Vulcan Trailer Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1987

283 N.L.R.B. 480 (N.L.R.B. 1987)

480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Vulcan Trailer Manufacturing Co., Inc . and its alter-
ego Vulcan Solid Waste, Inc. and its alter-ego
Preferred Solid Waste Systems and its alter-ego
the Vulcan Company and International Brother.
hood of Boilermakers, Local Lodge 583. Case
10-CA-21706
31 March 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 8 December 1986 Administrative Law Judge
William N. Cates issued the attached decision. Re-
spondents Vulcan Trailer Manufacturing Company,
Inc.`, Vulcan 'Solid Waste, Inc., and Preferred Solid
Waste Systems filed exceptions.1
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 has decided to
affirm the judge's rulings, findings,2 and conclu-
sions and to adopt the recommended Order as
modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that
the Respondents, Vulcan Trailer Manufacturing
Co., Inc., and its alter-ego Vulcan Solid Waste,
Inc., and its-alter-ego Preferred Solid Waste Sys-
tems,, and its alter-ego The Vulcan Company, Bes-
semer and , Montevallo, Alabama, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to grant the April 1986
wage increases called for in its 15 April 1985 to 14
April 1988 collective-bargaining agreement with
the Union.
' The Respondents , in filing exceptions , did so without admitting they
were proper parties and without waiving proper service of the charge,
complaint, process, or jurisdiction.
2 The judge erroneously reported the case name of Ogle Protection
Service, 183.NLRB 682 (1970), and the citation to Florida Steel Corp., 231
NLRB 651 (1977).
Subsequent to the issuance of the judge's decision , Preferred , filed a pe-
tition for reorganization under Chapter 11 of the United States Bankrupt-
cy Code, 1l U.S.C § 1101 et seq . We note that the Board's proceedings
fall within the exceptions to the Bankruptcy Code's automatic stay provi-
sions. See 11 U.S.C. § 362 (b)(4), (b)(5); J&B Smith Co., 280 NLRB 539
fn 2 (1986).
3 The judge included in Ins recommended Order a visitatorial clause
authorizing the Board, for compliance purposes, to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure under the su-
pervision of the United States court of appeals enforcing the Board's
Order. In the circumstances of this case, we find it unnecessary to in-
clude such a clause . We shall modify the judge's recommended Order ac-
cordingly.
Additionally, we shall modify the recommended Order and issue a new
notice to conform more closely to the violations found.
(b) Failing and refusing to abide by the terms
and conditions - of its 'collective-bargaining agree-
ment with the Union.
(c) Threatening to refuse to recognize the Union
as the exclusive representative of the employees in
the appropriate unit set forth below, and threaten-
ing employees with. unspecified reprisals if they
participate in any National Labor Relations Board
proceedings.
(d) In any like or related manner interfering
with, restraining,, or coercing employees in the ex-
ercise of the rights guaranteed them by Section, 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain collec-
tively with the Union as the exclusive bargaining
representative of its employees in the following
unit appropriate for the purposes of collective bar-
gaining and abide by the terms of its collective-bar-
gaining agreement with the Union.
All production and maintenance employees
employed by the Company at its Montevallo,
Alabama facility, but excluding all office cleri-
cal employees, guards, and supervisors as de-
fined in the Act.
(b) -Pay the April 1986 wage increases ,' called for
in the collective bargaining agreement with the
Union retroactive to the effective date set forth in
the agreement. Such monetary amounts are to be
computed in the manner set forth in the remedy
section of the judge's decision.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel' records and reports,
and all other records necessary to analyze the
amount of backpay `due under the terms of this
Order.
(d) Post at its facility in Montevallo, Alabama,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 10, after being signed
by the Company's authorized representative, shall
be posted by the Company immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Company to ensure
'i 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."
283 NLRB No. 74
VULCAN TRAILER MFG. CO. 481
that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
APPENDIX
NOTICE TO EMPLOYEES.
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights:
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT fail to grant the April 1986 wage
increases called for in our 15 April 1985 to 14
April 1988 collective-bargaining agreement with
the Union.
WE WILL NOT fail and refuse to abide by the
terms and conditions of our collective-bargaining
agreement with the Union.
WE WILL NOT threaten and refuse to recognize
the Union as the exclusive representative of our
employees in the unit described below.
WE WILL NOT threaten our employees with un-
specified reprisals if they participate in any Nation-
al Labor Relations Board proceedings.
WE WILL NOT ' in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request, bargain col-
lectively with the Union as the exclusive bargain-
ing representative of our employees in the follow-
ing unit appropriate for the purposes of collective
bargaining:
All production and maintenance employees
employed by the Company at its Montevallo,
Alabama facility, but excluding all office cleri-
cal employees, guards, and supervisors as de-
fined in the Act.
WE WILL abide by the terms of our collective-
bargaining agreement with the Union, and WE
WILL grant the wage increases called for in our
collective-bargaining agreement with the Union
retroactive to the date called for in that agreement.
VULCAN TRAILER MANUFACTURING
CO., INC. AND ITS ALTER-EGO
VULCAN SOLID WASTE, INC. ANID ITS
ALTER-EGO PREFERRED SOLID
WASTE SYSTEMS AND TTS ALTER-EGO
THE VULCAN COMPANY
Virginia L. Jordan, Esq., for the General Counsel.
C. V. Stelzenmuller, Esq. (Burr & Forman), of Birming-
ham, Alabama, for Respondent.
George C. Longshore, Esq., of Birmingham, Alabama, for
the Union.
DECISION
WILLIAM N. CATES, Administrative Law Judge. This
case was tried at Birmingham, Alabama, on 17 Septem-
ber 1986.11 The charge in this case was filed by Interna-
tional Brotherhood of Boilermakers 'Local Lodge 583
(the Union) on 25 April and amended on 6 June. The
complaint, which issued on 9 June, was amended at trial.
The complaint, as amended, alleges that Vulcan Trailer
Manufacturing Co., Inc.2 (Trailer) and its alter-ego
Vulcan Solid Waste, Inc. (Solid Waste) and its alter-ego
Preferred Solid Waste Systems (Preferred Waste) and its
alter-ego The Vulcan Company3 (Vulcan) are affiliated
businesses with common ownership, common officers,
common directors, common management , interrelated
operations, and common control of 'labor, relations, and
are by virtue of that relationship alter egos of each other
and responsible for the unfair labor practices. 1 shall
hereinafter refer to all the alter egos jointly as the Com-
pany. The complaint alleges that all production and
maintenance employees employed by the Company at its
Bessemer , Alabama facility, but excluding all office cleri-
cal employees, guards, and supervisors as ' defined in the
Act constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the' Act. It is alleged that the Union was certified on
12 February 1973 as the exclusive collective-bargaining
representative of all the employees in the above-de-
scribed unit and that the Union has been and is the repre-
sentative of a majority of the employees in that unit. It is
further alleged that since about 1973 the Company and
the Union have been parties to successive collective-bar-
gaining agreements with, the most recent agreement
being effective from 15 April 1985 until 14 April 1988. It
i All dates herein after are 1986, unless otherwise indicated,
2 The name of the Respondent appears as amended at trial.
a Counsel indicates in his posttrial brief that no appearance is made on
behalf of "The Vulcan Company" inasmuch as ii is not a corporation or
legal entity separate from the other companies but is a fictitious name.
Counsel filed an answer (without waiving proper service of the charges
or complaint and without consenting to jurisdiction), participated in a
pretrial conference , and filed a posttrial brief; however, neither he nor
any representative of the companies appeared at the trial herein. Counsel
asserts in his posttrial brief that Vulcan Trailer Manufacturing Co., Inc.
and Vulcan Solid Waste, Inc. "elected" not to participate in,the teal, and
that Preferred Solid Waste Systems had no notice of the hearing.
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is alleged that-pursuant to the most recent collective-bar-
gaining agreement the employees in labor grades 1, 2,
and 3 were on 5 April to have received a 25-cent-an-
hour wage increase. It is alleged that the Company failed
and refused to grant the wage increases . It is also alleged
that the Company has since about 15 April refused to
abide by the terms and conditions of its most recent col-
lective-bargaining agreement with the Union. The com-
plaint' alleges that such failures on the part of the Com-
pany violate Section 8(a)(5) of the Act. It is also alleged
that the Company about 9 March, through its supervisor
and agent, Stanley Gaines, threatened employees it
would refuse to recognize the Union as the exclusive
representative of the employees in the above-described
unit. It is further alleged that the Company, through its
supervisor and agent, Michael Skeya, about 28 April
threatened employees it would take unspecified reprisals
against them if they participated in any Board proceed-
ings.
The Company denies that Trailer, Solid Waste, and
Preferred Waste are alter egos of each other and denies
that any such- entity as Vulcan exists. The Company
raised other affirmative defenses and denied the commis-
sion of any unfair labor practices. All parties were af-
forded full opportunity to appear, to examine and cross-
examine witnesses, and to argue orally. Briefs, which
have been carefully considered, were filed on behalf of
the General Counsel . and the Company (specifically
Trailer, Solid Waste, and Preferred Waste).
On the entire record, including my observation of the
witnesses and their demeanor, I make the following4
FINDINGS OF FACT
1. JURISDICTION
It is admitted that Trailer is5 an Alabama corporation,
with an office and place of business located at Bessemer,
Alabama, where it is engaged in the manufacture of flat
trailers, low-bed trailers, and log trailers . It is admitted
that Trailer, during the past calendar year, purchased
and received , at its Bessemer, Alabama location supplies
valued in excess of $50,000 -directly from suppliers locat-
ed outside the State of Alabama . Accordingly, I find
Trailer :is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
4 The only witnesses to testify here, Jerry Chamblee and Hoover
Wilson, were both called by the General Counsel. No witnesses were
called by the Union and as is earlier indicated the Company did not
appear at the trial. I carefully observed Chamblee and Wilson as they tes-
tified , and they appeared to be attempting to describe the events about
which they testified as honestly as possible . Their testimony is supported
by other record evidence: Accordingly, I credit the uncontradicated testi-
mony of Chamblee and Wilson.
S'The Company in its answer and posttrial brief contends Trailer has
been out of business since 6 March, 'but admits it was subject to the
Board's jurisdiction at least until that date . The Company in its posttrial
brief describes Trailer,, as a corporation undergoing reorganization in
Chapter 11 bankruptcy proceedings. A decision on the alter ego status of
the related companies will resolve all questions of jurisdiction. I note the
Company in its answer, admitted that Solid Waste is, and has been for a
number of years, an Alabama corporation.
II. LABOR ,ORGANIZATION
The complaint alleges, the evidence establishes, and it
is admitted that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. BACKGROUND AND OPERATIVE FACTS
Trailer was founded in 1953 as a trailer repair/service
company operated by and for the benefit of Deaton, Inc.,
a Birmingham, Alabama based trucking company.6 As a
result of Trailer's repair expertise, it soon thereafter
became an original manufacturer of specialty type trail-
ers. In 1968 Deaton, Inc. moved its operations to Ensley,
Alabama, and Trailer moved as well. In 1969 Deaton,
Inc. and Trailer were acquired by Expeditor Systems,
Inc.
On 2 February 1973 the Board conducted a secret-
ballot election among the production and maintenance
employees of Trailer, and on 12 February 1973 the
Board certified the Union as the collective-bargaining
representative of those employees. Since approximately
1973 the parties have been parties to successive collec-
tive-bargaining agreements.' -
In 1978 Expeditor Systems, Inc. was- acquired by Old
Dominion Freight Lines, a common carrier trucking
company. In 1978 Trailer built a new, plant at Bessemer,
Alabama, and moved 'into its new facility in December
1979. Trailer was purchased by and became a wholly
owned subsidiary of Interstate Transportation Products
and Sales Co. Inc. in 1963 . Interstate Transportation Pro-
duction and Sales Co., Inc. is in turn a wholly owned
subsidiary of Meansco, Inc. Meansco, Inc. is owned by
Walter Jurek (25-percent shareholder), Andrew Jurek
(50-percent shareholder), and Owens -(25-percent share-
holder). Andrew Jurek (A. Jurek) and Owens are the
only directors of Trailer and they share responsibility for
the management and operation' of Trailer. A. Jurek is re-
sponsible for Trailer's operations and production, while
Owens is responsible for the financial and accounting as-
pects of the. Company. Preferred Waste was purchased
by and is a part of Meansco's corporate -structure. Pre-
ferred Waste was purchased from the Heil Company in
the early part of 1984 so Trailer could and thereafter did
manufacture solid waste disposal equipment. Preferred
Waste was utilized-as the selling company for the solid
waste containers that Trailer manufactured. Employee
and Grievance Committee Chairman Jerry Chamblee
(Chamblee) testified Trailer sold the solid waste disposal
equipment under the name Preferred Waste or Solid
6 The background for Trailer as well, as the information on the corpo-
rate structure of the various companies herein has been taken not only
from the record testimony , but from the Modified Disclosure Statement
and related documents filed by Trailer on 11 , March in the United States
Bankruptcy Court for the Northern District , of Alabama, Southern Divi-
sion `in the matter of Vulcan 'Trailer Manufacturing Company, Inc., BK
No. 85-3205 The Modified Disclosure Statement was signed by Trailer
Treasurer John B . Owens (Owens). The court-filed documents may be
used as evidence regarding the corporate structure of certain of the com-
panies herein inasmuch as the documents constitute admissions by a party
opponent within the meaning of Federal Rules of Evidence 801(dX2)(A)
and/or (D).
' The lmost recent collective-bargaining , agreement was effective from
15 April 1985 until 14 April 1988 , inclusive.
VULCAN TRAILER MFG. CO. 483
Waste, but labeled it with the Trailer logo . For approxi-
mately the past 2-1/2 years all the speciality trailers and
solid waste disposal equipment manufactured by the
companies has been manufactured by the production and
maintenance employees that are represented by the
Union.
During the -April 1985 negotiations for the most recent
collective-bargaining agreement, the Union asked Trailer
if any new job classifications were needed as the produc-
tion and maintenance employees manufactured the solid
waste disposal equipment . Chamblee, who was one of
the Union's 1985 - negotiating committee members , credi-
bly testified:
[W]e were talking about adding some language that
would cover these [solid waste disposal ] products
and all by name . And . . . manager David Sullivan
[who represented ] the company at [the] negotiations
.. told us the Preferred and Solid Waste, all those
load loaders and compactors employees would be
covered under the current contract.
He said there was not need for any new language.
He said all it is it's just a different product. He says
it's not ' really a different company , just a different
product. They're one in the same.
And we at that point agreed not to add any other
language."
On 23 May 1985 Trailer filed for bankruptcy under
Chapter 11, Title 11, of the United States Code "Bank-
ruptcy Code ." Trailer's original plan of reorganization
was rejected . On 5 March Trailer filed a modified plan
of reorganization with the Bankruptcy Court . The modi-
fied plan of reorganization contained no provision con-
cerning the collective-bargaining agreement between
Trailer and the Union .9 The modified plan of reorganiza-
tion, a liquidation plan, called for the transfer of all assets
to Solid Waste after disbursement was made to adminis-
trative creditors, secured creditors, and unsecured credi-
tors.' ° Under the plan Solid Waste was to pay Trailer
the fair market value for the property transferred to it.
Additionally, the plan called for Solid Waste to move
(with the Trailer assets) to a smaller location , merge with
Preferred Waste, and produce solid waste disposal equip-
ment as well as specialty trailers . On 21 May Bankruptcy
Judge Fulford confirmed Trailer's modified plan of reor-
ganization as summarized.
Chamblee credibly testified that on 9 March (4 days
after Trailer filed its modified plan of reorganization) Su-
pervisor Stanley Gaines " (Gaines or Supervisor Gaines)
8 International Union Representative Hoover Wilson (Wilson) corrobo-
rated Chamblee's testimony as outlined above.
8 Later, on 9 July Trailer applied to the Bankruptcy Court for an
order approving the rejection of its collective -bargaining agreement with
the Union. United States Bankruptcy Judge Clifford Fulford (Bankruptcy
Judge Fulford) denied Trailer's application in an order dated 19 August.
In re Vulcan Trailer Mfg. Co, Case 85-3205, United States Bankruptcy
Court for the Northern District of Alabama, Southern Division.
to Unsecured creditors were to receive 15 percent of Solid Waste's
preferred stock
11 According to the undisputed and credited testimony of Chamblee,
Games directed the work force in the fabrication department to include
signing the employees ' work forms and initialing their timecards : Gaines
called the fabrication department employees around his
desk and told them he had just come from a meeting
with Plant Manager Michael Skeya and add ed: "[T]he
company was planning on moving . And ... the union
would not be welcomed to go ... that they didn't
intend to put up with union problems ."' Chamblee asked
why the Union was not going and Gaines told him he
would have to ask Plant Manager Skeya that question.
Gaines told the employees he did not know when the
move would be accomplished.
Chamblee testified he and Wilson met with Plant Man-
ager Skeya on 13 March to discuss a third step griev-
ance.12 After the grievance matter was discussed, Wilson
asked Skeya if it was true that Trailer was planning on
moving and if there was such a plan, would all the em-
ployees be going , would the Union be welcome, and
would there still be a pension plan for the employees.
Plant Manager Skeya said, they were moving but they
had no intention whatsoever of taking the Union with
them to the new location . 'Skeya said the Company was
having problems and had to take care of itsel f. Skeya
told, Chamblee and Wilson that Trailer "had gone out of
business . . . [that] ... there would be a new company"
that "they were moving to Montevallo [Alabama] and
the best qualified employees would be allowed to go
with him but they would not take any union to Monte-
vallo."
-'Thereafter, on 9 April Wilson learned from Chamblee
that Trailer's management was having "one-on-one"
meetings , at the plant with unit employees. Wilson tele-
phoned Plant Manager Skeya and asked about the meet-
ings ' and asked Skeya if the Company was going to pay
the contractually called for 5 April wage increases.13
Skeya acknowledged meeting with the employees and in-
dicated the Company was not going to pay the wage in-
creases called for in the collective bargaining agreement.
Skeya agreed to meet with Wilson on 15 April to discuss
matters.
Plant Manager Skeya met with Wilson and Chamblee
on 15 April in the conference room at the plant. Skeya
again stated they would be taking the best qualified em-
ployees with them to Montevallo , but added there would
be no contract and no union there.' Skeya also said they
would not pay the wage increases called for in the col-
lective-bargaining agreement. Wilson testified:
I questioned [Plant Manager Skeya] about continu-
ing to represent the people , I told him I thought he
was in violation and he said, no , there would be no
union there; that they would have some sort of in-
house union that he would talk with his employees
could grant employees time off and had the authority to discipline them
up to and including discharge . Other supervisors at the Bessemer location
were Gary Marsh and Timmy Parker.
la Skeya was not the highest level management representative at the
Bessemer location. Owners Owens and A . Jurek had their offices there,
with A. Jurek having overall responsibility for plant operations and
Owens overseeing the financial and accounting aspects of the Company.
13 The parties' most recent collective-bargaining agreement (effective
15 April 1985 to 14 April 1988 inclusive ), Exh. B , p. 30, calls for certain
specifically set forth wage increases to be implemented by the Company
on 5 April.
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about [it] once he got there . . . I told him . . . I.
thought he was wrong and I intended to file
charges with the National Labor Relations , Board.
Wilson testified that ended the conversation. He indicat-
ed he had not had any further discussions with Plant
Manager Skeya since that time.
Wilson testified that union dues have not been checked
off by the Company since March and he added the wage
increases called for in the collective-bargaining agree-
ment were never paid.
Within a day or two of the above-described 15 April
meeting between Skeya, Wilson, and Chamblee, Trailer
employees were given a letter from A. Jurek and Owens
dated 15 April and written on "Vulcan Solid Waste Sys-
tems" stationery,14 that read in part as follows:
Almost everyone has questions about who we
are, who do I work for, the move from Bessemer,
wages, vacations and the like. This will attempt to
answer the most frequently asked questions.
As of now, we, all work for Vulcan Solid Waste
Systems, a company started two years ago in 1984.
Any time you had with Vulcan Trailer will, howev-
er, roll over to Vulcan Solid Waste.
Vulcan Solid Waste is the same company that
sells Transfer Trailers, Load Luggers and Compac-
tors that have been made by Vulcan Trailer these
past two years. Now, Vulcan Solid Waste has
-become the manufacturer, too.
In order to settle Vulcan Trailer's bankruptcy,
the company agreed to liquidate its inventories and
customer receivables. The money from this liquida-
tion will be paid-to Vulcan Trailer creditors. A f ir-
ther condition of the bankruptcy settlement requires
that we vacate this plant-which was always too
big for our needs.
We intend to . continue manufacturing Vulcan
Trailers because we have a 33 year history'of build-
ing quality products for the trailer industry. The
principal difference is that Vulcan Trailers will now
be built by Vucan Solid Waste in a new plant. Same
trailers-new plant.
Trailer orders have reached the lowest point in
the past ten years. We do not expect any further re-
duction. In fact, we expect steady, perhaps increas-
ing orders of the specialty trailers that earned
Vulcan' an enviable reputation. We build a quality
product.
Oders for waste handling equipment, are extreme-
ly promising.
We plan to increase work and your job is secure.
The new plant;, in Montevallo, is expected to be
ready for occupancy in late April. We will be
moving production first and then the office staff,
There will be some obvious dislocations, in produc-
tion which we hope to keep to a minimum. We also
hope for maximum effort on everyone's part to
complete the move smoothly and economically. If
you've got some ideas on ways to save money,
speak up now.
We will be using some of the same equipment,
fixtures, jigs, and so on that we have here, They
will simply move with us.
Wages at the new plant will continue at the
present rate. Owing to the phase-out of the corpora-
tion known as Vulcan Trailer Manufacturing Co.,
Inc., there is no contract between the present union
and the new company. (The old company, Vulcan
Trailer, ceased to exist as a wage payer in March
by court order).
Vulcan Solid Waste has no pension plan. We
have no union, dues either, which is a substantial
savings for you.
All policies concerning vacation at Vulcan Trail-
er will continue at Vulcan Solid Waste, and all time
earned at Vulcan Trailer for vacations will roll for-
ward to the new company.
Finally, all employees with a year of service
(either with, Vulcan Trailer or Solid ,Waste) will be
given three personal holidays to use, with full, pay,
any time they wish., ,
As is reflected elsewhere in this decision, the Union
filed the charge giving rise to the instant case on 25
April. Chamblee testified, that when Trailer received its
copy of the charge15 Plant Manager Skeya came out in
the plant area with the charge and asked him what he
knew about it. Chamblee told Skeya that Skeya knew as
much about the charge as Chamblee did. Skeya asked
what the charge was based on. Chamblee told him it was
based on the things that he, Skeya, and Wilson had dis-
cussed in their meeting on 15 April. Plant Manager
Skeya told Chamblee he felt it would be in Chamblee's
best interest if he did not get involved in the case.
Chamblee told Skeya it was "a sticky situation" for him,
but he intended to testify because he had been asked to,
and he intended to tell the truth to the National Labor
Relations Board. Skeya told Chamblee he understood the
situation and ended the conversation.
Chamblee testified that during April and May specialty
trailer sales were "a little slack," but unit employees con-
tinued to make solid waste disposal equipment. Chamblee
stated they started moving to the new facility in Monte-
vallo, Alabama, during the next few months. In that
14 The address on the stationery was 300 Industrial Parkway, Besse-
mer, Alabama. The stationery reflects in trademark style that it was for-
merly Heil Preferred Systems.
15 The return receipt for the 25 April charge reflects it was received at
Trailer on 28 April.
VULCAN TRAILER MFG. CO.
regard Chamblee testified: "I believe it was the fitting
and welding area that started to move first. They started
breaking down their equipment and loading it on trucks
to be shipped to ,Montevallo ." Chamblee asserts produc-
tion continued all during this transition time, but that it
was at "Fa very light flow." Chamblee stated one section
would keep working while other sections were broken
down for the move to the new facility. Chamblee credi-
bly testified the move to the new facility was complete
around 1 August. Chamblee stated that 18 , of the 20 pro-
duction and maintenance employees, and 11 of the 12
clerical employees employed at the new facility had been
employed at the old Bessemer,, Alabama location and had
simply transferred to the new facility. Chamblee, testified
the same supervision that had been utilized at the Besse-
mer location was utilized at the new facility, namely,
Plant Manager Skeya and Supervisors Gaines, Parker,
and Morris. Chamblee also stated that A. Jurek and
Owens performed the same functions at the new facility
that they had at the old Bessemer location . Chamblee
testified that all the, equipment utilized at the new Mon-
tevallo facility came from the old Bessemer location.
Chamblee testified that some of the raw materials and
supplies utilized at the new facility came from the old
Bessemer location while others were delivered to the
new location by the same suppliers that had supplied
items at the old location. Chamblee stated the same prod-
ucts-solid waste disposal equipment and specialty trail-
ers-were, and still are, being built at the new facility
that had been built at the Bessemer location.16
IV. GOVERNING PRINCIPLES , ANALYSIS, AND
CONCLUSIONS
In considering whether an alter ego relationship exists,
the Board stated in O. Voorhees Painting Co., 275 NLRB
779 fri. 3 (1985), that the standards set forth in Fugazy
Continental Corp., 265 NLRB 1301 (1982), enfd. 725 F.2d
1416 (D.C.' Cir. 1984), were the proper ones to apply. In
Fugazy Continental Corp. the Board held at 1301:
In determining, whether [one employer] is the
alter ego of -[another employer]; we must consider a
number of factors, no one of which, taken alone, is
the sine qua non of alter ego status . Among these
factors are: common management and ownership;
common business purposes,- nature , of operations,
and supervision; common premises and equipment;
-common customers, i.e., whether the employers
constitute "the same business in the same market;"
as well as the nature and. extent of the negotiations
and formalities surrounding the transaction.- We
must also consider whether the purpose behind the
creation of the alleged alter 'ego was legitimate or
whether, instead, its purpose was to evade responsi-
bilities under the Act. [Footnotes omitted.]
The Fugazy Continental Corp., supra, standards appear to
have been adopted from an array of earlier Board and
16 Additionally, Chamblee testified that from April until the date of
the'trial herein he had received various paychecks from the Company
some, for example , with the name Trailer crossed out and the name Solid
Waste typed in and others from "The Vulcan Company."
485
court decisions, particularly Crawford Door Sales Co., 226
NLRB 1144 (1976). Not all of these indicia listed above
need be present to find that an alter ego relationship
exists. See, e.g., Blake Construction Co., 245 NLRB 630,
634 (1979), enf. granted in part and denied in part on
other grounds 663 F.2d 272 (D.C. Cir. 1981). In examin-
ing the question of common ownership in alter ego situa-
tions, the Board only looks, for, "substantially -identical
ownership." See, e.g., Advance Electric, 268 NLRB 1001,
1004 (1984). The Board-in All Kind Quilting, Inc., 266
NLRB 1187 fn. 4 (1983), noted that an alter ego relation-
ship could exist even with no evidence of common own-
ership being, present at all. Any employer that is found to
be an alter ego of another is bound by any collective-
bargaining agreement executed by the other. E. G. Sprin-
kler Corp., 268 NLRB 1241 (1984), and NLRB v. Tricor
Products, 636 F.2d 266, 269-270 (10th Cir. 1980).
Applying the above standards and principles to the
facts herein, I conclude that a preponderance of the evi-
dence shows that each of the four companies named in
the complaint, as amended, are alter egos of each other.
Common ownership of these companies has been dem-
onstrated. Meansco, Inc., which is owned by Walter
Jurek and A. Jurek; and Trailer as well as Preferred
Waste are owned by Owens. At certain relevant times
Trailer manufactured and Preferred Waste sold the items
produced by the companies. After the liquidation of
Trailer was accomplished under the guidance of the
Bankruptcy Court, Solid Waste became the companies'
manufacturing arm and it,merged with Preferred Waste
to continue to produce specialty trailers and solid waste
disposal equipment. The employees - that had previously
worked for Trailer began to be paid by Solid 'Waste and
those same employees were informed by A. Jurek and
Owens in writing that they, as of mid-April, worked for
Solid Waste. Although the exact status of Vulcan is not
clear in this record, it is being utilized as the company
that pays the employees their wages.'" Simply stated,
the three owners of Meansco, Inc. own Trailer, Solid
Waste, Preferred Waste, and Vulcan, if Vulcan exists as
a separate corporate entity. The evidence ,-is conclusive
that A. Jurek was and/or is responsible for Trailer's,
Solid Waste's, Preferred, Waste's, and Vulcan's oper-
ations and production; and Owens was and/or- is respon-
sible for the' financial and accounting aspects of those en-
tities. Those two individuals' responsibilities are the same
at the Montevallo facility as they had been at the Besse-
mer location. Simply stated, the management structure of
these entities has not changed from the beginning to the
present. It is quite clear the -same business purpose has
existed throughout, at Bessemer as well as at Montevallo.
The nature of the operations, although smaller in size at
Montevallo, is identical to that which had been,'at: the
Bessemer location. Supervision for the various companies
has been the same at both locations (namely, Plant Man
ager Skeya and Supervisors Gaines, Marsh, and Parker).
All the equipment used at the Montevallo facility was
17 If Vulcan is not a corporation or legal entity separate from Trailer,
Sohd Waste, and Preferred Waste but is a "fictitious name" as contended
by company counsel , then that matter can be resolved with the Board,
adnumstratively, or at the compliance stage herein.
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
brought there from the Bessemer location. The custom-
ers, throughout the history of the companies, have re-
mained the same . Some of the raw materials and supplies
used at the Montevallo facility were brought from the
Bessemer location . Additional supplies and raw materials
have been supplied by the same suppliers that previously
serviced the Company at its Bessemer location. The em-
ployees at the Montevallo facility-production and main-
tenance as well as clerical-came almost exclusively
from the work force at the Bessemer location. -
Although there is some evidence that tends to suggest
the owners of Trailer had legitimate reasons for estab-
lishing certain of the alter egos, the evidence is over-
whelming that they created the alter egos in order to
evade their responsibilities under the Act. A number of
factors persuade me that the owners of Trailer took the
actions they did because of antiunion sentiments and in
order to avoid their obligations under the collective-bar-
gaining agreement with the Union. For example, Super-
visor Gaines 1 s told the fabrication department employ-
ees that Trailer was moving from Bessemer to Monte-
vallo and the Union would not be welcome to go with it
because they did not intend to put up with union prob-
lems.19 Plant Manager Skeya told Wilson that Trailer
was -going to move to its new location, and the Union
would not be -welcome or recognized at the new location
because the Company.had problems and had to take care
of itself. Skeya told Wilson there would be no contract,
no union, and no called-for wage increases at the new, lo-
cation. Plant Manager Skeya also told Wilson the Com-
pany would form its own in-house union at its new loca-
tion. That Trailer took the actions it did in order to
escape its obligations under the Act is also demonstrated
by the fact it discontinued payment of union dues-check-
off and refused to pay the contractually called-for wage
increases even before the bankruptcy court approved its
modified plan of reorganization. Instead of granting the
contractually called for wage increases , Trailer trans-
ferred its employees to the payroll of Solid Waste and
then stated it had no obligation to pay the increased
wages or deduct union dues. The bankruptcy court
never ,granted Trailer's belated request to reject its col-
lective-bargaining agreement with the Union.
Based on all the above factors, I am persuaded that
Trailer, Solid Waste, Preferred Waste, and Vulcan are all
alter egos of each other and are all liable for all unfair
labor practice violations found, herein.2 0 Inasmuch as the
18 The evidence clearly establishes that Gaines is a supervisor within
the meaning of the Act. He had and exercised certain indicia of supervi-
sory status For example, he directed the fabrication work force, granted
time off, and disciplined employees up to and including discharge.
19 I find, as alleged in -the complaint,, that Games' remarks constituted
a threat that the Company would refuse to recognize the Union as the
exclusive bargaining representative of its production and maintenance
employees.
20 Trailer's, Solid Waste's, and Preferred Waste's contention that due
process was not afforded them because they were not all served with the
charge and/or complaint ' herein is without merit. The record reflects
service was perfected on Trailer. The Board has held that where a com-
plaint and charge have been served on one alter ego it constitutes service
on all entities found to be alter egos of the company receiving proper
service of the relevant documents See Sturdevant Roofing Co, 238
NLRB 186, 188 (1978), enfd. in pertinent part 636 F.2d 271 (10th Cir
1980).
Company (Trailer, Solid Waste, Preferred Waste, and
Vulcan jointly) failed and refused about-5 April to grant
the contractually called for wage increases, it violated
Section 8(a)(5)'of the Act. Likewise, when the Company
about 15 April failed and refused to abide by the terms
of its most recent collective-bargaining agreement with
the Union it also violated Section 8(a)(5) of the Act.
Finally, I find Plant Manager Skeya threatened em-
ployee Chamblee with unspecified reprisals when- he told
Chamblee in late April after the Union had filed a charge
with the Board that it would be in Chamblee's best inter-
est not to get involved in the case . The remark was
made by a high level member of management and oc-
curred at a time when the Company was committing
other unfair labor practices. No 'valid or justifiable
reason was advanced or' suggested for Skeya's conduct.
Accordingly, I find Skeya's comments violated Section
8(a)(1) of the Act. See S & R Sundries, 272 NLRB 1352
fn. 2 (1984). -
CONCLUSIONS OF LAW
1. Vulcan Trailer Manufacturing Co., Inc., Vulcan
Solid Waste, Inc., Preferred Solid Waste Systems, and
the Vulcan Company (jointly the Company) are alter
egos of each other and constitute an employer engaged
in commerce -within the meaning of Section 2(2),, (6), and
(7) of the Act.
2. International Brotherhood of Boilermakers, Local
Lodge 583 is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Company at its Montevallo, Alabama fa-
cility, but excluding all office clerical employees, guards,
and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since 12 February 1973 and at all times material, the
Union has been the duly designated collective-bargaining
representative of the employees in the above-described
unit.
5. The Company violated Section 8(a)(5) of the Act by
failing and refusing since about 5 April to grant the wage
increases called for in its collective-bargaining agreement
with the Union, and by failing and refusing since about
15 April to abide by the terms and conditions of its col-
lective-bargaining agreement with the Union.
6. The Company violated Section 8(a)(1) of the Act
when- about 9 March it threatened its employees that it
would refuse to recognize the Union as the exclusive
representative of its employees in the unit described
above, and when about 28 April it threatened its employ-
ees 'with unspecified reprisals if they participated in any
Board proceedings.
7. The unfair labor -practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
It having been found that the Company has engaged in
certain unfair labor practices, I recommend that it be re-
quired to cease and desist therefrom and take certain af-
VULCAN TRAILER MEG. CO. 487
firmative actions necessary to effectuate the policies of
the Act.
Inasmuch as I have found the. Company violated the
Act by failing and refusing to abide by the terms of col-
lective-bargaining agreement with the Union, I shall rec-
ommend that it be required to recognize and, on request;
bargain collectively with the, Union as the exclusive bar-
gaining representative of its employees in the appropriate
unit described in this decision and that it abide by the
terms of the collective bargaining agreement it has with
the Union. Likewise, inasmuch as the Company violated
the Act by failing and refusing to grant the April wage
increases called for in its collective -bargaining agreement
with the Union, I shall recommend the Company be or-
dered to grant such wage ,increases retroactive to the ef-
fective date set forth in the collective-bargaining agree-
ment. Such monetary amounts are to be computed in ac-
cordance 'with the Board's decision in We Protection
Service, 183 NLRB 682 (1970), with interest thereon as
prescribed in Florida Steel Corp., 231 NLRB 651 (1971).
It is also recommended that the Company be ordered to
post the notice to employees attached hereto as "Appen-
dix" for a period of 60 consecutive days in order that
employees may be apprised of their rights under the Act
and the ' Company's obligation to remedy its unfair labor
practices.
[Recommended Order omitted from publication.]