 (1996).
19 Supra, 310 NLRB 1023.
20 321 NLRB at 164.
two tests set out in ILA, it expresses a primary purpose to
preserve bargaining unit work for unit employees, and it
applies by its terms only to affiliates over which Active
has a right of control. Under the analysis of J. K. Barker,
therefore, we “interpret [the Agreement] to require no
more than what is allowed by law.”21 Accordingly, we
find that Teamsters has not violated Section 8(e) as al-
leged, and we dismiss the complaint.
ORDER
The complaint is dismissed in its entirety.

CHAIRMAN HURTGEN, dissenting.
I do not agree that the clauses herein are lawful on
their face.
1. The clause regulates the labor relations of a
separate employer
The agreement here is between the Employer (Active)
and the Union. In relevant part, it pertains to the work
practices of another entity (Safety). Of course, if Active
and Safety are a single employer, there would not be two
separate employers, and thus there would not be a Sec-
tion 8(e) violation. However, the test for single-emplo-
yer status is a four-part test: common ownership, com-
mon management, interrelation of operations, and com-
mon control of labor relations.1 The instant clause ap-
plies if there is common ownership or common man-
agement. In addition, the clause is silent as to interrela-
tion of operations. Finally, the clause operates if there is
a mere right to control the other entity’s operations, as
distinguished from actual control of such operations. In
this regard, the Board had held that, in order for a clause
to be valid, the signatory must have actual or active con-
trol of the work, not just potential control.2
In sum, the clause, on its face, is not restricted to the
“single employer” situation. Further, at the very least,
the clause is unclear, and the extrinsic evidence shows
that, in fact, Active and Safety are not a single Employer.
The judge so found, I agree, and my colleagues do not
disagree.
2. The clause is not restricted to unit work.
The clause, on its face, is not restricted to unit work,
i.e. work performed by Active’s employees. The clause
says that it “is not limited to the specific work assign-
ments presently, historically and hereafter performed by
the Employer’s bargaining unit employees.” Further, it
includes work that is simply ”similar in nature” to that
21 181 NLRB at 517.
1 Dow Chemical Co., 326 NLRB 288 (1998). See also Alessio Con-
struction, 310 NLRB 1023 (1993). See also my dissent in Mfg. Wood-
workers, 326 NLRB 321 (1998).
2 Painters District Council No. 51 (Manganaro Corp.), supra.
TEAMSTERS (ACTIVE TRANSPORTATION CO.) 835
work. In addition, the clause is not restricted to work
performed by Active. It applies to work performed by
any other signatory to the National Motor Automobile
Transportation Agreement (NMATA).3 Finally, at the
very least, the clauses are not free from ambiguity. My
colleagues therefore err by refusing to consider extrinsic
evidence on the point.
Based on the above, I disagree that the clause is a law-
ful “work preservation” clause.

Robert G. Levy II, Esq., for the General Counsel.
Kurt C. Korbelt, Esq. (Madison, Wisconsin & Ernest B. Orsatti,
Esq.), of Pittsburgh, Pennsylvania, for the Respondent.
Christopher T. Corson, Esq., of Upper Marlboro, Maryland, for
the Charging Party.
James F. Wallington, Esq., of Washington, D.C., for the Inter-
venor.
C. John Holmquist Jr., Esq., of Farmington Hills, Michigan, for
the Employer.
Martin J. Klaper, Esq., of Indianapolis, Indiana, for Safety
Carrier.
F. Larkin Fore, Esq., of Louisville, Kentucky, for Automotive
Carrier Services.
DECISION
STATEMENT OF THE CASE
PARGEN ROBERTSON, Administrative Law Judge. This
hearing was held on February 16 and 17 and April 19 and 20,
1999,1 in Houston, Texas. The charge was filed on June 28,
1996. An amended complaint (complaint or amended com-
plaint) issued on May 27, 1998.
All parties were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence.
Upon consideration of the entire record2 and briefs filed by

3 There is no showing that the Employer is a member of a multiem-
ployer unit.
1 After the hearing closed, on July 1, 1999, Respondent moved to re-
open the hearing. General Counsel, Charging Party, Active Transporta-
tion Company, and Automotive Carrier Services Co. (Safety Carrier,
Inc.) filed oppositions to that motion. Respondent alleged that it and
employers including Active agreed to a new Work Preservation
Agreement in June 1999, which is effective from June 1, 1999, until
May 31, 2003. I have reviewed Respondent’s motion, the supporting
brief and an affidavit, and I find nothing which would render this mat-
ter moot or which would justify a determination of newly discovered
evidence. Therefore Respondent’s motion is denied.
2 Following close of the hearing and in accord with my direction
during the hearing, Respondent filed an explanation of relevance of its
Exhs. 2 through 17. General Counsel and Charging Party responded.
Upon consideration I shall not reverse my decision to receive those
documents in evidence. Charging Party argued those exhibits fall
within the prohibitions of the hearsay rule and are inadmissible. How-
ever, an examination of the record shows there was no timely objection
based on hearsay. The hearsay rule deals with the competence of evi-
dence. As to competence the sole question here is one of authenticity
(i.e., were R. Exhs. 2–17 business records or summaries of business
records (Rule 1006 FRE). Here, there was agreement that R. Exhs. 2–
17 were business records or summaries that Respondent received from
Employer (Active Transportation) pursuant to subpoena. Those docu-
Respondent, Charging Party (Machinists Union), Active Trans-
portation Company and the General Counsel, I make the fol-
lowing findings.
I. JURISDICTION
The Employer (Active Transportation Company) is a general
partnership with it principal offices in Louisville, Kentucky,
where it is in the business of transporting newly manufactured
automobiles and heavy-duty trucks in interstate commence.
During the 12 months previous to the filing of the amended
complaint the Employer derived gross revenues in excess of
$50,000 from the transportation of freight between various
States and outside Kentucky.
Safety Carrier, Inc. is a Texas corporation with its principal
office in San Antonio, Texas where it is in the business of haul-
ing cars from railheads and plants. During the 12 months previ-
ous to the filing of the Amended Complaint Safety Carrier de-
rived gross revenues in excess of $50,000 from the transporta-
tion of cars between various States and outside Texas.

ments are admissible under Rules 803(6) and 1006, FRE. It is not nec-
essary to call and examine witnesses where the relevant parties stipulate
(Tr. 173–181; 485–490) to authenticity of business records (Sec.
102.40, NLRB Rules and Regulations). Charging Party also argued that
some of those exhibits involve matters before the November 4, 1994,
purchase of Jupiter Corp. Transportation and are irrelevant. As shown
herein, General Counsel argued that the question of control involves the
role of Active Transportation and Safety Carrier from December 1995
when Active became a party to a work preservation agreement. As
shown herein I find that the Jupiter purchase resulted in a change in the
interrelationship of corporations involved herein including Active
Transportation and Safety Carrier. Therefore, exhibits that demonstrate
the relationship of those corporations before November 1994 may not
be determinative of their relationship at relevant times. However, my
decision in that regard was not apparent during the hearing and R. Exh.
2–17 were relevant to Respondent’s defense.
Respondent also asked for reconsideration of the rejection of R.
Exhs. 18–21. I rejected those exhibits on failure to show relevancy. The
General Counsel alleged that the four documents are between 8 and 10
inches thick. Respondent agreed those exhibits are 7-1/2 inches thick
and include three large hardbound volumes and a note agreement. After
consideration of the motion and opposition, I reverse my earlier deci-
sion and receive in evidence only portions of R. Exhs. 18–21 shown by
Respondent in its motion as follows: At par. 24 of its motion Respon-
dent cited schedule 8.8 to R. Exh. 18 as showing that Charlie Johnson is
compensated as CEO of Active, Alice Houston is compensated as CEO
of ACS, Wade Houston is compensated as CEO of Dallas & Mavis and
Dennis Troha is compensated as CEO of ATC Leasing (Note: I receive
that evidence but do not receive any evidence showing specific
amounts of compensation). At par. 25 Respondent cited schedule 8.11
of R. Exh. 18 entitled “Transactions with Subsidiaries and Affiliates,”
as setting forth the master equipment leases. At par. 27 Respondent
cited R. Exh. 21 as the subordinated note agreement between the four
individuals on behalf of their respective companies and Northwestern
Mutual Life Insurance. Respondent failed to show with specificity other
matters included within its motion. I find that Respondent has failed to
demonstrate specific relevancy beyond what is shown above except to
the extent of showing some facts which have already been stipulated in
evidence or otherwise shown through credited evidence. It is not neces-
sary to receive matters showing facts not in dispute. Therefore, in all
respects other than what is specified above, I reject R. Exhs. 18–21.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
Respondent admitted that Active Transportation and Safety
Carrier have been employers at material times within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS
Respondent admitted that Association of Machinists and
Aerospace Workers; Teamsters National Automobile Trans-
porters, Industry Negotiating Committee, International Broth-
erhood of Teamsters, AFL–CIO (Committee); and General
Teamsters Sales and Service and Industrial Union Local No.
654, a/w International Brotherhood of Teamsters, AFL–CIO
(Intervenor) have been labor organizations within the meaning
of Section 2(5) of the Act, at all material times.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS3
The General Counsel alleged that even though Active Trans-
portation does not control Safety Carrier, Respondent4 entered
into a work-preservation agreement with Active Transportation
in December 1995. The work-preservation agreement reads:

This Work Preservation agreement (the “Agreement”) is
made and entered into in accordance with Section 301 of the
Labor Management Relations Act, 28 U.S.C. Section 185, by
and among (1) the undersigned employers party to the 1995–
1999 National Master Automobile Transporters Agreement
(the “NMATA”) as identified in Article 1, Section 1 of the
NMATA and/or applicable Supplemental Agreements (here-
inafter referred to as (“Employer”), (2) The Employer’s cor-
porate parent Active Transportation Company (“Active”)
(hereinafter referred to as “Parent”), which controls or main-
tains the right to control Safety Carrier, Inc. (“Safety Carrier”)
and (3) the undersigned Local Unions affiliated with the In-
ternational Brotherhood of Teamsters that are parties to the
NMATA as identified in Article 1, Section 2 of the NMATA
and the Teamsters National Committee Transporters Industry
Negotiating Committee (“TNATINC”) (hereinafter collec-
tively referred to as “Union”). . . .
1. Parent, Union and Employer enter into this Work
Preservation Agreement for the purpose of protecting and
preserving Carhaul Work for the Employer’s bargaining
unit employees, eliminating contracting and double breast-
ing practices under which Parent or Employer permit per-
sons other than Employer’s bargaining unit employees to
perform Carhaul Work, and preventing any scheme or sub-
terfuge to avoid the protection and preservation of Carhaul
Work under this Agreement.

3 The facts shown herein are not in dispute unless shown to the con-
trary in this decision. In many instances the parties agreed to stipula-
tions and in many instances testimony and records were not disputed.
To the extent there are conflicts in evidence I have made credibility
determinations in the conclusions.
4 Respondent attorney Kurt Kobelt admitted that Respondent de-
manded the “red-circle” of Safety Carrier during its 1995 negotiations
with Active Transportation (Tr .431, 432). Kobelt explained that red-
circle meant that the Safety Carrier operations were limited to those
identified as existing at the time of the agreement (Tr 432). However,
as shown herein, the work preservation agreement also extends to the
future business of Active Transportation (GC Exh. 2, par. 4).
2. Parent and Employer agree that neither Parent nor
Employer shall undertake to, or permit any Controlled Af-
filiate (including freight broker companies) to, subcon-
tract, transfer, lease, divert, contract, assign or convey, in
full or in part, any Carhaul Work to any Controlled Affili-
ate, plant, business, person or non–unit employees other
than Employer, or to any other mode of operation, except
as explicitly and specifically provided for and permitted in
the NMATA and/or applicable Supplemental Agreements.
3. Parent and Employer agree that neither Parent nor
Employer shall permit any Controlled Affiliate other than
Employer to perform any Carhaul Work and that no
Carhaul Work shall be performed by any Controlled Af-
filiate other than Employer except as permitted in para-
graph 4 herein.
4. As a narrow exception to paragraphs 1, 2, and 3
above, the parties agree that Parent may permit Safety Car-
rier, a controlled affiliate, to perform Carhaul Work at its
current facilities so long as Safety Carrier complies with the
following separate and independent additional restrictions:
(a) it may only operate from its current facilities in Atlanta,
Georgia; San Antonio, Texas; Indianapolis, Indiana; and the
metropolitan area of Dallas, Texas; (b) it may not employ
more than 115 drivers for the facilities set forth above; (c) it
may not bid for, perform or seek to perform any carhaul
contract presently, formerly, historically or hereafter per-
formed by Employer or any other signatory to the NMATA
under any circumstances . . . . [GC Exh. 2.]

Teamsters Local 654 sought to enforce that agreement
through a grievance. Roy Atha is the principal officer for
Teamsters Local 654 in Springfield, Ohio. Atha testified that
he filed a December 20, 1997 grievance seeking enforcement of
the work-preservation clause.
Merrill Frost is the automotive coordinator for the Machin-
ists Union. He first learned of the Atha grievance in January
1996.5 Upon learning that grievance was going to arbitration
the Machinists moved to intervene (GC Exh. 22). The response
to that request was received in evidence (GC Exh. 23).
The grievance continued through arbitration where it was
denied.
This controversy involves several partnerships and corpora-
tions. A November 1994 purchase of Jupiter Transportation
Company is of particular significance. Following that purchase
several corporations or partnerships were set up in the manner
described in the chart received in evidence as General Coun-
sel’s Exhibit. 6.
The employers of primary concern are Active Transportation
Company and Safety Carrier, Inc.
5 Respondent contended among other things, that the allegations are
barred by Sec. 10(b) (see GC Exh. 1(q)). The testimony of Merrill Frost
is undisputed that the Charging Party first learned of the work preserva-
tion agreement in January 1996. The charge was filed on June 28, 1996.
Since that is within 6 months of Charging Party’s first knowledge I find
that the complaint is not barred by Sec. 10(b) of the Act.
The other three affirmative defenses in Respondent’s answer were
not supported by substantial evidence and are rejected.
TEAMSTERS (ACTIVE TRANSPORTATION CO.) 837
Respondent wrote Charlie Johnson, “President, Active Trans-
portation Company” on February 24, 1995, requesting informa-
tion in regard to “the Work Preservation Agreement.” Active
Transportation Company, through its Executive VicePresident
Gordon Birdsall replied to Respondent on May 3, 1995.6
Active Transportation’s May 3 letter set out a number of
matters which are of significance in this proceeding. At page 2
and continuing, of Active’s response to Respondent’s February
24 request for information, is the following:

As an overview to the response hereinafter set forth
Active, subject to qualification, offers the following his-
torical perspective to delineate itself from the Jupiter enti-
ties. Johnson-Houston Corporation (JHC) is a Kentucky
corporation and a certified minority business enterprise.
JHC is owned by Charlie W. Johnson and A. Wade Hous-
ton. Charlie W. Johnson is the Chairman and President of
JHC. JHC through its affiliate Active Acquisition Corp.
acquired the stock of Jupiter Transportation Company.
The name of Jupiter Transportation Company was initially
changed to JCTS but has now been changed again to Ac-
tive Corp. Transportation System to avoid confusion.
Jerrold Wexler (now deceased) owned a super majority of
the stock of Jupiter Industries, the parent of the Jupiter en-
tities. Jupiter Industries was a diversified holding com-
pany. Jupiter Industries owned Jupiter Corporation which
in turn owned JCTS as well as other companies. Transport
Venture, Inc. was a wholly owned subsidiary of JCTS.
JHC and Transport Venture, Inc. formed a partnership
called Active Transportation Company (Active). Active is
a Kentucky partnership and it is a certified minority busi-
ness enterprise. JHC owned 60% of Active and Transport
Venture, Inc. owned 40%. Active’s business was and is
that of a public transporter. After the death of Jerrold
Wexler, JHC was offered the right to purchase the 40%
non–controlling interest of Active held by Transport Ven-
ture, Inc. JHC was also offered the right to purchase cer-
tain assets and entities from certain of the Jupiter entities.
These transactions created Active as currently consti-
tuted and as more fully set forth below. It is this Active
which is the largest minority business enterprise operating
as a public transporter and which assumed responsibility
for the obligations and benefits of the NMATA including
the work preservation provisions. . . .

Active’s letter continues to set forth the relationships as ex-
isting before the (Jupiter) acquisition in 1994. Among those
responses was the following:

6. Automotive Carriers Services (ACS) (called Automotive
Carriers Services Inc. in the Request) is an independently

6 Among other things, Active Transportation wrote Respondent re-
garding inter alia, matters after November 1994, that its CEO Charlie
Johnson has “taken steps to avoid impropriety and the appearance of
impropriety arising out of his indirect ownership . . . Charlie Johnson’s
indirect ownership is held in a blind voting trust by which he has given
up all right to control . . . I suggest you contact Alice Houston, who is
. . . trustee under the Voting Trust (Active Exh. 3). See Employer Ac-
tive’s Exhs. 2 and 3 (Active 2 and 3).
owned and operated Kentucky partnership. Alice K. Houston
was its sole director, President and CEO.

Active goes on to set out the relationships as existing after
the (Jupiter) acquisition in 1994. Among those responses was
the following:

3. . . . . Active was reorganized and the beneficial
ownership of Active is held indirectly by majority owner,
Johnson–Houston Corporation (66 2/3%) and by minority
owner, Seven T’s Corp. (33 1/3%).
. . . .
5. ACS continued to exist as a Kentucky general part-
nership.
6. HJ Industries, Inc. continued to exist as a Kentucky
corporation.
7. Joint Venture Transportation, Inc.’s minority inter-
est in ACS was redeemed by ACS in connection with an
acquisition. Active does not know what the Jupiter entities
did with Joint Venture Transportation, Inc. after the re-
demption.
8. Unimark Services, Inc. and Safety Carrier, Inc. con-
tinued to be wholly owned subsidiaries of ACS.
9. ACS acquired the stock of Auto Truck Transport
Corp.
10. HJT Specialized Carrier Co. changed its name to
Dallas & Mavis Specialized Carrier Co.

Active’s response continued at page 11, response no. 3:

Active, Active Corp. Transportation System, Inc., Dal-
las & Mavis Forwarding Co., Inc., Kenosha Auto Trans-
port Corp., Provincial American Truck Services, Inc. and
Provincial American Truck Transporters, Inc. are the enti-
ties set forth in paragraph 1 of the Request which perform,
control, bid for, or assign work of the kind, nature and
type covered by the NMATA. Those companies are either
signatory to the NMATA or have assumed responsibility
for the NMATA.

At page 13 of its response Active asserts that it is not the par-
ent of Safety Carrier, Inc., Auto Truck Transport Corp. or Auto-
motive Carrier Services, Inc. Then, at page 14, is the following:

Active has been sensitive since the threat to block its
acquisition of charges of double breasting or violation of
the Work Preservation Agreement. Charlie Johnson as the
president of Active has taken steps to avoid impropriety
and the appearance of impropriety arising out of his indi-
rect ownership of unrelated entities to which this inquiry is
improperly directed. As a practical matter neither Active
nor Charlie Johnson or Gordon Birdsall participates in the
affairs of these entities (Safety Carrier, Inc., Auto Truck
Transport Corp. and Automotive Carrier Services, Inc.).
As a legal matter, Charlie Johnson’s indirect ownership in-
terest is held in a blind voting trust by which he has given
up all right to control these entities or to know or have ac-
cess to information to which a shareholder would ordinar-
ily be entitled. Accordingly, if additional information is
required regarding these entities, I suggest you contact Al-
ice Houston, who is my trustee under the Voting Trust.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
An ACS attorney wrote Respondent agent Kurt Kobelt on
May 12, 1995. Among other things that attorney, F. Larkin
Fore, wrote:

Safety Carrier, Inc. (SCI) is a wholly owned subsidiary
of ACS. Auto Truck Transport Corp. (ATT) is a wholly
owned subsidiary of ACS. . . . . ACS which is a Kentucky
general partnership. Its partners are ACS Holding Com-
pany (ACSHC) which owns a 99% interest and ACS In-
vestor Co. (ACSIC) which owns 1%. Both ACSHC and
ACSIC are Kentucky general partnerships. The partners of
ACSHC are HJ Industries, Inc. (HJI) which owns 66
2/3”% and Seven T’s Corp. (STC) which owns 33 1/3% of
ACSHC. HJI is a Kentucky corporation owned by Alice
K. Houston (25%), A. Wade Houston (25%) and Alice K.
Houston, Trustee, Trustee under a Blind Voting Trust
(50%). The beneficial owner of the trust is Charlie W.
Johnson. STC is a Wisconsin corporation owned by Den-
nis M. Troha. ACSIC is owned by HJI (66%), STC 33%
and AWH Corporation (1%) (AWHC). AWHC is solely
owned by A. Wade Houston.
The sole director of ATT is Alice K. Houston. Forest
Guest is president of ATT.
Alice K. Houston is the President and CEO of ACS.
As a partnership, ACS does not have a board of directors.
Neither Dennis M. Troha, Charlie W. Johnson, A.
Wade Houston nor Gordon Birdsall have any position in
ACS, ATT or ACI. Gordon Birdsall has no direct or indi-
rect financial or other interest in any of these entities. Al-
ice K. Houston has no position with Active.

Charlie Johnson on behalf of Active Transportation entered
into the contested work-preservation agreement with Respon-
dent. As shown above, among other things, that agreement
stated that Active Transportation controls or has the right to
control Safety Carrier. According to record evidence including
testimony by Charlie Johnson7 as well as Alice Houston and
documents including General Counsel’s Exhibit 10, that dis-
closure was not true.
Active Holding Co. (99 percent) and Active Investing Co. (1
percent) own Active Transportation. Seven T’s Corp. (33-1/3-
percent) and Johnson–Houston Corp. (66-2/3-percent) own
Active Holding Co. Dennis Troha is the 100-percent owner of
Seven T’s.8 Wade Houston owns 50 percent and Charlie John-

7 Charlie Johnson testified that his statement in the work-
preservation clause that Active Transportation controlled Safety Carrier
is not true. He testified that Active Transportation could not afford a
strike and that he told that to Respondent and to his own negotiating
committee (Tr. 322). Johnson told Respondent that he had no control
over Safety Carrier. Charlie Johnson explained that Safety Carrier was
in a blind trust, which had been set up in order to prevent him from
having control over Safety (Tr. 325). Respondent’s agent told Johnson
that he would have to sign something with Safety Carrier in it if he
wanted to deal (Tr ..326).
8 Dennis Troha is the sole owner of Seven T’s. Troha, through Seven
T’s, owns approximately a one-third interest in both Active Transporta-
tion and Safety Carrier through its interest in Active Holding and ACS
Holding. Wade Houston owns approximately a one-third interest in
Active Transportation through his interest in Johnson–Houston Corp.
Charlie Johnson owns approximately a one-third interest in Active
son owns 50 percent of Johnson-Houston Corp.9 Charlie John-
son is the president and CEO of Active Transportation.
Safety Carrier is held by ACS (Automotive Carrier Services)
which is held by ACS Holding (99 percent), and ACS Investing
Co. (1 percent). HJ Industries10 (66-2/3 percent) and Seven T’s
Corp. (33-1/3 percent) own ACS Holding. As trustee and a
shareholder in her own right, Alice Houston holds 100 percent
interest in HJ Industries and by that interest, she holds a con-
trolling interest in ACS Holding, ACS and Safety Carrier. Alice
Houston is the president and CEO of ACS. She oversees the
management of Safety Carrier with authority to make final
decisions. Houston testified that no one has the authority to
interfere with her running of ACS and Safety Carrier.11
Alice Houston testified that ACS is a minority enterprise that
secures its business through competitive bids. After being in-
vited to bid on a job involving transporting new automobiles,
Safety Carrier may bid in competition with other car haulers.
Those other car haulers may include Active Transportation,
which is also a minority enterprise. Safety Carrier currently has
locations in Haslet, Texas, where it transports Chrysler auto-
mobiles; at San Antonio, Texas, where it transports GM auto-
mobiles; and in Atlanta, Georgia, where it transports Ford Tau-
rus, Subarus, and Jaguars. Safety Carrier’s future is dependent
on its success in competitive bidding in other locations as well
as its continued success in outbidding others and maintaining
its current business.
Although former Safety Carrier president Diane Chambers
and current president, Forest Guest,12 conducted day-to-day
operations, Alice Houston has always directed those activities.
Houston acts as CEO in overseeing Safety Carrier as a wholly
owned subsidiary of ACS. Safety Carrier has had leasing
agreements with a number of lessors13 including ATC Leasing
Company. Safety Carrier is in competition with all other car–
haulers14 and none of those car-haulers that are represented by

Transportation through his interest in Johnson-Houston Corp. Alice
Houston does not hold a personal interest in Active Transportation.
9 The parties stipulated that Charlie Johnson has been the chairman
and managing partner of Johnson-Houston Corp. at all material times.
10 Alice K. Houston, her husband A. Wade Houston and Charlie W.
Johnson executed a Voting Trust Agreement (GC Exh. 10) on Novem-
ber 7, 1994. At the time of that agreement HJ Industries consisted of
1000 outstanding shares held by Charlie W. Johnson (500 shares), A.
Wade Houston (250 shares) and Alice K. Houston (250 shares). By that
instrument A. Wade Houston transferred his 250 shares and Charlie W.
Johnson transferred his 500 shares, into the voting trust which was
represented by its trustee Alice K. Houston. Alice Houston has contin-
ued as trustee at all material times.
11 Charlie Johnson testified in full agreement with Alice Houston. He tes-
tified that he has had no authority over ACS or Safety Carrier (Tr. 328).
12 Forest Guest has been the president of Safety Carrier since the end
of 1996 or early 1997.
13 Alice Houston testified that Safety Carrier leases equipment from
Norlease, Ford Motor Credit, Navistar and P&C Band as well as ATC
Leasing.
14 Including both truckaway and driveaway operations. Truckaway
involves operation of a tractor and trailer where the trailer is loaded
with automobiles or trucks. Driveway includes piggyback arrangements
where one truck transports one or more additional trucks that are tied
together at the frames. The work preservation agreement at issue here
deals with truckaway (also referred to as car-haul. Tr. 440).
TEAMSTERS (ACTIVE TRANSPORTATION CO.) 839
the Teamsters Union has given business to Safety Carrier.15
Indeed those corporations including Active Transportation Co.
are in direct competition with Safety Carrier. Alice Houston
testified that the day-to-day control rested in the officers of
Safety Carrier and that she oversees their work. Her role “was
primarily to set the strategy, strategic planning, to approve final
expenditures and budgets, appropriations, and act as chief ex-
ecutive officer in overseeing wholly-owned subsidiary.” No
one else exercises or has the right to exercise actual control of
Safety Carrier.
The Machinists Union organized Safety Carrier in 1987. That
relationship has continued and Safety Carrier has a current col-
lective-bargaining agreement with the Machinists (GC Exh.
21(a)).
Respondent attorney Kurt Kobelt testified that among other
things he considered Safety Carrier’s lease arrangement with
ATC Leasing16 in determining that Safety Carrier is controlled
by Active Transportation. ATC Leasing is one of the compa-
nies included among the many companies organized after the
purchase of Jupiter (see GC Exh. 6). That exhibit (GC Exh. 6)
illustrates that ATC Holding Managing Partner owns 99-
percent interest in ATC Leasing. ATC Holding Managing Part-
ner is owned by Seven T’s (1/3), HJ Industries (1/3) and John-
son–Houston Corp. (1/3). Alice Houston testified that Dennis
Troha is the managing partner of ATC Leasing.17
Alice Houston testified that the various companies that
flowed from the purchase of Jupiter did engage in cross-
collateralization of stock in order to secure a significant loan.
That collateralization was in addition to security required in
separated loans by the various companies and involved only the
highest level of the companies. Through the cross-
collateralization, stock owned by individual companies is se-
cured for the common loan18.

15 Alice Houston testified that the only exception to receiving or giv-
ing business to competitors may occur on a trip lease arrangement,
which typically occurs during an overflow situation. An example of an
overflow situation would be end of year fluctuations where a carrier
does not have sufficient equipment to handle all its business. On some
occasions Safety has arranged with a number of carriers including
Wagoneer and Allied to handle its overflow hauls. Safety, as the carrier
that gave up that particular business would take 10 percent and the
carrier that makes the haul would take 90 percent, of the revenue.
16 The ATC lease with Safety was received as R. Exh. 2. Respondent
argued that lease is exactly the same as the agreement between ATC
Leasing and Active and that Safety entered into its lease on the same
day the Voting Trust was executed. However Respondent pointed to
nothing in the lease and I am unable to find anything, which demon-
strated that Active controls Safety.
17 Alice Houston testified that ATC Leasing has no control in any
fashion over Safety Carrier.
18 Respondent did not dispute Alice Houston’s testimony regarding
cross-collateralization. Respondent argued that Charlie Johnson, Alice
Houston, Wade Houston, and Dennis Troha formed an alliance in 1994,
which allowed them to purchase Jupiter Corp. Systems and that the
financing of that purchase involved cross-collateralization of all the
assets of the companies owned by those four individuals. I agree with
Respondent to the extent of involvement by the specific companies or
other entities described throughout these proceedings and as set out in
the chart identified in evidence as GC Exh. 6. The evidence did not
CONCLUSIONS
Credibility
In large measure the evidence was not in conflict. In many
instances where there were conflicts I have stated my credibil-
ity determinations below in the section under findings. How-
ever, there were serious conflicts involving the following wit-
nesses.
Kurt Kobelt was one of the attorneys that represented Respon-
dent in these proceedings and in negotiations toward the work-
preservation agreement. His testimony is significant and involves
his knowledge of the interrelationship between the involved em-
ployers. Kobelt testified that he interpreted what Charlie Johnson
told him to be that Johnson was willing to agree that he con-
trolled Safety Carrier19 (Tr. 459). I have carefully evaluated
Kobelt’s testimony and I find that I cannot credit his testimony to
the extent it conflicts with credited evidence. His testimony as to
his conclusions conflicts with documents that were in his posses-
sion before Respondent entered into the work-peservation
agreement (e.g., Active Exhs. 3 and 6).
However, the record is not disputed regarding the contents of
the work-preservation agreement. Charlie Johnson signed that
agreement which includes statements regarding Safety Carrier.
Due to conflicts between his testimony and the work-
preservation agreement I am unable to fully credit Charlie
Johnson.
Ronnie Green testified. Green is the president and business
manager of Teamsters Local 512. Green testified that he at-
tended a negotiating meeting when Gordon Birdsall was pre-
sent. Birdsall represented Active Transportation but died
around June 1995. I was impressed with Green’s demeanor and
I credit his testimony to the extent it does not conflict with
credited evidence.
I was also impressed with the demeanor and testimony of
David R. Parker. Parker was employed by Active Transporta-
tion in 1995 after February of that year. Mr. Parker was in-
volved in some of the negotiation sessions regarding the work-
preservation agreement and he signed some of the documents
that were received in evidence regarding Safety Carrier. I credit
Parker’s testimony to the extent it does not conflict with other
matters found herein.
I was most impressed with the testimony and demeanor of
Alice Houston and I fully credit her testimony. I was especially
impressed with her testimony regarding her control over Safety
Carrier. That testimony was not rebutted by direct evidence. As
shown above Charlie Johnson signed the work-preservation
agreement, which included a statement that Active Transporta-
tion controlled Safety Carrier. However, there was no direct

show that those companies and entities were the only holdings of any of
the four individuals.
19 Kobelt also admitted that he received a May 12, 1995 memoran-
dum from Larkin Fore, attorney for ACS and Safety Carrier. That
memo stated, among other things, that Alice Houston was the majority
stockholder of ACS and Safety Carrier through her own shock holding
and her holding as trustee; that ACS has contracts with the Machinists
Union; and that ACS perceives that the Teamsters negotiations with
Active Transportation is aimed at limiting or ending ACS’ trucking
business (Active Exh. 6).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
evidence supporting those claims by Johnson and, of course,
Johnson testified to the contrary during these proceedings.
Moreover, Houston’s testimony was in accord with documents
received in evidence.
FINDINGS
The complaint alleges that Respondent engaged in conduct
in violation of Section 8(e) of the Act by entering into and
maintaining the work-preservation agreement with Active
Transportation. Section 8(e) generally prohibits collective-
bargaining agreements that require employers to cease doing
business with any other person.
As shown above, the alleged primary employer in this in-
stance is Active Transportation Company and the alleged work-
preservation agreement would require Active to prevent the
alleged secondary employer, Safety Carrier, doing business of a
particular description. Unlike many controversies, this case
does not involve double breasting. Both Safety Carrier and
Active Transportation were union operations at material
times.20 As shown herein the Machinists represented Safety
Carrier employees and the Teamsters represented Active
Transportation employees.
Work-preservation agreements are not prohibited by the Act
provided the agreement provides for the preservation of work
traditionally performed by employees under the control of the
primary employer.21 Does the Agreement represent a lawful
attempt to preserve traditional Teamsters Union work, or in-
stead, is it “tactically calculated to satisfy the union objectives
elsewhere”? National Woodwork Mfrs. Assn. v. NLRB, 386
U.S. 612 (1967).
In this instance I must question whether the Agreement at-
tempts to preserve work.22 Does the agreement require Active
Transportation to limit work of Safety Carrier without regard to
whether work outside those limitations was ever performed by
Active Transportation?
As shown above in paragraph 1 of the Agreement, its pur-
ported purpose is the preservation of carhaul work for the Em-
ployer’s bargaining unit employees by among other things,
eliminating contracting and double breasting practices.
In the first paragraph and in paragraph 4, as well as indirectly
in paragraph 3, the parties address Safety Carrier. Paragraph 4
specifies that Safety Carrier may continue to operate only from

20 Safety Carrier employees are represented by the Machinists Un-
ion. The Machinists has represented the Safety Carrier employees for
longer than the Teamsters has represented employees of Active Trans-
portation. As shown herein the Machinists has represented Safety Car-
rier since 1987. The Teamsters has represented Active Transportation
since 1990.
21 Respondent argued that regardless of whether Active controls
Safety Carrier there was no violation of Sec. 8(e). If Active controls
Safety the Agreement is permitted as a legal work preservation agree-
ment. On the other hand, as argued by Respondent, if Active does not
control Safety then the Agreement has no force or effect. Obviously,
acceptance of that argument would render Sec. 8(e) meaningless. The
courts and the Board have consistently held that a violation occurs if
there is no right to control.
22 See Teamsters Local 982 (J. K. Barker Trucking Co.), 181 NLRB
515 (1970), affd. 450 F.2d 1322 (D.C. Cir. 1971); Carpenters (Mfg.
Woodworkers Assn.), 326 NLRB 321(1998).
previously established locations in Texas, Indiana and Georgia;
that Safety Carrier may employ no more than 115 drivers; and
that Safety Carrier may not seek any work formerly or hereafter
performed23 by the Active Transportation. Unlike the situations
in National Woodwork Mfrs. Assn. v. NLRB, supra, and NLRB v.
Longshoremen ILA, 447 U.S. 490, 505 (1980), paragraphs 3 and
4 of the Agreement do not address preservation of work that is
generically performed by members of a particular union (here the
Teamsters).24 Instead those paragraphs seek to limit current and
future work performed by employees of a specific single em-
ployer that are represented by a union other than Teamsters (i.e.,
Safety Carrier whose employees are represented by the Machin-
ists Union).
The Supreme Court25 has set forth a two-part test to deter-
mine the lawfulness of a work-preservation agreement:

First, the agreement must have as its objective the
preservation of work traditionally performed by employ-
ees represented by the union.
Second, the contracting employer must have the power
to give the employees the work in question (the so-called
right of control test).

In consideration of whether the agreement had as its objec-
tive the preservation of work, I shall consider the obvious.
Which work is addressed by the work-preservation agree-
ment?26 As shown above, the relevant portions of that agree-
ment direct the primary employer to take action to prevent
Safety Carrier from engaging in any work not permitted by the
23 Obviously, Safety Carrier cannot foresee all the work that will be
hereafter performed by Active Transportation and NMATA. Therefore,
compliance with the Agreement may require total avoidance of all
future job quests even if Active actually controls job bidding by Safety
Carrier. As shown above Safety Carrier secures its work through com-
petitive bidding. From time to time a carhaul operator including Safety
Carrier may lose a previously held contract through the bidding proc-
ess. Under the terms of the Agreement if that loss of business is fol-
lowed by an acquisition of that particular contract by a NMATA em-
ployer, Safety Carrier could not thereafter seek to reacquire that par-
ticular contract. Moreover, once NMATA acquires any particular job,
under the Agreement Safety Carrier is permanently enjoined from
procuring that particular work.
24 Respondent argued there is no evidence that the Agreement had
any objective but to protect jobs from double breasting or purposes
testified to by Kurt Kobelt. Nevertheless, I note the Agreement includes
both work preservation and work limitation. The work limitation is
directed to Safety Carrier. Par. 4 of that Agreement shows that the
Agreement seeks to limit the scope of Safety Carrier’s work and there
was no showing that that work limitation has a direct relationship with
protection of work performed by Active (and NMATA) employees.
Only in those instances where Active Transportation would receive a
bid invitation and elect to bid, would there be any possibility of a bene-
fit to Active’s employees. The only benefit in that instance would be an
increased probability of Active being successful in bidding in the ab-
sence of one of the bidding companies—i.e., Safety Carrier. In those
circumstances there would be no work preservation unless the contract
was previously held by Active Transportation. However, in that situa-
tion par. 4 would be unnecessary because work held by Active Trans-
portation employees would be protected by pars. 1 and 2.
25 NLRB v. International Longshoremen ILA, 447 U.S. 490 (1980).
26 The Supreme Court stated “the first and most basic question is:
What is the ‘work’ that the agreement allegedly seeks to preserve? ’’ Id.
TEAMSTERS (ACTIVE TRANSPORTATION CO.) 841
agreement without regard to whether that work was tradition-
ally controlled by Active Transportation or whether that work
was traditionally performed by members of the Teamsters Un-
ion. Obviously, members of the Teamsters Union have tradi-
tionally worked as truckdrivers and it is safe to assume that any
car haul operation would involve truck drivers. Nevertheless,
the Agreement includes language so broad as to prevent Safety
Carrier from engaging in any work regardless of whether Ac-
tive Transportation employees traditionally performed that
work. Instead it is concerned with limiting Safety Carrier’s
work.
The Court explained that where the objective was preservation
of traditional work the method the parties chose to preserve that
work may be incidental. NLRB v. Longshoremen ILA, 447 U.S.
at 490, 505.27 There the Court pointed to an earlier decision
where the Court addressed the Carpenters union work of fitting
doors installed at jobsites. The agreement in question provided
for the boycott of all prefitted doors. See National Woodwork
Mfrs Assn. v. NLRB, 386 U.S. 612 (1967). Nevertheless, the in-
stant agreement presents a more difficult query.
The Board has recently had two occasions to consider work-
preservation agreements. In Painters District Council 51 (Man-
ganaro Corp.), 321 NLRB 158, 163 (1996), and in Carpenters
(Mfg. Woodworkers Assn.), supra, the Board found language
not too dissimilar from the instant agreement’s general lan-
guage did not violate Section 8(e). The Board held that lan-
guage intending to protect work of unit employees if controlled
by the employer was not unlawful. In Manufacturing Wood-
workers, the Board stated, “The crucial focus in analyzing
whether the (work-preservation agreement) violates Section
8(e) is not whether, or to what extent, the signatory employer
and the affiliated business entity are bound by common owner-
ship. Rather, we find that the crucial focus is whether, as both
the (work-preservation agreement and the work-preservation
agreement in Manganaro Corp.) state, work of the type covered
by the collective-bargaining agreement is being performed by a
business entity over which the signatory employer exercises
control.”
Here, the agreement (WPA) extends beyond the pale outlined
in Manufacturing Woodworkers and Manganaro. Unlike those
work-preservation agreements, the instant agreement extends to a
specific nonsignatory employer. In both the opening paragraph
and in paragraph 4, the agreement specifies that it applies to
Safety Carrier, Inc. In a departure from the acceptable agree-
ments found in Manufacturing Woodworkers and Manganaro,
the instant agreement prohibits a specific employer from engag-
ing in any Active Transportation work28 including work Active
Transportation may perform in the future:

4. . . C. Safety Carrier may not bid for, perform or seek to per-
form any carhaul contract presently, formerly, historically or

27 NLRB v. Longshoremen ILA, 447 U.S. at 511 .
28 As shown in par. 4C of the WPA (above), Safety Carrier would be
prevented from bidding or performing any work formerly or hereafter
performed by any NMATA signatory. The record shows that Safety
Carrier was not controlled by any of those employers. Therefore, the
WPA constitutes an illegal work-preservation agreement in regard to all
employer signatories of NMATA.
hereafter performed by (Active Transportation) or any other
signatory to the NMATA under any circumstances . . . . (GC
Exh. 2.)

Because of that specific language it is not necessary to look
to see if the agreement may apply to any unnamed and non–
signatory employer that is not controlled by the signatory em-
ployer. Instead, in this case, we need only determine whether
Active Transportation29 has the right or the power effectively to
control the assignment of the work of Safety Carrier’s employ-
ees Carpenters (Mfg. Woodworkers Assn.), 326 NLRB at 326.
As to the issue of control, the Board recently examined the ties
between a parent and subsidiary in Dow Chemical Co., 326
NLRB 288 (1998). That decision is of interest here even though
the instant situation does not involve a parent/subsidiary relation-
ship.30 In Dow Chemical the Board focused on four elements in
determining actual or active control. Those elements were (1)
common ownership; (2) common management; (3) interrelation
of operations and (4) common control of labor relations.
As shown above four people are involved in the ownership
of Safety Carriers and three of those people are also involved in
the ownership of Active Transportation.31 The four individuals
involved in the ownership of Safety Carrier are Alice Houston,
Wade Houston, Charlie Johnson, and Dennis Troha. Wade
Houston, Charlie Johnson, and Dennis Troha are the individu-
als involved in the ownership of Active Transportation.
As to management, I find that the credited evidence estab-
lished there was no common management. Alice Houston han-
dles overall management of ACS and Safety Carrier. Charlie
Johnson handles overall management of Active Transportation.
There was no evidence that Johnson has or had, any voice in
Safety Carrier management decisions. In fact the opposite was
shown. The evidence proved that Alice Houston makes all final
management decisions at ACS and Safety Carrier.
As shown above, Alice Houston, Charlie Johnson, and Wade
Houston exercised a Voting Trust Agreement32 on November 7,
1994 (GC Exh. 10).33 That agreement vest total control of HJ
29 The WPA refers to all NMATA employers as well as its specific
reference to Active Transportation. However, the record showed that
only where there was common ownership, such as the case of Active
and Safety, was there a question as to right to control. Obviously, other
employers that lacked common ownership with Safety, have no actual
or active control over Safety Carrier. Those other NMATA employers
failed to qualify under all four of the Dow Chemical indicia.
30 As shown above in GC Exh. 6, Active and Safety are not parent–
subsidiary even though they have some common individual owners.
31 The Johnson-Houston Corp. which is owned equally by Wade
Houston and Charlie Johnson, has a 2/3 ownership in Active Holding
Co. Active Holding Co. is 99-percent owner of Active Transportation
Co. Although the names are somewhat similar, Johnson-Houston Corp.
and HJ Industries are not the same company. As shown herein HJ In-
dustries is controlled by a Voting Trust.
32 That November 7, 1994 agreement (GC Exh. 10) purports to vest
total control of HJ Industries in Alice Houston. HJ Industries holds 2/3
ownership in ACS Holding and in Automotive Carrier Services (ACS).
ACS in turn holds full ownership in Safety Carrier.
33 Charlie Johnson testified as to the reason for the Voting Trust:
The labor laws say you can’t double–breast; we’re not double–
breasting. The labor laws say you’re supposed to have different owner-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
Industries in Alice Houston as trustee of the Voting Trust and in
her own right as 25-percent owner. HJ Industries holds 2/3 own-
ership in ACS Holding and in Automotive Carrier Services
(ACS) and in Safety Carrier (GC Exh. 6).34 As to the question of
actual control, Alice Houston testified regarding her active man-
agement of ACS and her indirect management of Safety Carrier.
She is the CEO and President of ACS and she oversees the run-
ning of Safety Carrier even though the president is Forest Guest.
As to (3) interrelation of operations the evidence showed there
is none. The record revealed no interchange of employees, man-
agement officials, supervisors, equipment, places of business, or
work. There was evidence that ATC Leasing has separate leas-
ing, administrative and management consulting services agree-
ments with Active and Safety Carrier. However, Safety Carrier
leases equipment and has subcontracts for services from others as
well as ATC Leasing. There was no showing that ATC Leasing
or Dennis Troha exercises any operational control beyond the
terms of those leases and there is no showing that either makes or
contributes to management decisions.
In regard to (4) common control of labor relations, Merrill
Frost testified that he is the Machinists union representative
responsible for labor contracts with Safety Carrier. The Ma-
chinists organized Safety Carrier some time in the late 1980s.
Frost first became involved with Safety Carrier in 1991 when
he met with a man named Curtis Mechin. After that when he
next met, the people representing Safety Carrier were Alice
Houston and Diane Chambers. Subsequently he dealt with Al-
ice Houston and Forest Guest regarding labor relations at
Safety Carrier. Frost had no dealings with anyone from Active
Transportation. There was no evidence of interaction regarding
labor relations between Safety Carrier and Active Transporta-
tion. Safety Carrier’s labor relations are managed on a day–to–
day basis by its president—Forest Guest. Alice Houston over-
sees Guest’s work. No one at Active Transportation is involved
in the labor relations at Safety Carrier.
In view of the above and the full record, I find that Active
Transportation did not have the right of control over Safety
Carrier at any material time. Moreover, I find the record shows
that Active Transportation did not actually exercise any degree
of control over Safety Carrier at any material time.
However, Respondent made a number of points in its brief.
Those include the following:

ship, different management, different labor people; we set it up so that
it would comply to what the labor law says today” (Tr .349.)
34 ACS (Automotive Carrier Services) is held by ACS Holding (99-
percent), and ACS Investing Co. (1-percent). HJ Industries (66–2/3 %)
and Seven T’s Corp. (33–1/3-percent) own ACS Holding. Alice K.
Houston, her husband A. Wade Houston and Charlie W. Johnson exe-
cuted a Voting Trust Agreement (GC Exh. 10) on November 7, 1994.
HJ Industries consisted of 1000 shares. Those shares were owned by
Charlie W. Johnson (500 shares), A. Wade Houston (250 shares), and
Alice K. Houston (250 shares). A. Wade Houston transferred his 250
shares and Charlie W. Johnson transferred his 500 shares into the Vot-
ing Trust, which was represented by its trustee Alice K. Houston. Alice
Houston has continued as trustee at all material times. As trustee and a
shareholder in her own right, Alice Houston holds 100-percent interest
in HJ Industries and by that interest, she holds a controlling interest in
ACS Holding and Safety Carrier.
Respondent attorney Kurt Kobelt35 testified that he de-
termined that even if the trust was a bona fide trust “there
was sufficient ownership links between Active and Safety
Carrier to justify making the demand that Safety Carrier be
red-circled.” [Tr. 449.] The record failed to support
Kobelt. As shown above, Kobelt was in possession of
documents from both Active and Safety Carrier that illus-
trated that Active lacked control of Safety Carrier.
Kobelt testified that he concluded by looking at the
corporate structure that even putting Mr. Charlie John-
son’s interest aside, there was still Mr. Troha and Mr.
Houston36 who between them had common ownership (of
Safety Carrier), and Dennis Troha ran ATC Leasing which
provides administrative, clerical, equipment and other
kinds of services to both companies (i.e., Active Transpor-
tation and Safety Carrier).

Again, the record failed to support Kobelt. As shown above,
neither Charlie Johnson nor Wade Houston held any voting or
managing interest in HJ Industries or in Safety Carrier after
execution of the Voting Trust on November 7, 1994. After that
date Alice Houston held exclusive control over HJ Industries.
In that capacity she also controlled ACS Holding because HJ
Industries and Seven T’s held ACS Holding. HJ Industries held
majority control with its 2/3 interest in ACS Holding. In turn,
ACS Holding held a 99-percent interest in ACS and ACS held
100-percent interest in Safety Carrier. The record showed that
controlling relationship has continued at material times after
November 7, 1994. Moreover, the record shows that Respon-
dent was aware of those facts. As shown above, Active Trans-
portation wrote Respondent on May 3, 1995. Thereafter, an
attorney for ACS wrote Respondent on May 12, 1995. On both
those occasions Respondent was advised that ACS and Safety
Carrier were controlled by Alice Houston. Contrary to
Kobelt’s testimony those documents show that the interest of
Wade Houston and Dennis Troha did not constitute a majority
holding of Safety Carrier even if Wade Houston was not in-
cluded in the trust. If Wade Houston were not considered part
of the voting trust then he would have held a 25-percent interest
in HJ Industries. However, even under that incorrect assump-
tion Alice Houston held 75-percent interest as trustee and in her
own right. Under that assumption, HJ Industries which would
have been controlled by Alice Houston, held two-third interest
in ACS Holding. Dennis Troha as owner of Seven T’s owned
only a one-third interest in ACS Holding. Therefore, even in
consideration of Kobelt’s testimony and the language in F.
35 Respondent argued that during the negotiations for the Work-
Preservation Agreement “Safety Carrier wanted a ‘cushion’ so that it
could expand beyond the work it was then currently performing.”
However, Safety was not involved in the negotiations toward the Work
Preservation Agreement. The Agreement was completed over Safety
Carrier’s protest.
36 However, as shown herein, Houston as well as Johnson, entered
into the voting trust whereby full control of HJ Industries was placed in
the hands of the trustee, Alice Houston. Troha never had an ownership
interest in HJ Industries and his sole relevant interest was in Seven T’s,
which held only a one-third interest in Safety Carrier.
TEAMSTERS (ACTIVE TRANSPORTATION CO.) 843
Larkin Fore’s May 12 memo37 to Kobelt showing that Alice
Houston was trustee for Charlie Johnson but not Wade Houston
(see Active Exh. 6), Kobelt’s alleged determination that Wade
Houston and Dennis Troha controlled Safety Carrier lacks fac-
tual support.
Respondent argued that Alice Houston, Wade Houston,
Charlie Johnson, and Dennis Troha filed documents with the
ICC that there was common control of all the companies in-
cluding Active Transportation and Safety Carrier.38 Respondent
also cited Respondent’s Exhibit 28 as supporting its argument
of common control of Active Transportation and Safety Carrier.
Respondent’s Exhibit 28 appears to be Agency comments in
ICC case MC–F–20572 and is not dated.39 The relevant portion
of Respondent’s Exhibit 28 states:

HJT Holding is controlled . . . respectively by noncar-
rier individuals A. Wade Houston (Houston), Charlie W.
Johnson (Johnson), and Dennis M. Troha (Troha). Hous-
ton, Johnson and Troha also control carriers Automotive
Carrier Services Co. (MC–222359). . . . and Houston and
Johnson control Johnson–Houston Corporation (MC–
170825) and Active Transportation Company (MC–
201703). . .

As shown above, Wade Houston, Charlie Johnson, and Alice
Houston executed a Voting Trust on November 7, 1994. After
that date Alice Houston controlled HJ Industries. Respondent’s
Exh 28 failed to disprove that Alice Houston controlled HJ
Industries after November 7 because that exhibit does not show
that it was effective after November 7.40
Respondent argued that ATC Leasing provides common ser-
vices to all the corporations and partnerships, which shows
common control. Respondent cited Respondent’s Exhibits 2
and 3 to support that argument. Respondent’s Exhibit 2 is a

37 Fore’s memo incorrectly reflected that Alice Houston was trustee
for only the interest of Charlie Johnson. Charlie Johnson, A. Wade
Houston, and Alice Houston signed the Voting Trust Agreement. That
Trust instrument reflects that Johnson was giving control over his 500
shares and A. Wade Houston was giving control over his 250 shares, to
the Trustee.
38 Those documents were received as R. Exhs. 23 and 24. R. Exh. 23
reflects that it was filed on June 20, 1994. That is before execution of
the Voting Trust. Therefore, R. Exh. 23 does not show conditions at
relevant times.
R. Exh. 24 appears to be a July 20, 1994 internal memorandum from
within the ICC, which does not involve either Active Transportation or
Safety Carrier. The term “Safety” is used in that document but is in
reference to a policy of the ICC called Safety Fitness Policy cited at 8
ICC 2d 123 (1991). Moreover, that document was also dated before the
Voting Trust and does not reflect conditions at relevant times.
39 There was no showing that R. Exh. 28 followed the Voting Trust
executed by Alice and Wade Houston and Charlie Johnson on Novem-
ber 7, 1994. From it reading, R. Exh. 28 it appears to predate November
7, 1994.
40 It was shown throughout the record that substantial corporate
changes were made in and shortly after 1994 following the Jupiter
purchase. Additionally, as shown above, the Voting Trust was executed
in November 1994. For those reasons I find that records before 1994
failed to show conditions at relevant periods. In that regard see Interve-
nor’s Exhs. 2 and 3 (IX 2 and 3). Those documents were dated in 1990
and 1993.
“Leasing, Administrative and Management Consulting Services
Agreement” between ATC Leasing and ACS.41 Respondent’s
Exhibit 3 is a “Leasing, Administrative and Management Con-
sulting Services Agreement” between ATC Leasing and Active
Transportation. However, there was no showing that ATC
Leasing exercised ownership or management of ACS (Safety
Carrier) or Active Transportation, nor was there a showing of
interrelationship of operations or common control of labor rela-
tions between ACS and Active Transportation.
Respondent argued that circumstantial evidence supports
Charlie Johnson’s assertions in the work-preservation agree-
ment that the Voting Trust is a sham and is ignored by the four
principals. However, the record does not support those asser-
tions. Despite great latitude being afforded Respondent’s quests
for discovery, the record failed to show that Safety Carrier is
managed, or has interrelation of operations or common labor
relations with Active Transportation.
I find that the evidence failed to support Respondent’s con-
tention that Active Transportation had or has, the right of con-
trol over Safety Carrier. The record showed that Respondent
engaged in a violation of Section 8(e) through the work-
preservation agreement as it regards Safety Carrier, Inc.
CONCLUSIONS OF LAW
1. Teamsters National Automobile Transporters Industry
Negotiating Committee is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Active Transportation Company, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
3. Respondent, Teamsters National Automobile Transporters
Industry Negotiating Committee by entering into an agreement
with Active Transportation Company, which contained lan-
guage restricting the work of Safety Carrier, has violated Sec-
tion 8(e) of the Act.
4. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7) and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
41 Alice Houston credibly testified about in-house maintenance (Tr
261), other subcontracts (Tr. 260) and leases of equipment from ATC
Leasing and others during relevant times (Tr. 239–240).