Naperville Ready Mix

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174 Naperville Ready Mix, Inc.; T & W Trucking, Inc.; Wehrli Equipment Co.; Diamond Ready Mix, Inc.; Fox Valley Ready Mix, Inc.; Concrete 1, Inc.; Concrete 2, Inc.; Concrete 3, Inc.; Con- crete 4, Inc. and General Teamsters, Chauffeurs, Salesdrivers and Helpers Local Union No. 673, affiliated with the International Brotherhood of Teamsters, AFL–CIO. Cases 13–CA–31031, 13– CA–31059, 13–CA–31061, and 13–CA–31097 September 21, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN On October 13, 1995, Administrative Law Judge Rob- ert T. Wallace issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondents filed cross-exceptions and a brief in answer to the General Counsel’s exceptions. 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, findings, and conclusions only to the extent consistent with this Decision and Order. The complaint in this case alleges that Naperville Ready Mix, Inc. (NRM), T&W Trucking, Inc. (T&W), and Wehrli Equipment Co. (WEC), as affiliated business enterprises, comprise a single employer and violated Sec- tion 8(a)(5), (3), and (1) of the Act.1 Specifically, the complaint alleges that Respondent NRM violated Section 8(a)(1) by interfering with employees’ union activities through interrogation and threats; that Respondent NRM violated Section 8(a)(5) and (1) by direct dealing with its represented employees, unilaterally transferring bargain- ing unit work to nonbargaining unit employees, and re- fusing to provide information to the Union; and that Re- spondent NRM violated Section 8(a)(3) and (1) by dis- charging unit employees whose work had been reas- signed and by failing and refusing to reinstate unfair la- bor practice strikers upon their unconditional offer to return to work. In addition, the complaint alleges that Respondent NRM and six other corporate entities— Diamond Ready Mix, Inc.; Fox Valley Ready Mix, Inc.; Concrete 1, Inc.; Concrete 2, Inc.; Concrete 3, Inc.; and Concrete 4, Inc.—together comprise a single employer which violated Section 8(a)(5), (3), and (1) by circum- venting its bargaining obligations to the Union, transfer- ring out unit work and discharging unit workers, refusing to provide information to the Union, and refusing to rein- state unfair labor practice strikers. 1 As set out in the analysis, we sustain this allegation and find that these entities are a single employer, so that the unlawful acts of any one are chargeable to all. For ease of reference, however, in describing and analyzing the course of events, we refer to the entities individually and use the term Respondents mainly when describing the legal submis- sions made in the Respondents’ jointly filed brief. While discussing without reaching conclusions on the named Respondents’ single-employer status, the judge dismissed the complaint in its entirety. Among his find- ings, the judge determined that Respondent NRM’s deci- sion regarding the continued conduct of its trucking op- eration fell within its entrepreneurial discretion and was not subject to bargaining; that the Union had waived its right to bargain over the effects of that decision; that Re- spondent NRM’s transactions with the six newly formed companies legitimately divested it of control over the transferred assets (i.e., they were not “sham” transac- tions); that the Union requests for information were un- timely; and that statements and questions to employees were lawful efforts to impart and/or obtain information necessary for the conduct of its business. The General Counsel excepts to nearly all of the judge’s findings and conclusions. Upon our review of the evidence, we find merit in most of the General Coun- sel’s exceptions. Because understanding of the factual underpinnings of this case is vital to the resolutions of the issues in this case, we restate the facts of this case in detail.2 I. STATEMENT OF FACTS A. The Companies Naperville Ready Mix, Inc. (NRM), incorporated in 1960, is in the business of producing and delivering con- crete, primarily for residential construction. Richard Wehrli and his wife, Judith, are the sole stockholders and serve, respectively, as corporate president and secretary. Along with Jerome Doll, Richard Wehrli’s brother-in- law, and until June 30, 1992, their son, Robert, they comprise NRM’s board of directors.3 NRM, along with other companies discussed below, is located at 1805 High Grove Street in Naperville, Illinois. The High Grove site includes an office building, garage, mechani- cal shop, concrete batch plant, and a storage facility. Until approximately June 30, 1992, Robert Tilly was NRM’s maintenance supervisor. NRM employed truck- drivers, mechanics, and dispatchers. The drivers have been represented by Teamsters Local 673 (the Union) since 1960. 2 This statement of facts reflects findings made by the judge where they are supported by the record and additional factual findings on matters the judge did not address, where the evidence is uncontradicted. It is the Board’s established policy not to overrule an administrative law judge’s credibility findings unless the clear preponderance of all the relevant evidence convinces us they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951); and we have not reversed any of the judge’s credibility findings in this case. In a number of instances, however, we have drawn differ- ent factual inferences from the credited or undisputed testimony. 3 All references hereafter to “Wehrli” are to Richard Wehrli. When referring to his sons, we will use their first names. 329 NLRB No. 19 NAPERVILLE READY MIX, INC. 175 Richard Wehrli incorporated Wehrli Equipment Co., Inc. (WEC) in 1978 and is its sole shareholder. Along with his wife and Jerome Doll, Wehrli served as director until December 31, 1992, when his son, Scott, replaced him on the board. WEC repairs and reconstructs dump trucks for NRM and others at the High Grove Street site. Robert Tilly serves as maintenance supervisor at WEC.4 T&W Trucking, Inc. (T&W) was incorporated in 1987 by Richard Wehrli and Robert Tilly, each holding a 50- percent stock interest and together acting as T&W’s only directors and officers. T&W hauls bulk cement, gravel, stone, precast concrete, and roof tile. T&W does not have office space at the High Grove Street location, but its trucks are usually stationed there. Tilly is T&W’s president and runs its day-to-day activities from his home. From January 1, through December 31, 1992, NRM and Dukane Precast,5 another company in which Wehrli has an ownership interest, were the only compa- nies for which T&W provided hauling. T&W had no contract with the Union. B. Course of Events As stated above, NRM’s truckdrivers have been repre- sented by the Union since 1960. From the early 1960s until 1986, as a member of the Northern Illinois Ready Mix Association (NIRMA), Wehrli represented NRM in contract negotiations with the Union. Upon leaving NIRMA, NRM negotiated with the Union along with a group of independent companies called the Western Bor- der Group (WBG). In 1989, Wehrli negotiated with the Union individually, resulting in an agreement with a term from May 1, 1989, through April 30, 1992. The events of this case begin with the negotiations for a successor bargaining agreement in 1992. The parties’ first bargaining session took place on April 21, 1992.6 Union Secretary-Treasurer Tom Custer and Business Agent Ron Smith represented the Union. Wehrli, his son Robert, and Doll represented NRM. The Union submitted a written proposal, seeking changes in wages, pensions, and contract language relating to work preservation and protection of standards.7 NRM rejected the Union’s proposal. Wehrli began negotiations by remarking about the high costs of health insurance and other fringe benefits, and the unfavorable economic climate in the industry gener- 4 The judge found that Tilly began working for WEC on approxi- mately June 30, 1992. In the hearing transcript, Tilly is recorded as having testified that he joined WEC in 1994. However, based on other record evidence, it appears that Tilly assumed duties with WEC during 1992 and that he simply either misspoke at the hearing or that there is an error in the transcript. 5 Dukane Precast is also located at 1805 High Grove Street. 6 Dates refer to 1992 unless otherwise stated. 7 Among the Union’s proposals were a $1-an-hour wage increase, decreasing the time for new employees to reach contract rate, increased pension benefits, and changes in the work preservation/protection of standards language (art. 17) to conform to the same article in the NIRMA agreement. ally and for NRM in particular. He suggested that con- cessions might help its situation. In response to the Un- ion’s written proposal, Wehrli proposed rolling over the contract for a year, but replacing the Union’s health and welfare and pension plans with the Company’s own. Either in the initial meeting or the next, Wehrli stated that without union cooperation, he might go out of the ready mix business completely, park the trucks and wait for business conditions to improve, or sell the trucks to the drivers and lease them back for company use. Although the contract expired on April 30, the parties did not meet again until May 7. Union President Al Scholtens replaced Smith at this meeting. Ignoring the Union’s request to discuss the Union’s proposal item-by- item, Wehrli charged that the Union was trying to get him to agree to the same contract terms as NIRMA and WBG, but that NRM could not compete on that basis in the current residential construction climate. Wehrli stated that he was not making money on deliveries and wanted to sell the trucks to his drivers. He said that he wanted to operate like Elmhurst Chicago Stone (Elm- hurst), a construction company that paid owner-operators by the number of yards of ready mix hauled, rather than at an hourly rate. Union Secretary-Treasurer Custer re- plied that such an arrangement would require NRM to be party to the NIRMA agreement as Elmhurst was. Custer stated further that his purpose at this meeting was to ne- gotiate a contract, not to assist in Wehrli’s selling his trucks. Wehrli asked Custer if the Union would sign contracts with owner-operators hauling cement from NRM. Custer said no, and Scholtens warned that using owner-operators could lead to a strike against all We- hrli’s companies. Wehrli then reasserted his proposal from the prior meeting, i.e., rolling over the contract with revisions in the health and pension plans. On May 12, Wehrli faxed Custer the following mes- sage: I have decided to go out of the trucking business and am offering to sell my trucks to my present driv- ers first, and then any leftover trucks will be offered to outsiders. I intend to use individual contractors for all my trucking needs. If you want any discussion with me in this regard feel free to call. Custer testified that he viewed this communication merely as a bargaining ploy because it reiterated the theme Wehrli raised in the first meeting. Custer added that he thought this tactic was designed to persuade the Union to agree to roll over the current agreement, thereby providing NRM with better contract terms than others in the industry. Thus, he did not reply in writing. The parties met for the third time on May 14. The Un- ion withdrew a number of items from its proposal. We- hrli testified that the Respondent agreed to language DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176 changes in articles 12, 13, and 17. Wehrli again said that he wanted to sell the trucks and offered a 1-year rollover and deletion of contract article 24,8 entitled “Owner- Drivers Operators” which he perceived as an obstacle to their sale. Custer repeated that he was not there to help Wehrli sell the trucks and opposed any change in article 24. Custer also advised Wehrli that Elmhurst operated under an agreement which contained the same owner- drivers operators clause as the parties’ article 24.9 On May 15, the Union received a written contract offer from NRM, rejecting the Union’s proposal and proposing the deletion of article 24 and a 1-year rollover of the re- maining contract terms. On May 20 and 27, Wehrli held meetings with NRM drivers.10 In the first meeting, Wehrli told employees that he was not making money and that he was either going to sell the entire business or just keep running the batch plant and sell the Company’s 25 trucks to drivers who would deliver NRM’s product. He told them that he could save money by selling the trucks by July 1, and therefore, drivers interested in becoming owners should decide quickly.11 He proposed paying owner-drivers at the rate of $14 per yard and provided an estimate of how much they might earn as owner-operators. He also of- fered to help drivers with financing, licenses, title trans- fers, and insurance. He further explained that as outsid- ers purchased trucks, unit drivers would be laid off in reverse seniority order.12 After receiving NRM’s May 15 written proposal, Cus- ter met with the Union’s membership to discuss the status of negotiations. At this meeting, employees told Custer about the meetings with Wehrli and his proposal to sell them NRM’s trucks. The membership voted to reject NRM’s proposal and gave the Union authorization to call a strike. Custer told them that since negotiations 8 Sec. 24.1 of art. 24 provides, in part, as follows: “Owner-drivers operating their own vehicles and who are not certified carriers with proper Illinois Commerce Authority are covered within the terms and conditions of this agreement, including union security, hours, wages, overtime, health and welfare and pension and working conditions.” Sec. 24.2 reads: “The Employer of such owner-drivers agrees not to enter into any agreement or contract with such owner-driver, either individually or collectively which in any way conflicts with any of the terms or provisions of this article. Any such agreement shall be null and void.” 9 Custer testified that there was nothing in the parties’ existing con- tract that prohibited NRM from selling its trucks and operating like Elmhurst. 10 The evidence clearly establishes that NRM managers met with employees at least on those two dates although there may have been additional occasions. 11 NRM could save approximately $40,000 in renewal fees by not li- censing the trucks. 12 The General Counsel contends that these meetings constituted unlawful direct dealing with unit employees and that certain statements Weherli made within the context of the meetings additionally violated the Act. These issues will be discussed further in the analysis section, infra. were still under way, no strike would begin without fur- ther consultation with the membership. On May 27, Wehrli met with two NRM mechanics who had heard that NRM’s trucks were for sale. Wehrli proposed that they continue to service the former NRM- owned trucks even after they were sold, but that they also operate as independent businesses, receiving payment directly from the new owner-operators rather than from NRM. In response to the mechanics’ concern about their financial risk under this arrangement, Wehrli assured them that they would not be “screwed,” and that he would pay them himself if a new owner-driver did not. By June 1, two NRM employees, Robert Wehrli and driver Richard Downs, had agreed to purchase NRM trucks. NRM then placed an ad in several newspapers inviting drivers interested in owning their own concrete mix trucks and doing business with an established com- pany to contact Jerry Doll. Doll received about 50 re- sponses. He checked the credit references listed by the prospective buyers by calling the references directly.13 From this process, Doll identified 10 potential purchas- ers. On June 1, Custer telephoned Wehrli, and the two agreed to meet the following week. During their phone conversation Wehrli raised the truck sale issue, but Cus- ter said it could not be done. The June 9 meeting was attended by only Custer, Wehrli, and Robert Wehrli. Robert Wehrli told Custer that he was planning to pur- chase some of NRM’s trucks and asked if he could indi- vidually sign a contract with the Union as an owner- driver. Custer said he could not, and then briefed them on the contract terms recently reached between the Union and NIRMA. On June 15, Custer and Smith met with Wehrli and Doll through a Federal mediator. The Union modified its proposal, and NRM proposed a 1-year rollover, deletion of article 24, and a wage and benefit increase modeled after the new NIRMA agreement. Later that same day, the union membership voted to reject the offer and reauthorized the strike, which began on June 17. Shortly after the strike began, Wehrli spoke with a group of strikers and told them they could haul for him as owner-drivers. He informed them that they could es- cape union sanctions by becoming financial core mem- bers. Thereafter, NRM distributed to employees, along with their paychecks, a document describing the process of becoming financial core members, including a form to be completed and submitted to the Union. Also in mid-June, Wehrli had Attorney William Ull- rich set up 10 corporations, named Concrete 1 through Concrete 10, with Wehrli as president and director of each, Ullrich as registered agent, and Ullrich’s office as 13 Doll testified that he did not go through a credit company to obtain reports about those individuals and received no written credit reports. NAPERVILLE READY MIX, INC. 177 the corporate address. On June 16, Robert Wehrli had Ullrich set up Diamond Ready Mix, Inc., with Ullrich listed as registered agent and his office as the corporate address. Robert Wehrli acquired all the stock of Dia- mond Ready Mix, Inc. and became its sole director on June 22. NRM and the Union met briefly on June 21 and 22. While no progress was made in these meetings, Custer testified that during the meeting on June 22, he asked what he could do to resolve the problem, referring to the strike. Wehrli replied that it was too late, that Custer would have to talk to his son and the other owners of the trucks because Wehrli had sold them. In a letter to Custer dated June 24, Wehrli declared an impasse and stated he intended to implement its last offer on June 29. At the Union’s insistence, however, the par- ties met on June 25. Although NRM offered to increase its economic package, no agreement was reached. On July 1, the Union lowered its wage demand and indicated a willingness to modify, but not delete, article 24. We- hrli asserted that his June 25 offer was final. During the last week of June, Wehrli entered into “handshake agreements” to sell several NRM trucks. In addition to the two trucks his son Robert and the two that NRM driver Downs had earlier agreed to buy, Wehrli agreed to sell two trucks to Wehrli Equipment mechanic Steve Weissinger,14 two to Michael Drane, and one to Tate Haley. Drane and Haley had responded to the newspaper ad for owner-drivers and had no prior connec- tion to NRM or any Wehrli-affiliated company. Wehrli set the price of the trucks, required no down payment from purchasers, and established a payment rate of $14-per-cubic yard of NRM ready mix hauled by the truck. He determined that $1 from each $14 payment would be applied toward the principal cost of the truck. Interest was to be at prime rate established by a particular bank, and NRM retained a security interest in the vehi- cles, as well as first priority on their use. Between June 28–30, title to the vehicles identified for sale was transferred from NRM to various corporations. Robert Wehrli’s trucks were placed in Diamond Ready Mix. Weissinger’s trucks were titled to Fox Valley Ready Mix, Inc., his preexisting corporate shell. Wehrli transferred title to three NRM trucks into three of the recently formed Concrete corporations, one each to Con- crete 1, Concrete 2, and Concrete 3. Thereafter, Downs acquired the stock of Concrete 1, Drane purchased Con- crete 2 and Haley acquired Concrete 3.15 These five “owner-drivers” began delivering NRM ready mix on July 1. 14 The judge identified Weissinger as a T&W driver, but Weissinger testified that he worked for Wehrli Equipment as a mechanic. 15 Further details about these transactions and the manner in which the new trucking companies operated will be set forth in the “analysis” section. Following the parties’ July 1 meeting, Custer made a written request for information regarding the sale of the trucks and suggested that negotiations resume after the Union had an opportunity to review the information. The Union’s attorney followed up in a July 2 letter requesting that NRM provide information relating to the sale, trans- fer, lease, or purchase of ready mix trucks from Naper- ville Ready Mix to its former employees, independent contractors, or owner-operators. The letter specifically requested purchase contracts, financing agreements, leases, and maintenance and repair arrangements and noted that failure to provide the information would result in an unfair labor practice charge being filed. NRM’s attorney replied by letter of July 10, stating that NRM had the right to continue to operate during the strike, “including selling vehicles to persons to whom the com- pany can subcontract its work.”16 Further, the letter as- serted that the Union had no right to know the financial arrangements between NRM and its subcontractors and disputed the relevance of the requested information to the Union’s representational function. The Union filed un- fair labor practice charges alleging, inter alia, failure to provide the requested information. At the Union’s request, Wehrli met briefly with Custer in late July. Custer asked if there were some way to re- solve their differences, and Wehrli said that the trucks were sold and it was too late. Nevertheless, Wehrli asked to see the contract under which Elmhurst was op- erating. Custer repeated that Elmhurst was party to the NIRMA agreement. In another union-requested meeting on August 7, Cus- ter proffered a six-point proposal for Wehrli’s considera- tion. It absolved NRM from responsibility to provide wages or benefits to owner-operators of trucks used by NRM, extended contract coverage to previously ex- cluded employees of NRM, as well as to T&W drivers who declined to cross the picket line, required owner- operators to sign the NIRMA agreement, provided for withdrawal of unfair labor practice charges, and called for severance pay for employees who lost their jobs. Wehrli rejected all but the first item. By fax of August 18, NRM advised the Union that it intended to sell all remaining NRM vehicles and that NRM would stop doing any of its own deliveries. To that end, NRM proposed adding to its previous (June 25) proposal, the elimination of article 17, covering subcon- tracting,17 from the agreement. The message continued: As you know, we believe we are at an impasse on the issue of our plan to subcontract all delivery 16 GC Exh. 13. 17 Art. 17 of the expired collective-bargaining agreement, entitled “SUBCONTRACTING,” reads as follows: “Employer agrees that it shall not lease, assign, subcontract any bargaining unit work to any person, partnership, corporation or business enterprises until or unless all of employer’s equipment and work force is engaged, and/or the employer does not own the necessary equipment to perform the work.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178 work. Of course we are still willing to bargain with you on the issue of subcontracting. However, we believe it would be more fruitful to begin bargaining over the effects of subcontracting. If you are interested in further negotiations, please call me to schedule a meeting. The Union did not respond, and no further negotiations took place. On August 24, another T&W driver, Brad Bonnell, ac- quired from Wehrli the stock of Concrete 4 under the same terms that had been set with the other new compa- nies. Concrete 4 held the title for one NRM mixer truck and began operating immediately. By October, the continuing strike had hurt the profit- ability of hauling ready mix for NRM. In response, We- hrli waived interest payments for Fox Valley and Con- crete 1, 2, 3, and 4 and halved the principal payment to 50 cents per yard until January 1993. In addition, he lowered the purchase price on the trucks acquired by his son’s corporation, Diamond Ready Mix. From July 1993 through May 1994, Diamond, Fox, Concrete 1, and Concrete 2 increased the number of trucks in their fleet and expanded their operations. Con- crete 3 and Concrete 4 continued to operate with one truck each. Early in February 1993, the Union made an uncondi- tional offer on behalf of named strikers to return to work. NRM did not recall any strikers. II. THE JUDGE’S DECISION Citing Textile Workers v. Darlington Mfg. Co., 380 U.S. 263 (1965), the administrative law judge began his analysis with the statement that an employer’s decision to go out of business is a matter within its managerial discretion and not subject to any obligation to bargain. He stated, “[T]here is no claim in the instant case that Naperville had to bargain about a decision to discontinue trucking operations.” He then focused solely on NRM’s obligation to bargain over the effects of its decision re- garding the trucking business. Having determined that industry economics were the basis for NRM’s action, he found that the Union failed to avail itself of the opportu- nity to engage in effects bargaining and concluded that it waived its rights. In addition, he concluded that because a number of union members attended the May meetings in which Wehrli described to employees how they could become owner-drivers, the Union had “contemporaneous knowledge” of the meetings, thus excusing any possible lack of prior notice to the Union18 and removing the basis 18 The judge stated that Wehrli testified that he was “not certain” whether he had given prior notice to the Union about the meetings and noted the Wehrli’s testimony was inconsistent on this matter. Analo- gizing this situation to the small plant doctrine, the judge determined that because a number of union members attended these meetings, the Union had contemporaneous knowledge of them. Thus, he determined that whether or not Wehrli notified the Union was unimportant. for a finding of direct dealing. Moreover, he character- ized the proposals that Wehrli presented to the drivers in these meetings as purely “financial and managerial in nature and not of a type giving rise to a duty to bargain.” The judge then rejected the General Counsel’s conten- tion that the July transfer of the trucks to six corporations were sham transactions, designed to continue control by NRM, and found instead a bona fide transfer of assets, with corresponding shifting of control, risk, liabilities, and responsibility away from Wehrli. He characterized the continued connection between the use of the trucks and the Wehrli-held businesses, as well as the favorable terms of sale, to be “de minimis” matters of “mutual convenience” rather than evidence of lack of arm’s- length business deals. As for the statement of Wehrli and his son Robert to a unit driver that he would be out of a job unless he bought a truck, the judge reasoned that because NRM was plan- ning to get out of the delivery business, such statements were not intended to discourage support for the Union, but rather merely to apprise him of NRM’s plans and of the opportunity to become an owner driver. Finally, the judge dismissed the allegation that NRM unlawfully so- licited strikers to resign from the Union by advising them of the financial core option. Thus, he dismissed all un- fair labor practice allegations against NRM.19 III. THE GENERAL COUNSEL’S EXCEPTIONS The General Counsel excepted to nearly every aspect of the judge’s decision. The primary thrust of the Gen- eral Counsel’s exceptions is that the judge based his analysis on an erroneous premise, i.e., that there was no contention that NRM was obligated to bargain over its decision regarding its trucking operation. The General Counsel asserts that what is at issue in this case is not a decision by NRM to go out of business, but rather a deci- sion by NRM to subcontract and transfer work outside the bargaining unit, which under the proper application of Fibreboard20 and First National Maintenance,21 is a mandatory subject of bargaining. The General Counsel asserts that because the judge misperceived the theory of liability argued by the General Counsel, he failed to view the evidence in its proper perspective. 19 We adopt the judge’s dismissal of the 8(a)(1) allegation that We- hrli unlawfully interrogated nonunionized T&W drivers as to whether they would drive across the Union’s picket line. Like the judge, we find this statement to be a permissible inquiry regarding whether NRM would be able to rely on T&W drivers to transport its product. The judge also dismissed the allegation that Wehrli violated Sec. 8(a)(1) by telling T&W drivers that they would have to cross the picket line in order to keep their jobs, but we do not pass on that issue. In IV,4, infra, we conclude that Wehrli unlawfully threatened NRM em- ployees with job loss. Therefore, the finding of an additional violation based on Wehrli’s statements to the T&W employees would be cumula- tive and would not affect the Order. 20 Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). 21 First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). NAPERVILLE READY MIX, INC. 179 We agree that the judge misperceived the essence of the General Counsel’s theory and erred by assuming at the outset that NRM had, in fact, gone out of the trucking business in mid-1992. Indeed, whether the Respondent went out of the trucking business or whether it continued to engage in trucking operations, albeit under a different guise is really the pivotal question. To answer this, we must look at the transactions which governed the transfer of trucks from NRM to the six other entities and the manner and terms under which those entities performed work for NRM. Before reaching that question, however, we will first resolve the issue of the single-employer status of NRM, T&W, and WEC. IV. ANALYSIS A. Single Employer Single-employer status is characterized by the absence of an arm’s-length relationship found among uninte- grated companies.22 As set forth in Central Mack Sales, 273 NLRB 1268, 1271–1272 (1984), citing Bryar Con- struction Co., 240 NLRB 102, 103–104 (1979), the test for single-employer status is as follows: In determining whether two or more businesses are sufficiently integrated so that they may be fairly treated, for jurisdictional and other purposes, as a single enterprise, the Board looks to four principal factors: (1) common management; (2) centralized control of labor relations; (3) interrelation of opera- tions; and (4) common ownership or financial con- trol. Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965); Sakrete of Northern California Inc. v. N.L.R.B., 322 F.2d 902, 905, fn. 4 (9th Cir. 1964). “The Board has determined that no single criterion is controlling, although it considers the first three, which evidence operational integra- tion, more critical than the fourth, common owner- ship.” N.L.R.B. v. Triumph Curing Center and M.F. Lee d/b/a Lee’s Sewing Company, Inc., 571 F.2d 462, 468 (9th Cir. 1978), enfg. 222 NLRB 627 (1976). The evidence of common ownership among three of the named Respondents is undisputed: Wehrli and his wife share ownership of NRM, Wehrli owns WEC out- right, and he holds a 50-percent interest in T&W, with Tilly holding the other half. Wehrli’s significant owner- ship interest in these three entities demonstrates common ownership. At all relevant times, Wehrli served as corporate direc- tor for all three companies.23 Tilly is the only other di- rector for T&W, while Doll serves on the board of NRM 22 RBE Electronics of S.D., 320 NLRB 80 (1995), citing Hydrolines, Inc., 305 NLRB 416 (1991). 23 Wehrli served as director for WEC through December 31, 1992. and WEC, along with Werli’s wife and sons. Wehrli is president of NRM, secretary of T&W, and served as president of WEC through 1992, when his son, Scott, took over. Wehrli’s wife is secretary of NRM and secre- tary of WEC. Tilly is president of T&W. The concen- tration of corporate authority within this limited group, with Werhli predominant, further demonstrates their common management. T&W’s work essentially involves operating trucks to haul materials from suppliers to NRM to be used in the manufacture of concrete. At the time of the strike, this was the only work being performed by T&W. Without NRM’s need for materials, T&W would have had no work and without T&W’s delivering materials, NRM would be unable to produce concrete. The functional integration of these two companies is clear. The Wehrli-affiliated companies’ joint involvement in the 1990 construction of NRM’s High Grove Street batch plant demonstrates their close operational interrelation.24 Thus, employees of WEC, aided by employees of other Wehrli-affiliated companies, performed the initial con- struction. Depending on which aspect of the assembly was involved, e.g., electrical, erecting panels, hooking generator pipe, employees having the particular exper- tise, irrespective of their employing entity, performed or oversaw the job. These efforts were handled casually, without formal transfers or even accounting of employee time spent working outside their own company. These companies are located at the same address, an industrial complex at 1805 High Grove Street.25 In addi- tion to providing complete day-to-day operational man- agement of T&W, Tilly served as supervisor of truck maintenance at NRM,26 and, at some point in time,27 as- sumed supervisory duties at WEC as well. Wehrli testi- fied that during the first half of 1992, he averaged about 4 hours a day at 1805 High Grove Street.28 He stated that on a daily basis he conferred with officers and managers of each of his companies, reviewing issues and problems with them. Thus, the record establishes that Wehrli and Tilly together shared direct, hands-on management of NRM, T&W, and WEC. 24 While the judge describes the involvement of various Wehrli companies in the batch plant construction as “illustrative of the interre- lation of the affiliated companies,” he drew no conclusions from these facts. 25 While T&W does not have an office at High Grove Street, its op- erations are conducted there and its equipment and vehicles are main- tained at that location. 26 Tilly testified that he performed most of his T&W-related duties from his home office. Because he worked for NRM however, he was physically present at High Grove Street, where he was in contact with T&W employees who worked out of that location and dropped off their log books to him there. He also testified that he used NRM’s photo- copy machine for T&W business. 27 See fn. 4, supra. 28 Although Wehrli described himself as being “semi-retired” during that period, he nevertheless might spend as much as 12 hours a day on the job, depending on circumstances. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180 Further demonstrative of the companies’ interrelation- ship is the fact that while the batch plant technically be- longed to WEC, NRM employees ran the plant. Wehrli explained that there were some major expenses associ- ated with establishing the batch plant and that NRM “didn’t have the money to buy any of it and Wehrli Equipment did. That is why I bought some of the bigger equipment including the Ready Mix plant with Wehrli Equipment money.”29 This cross-financing, apparently at Wehrli’s unfettered discretion, is further evidence of Wehrli’s broad control. The record in this case makes clear that Wehrli exer- cised complete command over labor relations at NRM. As NRM’s principal, he was primary management spokesman in collective bargaining throughout the Com- pany’s existence. While Tilly ran the operational aspects of T&W, Wehrli’s conversations with T&W employees regarding their availability to work during a possible NRM strike—and the consequences of their refusal— demonstrate his role in setting the terms and conditions under which those employees worked. Thus, control of labor relations at NRM and T&W was vested in Wehrli. While there is little record evidence concerning the han- dling of labor relations specifically at WEC, the evidence of Wehrli’s presence, oversight, and authority over all his various companies suggests that this function at WEC, too, rested ultimately with him. Based on the above, we find common ownership, fi- nancial control, centralized management, and functional integration among NRM, T&W, and WEC. In addition, we find clear evidence of common control of labor rela- tions at NRM and T&W and inferential support for such a finding at WEC. We conclude therefore that NRM, T&W, and WEC operate as a single-integrated enter- prise, sufficient to establish them as a single employer. Accordingly, Respondents NRM, T&W, and WEC will be held equally responsible for any unfair labor practices found to have been committed in this proceeding and will be held jointly and severally liable to provide neces- sary remedial steps. B. Nature and Effect of the Truck Transactions The General Counsel argues that the judge erred in finding that the purported transfers of ownership of the trucks were not essentially sham transactions. The Gen- eral Counsel further argues that the relationship between NRM and the six corporations into which ownership of certain NRM trucks was conveyed amounted to a sub- contracting arrangement rather than a sale of assets. Fi- nally, the General Counsel contends that this subcon- tracting arrangement was a mandatory subject of bargain- ing. For the following reasons, we agree. First, we agree that the judge erred in his characteriza- tion of the nature of the relationship between NRM and the new corporate entities. We find that NRM entered 29 Tr. 1462. into paper transactions to give the appearance of a dispo- sition of assets, but that after the asserted sale of the trucks, NRM continued to control their use and to oper- ate its ready mix delivery operations in practically the same way as it had prior to the sale, except without the involvement of the Union or unit employees. As stated above, in mid-June, in the midst of contract negotiations and within days of a strike, Wehrli in- structed his attorney Ullrich to draft documents setting up ten corporate shells, Concrete 1–10, naming himself and Ullrich as principals.30 Rather than sell the trucks outright, as he had told employees and the Union was a possibility, he created corporations into which he could place title to certain NRM trucks. At the same time, Wehrli’s son, Robert, directed Ullrich to set up Diamond Ready Mix, Inc., naming Robert as president, owner, and sole director, and Ullrich as registered agent and his of- fice as corporate address. Within 2 weeks of the strike, Wehrli arranged for title of several NRM trucks to be transferred to Concretes 1, 2, and 3, to Diamond Ready Mix, Inc., and to Fox Valley Ready Mix, Inc., a preexist- ing entity owned by former WEC-employed Weissinger. Wehrli unilaterally set all the terms governing the transactions. He had the trucks appraised and set their price, he drew up the sales agreements, he arranged for and fixed financing terms, and he established the condi- tions and manner in which the new corporate owners would deliver NRM’s concrete—ranging from the order in which they would pick up their loads to requiring their attendance at NRM’s periodic safety meetings. The testimony of Haley, the individual who entered into the purchase agreement for Concrete 3, illustrates Wehrli’s control over the process.31 Haley testified that in late May or early June, in response to NRM’s newspa- per ad, Doll advised him that to acquire the truck, he would have to purchase the corporation in which title to the truck was placed and that he would be hauling con- crete for NRM. He was also told that mechanics were available to work on the truck, that he could park it at 1805 High Grove Street, that he could purchase fuel from NRM less expensively than he could elsewhere, and that he could purchase oil and grease from NRM’s facility as well. In late June, Haley selected from among the avail- able trucks and, without an independent appraisal, agreed to Wehrli’s asking price of $61,000. Wehrli told him that he would provide financing for the full amount (no down payment was required) at prime rate, that he would pay him $14 per yard hauled, and that $1 per yard would be taken out toward payment of the principal. He entered into a handshake agreement with Wehrli. Thereafter, on July 10, without seeking advice from an attorney of his own, Haley signed a stock sale agreement and promis- 30 Ullrich was listed as registered agent and his office address was used as the corporate address for each corporation. 31 The judge himself notes that “[t]here was little or no negotiations” in the transactions over the trucks. NAPERVILLE READY MIX, INC. 181 sory note that had been prepared by Wehrli, as well as a subcontract with T&W to perform ready-mix deliveries. The record, while not entirely clear, suggests that a similar sequence of events and processing of paperwork occurred with the purchases of the other Concrete corpo- rations. It appears not so much that the buyers were in- dependent businessmen, embarking on an entrepreneurial endeavor, but rather that they were entering into a spe- cific subcontracting arrangement to perform delivery work for NRM at its direction. The informal character of the financial arrangements is significant. As already noted, Wehrli asked for no money from the buyers up front, thereby rendering nil their investment interest and equity in the trucks. Re- payment was to be achieved in small portions from the payments for the hauling work actually performed. Nev- ertheless, Wehrli testified that he filed no liens or other- wise formally protected his considerable financial inter- est in these trucks. While generosity and trust may ex- plain why Wehrli would extend unusually favorable terms to his son or even to some former employees, ex- tending these same terms to Haley and Drane, with whom he had no previous business or personal relation- ship, indicates that these were not genuine sales transac- tions.32 In exchange for the “particularly favorable”33 price and terms which the stock (truck) purchasers received from Wehrli, the stock sale agreement provides that the seller maintains first priority on the use of the truck until the buyer has fully repaid the purchase price to NRM. Thus, while this provision would explain the rationale and business purpose motivating Wehrli’s financial risk, it also underscores the fundamental nature of the relation- ship between the parties, that is, that NRM continued to control the use of the equipment.34 In September or October, Wehrli extended even more financial assistance. In recognition of the business im- pediments brought about by the strike, Wehrli unilater- ally restructured the repayment terms by cutting in half the $1-per-yard repayment rate and waiving all interest payments for 6 months. Evidence of the manner in which the owner-drivers began operating further demonstrates the sham nature of the sale of the trucks. While all the new corporate owner-drivers began delivering NRM’s product on July 1, only Robert Wehrli and Weissinger had entered into written subcontracting agreements by that date. Haley, Downs and Drane did not sign subcontracting agree- ments until July 10. All of these subcontracts were be- 32 Wehrli testified that he did not file liens on the trucks because he trusted the new owners and did not want to embarrass them in the event they had to show the title to someone. 33 This terminology is used in item 16 of the stock sale agreement to describe the price and terms of the purchase. 34 In addition, radios owned by NRM were kept in the trucks and used without charge to the new corporations. tween the new owners and T&W, not NRM. T&W held the ICC operating authority for the trucks during that time, but testimony of Downs, and Haley indicates not only that they did not pay any fee to T&W for its use, but that they were not even aware under whose authority they were operating. Testimony regarding insurance coverage over the trucks was similarly vague. The owner-drivers were assigned reporting times from T&W’s dispatchers, the same individuals who had previ- ously dispatched unit drivers for NRM. Wehrli estab- lished the order in which the trucks were called, based on seniority as to when they had agreed to become owner- drivers for NRM. They also attended safety meetings conducted by the individual who had been in charge of safety for NRM. The degree of control Wehrli exercised and maintained from the establishment of the corporations through the effectuation of the delivery process supports a finding that these transactions were not typical, arm’s-length business arrangements, but rather a stratagem designed to give the appearance, rather than the effect, of removing NRM from the ready-mix delivery business. Accord- ingly, we find that: (1) NRM did not close its delivery operations or go out of the delivery business so as to re- move the decision from the bargaining arena and, (2) NRM engaged in a type of subcontracting, involving subcontractors of its own creation and design that dis- played evidence of self-dealing and subterfuge. There was no major shift in the direction of NRM’s business. Rather, NRM continued to engage in the delivery of ready-mix product to construction sites, the only differ- ence being that the work formerly performed by bargain- ing unit drivers was being done by “owner-drivers” through an elaborate subcontracting arrangement. In addition, despite all the paperwork, NRM did not engage in a significant redirection of capital. Both before and after the purported sale of the corporations into which title of the trucks had been placed, NRM continued to bear financial risk because the new “owners” had not yet paid for the trucks. Clearly, not only did NRM remain in the ready-mix delivery business, it continued to use the same equipment in which it continued to have an owner- ship interest. Thus, the Respondents’ basic operation remained un- changed. NRM merely replaced the employees driving the trucks with other employees under the “owner- operator” rubric (or in some cases the same employees under the new title), maintaining essentially the same control over them that it had always enjoyed. Its motiva- tion for engaging in this maneuver was its concern over the labor costs of a union contract. In other words, for labor cost reasons, it essentially subcontracted the work to employees named as owners of the various corpora- tions its attorney had set up. Such subcontracting is a mandatory subject of bargaining. See Fibreboard Paper Products Corp. v. NLRB, supra; Rock-Tenn Co., 319 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 182 NLRB 1139 fn. 2 (1995), enfd. 101 F.3d 1441 (D.C. Cir. 1996), and cases there cited. C. Respondents’ Violation of the Statutory Bargaining Obligation Having determined that NRM’s decision to, in effect, subcontract the delivery operation to the truck purchasers in the corporate framework it set up is a mandatory sub- ject of bargaining, we now must determine whether NRM satisfied its obligation to bargain on that subject, so that its implementation was lawful. For the following reasons, we find that it did not. The events at issue here took place in the context of the 1992 negotiations for a successor collective- bargaining agreement between two parties that had main- tained a bargaining relationship for 30 years. As the statement of facts indicates, at the very first negotiating session, on April 21, in response to the Union’s propos- als of 11 specific changes to language in the soon-to- expire contract, Wehrli responded with general com- ments that the high cost of employee benefits and ad- verse industry economics presented serious challenges to his operation. Early in the bargaining process Wehrli stated that he was considering taking drastic action, in- cluding the possibility of going out of the ready-mix business altogether, in order to deal with these problems. After only two meetings, Wehrli asserted that he wanted to sell his trucks, the instrumentalities with which the unit employees performed their jobs. The Union re- sponded that the purpose of negotiations was to achieve a bargaining agreement and not to dispose of NRM’s as- sets; and the parties continued to discuss contract terms. At their meeting on May 14, the Union withdrew or modified a number of its demands, and agreement was reached on some items.35 Despite this progress, NRM followed up the next day with a written demand to delete all of article 24, the clause dealing with owner-drivers providing that drivers working under such arrangements would still be covered by the collective-bargaining agreement. Within days after that session, Wehrli met with unit employees directly, in the absence of union representa- tives, to discuss with them the possibility of the employ- ees’ buying the trucks and performing the same work they had been performing, but doing so as “independent” drivers under contract to NRM and without union repre- sentation.36 During the following month, despite some continued dialogue with the Union, NRM took steps to implement its plan to divest NRM of ostensible ownership of the 35 This is reflected in NRM’s bargaining notes. 36 Wehrli’s conduct in these meetings is alleged as direct dealing in violation of Sec. 8(a)(5), and certain statements are alleged as threats in violation of Sec. 8(a)(1). See discussion in sec. D, below. In his testi- mony, Wehrli referred to the drivers at these meetings as “T&W” driv- ers, but they are described by the judge as “Naperville drivers.” Given our single-employer finding, it is immaterial how they were identified. trucks, through the transactions which, as we have found above, allowed it to continue its delivery operations un- der a subterfuge of independent contracts. After advising the Union of this action, NRM effectively terminated the employment of most of the former unit drivers,37 refused to provide the Union with requested information relating to the truck transactions, and refused to reinstate the dis- charged strikers despite their unconditional request to return to work. Indisputably in implementing the plan to lay off the drivers and provide for continuation of ready-mix deliv- eries through the owner-operator device, NRM was act- ing unilaterally. As noted above, the judge concluded that this was lawful because he viewed the matter not to be a mandatory subject of bargaining. He therefore did not reach the two alternative arguments that the Respon- dents make in opposition to the General Counsel’s exceptions, namely that the unilateral action was lawful because the Union waived its opportunity to bargain and that, in any event, the parties had reached impasse in the contract negotiations. We find no merit in these conten- tions. First, the Respondents’ waiver contention is misplaced because the implementation here concerned subjects which were part of the parties’ negotiations for a new collective-bargaining agreement, and, as explained be- low, the parties had not reached overall impasse in those negotiations at the time of the implementation. The Board has held that when parties are engaged in negotia- tions for a collective-bargaining agreement an em- ployer’s obligation to refrain from unilateral changes encompasses a duty to refrain from implementation un- less and until an overall impasse has been reached on bargaining for the agreement as a whole. Bottom Line Enterprises, 302 NLRB 373 (1991). In Bottom Line, the Board recognized only two limited exceptions to that general rule: when a union engages in bargaining delay tactics and “when economic exigencies compel prompt action.” Id. at 374. In RBE Electronics of S.D., 320 NLRB 80 (1995), the Board noted that the Board in the past has limited the definition of such economic considerations to “extraordi- nary events which are ‘an unforeseen occurrence, having a major economic effect [requiring] the company to take immediate action.” Hankins Lumber Co., 316 NLRB 837, 838 (1995), quoting Angelica Healthcare Services, 284 NLRB 844, 852–853 (1987). However, in RBE, the Board found that there may also be other economic exi- gencies, although not sufficiently compelling to excuse bargaining altogether, that should be encompassed within the Bottom Line exigency exception. The Board stated (320 NLRB at 82): 37 The exceptions were Robert Werhli and Downs, who had pur- chased trucks and continued to work for NRM as owner-drivers. NAPERVILLE READY MIX, INC. 183 [W]here we find that an employer is confronted with an economic exigency compelling prompt action short of the type relieving the employer of its obligation to bar- gain entirely, we will hold under the Bottom Line exi- gency exception . . . that the employer will satisfy its statutory obligation by providing the union with ade- quate notice and an opportunity to bargain. The Board then went on to state that (id.): In defining the type of economic exigency susceptible to bargaining, however, we start from the premise . . . that not every change proposed for business reasons would meet our Bottom Line limited exception. Thus, because the exception is limited only to those exigen- cies in which time is of the essence and which demand prompt action, we will require an employer to show a need that the particular action proposed be imple- mented promptly. Consistent with the requirement that an employer prove that its proposed changes were “compelled,” the employer must additionally demon- strate that the exigency was caused by external events, was beyond the employer’s control, or was not rea- sonably foreseeable. [Footnotes omitted.] Applying Bottom Line as modified by RBE, we find that the Respondent has failed to prove that its actions were justified. First, the Union never refused to meet with NRM, and it expressed willingness to try to find ways by which NRM’s economic concerns could be met. While the Union was opposed to the truck-selling plan, it responded to NRM’s proposals by proposing ways in which NRM could operate within generally established procedures. The Union was thus responsive and persis- tent rather than dilatory and evasive in the negotiations. Second, the Respondents provided no evidence of an imminent financial emergency requiring prompt action on the truck-sale proposal. The fact that NRM could save some money if the scheme were implemented be- fore July 1, when the licenses for the trucks were to be renewed (an expected event that occurred annually on that date), is an argument it might make in support of its proposal, but it in no way meets the economic exigency standard permitting changes in terms and conditions of employment in advance of an impasse in contractual ne- gotiations.38 Further, even assuming arguendo that prompt action was required, Respondent has not demon- strated that the problem was caused by external events, was beyond Respondent’s control or was either unfore- seen or not reasonably foreseeable. Second, the Respondents’ contention that the parties had reached overall contract impasse is also without merit for two independent reasons—(1) the parties had 38 See, e.g., L & L Wine & Liquor, 323 NLRB 848, 851–852 (1997) (concern over high health insurance costs did not warrant implementa- tion prior to contract impasse); Sartorius, Inc., 323 NLRB 1275, 1285– 1286 (1997) (same regarding need to reduce scrap rate). not exhausted all possibilities for agreement, and (2) even assuming they had, no genuine impasse permitting implementation existed because it was tainted by the Respondents’ unfair labor practices. The Respondents concede that the applicable test for impasse is whether the parties, “after good-faith negotia- tions have exhausted the prospects for concluding an agreement.”39 Further, “the burden of proving that an impasse exists is on the party asserting the impasse.”40 One of the factors considered in determining whether an impasse was reached is “the contemporaneous under- standing of the parties as to the state of negotiations.”41 Wehrli told the Union on June 22 that he had already sold the trucks but he did not claim a contract impasse until 2 days later. The Union disputed his impasse claim, expressed willingness to consider modifications in article 24, and sought information from NRM to aid negotia- tions on the issue. It continued to press for negotiations to resolve the contract issues and the strike. NRM was itself offering modified proposals even in August, after it had implemented a number of truck sales. It thus ap- pears that there was never a contemporaneous under- standing between the parties that impasse had been reached and, indeed, the Respondents had embarked on their unilateral implementation before they had ex- hausted their own ability to compromise, let alone con- sidered what further concessions the Union had to offer, and before Wehrli had even advised the Union of his view of the state of negotiations. This clearly does not satisfy the Respondents’ burden of showing that impasse had been reached before it implemented its proposal. Even had the parties reached a deadlock, it would not immunize NRM’s implementation of the truck sale and subcontracting plan because the impasse was tainted by the Respondents’ prior unremedied unfair labor prac- tices. “Generally, a lawful impasse cannot be reached in the presence of unremedied unfair labor practices.”42 Certainly, this is the case when the timing and nature of the unfair labor practices are such as to be likely to im- pair the bargaining process.43 Here, as explained in de- tail in section 4 below, before the declaration of impasse, NRM had undermined the bargaining process by engag- ing in direct dealing with employees, threatening them with loss of their jobs if they did not participate in the Respondents’ plan for carrying on the delivery operation outside of the current collective-bargaining relationship, 39 Taft Broadcasting Co., 163 NLRB 475, 478 (1967), affd. sub nom. AFTRA Kansas City Local v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). 40 CJC Holdings, 320 NLRB 1041, 1044 (1966), citing Outboard Marine Corp., 307 NLRB 1333, 1363 (1992). 41 Taft Broadcasting Co., supra, 163 NLRB at 478. 42 Circuit-Wise, Inc., 309 NLRB 905, 918 (1992) (footnote omitted); Globe Business Furniture, 290 NLRB 841, 854 fn. 76 (1988). Accord: Bryant & Stratton Business Institute, 327 NLRB 1135, 1137 fns. 2 and 4 (1999). 43 Id. at 918, citing White Oak Coal Co., 295 NLRB 567, 568 (1989). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184 and enticing them to resign from the Union in order to retain their jobs. In sum, when NRM unilaterally commenced the sub- contracting of its delivery work, under the guise of sell- ing off part of the business, it had not reached either agreement or a genuine impasse in the negotiations with the Union for a successor bargaining agreement. It there- fore violated Section 8(a)(5) and (1) of the Act through unilateral implementation of its scheme. Finally, as set out in the Statement of Facts, in July, during those negotiations, the Union requested informa- tion concerning the transactions by which NRM was purporting to divest itself of the ready mix delivery op- eration. The request was refused in the July 10 letter from NRM’s attorney, who asserted, among other things, that NRM had the right to operate during the strike, “in- cluding selling vehicles to persons to whom the company can subcontract its work” and that information regarding those arrangements was not relevant to the Union’s rep- resentational functions. Because we have found that the truck sales and related arrangements amounted to a sub- contracting of unit work to entities controlled by the Re- spondents, the request clearly related to a mandatory subject of bargaining.44 By refusing to provide the in- formation, the Respondents violated Section 8(a)(5) and (1) of the Act.45 D. Direct Dealing, Threats, and Solicitation of Union Resignations As set out in the Statement of Facts, Wehrli held meet- ings with the drivers and mechanics on May 20 and 27 at which he discussed in detail with them arrangements by which drivers might buy NRM’s trucks and continue hauling ready mix and mechanics might continue to do maintenance work on such trucks. Union representatives were not at these meetings, nor had they been given no- tice of them. For the reasons set out in sections 2 and 3, above, we disagree with the judge’s conclusion that the meetings were essentially between potential business associates and had nothing to do with the unit employ- ees’ terms and conditions of employment, which were then under negotiation with the Union. In our view, the meetings were efforts to enlist the employees in the sham transactions by which the Respondents would carry on the ready mix delivery operations without the obligations or costs of a union contract. Such direct dealing over 44 The judge’s dismissal of this allegation was predicated on his view that the truck sales were part of an entrepreneurial decision to sell off part of the business and that the Respondents had only an effects bar- gining obligation with respect to that. The Union had, in his view, waived its rights to such information by refusing to enter into bargain- ing limited to “effects.” For the reasons set out above, we disagree with the premises of the judge’s dismissal. 45 See, e.g., Facet Enterprises v. NLRB, 907 F.2d 963, 982 (10th Cir. 1990) (violation to refuse to provide information about machinery moved out of plant because it was “relevant to the Union’s fulfillment of its representational obligation to preserve its members’ jobs”). terms and condtitions of employment is a clear violation of Section 8(a)(5) of the Act.46 During those meetings, Wehrli made it clear that if the employees did not participate in the Respondents’ plan to operate its business through purported owner-operators outside of its bargaining relationship with the Union, they would be terminated in reverse order of seniority as the trucks were sold. In addition, after the second meet- ing, when a strike by the Union was in prospect,47 Wehrli had a hallway conversation with driver Jeff Fowler in which he told Fowler to “think hard” about buying a truck, but added that if Fowler were seen “out on the strike line,” then “there would be no job or truck for sale” for him.48 Thus, in the meetings the employees were threatened with job loss if they failed to accede to what we have found to be a scheme to continue the op- eration outside of the current bargaining relationship; and Fowler was threatened with job loss if he participated in the strike. All of these statements amounted to threats in violation of Section 8(a)(1) of the Act.49 Finally, during the strike Wehrli approached several drivers on the picket line and advised them to sign “fi- nancial core” statements—which the employees reasona- bly understood to be resignations from the Union, mak- ing them “financial core” members—and then cross the picket line. Otherwise, they were told, there would be “no work” for them. NRM had distributed forms outlin- ing procedures for becoming “financial core” members to the employees with the paychecks that covered their work for the period ending with the commencement of the strike. In the context in which this occurred—the Respondent’s imminent shift to an operation in which it would be engaging employees’ services only outside the collective-bargaining relationship—Wehrli’s conduct was not a mere lawful response to employee questions about resignation but amounted to unlawful solicitation 46 Central Management Co., 314 NLRB 763, 767 (1994), citing Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683–684 (1944); Allied-Signal, Inc., 307 NLRB 752 (1992). 47 As noted in the Statement of Facts, the strike actually commenced on June 17. 48 Fowler testified to this conversation. When asked if anything “was said to a driver that if they went on strike that you would not sell them a truck,” Wehrli testified that he “didn’t think” he had said “any- thing like that.” He also said, however, that he could not remember which of the striking drivers he had conversed with, and he did not directly deny the incident to which Fowler testified. 49 See, e.g., Sunnyside Home Care Project, 308 NLRB 346, 347 (1992) (threat of reprisal for participating in strike); Fluor Daniel, Inc., 311 NLRB 498, 501 (1993) (threat of reprisal for honoring picket line). However, as noted above (fn. 19), we agree with the judge that it was not unlawful to ask the drivers whether they would cross the picket line in order to work for T&W during the strike, and therefore adopt the judge’s dismissal of the separate interrogation allegations. We also deny the General Counsel’s exception regarding a statement allegedly made by Robert Wehrli to driver Joe Japuntich earlier in the spring about discontinuation of payments into contractual benefit funds. Wehrli denied making the statement and on other matters the judge credited Wehrli over Japuntich. NAPERVILLE READY MIX, INC. 185 of union resignations, in violation of Section 8(a)(1) of the Act.50 E. Termination of the Bargaining Unit Employees The complaint alleged that the Respondents discharged the unit employees and transferred their work to nonunit personnel, in order to eliminate the Union as the unit bargaining representative. The conduct was alleged to violate both Section 8(a)(5) and (3) of the Act. The com- plaint also alleged that the Respondents violated Section 8(a)(3) of the Act by refusing to reinstate striking employees when the Union made an unconditional offer to return on their behalf on February 11, 1993. For the following reasons, we find that the record shows that the Respondents engaged in this unlawful conduct. First, as to the terminations, the legal basis for finding that this conduct violated Section 8(a)(5) is set out in section II,3, above. As to the 8(a)(3) allegation, we dis- agree with the judge’s dismissal because we disagree with the premise on which he dismissed the allegation, namely that NRM had discontinued its delivery opera- tions and now dealt only with “independent” contractors who had bought the trucks in bona fide transactions. In our view, the employees were discriminatorily, in viola- tion of Section 8(a)(3), presented with a choice that the Respondents could not lawfully impose upon them— either accept termination or agree to drive under the uni- laterally implemented plan to subcontract delivery work to owner-drivers, outside of the current collective- bargaining relationship.51 The drivers did not choose to quit working for NRM; they were effectively discharged because the Respondents required them to work under conditions established in denigration of their statutory right to bargain.52 50 See Manna Pro Partners, 304 NLRB 782, 790 (1991) (soliciting employees to sign petition repudiating the union). 51 RCR Sportswear, 312 NLRB 513, 513–514 (1993), and cases there cited, enfd. 37 F.3d 1488 (3d Cir. 1994). 52 Before the judge, the Respondents contended that the 8(a)(3) dis- charge allegation was not based on a timely filed charge and therefore was barred by Sec. 10(b) of the Act. We disagree. The very first charge filed by the Union, on June 8, 1992 (Case 13–CA–3031), al- leged that NRM had violated Sec. 8(a)(3) and (5) by seeking to compel unit employees to become owner-drivers in order to circumvent its contract with the Union. That charge remained under investigation even after the Union filed its July 17, 1992 charge alleging that imple- mentation of the truck sales violated Sec. 8(a)(5). In the terminology of the Seventh Circuit in NLRB v. Braswell Motor Freight Lines, 486 F.2d 743, 746 (1973), the General Counsel “entered the controversy” on the basis of the charges filed in 1992, and the later charge amendments and complaint allegations elaborating on details and refining theories were logically “a part of that controversy.” See also Facet Enterprises v. NLRB, supra, 907 F.2d at 978–979 (failure to specify in charge a re- fusal to supply information did not result in 10(b) bar, since the charge “directed the Regional Director’s attention to the rancorous dealings between Facet and the Union in the winter of 1983–1984).” In other words, the amended charges were closely related to the original charges regarding the scheme that resulted in the employees’ terminations, and it is undisputed that the charges filed in June and July 1992 were timely. See Pioneer Hotel & Gambling Hall, 324 NLRB 918 fn. 1 The fact that the employees were then on strike does not preclude a finding of unlawful discharge, with enti- tlement to backpay commencing at that point. When strikers are unlawfully discharged, they are not required to request reinstatement since, by discharging them, the employer has signaled that he does not regard them as strikers entitled to reinstatement upon request.53 Even assuming that the unit employees had not been unlawfully discharged when NRM sold the trucks and gave the work to owner-operators, the Respondents would still be in violation of Section 8(a)(3) commencing from February 11, 1993, when, notwithstanding their terminations, the strikers made an unconditional offer to return to work and were denied reinstatement. The same unfair labor practices that undermined the bargaining process and precluded a lawful bargaining impasse also were a cause of the strike, rendering it an unfair labor practice strike from its outset. The employees struck in response to the Respondents’ unlawful insistence that they choose between losing their jobs or accepting em- ployment on the drastically changed terms and condi- tions without continuation of their union representation. It is settled law that unfair labor practice strikers cannot be permanently replaced and must be reinstated on their unconditional offer to return.54 It is undisputed that, through their Union, the strikers made an unconditional offer to return on February 11, 1993, and that the Re- spondents failed to reinstate them. The Respondents thereby violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Naperville Ready Mix, Inc., T & W Trucking, Inc., and Wehrli Equipment Co. are a single employer within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters, Chauffeurs, Salesdrivers & Helpers Local Union No. 673, affiliated with the Interna- tional Brotherhood of Teamsters, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act, and it is the exclusive representative of employees of the Respondent within an appropriate unit. 3. By transferring and/or subcontracting bargaining unit work to owner-drivers without bargaining in good faith to impasse with the Union, by discharging unit em- ployees and replacing them with owner-drivers, by fail- ing and refusing to provide the Union with information it requested concerning the transfer of ownership of trucks formerly driven by unit employees, and by dealing di- rectly with unit employees concerning the continuation of their employment on a nonunion basis, the Respon- (1997), affd. in pertinent part 182 F.3d 939 (D.C. Cir. 1999) (stating and applying “closely related” test). 53 Abilities & Goodwill, 241 NLRB 27 (1979), enf. denied on other grounds 612 F.2d 6 (1st Cir. 1979). Accord: NLRB v. Lyon & Ryan Ford, 647 F.2d 745, 755–757 (7th Cir. 1981). 54 Frontier Hotel & Casino, 323 NLRB 815 fn. 5 (1997); National Management Consultants, 313 NLRB 401 (1993). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186 dents have violated their obligation to bargain with the Union under Section 8(a)(5) and (1) of the Act. 4. By threatening unit employees with the loss of their jobs and by encouraging striking employees to abandon their full support for the Union, the Respondents have violated Section 8(a)(1) of the Act. 5. By virtue of the unfair labor practices described above, the strike by unit employees which began on June 17, 1992, was an unfair labor practice strike. By failing and refusing to reinstate unfair labor practice strikers upon their unconditional offer to return to work and by earlier effectively discharging the strikers, the Respon- dents have violated Section 8(a)(3) and (1) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices within the meaning of Sec- tion 8(a)(5), (3), and (1) of the Act, we shall order the Respondents to cease and desist from engaging in such conduct and to take certain steps to effectuate the policies of the Act. We shall order the Respondents to restore unit delivery work to the unit employees, to offer rein- statement to all employees who lost their jobs as a result of the unlawful transfer of the work outside the unit and to all striking employees who the Respondents refused to reinstate upon their unconditional offer to return. In ad- dition we shall order the Respondent to make whole all employees for any loss of earnings and other benefits suffered as a result of the Respondent’s unfair labor prac- tices. Backpay is to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with in- terest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). We shall further order the Respondents to provide the Union with all information it requested and to bargain on request with the Union concerning all terms and condi- tions of employment and, if an understanding is reached, to embody that understanding in a signed agreement. In view of the nature of the Respondents’ operations, in addition to posting notices in all appropriate places at its 1805 High Grove Street facility, we shall require the Respondents to mail each employee who lost his job as a result of its unfair labor practices a copy of the attached notice marked “Appendix.” ORDER The Respondents, Naperville Ready Mix, Inc., T & W Trucking, Inc., and Wehrli Equipment Co., a single em- ployer, Naperville, Illinois, their officers, agents, succes- sors and assigns, shall 1. Cease and desist from (a) Unilaterally transferring and/or subcontracting unit. (b) Dealing directly with unit employees over the terms and conditions of their continued employment. (c) Discharging unit employees and replacing them with owner-drivers. (d) Failing and refusing to provide the Union with relevant information it requested concerning the trans- fer/subcontracting of unit work. (e) Failing and refusing to reinstate unfair labor prac- tice strikers upon their unconditional offers to return to work. (f) Threatening employees with job loss and encourag- ing employee disaffection from the Union. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain collectively for a successor agreement with the Union as the exclusive collective- bargaining representative of the unit employees and, if an understanding is reached, embody the understanding in a signed agreement. The appropriate unit is: All Ready Mix drivers, mechanical batchers, and other yardmen employed by Naperville, excluding all other employees and all supervisors and guards within the meaning of the Act. (b) Provide the Union with all relevant requested in- formation concerning its decision to subcontract and/or transfer unit delivery work outside the unit. (c) Within 14 days from the date of this Order, restore the unit delivery work to the unit employees and offer full reinstatement to all unit members who lost their jobs as a consequence of the unilateral subcontracting and/or transferring of unit delivery work to owner-drivers with- out prejudice to the unit members’ seniority or any other rights or privileges previously enjoyed. (d) Within 14 days of this Order, offer full reinstate- ment to the unfair labor practice strikers that the Respon- dents unlawfully refused to reinstate, without prejudice to their seniority or any other rights or privileges previ- ously enjoyed. (e) Make whole, with interest, all terminated employ- ees and unfair labor practice strikers who offered uncon- ditionally to return for any loss of earnings and other benefits they may have suffered as a result of the Re- spondents’ unfair labor practices, in the manner set forth in the remedy section of this decision. (f) Preserve, and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of back- pay due under the terms of this Order. (g) Within 14 days after service by the Region post at their 1805 High Grove Street, Naperville, Illinois facility, copies of the attached notice marked “Appendix.”55 55 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 Na- NAPERVILLE READY MIX, INC. 187 Copies of the notice on forms provided by the Regional Director for Region 13, after being signed by the Re- spondents’ authorized representative shall be posted by the Respondents immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondents have gone out of business or closed the facility involved in these proceedings, the Respondents shall mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since May 1992. (h) Mail to the unit employees who lost their jobs as a result of the unlawful transfer of unit work outside the unit, copies of the attached notice marked “Appendix.” (i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that 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 vio- lated 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 representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT fail and refuse to bargain with the Un- ion, General Teamsters, Chauffeurs, Salesdrivers and Helpers Local Union No. 673, a/w the International Brotherhood of Teamsters, AFL–CIO, as the exclusive bargaining representative of our employees in the unit described below, by unilaterally transferring and/or sub- contracting unit work outside the bargaining unit. WE WILL NOT refuse to bargain with the Union by fail- ing to provide the Union with requested information re- lating to the transfer and/or subcontracting of unit work. tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of a United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” WE WILL NOT refuse to bargain with the Union by dealing directly with unit employees regarding their terms and conditions of continued employment. WE WILL NOT discharge unit employees and replace them with owner-drivers. WE WILL NOT fail and refuse to reinstate unfair labor practice strikers to their jobs upon their unconditional offers to return to work. WE WILL NOT threaten employees with loss of jobs and WE WILL NOT make statements to employees designed to encourage disaffection from the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All Ready Mix drivers, mechanical batchers, and other yardmen employed by Naperville, excluding all other employees and guards within the meaning of the Act. WE WILL provide the Union with all requested infor- mation concerning the decision whether to transfer and/or subcontract unit work outside the unit. WE WILL within 14 days from the date of the Board’s Order restore the unit delivery work to the unit employ- ees and offer full reinstatement to all unit members who were discharged as a consequence of the unilateral sub- contracting and/or transferring of unit delivery work to owner-drivers, without prejudice to the unit members’ seniority or any other rights or privileges previously en- joyed. WE WILL, within 14 days of the Board’s Order, offer full reinstatement to the unfair labor practice strikers that we unlawfully refused to reinstate, without prejudice to their seniority or any other right or privileges previously enjoyed. WE WILL make whole, with interest, all terminated employees and unfair labor practice strikers who offered unconditionally to return to work for any loss of earnings and other benefits they may have suffered as a result of our unfair labor practices. NAPERVILLE READY MIX, INC.; T&W TRUCKING, INC.; AND WEHRLI EQUIPMENT CO. Sheryl Sternberg, Esq., for the General Counsel. Steven H. Adelman, Esq. (Lord, Bissell & Brook), for Respondents. John J. Toomey, Esq. (Arnold & Kadjan), for the Charging Party DECISION STATEMENT OF THE CASE ROBERT T. WALLACE, Administrative Law Judge. This case was tried in Chicago, Illinois, over an 8-day period extending DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188 from June 27 through July 13, 1994. The original charge was filed on June 8, 1992,1 and the original consolidated complaint issued on February 26, 1993. At issue is whether Respondents transferred trucking opera- tions to owner/operators and refused to provide information concerning the transfer in violation of collective-bargaining obligations under Section 8(a)(5) of the National Labor Rela- tions Act (the Act), discriminatorily discharged and refused to reinstate employees in violation of Section 8(a)(3) and, through threats, interrogations and other coercive conduct, engaged in independent violation of Section 8(a)(1). On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondents, I make the following FINDINGS OF FACT I. BACKGROUND Naperville Ready Mix, Inc. (Naperville) produces and sells concrete, primarily for residential construction. Its facilities are located at 1805 High Grove Street in Naperville, Illinois, and include an office building, a shop for mechanical work, a batch plant, and a storage facility. Richard Wehrli and his wife are sole stockholders and president and secretary, respectively. They are also on the board of directors, along with Richard’s brother-in-law Jerry Doll, and (until June 30) his son, Robert. Naperville’s truckdrivers were covered by a collective- bargaining agreement with the Charging Union (the Union)2 since 1960. The most recent agreement expired on April 30. T & W Trucking, Inc. (T&W) is owned by Wehrli and Rob- ert Tilly, each holding a 50-percent stock interest. It has been in business since 1987 hauling bulk cement, gravel, stone, precast, and roof tile. It serves a number of companies, including Naperville, Prairie Material Services (Prairie), Dixon Marquette Company (Dixon), Lifetime Roof Tile (LRT), and Dukane Precast (Dukane). Wehrli has a financial interest in the latter two companies, but not in Prairie or Dixon. Its employees are not represented by any union. Tilly is president and runs the company on a day-to-day basis. Its office is in his home where all the records are maintained. He spends about 10 to 15 min- utes a day dispatching T&W trucks and in most instances the trucks are stationed at the Grove Street complex. Wehrli Equipment Co., Inc. (Equipment) is wholly owned by Wehrli. It repairs and reconstructs dump trucks for Naperville and others at Grove Street. Also located there are other Wehrli affiliated companies, including Dukane, Naperville Excavating (Excavating), Mustang Construction (Mustang), and Easy Street Construction (Easy).3 Tilly became full-time mainte- nance supervisor for Equipment on or shortly after June 30, a position he had previously held at Naperville. Illustrative of the interrelation of the affiliated companies is their involvement in the building of the batch plant at the Na- perville facility in 1990. Employees of Equipment performed the initial construction aided by employees of Naperville, Mus- tang, Dukane, and Easy. Ray Brown, a mechanic for Naper- ville, and Tilly worked on it for about a year and a half together 1 All dates are in 1992 unless otherwise indicated. 2 Respondents admit, and I find, that the Union is a labor organiza- tion within the meaning of Sec. 2(5). 3 It is also admitted, and I find, that Naperville, T&W, and Equip- ment are employers engaged in commerce within the meaning of Sec. 2(2), (6), and (7). with Dukane’s Larry Fromelius. When there was need for erec- tion of panels, Fromelius would oversee the work, but if elec- trical work was required Norb of Mustang was in charge, and if hooking up generator pipes was required then Brown, aided by Tilly, oversaw the work. During winter months, Brown was also assisted by Easy employees who were on layoff; and in the summer Brown assigned a Naperville truck mechanic to help with construction tasks. This was in addition to Brown’s re- sponsibility for operations at Naperville’s mechanical shop. Indeed, mechanics would go from the shop to the batch plant and back to get instructions. On becoming operational, the batch plant, though technically under Equipment, was run by Naperville employees Brown and Tilly. All this occurred with- out any allocation of hours and wages between the companies. Most Wehrli affiliated companies are covered under a health insurance policy maintained by Dukane and by workmen’s compensation and vehicle liability policies held by Equipment. II. BARGAINING A. History Wehrli’s first represented Naperville in labor contract nego- tiations with the Union in the early 1960s as a member of the Northern Illinois Ready Mix Association (NIRMA). Naperville left that association in 1986 because Wehrli felt that organiza- tion did not properly represent residential (as opposed to com- mercial) contractors. He then negotiated with the Union for Naperville as part of a group of independent companies called the Western Border Group (WBG). In 1989, Wehrli severed ties to that group and successful negotiated a 3-year contract extending to April 30, 1992, directly with the Union. That agreement included a 36-month period before new hires reached the contract rate, a concession that neither NIRMA nor WBG had obtained. B. Prestrike Negotiations By letter dated January 27, Naperville notified the Union that it was terminating its contract as of the expiration date and was willing to meet and negotiate a new contract at mutually agree- able times. The first negotiating session occurred on April 21. The Un- ion was represented by its secretary-treasurer, Tom Custer, and Business Agent Ron Smith; and Wehrli, his son Robert, and Doll were present for Naperville. At the start of the meeting, there was some discussion be- tween the son and the Union regarding delays in payment of health and welfare claims. Wehrli mentioned having a similar problem. There was a general discussion about the rising cost of health benefits and how the increases were too expensive. Wehrli explained that the ready mix concrete industry had been very competitive the last 3 to 4 years, and Naperville had not been able to get any increase in its prices for concrete. Never- theless, there had been wage and benefit increases during that time. He complained that the situation was costing Naperville money, and opined that the Company could not continue to operate that way. He proposed that they receive some type of concession for 1 year to see if things would get back on an even keel, adding that after the 1-year period they could sit down and negotiate an increase in wages and benefits. He observed that if the Union lacked flexibility, the Company had three choices. First, it could go out of the ready mix business. Second, it could park the trucks for 1 to 3 years until the economy turned around and ready mix concrete prices got up to where they should be. NAPERVILLE READY MIX, INC. 189 Third, it could sell the trucks to the drivers or others and lease them back. For its part, the Union sought an hourly wage increase of $1 per hour, a reduction from 36 to 12 months in the period of time before new hires reached the contract rate, an increase in pension benefits, and deletion of concessions Naperville had obtained with respect to health and welfare and pension contri- butions for new hires. One of the proposed language changes was to conform article 17 (“Work Preservation and Protection of Standards”) to article 17 of the NIRMA Agreement. Naper- ville rejected the Union’s proposal. The Union asked for a counterproposal, and Wehrli offered a 1-year rollover, except Naperville would undertake to provide health and welfare cov- erage commensurate to the Union’s plan and would contribute to the employees’ 401(k) accounts the same amount it had been paying to the union pension plan. Wehrli also requested a change in who would provide health and welfare and pension coverage because, in his opinion, the trustees were not doing a good job of keeping the costs down. At the Union’s request, he reduced his proposal to writing. As noted, the contract had an expiration date of April 30. The next meeting was held on May 7 with the same persons present except that Union President Al Scholtens substituted for Smith. Custer wanted to go through the union proposal item by item. Wehrli ignored the request and accused him of regressive bargaining in trying to get Naperville to sign the same contract the Union expected to have with NIRMA and WBG. Wehrli reiterated his view that Naperville could not compete in the residential market under those terms, and again offered a 1-year rollover with respect to wages with Naperville providing its own health insurance and pension plans. Getting no encouragement, Wehrli told them he wanted to sell his trucks to drivers because he was losing money in the delivery business and would like to operate like “Elmhurst Chicago Stone” (Elmhurst), a construction company whose deliveries reportedly were accomplished by owner-operators paid by yards hauled rather than hourly wages. Custer re- sponded that in order to do that Naperville, like Elmhurst, would have to be party to the NIRMA Agreement. However, although requested, he did not then or ever provide a document governing relations between the Union and Elmhurst. Reluctant to pursue the matter, Custer told Wehrli that he was not going to help him sell the trucks to drivers.4 Persistent, Wehrli asked if the Union would sign contracts with owner-operators hauling cement moving from Naper- ville’s facility. Custer replied, “No,” and then Scholtens added (according to Custer) “that if Naperville tried to use owner- operators, the Union would strike every one of his fucking companies.” When Wehrli pointed out that two of those com- panies (Excavating and Dukane) had contracts with the Union which did not expire until January 31, 1993, Scholtens told him he could take those contracts and “stick them up your ass.” On May 12 Wehrli faxed a letter to Custer reading as fol- lows: I have decided to go out of the trucking business and am offering to sell my trucks to my present drivers first, and then any leftover trucks will be offered to outsiders. 4 Custer states that at this time he was not “real clear on whether or not he [Wehrli] was actually going to pursue the area of selling his trucks” because he had raised that possibility 3 years’ earlier as a bar- gaining tool. I intend to use individual contractors for all my truck- ing needs. If you want any discussion with me in this regard feel free to call. The Union made no written response. In Custer’s view the let- ter as well as Wehrli’s continued repetition of intent to sell the trucks “was just a negotiating tool that he was using to try to get a better agreement than everybody else in the industry.” The third meeting was on May 14 with the same participants as at the first, and it lasted about an hour. Some movement occurred. The Union withdrew a number of items from its pro- posal; and Naperville agreed to the Union’s request for lan- guage changes in three clauses. Wehrli restated his desire to sell the trucks and proposed a 1-year rollover coupled with deletion of article 24 which he viewed as an obstacle to the sale.5 Custer again responded that he was not going to help in achieving that objective and would not consider any change in article 24. Naperville faxed a copy of Wehrli’s “rollover-minus-Article 24” proposal to the Union on the following day stating that it rejected prior union proposals. At a union meeting held shortly thereafter, Custer told the membership of that development and briefed them on other pending negotiations with ready mix contractors in the “Chicagoland” area. In a vote taken that eve- ning, the members rejected Naperville’s proposal and author- ized a strike. Wehrli held two meetings with Naperville drivers between May 20–27,6 where, after stating that Naperville was going to sell its cement mixer trucks (approximately 25) and get out of the trucking business, he gave them first option to buy vehicles but urged quick action because he wanted to sell all of the units by July 1.7 He told them they could continue to haul cement for the Company if they opted to buy trucks and operate as independent contractors. He proposed a $14-per-yard haulage fee and gave them a rough estimate truck prices and how much they could expect to earn in 1 year after expenses; and he prom- ised to help them with matters such as financing, licenses, title transfers, and insurance. He also stated that all drivers who did not buy would be terminated by July 1, based on reverse senior- ity, as trucks were sold to outsiders who chose to haul for the company as owner-operators.8 Shortly after May 27 Wehrli met with two Naperville me- chanics, at least one of whom was a member of the Union. 5 Art. 24 provides, among other things, that owner-operators who are not certified by the Illinois Commerce Authority (ICA) are considered employees of Naperville for virtually all purposes, including payment of wages, union security, and health/welfare and pension benefits. 6 Although Wehrli was “not certain” whether he notified the Union about the meetings, I infer it had contemporaneous knowledge because at least 25 of its driver members attended. The situation is analogous to the “small plant rule” cited in Health Care Logistics, 273 NLRB 822 (1984). 7 The July 1 date was significant to Wehrli because Naperville would save approximately $40,000 in license renewal fees. Fees for individual trucks varied from $1500 to $1700 and were nonrefundable. 8 Of 10 drivers who attended the meetings and testified, 1 (Joe Japuntich) understood Wehrli to say that vehicle buyers could work only for him, and “would have to use his mechanics [and] . . . buy all the parts and things through him, insurance, fuel and such to operate the vehicles.” One other (Jeff Fowler) states he heard Wehrli say, “[W]e shouldn’t be handing [reporting] any of this to the Union.” In light of Wehrli’s denials and lack of corroboration I decline to credit these accounts. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190 They had heard through the grapevine that the trucks were be- ing offered for sale. Wehrli said he wanted them to continue servicing vehicles hauling cement for Naperville but proposed they do so by going into business for themselves. He gave as- surance that he would not let them be “screwed” by vehicle owners even if that meant paying repair bills himself. He con- cluded by saying he expected them to maintain the trucks in any event. Only two Naperville employees agreed to purchase trucks, Wehrli’s son Robert and one driver, Richard Downs. So begin- ning on June 1 advertisements were placed in local newspapers under the heading “Business Opportunities,” as follows: CONCRETE MIXER TRUCK DRIVERS—OWN YOUR OWN TRUCK. FINANCING AVAILABLE. NET $40,000-$80,000 PER YEAR, PLUS BUILD EQUITY IN YOUR OWN TRUCK! WELL ESTABLISHED THIRTY-THREE YEAR OLD COMPANY WITH EXCELLENT CUSTOMER BASE. CALL JERRY AT (708) 355–4777. Wehrli’s son-in-law Jerry Doll received 50 inquiries. After checking credit references he considered 10 to be potential purchasers. On June 1, Custer called Wehrli and arranged for a meeting on June 9. During that call Wehrli brought up the matter of truck sales. Custer cut off any discussion by categorically stat- ing it could not be done.9 He maintained that position when he met with Wehrli and his son on June 9.10 Custer briefed them on terms of a collective-bargaining agreement between the Union and NIRMA reached 2 days earlier. Nothing further was accomplished. The next meeting was on June 15. This time a Federal Me- diator was present. Custer and Smith represented the Union and Wehrli and Doll were present on behalf of Naperville. The meeting lasted about an hour and a half with the mediator going back and forth between the two parties. The Union made some minor modifications to its proposal. In response, Naperville made a new “final” offer of a 1-year rollover minus article 24 plus a wage and benefit increase of 65 cents an hour spread in the same was [sic] as in the NIRMA Agreement. At a union meeting that evening members voted unani- mously to reject Naperville’s offer and again authorized a strike. The strike began on Wednesday June 17. C. Poststrike Negotiations Another meeting was held on Sunday June 21 at the office of the mediator. It lasted about 15 minutes. No progress was made. The same result obtained at a 15-minute meeting called by Custer on June 22. In a letter to Custer dated June 24, We- hrli declared an impasse and an intent to implement Naper- ville’s final offer on June 29. This elicited a union expression of willingness to continue bargaining, and a brief session oc- curred on June 25. The only new proposal was offered by Na- perville. It amended its last offer by agreeing to pay the NIRMA negotiated increases for an additional 6-month period, 9 As noted, the Union filed its original charge on June 8. Therein Naperville is alleged to have dealt directly with unit members to com- pel them to become owner-operators. 10 During the meeting Robert Wehrli told Custer he was planning to buy some of the Naperville trucks and asked whether he could sign a contract with the Union. Custer’s answer was an emphatic “No.” including 60 cents more per hour during that period. The offer remained unacceptable to the Union. At the Union’s request the parties met, again briefly, on July 1 for what turned out to be the last formal session. In lieu of seeking an increase of $1 an hour for each year of a 3-year contract, the Union asked for 75 cents.11 Custer also stated that he was open to some modification of article 24, adding “but I would not delete it.” The meeting ended after Wehrli stated his amended offer of June 25 was a final one. Immediately after the meeting Custer sent a letter to Naper- ville requesting information concerning the sale of trucks and suggesting negotiations be scheduled after the Union had op- portunity to review the information; and by letter dated July 2 the Union’s attorney asked it to provide “all information relat- ing to the sale, transfer, lease or purchase of ready mix trucks from Naperville Ready Mix to its former employees, independ- ent contractors or owner operators and he specified what docu- ments were desired, including purchase contracts, financing agreements, leases and maintenance and repair arrangements.’’ He added that a refusal-to-bargain charge would be filed in the event the data was not made available within 5 working days. Naperville replied to the requests in a letter from its attorney dated July 10. That letter reads in part as follows: Naperville . . . has the right to take whatever steps it deems necessary to continue operations in the face of the strike—including selling vehicles to persons to whom the Company can subcontract its work. The Union has no right to know the financial arrangements between Naper- ville . . . and its subcontractors. We fail to see how the documents you have requested are reasonably related to the Union’s duty to fairly represent its members. If you can furnish us with an explanation as to how each of the documents requested is reasonably calculated to elicit information which the Union may need to prop- erly represent its members and a citation to case authority which supports the request, I am sure that Naperville . . . will be responsive to your letter. The Union did not respond. Instead it filed another charge on July 19 alleging, among other things, unlawful failure to pro- vide requested information about the “sale.” None of the data was made available except to the extent entered in the record of this proceeding. At the Union’s request Wehrli again met with Custer on two occasions. The first was at the union hall in late July and lasted about 3 minutes. In response to Custer’s inquiry as to whether there was some way to resolve their differences, Wehrli an- swered that it was too late because the trucks were sold. But he again asked to see a contract under which (he believed) Elm- hurst was allowed to use owner-operators. As before, Custer claimed, without producing a document, that Elmhurst was signatory to the NIRMA contract. The second was on August 7 at a restaurant in Naperville. It lasted about 5 minutes. Custer presented a handwritten six-point proposal, as follows: 1. Company will not be responsible for wages, health & welfare benefits or pensions of owner operators or their employees. 11 The 75-cent raise was substantially higher than the agreement just reached with NIRMA and WBG. No explanation was given for the disparity. NAPERVILLE READY MIX, INC. 191 2. Naperville will sign a collective bargaining agree- ment covering the plant operator and yard men [individu- als not covered under the expired agreement]. 3. Company agrees that all owner-operators and their employees will be signatory to the NIRMA Agreement. 4. Drivers for T&W [who refused to cross the picket line] return to work [but now] under a [collective bargain- ing agreement] agreement. 5. All charges . . . dropped on both sides (Global Agreement) except for the fines for members12 who crossed the picket lines [and these] could be reduced to maintain membership in good standing. 6. All employees who lost their jobs will receive a sev- erance pay of $5,000 . . . in addition to all vacation pay earned. After glancing at the document, Wehrli said he would agree to the first item but invited Custer “to shove the rest up your ass.” Indicative of Wehrli’s mood was his parting accusation that Custer was at fault for his nephew being hurt. In a fax dated August 18, Naperville told the Union it was going to sell its remaining vehicles and cease doing any deliv- eries on its own; and to achieve that objective it added to its proposal of June 25 a requirement for elimination of article 17 (as well as art. 24) of the old contract.13 The missive concluded by stating: As you know, we believe we are at an impasse on the issue of our plan to subcontract all delivery work. Of course we are still willing to bargain with you on the issue of subcontracting. However, we believe it would be more fruitful to begin bargaining over the effects of subcontract- ing. If you are interested in further negotiations, please call me to schedule a meeting. The Union did not respond. No further negotiations took place. In early February 1993, the Union on behalf of named strikers mailed to Naperville an unconditional offer to return to work. None have been recalled. D. Conclusions It is well established that an employer’s decision to go out of business is an exercise of managerial discretion not subject to any bargaining obligation under Section 8 of the Act. Textile Workers v. Darlington Co., 380 U.S. 263 (1965); Otis Elevator Co., 269 NLRB 891 (1984); and there is no claim in the instant case that Naperville had to bargain about a decision to discon- tinue trucking operations. An employer, however, must provide an opportunity to bar- gain over the effects of cessation on employees in a bargaining unit. Merryweather Optical Co., 240 NLRB 1213 (1979); and effects bargaining must be conducted “in a meaningful manner at a meaningful time.” First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). To achieve that result a union on being advised of the situation must make a timely request for effects bargaining. Ventura County Star-Free Press, 279 NLRB 412, 420 (1986). Otherwise, it is deemed to have waived its right. Associated Milk Producers, 300 NLRB 561, 563 (1990); 12 Members included the Wehrlis (father and son), Doll, and Tilly. 13 Art. 17 requires use of Naperville drivers before any subcontract- ing can take place while, as noted in fn. 5, art. 24 requires the Company to treat owner-drivers as employees. WPIX, Inc., 299 NLRB 525, 526–527 (1990); and Print-Quic, 262 NLRB 857, 861 (1982). Faced with competitive pressures in its ready-mix business, Naperville’s president, Wehrli, as early as May 7 put the Union on notice that absent contract concessions it intended to discon- tinue trucking operations; and it confirmed that decision, and solicited discussion of it, in a written communication sent to the Union on May 12. When the Union repeatedly declined to dis- cuss the matter and offered no significant bargaining conces- sions, Wehrli on two occasions between May 20 and 27 offered Naperville drivers first opportunity to buy vehicles, telling them the Company’s truck operations would cease as of July 1. As found above (fn. 6), the Union had contemporaneous knowl- edge of those meetings. On June 1, the day Naperville adver- tised for buyers in local newspapers, the Union again rejected an opportunity for effects bargaining; and, on June 15 it re- jected Naperville’s latest contract proposals and authorized the strike which began on June 17. In these circumstances, and assuming for the moment that Naperville ceased its own trucking operations on July 1, I find that by repeatedly rejecting its requests for effects bargaining, the Union waived its rights in that regard. Accordingly, its de- mands on July 1 and 2 for data concerning truck sales came too late to create any obligation on Naperville’s part. Also, I find that Wehrli’s meetings with drivers in May did not involve direct dealing with union members on matters in- volving terms and conditions of employment. Rather he appears to have used those meetings solely for the purpose of giving them first opportunity to buy vehicles. His proposals to sell assets to them were financial and managerial in nature and not of a type giving rise to a duty to bargain. Shell Ray Mining, 286 NLRB 466, 468 (1987), citing General Motors Corp., 191 NLRB 951 (1971), enfd. sub nom. Auto Workers v. NLRB, 470 F.2d 422 (D.C. Cir. 1972); and National Car Rental Systems, 252 NLRB 159 (1980). The basic question, therefore, is whether there was a bona fide sale or a sham transaction. III. TRUCK TRANSFERS/SUBCONTRACTING During the last week of June, and while the strike continued, Wehrli entered into “handshake agreements” to sell trucks to the two Naperville employees (his son Robert and driver Rich- ard Downs), a driver for T&W (Steve Weissinger), and two individuals (Tate Haley and Michael Drane) who responded to ads and had no prior connection with Wehrli affiliated compa- nies. R. Wehrli, Downs Weissinger, and Drane each chose two mixer trucks, while Haley chose one. There was little or no negotiations. Wehrli set vehicle prices, required no downpayments and agreed to pay $14 for each cubic yard of Naperville ready-mix hauled, of which $1 would go to payment of principal. Interest on unpaid balances would be at the prime rate set from time to time by a named Chicago bank. Naperville would retain a security interest in the vehicles and have first priority on their use. Titles of the vehicles were transferred during the period June 28–30 from Naperville to five corporations: Respondents Dia- mond Ready Mix, Inc. (Diamond), Fox Valley Ready Mix, Inc. (Fox Valley), and Concretes 1 through 3 (C1 through C3). Fox Valley was a preexisting corporate shell owned by Weissinger and the remaining four Companies were incorporated on June 19 by Wehrli. His son accquired the stock of Diamond on June 22; and the stock of the “Concretes” was transferred on July 10, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192 with Downs acquiring that of C1, Drane that of C2, and Haley that of C3. Pursuant to the handshake agreements and in anticipation of the July 1014 documentation, the new “owners” began opera- tions for Naperville on July 115 having themselves paid license fees approximating $1600 per vehicle and leased their vehicles to T&W, a motor carrier with appropriate authority from the Illinois Commerce Comission.16 The stock of C4 was trans- ferred on August 24 to Brad Bonnel under the same terms de- scribed above. Bonnel, like Weissinger, was a full-time driver for T&W. C4 began operations immediately, Bonnel having paid the license fee and signed a lease with T&W. The new “owner-operators” were given loading slips and were dispatched from the Naperville facility by employees of Equipment; and, when not in use, their mixer vehicles were parked there without charge. In most instances they opted to purchase fuel from and have heavy maintenance performed by Equipment. Similarly, they chose to pay for insurance under policies covering Wehrli affiliates and maintained in the name of affiliates Dukane (health)17 and Excavating (liability, prop- erty loss, and workers’ compensation). Also, and as a condition for continued participation in the group liability policy and to be in compliance with governmental regulations, lessors (and their drivers) were required to observe safe operation rules, attend monthly vehicle safety meetings (conducted by a con- sultant employed by Naperville, Bill Warden) and to submit to random tests for drug use. The tests were taken at a facility used by Wehrli affiliates and owner-operators reimbursed Na- perville for costs. By October it became apparent to all concerned that the strike significantly diminished expected revenues of owner- operators. To alleviate their situation, Wehrli accorded to Fox Valley and the “Concretes” a waiver of interest payments and reduced the $1-per-ton principal payment to 50 cents until January 1993 and, as to his son’s company (Diamond), sharply reduced the price of previously purchased vehicles.18 During a 23-month period extending from early duly 1992 through May 1994: 14 The transfer documents also contain numerous provisions which protect the seller, for example: stock remains in escrow until debts are paid; buyers must maintain a net worth equal to unpaid principal; seller has access to books and records for tax and copying purposes; proceeds from vehicle insurance must be used to secure unpaid principal; seller has security interest in property acquired or used in buyers operations; and a number of buyer default clauses making the entire principal due if the precipitating event is not cured within 15 days. 15 There is no evidence that Naperville as a corporate entity provided any transportation for itself after July 1. 16 The lessors paid no fee to T&W for operating under the latter’s authority. Its president (Tilly) explains that absent outbound movments of ready-mix Naperville would have no need for T&W’s inbound haul- ing of raw materials. 17 As owner and sole employee of C3, Haley opted not to participate in the medical insurance program; and Robert Wehrli went beyond the Dukane medical policy and provided dental insurance for employees of Diamond. 18 These changes were incorporated into documents otherwise iden- tical to the original transfer papers. They were signed around mid-January 1993, but backdated to July 10. The revised documents were received in evidence, the originals having been lost or destroyed. I find no subterfuge or intent to deceive. Indeed, the originals were made available to Board agents during the precomplaint investigation. Diamond acquired a fleet of 10 vehicles at a cost of $151,763 for which it [Wehrli] held no position with We- hrli affiliated companies. He hired eight drivers only one of which (Robert Carlson) previously worked for Wehrli affilated companies. He drives a vehicle himself, performs minor vehicle maintenance at the Naperville facility using his own tools, and pays mechanics employed by Equip- ment for major repairs. Books and records are mainlined by his wife and reviewed by an accountant of his own choosing. He acquired membership in the Illinois Trans- portation Association and has an application for operating authority pending with the Illinois Commerce Commission (ICC), a grant of which would enable Diamond to haul for various shippers without leasing to other truckers. Fox Valley expanded from 2 to 5 vehicles the total cost of which was $171,000. Principal and interest pay- ments amounted to $46,210 and $11,219, respectively. Trucks are driven by owner Weissinger and three driver employees. Weissinger performs minor maintenance using his own tools, often at a 35’ x 72’ garage near his resi- dence. He reimburses Equipment for major repairs. His wife serves as bookkeeper, aided by an accountant having no connection with Wehrli affiliated companies. He shifted his employees’ health insurance from the Dukane policy to an insurer of his own choosing sometime in January 1993; an he has an application on file with the ICC for an operating permit. Concrete 1 acquired 5 trucks for a cost of $178,000, paying $27,217 in principal and $11,202 in inter- est/hereon. Owner Downs renamed the company as “dba R&J Ready Mix” in July. He performs light maintenance and pays Equipment do heavier repair work, although on one occasion, he had a mixer unit rebuilt by a an individ- ual who had previously worked for a Wehrli affiliated company. He has several driver employees and also drives vehicle himself. Books and records are maintained by his brother, an accountant. He has an application for a truck- ing permit pending before the ICC. Concrete 2 bought 3 vehicles costing a total of $144,000 for which it paid $27,810 in principal and $10,223 in interest. Owner Drane renamed the company as “dba KLM Cartage.” He does his own bookkeeping, drives a vehicle and has at least one other employee driver. He has used Equipment for repairs as well as two other services “Cameron” and “MEW.” He is seeking a permit from the ICC. Concrete 3 continued to operate with one mixer truck purchased for $61,000; and it made principal payments amounting to $7475 with interest totaling $3333. Owner Haley drove the vehicle, did minor maintenance and on the few occasions requiring heavier mechanical work, Equipment mechanics were used. Records were overseen by an accountant not connected with Wehrli affiliates. The mixer truck was sold back to Naperville on March 3,1994 for an amount ($52,526) representing unpaid principal plus accrued interest.19 Concrete 4 (dba B&M Ready Mix) also operated with one mixer truck. It cost $41,000. Principal payments were $6200, interest was $3145. The vehicle was driven by a 19 About 1 month later, Naperville conveyed the vehicle to Diamond for $26,000. NAPERVILLE READY MIX, INC. 193 driver employee, while owner Bonnell continued to work full-time hauling dry bulk cement for Naperville and Du- kane as a driver for T&W. Bonnell performed routine maintenance, using Equipment as well as a company (Su- perior Diesel) not connected with Wehrli interests. He hired an accounting service to maintain books and records. I am not persuaded that the equipment transfers were sham transactions and that the operations of the transferees were those of Naperville-Wehrli, as alleged. Title to the vehicles appears properly to have been conveyed; and the security pro- visions (fn. 14) are appropriate and usual in transactions of this type. The buyers were knowledgeable about the mechanical condition and market price of the trucks they bought; and the record amply demonstrates that they assumed the burdens of ownership. They paid substantial amounts for licenses, insur- ance and principal, and interest on their outstanding loan bal- ances. Most hired employee drivers, paid their wages and pro- vided medical benefits; and all assumed responsibility and paid for required vehicle maintenance. See Central Transport, 299 NLRB 5 (1990); Associated General Contractors, 290 NLRB 522 (1988), enfd. 899 F.2d 1238 (D.C. Cir. 1990). The circumstance that they obtained liability insurance (with correlative safety instruction and checkups), medical and dis- ability coverages, fuel, parts, and repair services from Wehrli affiliates does not belie their exercise of ownership and control. Their claim of having paid for those services (buttressed by books and records made available during trial) was not dis- puted; and they are shown to have been free to (and at times did) use alternative sources unconnected with Wehrli affiliates. I regard their use, without charge, of parking and document reproduction machines and the temporary abatement of princi- pal and interest payments as a matter of mutual convenience and, at best, de minimum. Similarly, I view Wehrli’s decision to reduce the purchase price of some vehicles sold to his son’s company (including one repurchased from Haley) simply as an act of generosity having no bearing whatever on the matter of ownership and control. IV. ALLEGED VIOLATIONS OF SECTION 8(a)(1) On a number of occasions, Wehrli and his son admittedly Robert told Naperville drivers that Naperville would discon- tinue trucking operations after July 1 and that they would be out of jobs on that date unless they opted to buy vehicles and be- come independent owner-operators. The claim that those state- ments constituted unlawful threats intended to discourage sup- port for the union derives from a perception of sham truck sales designed to disguise continued operations by Naperville . Hav- ing rejected that claim, I find the conversations simply apprised the drivers of Naperville’s intent to go out of the trucking busi- ness and of an opportunity for them to enter. Also alleged as unlawful interrogation are inquiries of Kevin Hamblen and other drivers for nonunion T&W as to whether they would drive across the picket line to deliver and receive product at the Naperville facility. When they said no Wehrli and Tilly told them they had to do so to continue as T&W driv- ers. That statement is claimed to constitute an unlawful in- ducement to cross a picket line. Here, too, I find no violation. Since virtually all of T&W’s trucking operations involve haul- ing to and from the Naperville facility, the inquiry was proper. Mosher Steel Co., 220 NLRB 336 (1975), enfd. 532 F.2d 1374 (5th Cir. 1976). And the comment was not coercive. It merely reflected the fact that T&W had no work available for a driver who would not cross the picket line. Shortly after the strike began, Wehrli approached a group of strikers, gave them an opportunity to haul ready mix as owner operators and offered advice that by signing a financial core document they could avert union penalties for crossing the picket line. The latter comment is cited as an unlawful solicita- tion to resign from the Union. It is well settled that union mem- bers may seek financial core membership to absolve themselves from union discipline for crossing a picket line. Pattern Makers v. NLRB, 473 U.S. 95, 106 fn. 16 (1985); Tacoma Boatbuilding, 277 NLRB 513 (1985); Gordon Construction, 277 NLRB 530 (1985). That being the case, and absent any indication that the advice was given in an otherwise coercive context, I find no unlawfulness. CONCLUSION OF LAW For the reasons stated above, I conclude that the evidence fails to establish any violation of the Act. [Recommended Order for dismissal omitted from publica- tion.]