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

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