Rebel Coal Co., Inc., And Richlands Supply Corp.

REBEL COAL CO Rebel Coal Company, Inc., and Richlands Supply Corp. and United Mine Workers of America District 30. Case 9-CA-20697 31 March 1986 DECISION AND ORDER BY MEMBERS DENNIS, BABSON, AND STEPHENS On 31 December 1985 Administrative Law Judge William A. Pope II issued the attached deci- sion. The Charging Party filed exceptions and a supporting brief. 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 and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Rebel Coal Company, Inc., Auxier, Ken- tucky, and Richlands Supply Corp., Cedar Bluff, Virginia, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(e). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply herewith." 2. Substitute the attached notice for that of the administrative law judge. ' The Charging Party excepted only to the judge's denial over the ob- jections of the General Counsel of its motion at hearing to amend the complaint to include addition of allegations of unfair labor practices 2 We do not adopt the judge's inclusion of a visitatonal clause in his recommended Order In the circumstances of this case, we find it unnec- essary to include such a remedial provision and have modified the Order accordingly APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 141 WE WILL NOT refuse to hire any of you, or oth- erwise discriminate against any of you, for joining, supporting, or assisting the United Mine Workers of America, or engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole Donnie Butcher, Bill McIntyre, and Jimmy Blanton for any loss of wages or other benefits caused by our refusal to hire them to work at the Cedar Bluff, Virginia fa- cility of Richlands Supply Corp. WE WILL offer Donnie Butcher, Bill McIntyre, and Jimmy Blanton immediate and full reinstate- ment to their former jobs with Rebel Coal Compa- ny, Inc., if they are not currently employed in those jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from our discrimination against them. REBEL COAL COMPANY, INC., RICHARDS SUPPLY CORP. Raymond D. Neusch, Esq., for the General Counsel. Gregory Ward, Esq., of Pikesville, Kentucky, for the Charging Party. J. Edgar Baily, Esq., of Roanoke, Virginia, for the Re- spondent. DECISION WILLIAM A. POPE II, Administrative Law Judge. In a complaint, dated 4 December 1984, the Regional Direc- tor for Region 9 alleged that Rebel Coal Company, Inc., and Richlands Supply Corp., the Co-Respondents, are alter egos, and that they committed unfair labor prac- tices, in violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act by refusing to employee three named individuals at Respondent Richlands Supply Corp.'s Cedar Bluff, Virginia, facility because the three individuals had engaged in protected concerted activities. The charge in this case was filed on 29 February 1984 by District 30, United Mine Workers of America. Trial was held on 8 and 9 October 1985 in Paintsville, Kentucky. I. BACKGROUND Rebel Coal Co., Inc., a West Virginia corporation chartered on 1 October 1982, is engaged in the strip mining and sale of coal. Its main office is located in Auxier, Kentucky. It presently has a contract to mine coal at a complex near Davella, Kentucky. Since 12 279 NLRB No. 22 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 1983, A. Odell Rogers has been its sole officer, di- rector, and shareholder. He was Rebel Coal Company's president, chairman of the board of directors, and con- trolling, if not sole, shareholder at all prior times rele- vant to this proceeding. For a period of time beginning 31 December 1982,1 and until each of them resigned on 12 April 1983, Malcolm E. Van Dyke was a director of the corporation and its secretary, and W. Roy Debo was a director of the corporation and its vice president, treas- urer, and assistant secretary. On 22 June 1984 Rebel Coal Company filed a volun- tary petition for reorganization pursuant to Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the Western District of Kentucky. The case was transferred to the Eastern District of Kentucky on 11 September 1984, and the Company filed its plan for reorganization dated 26 August 1985. Since filing its petition for reorga- nization under Chaper 11, Rebel Coal Company has con- tinued to operate as a debtor-in-possession, under a man- agement contract, dated 1 June 1984, with Minmag, Inc., as its managing agent . Rebel Coal Co.'s sole stockholder, A. Odell Rogers, is said to maintain no role in company affairs. Exhibit I, an amended disclosure statement, filed by Rebel Coal Company on 17 September 1985, lists the fol- lowing companies, among others, as being owned or controlled by A. O. Rogers: M & T Equipment Co.; Monument Mining Corp.; Pinion Mesa Mining Co.; and Richlands Supply Co. Among the debts listed to former officers or shareholders are approximately $246,000 to Malcolm Van Dyke. Richlands Supply Corp. was incorporated in Virginia on 23 May 1983. The purpose of the corporation, as stated in the articles of incorporation, is the business of selling supplies. The sole director named in the articles of incorporation is C. L. Doberer, Route 3, Cedar Bluff, Virginia. The incorporator who signed the articles of in- corporation on 10 May 1983 is John G. Rocovich Jr. Testimony at trial identified Rocovich as an attorney who represented Rebel Coal Co. about that time. Docu- ments filed with the bankruptcy court identify Rocovich as an attorney for the debtor, Rebel Coal Co., Inc. Roco- vich's business mailing address, P.O. Box 13606, Suite 900, FNEB Building, Jefferson Street, Roanoke, Virginia 24035, appears on the articles of incorporation of Rich- lands Supply Corp. as its initial registered office. On 20 December 1982 Rebel Coal Co. and the Interna- tional Union, United Mine Workers of America, con- cluded a collective-bargaining agreement, covering the work force described in the certification of the National Relations Board of 21 May 1982. The work covered in- cluded the receipt, shipment, stocking, pickup, and deliv- ery of parts and fuel to and from the warehouse operated by Rebel Coal Co. at its Rebel 7 facilities in Davella and Auxier, Kentucky. The agreement was to remain in force 1 The record does not reflect when Malcolm E Van Dyke and W Roy Debo first became officers or directors of Rebel Coal Company. the earliest exhibits admitted into evidence showing their election to office are minutes of meetings of the shareholders and board of directors on 31 December 1982 But, it is apparent from other exhibits and testimony that both were corporate officers or directors or held themselves out to be such, before then until 30 September 1984. The agreement provided that operations which it covered would not be sold, con- veyed, or otherwise transferred or assigned to any suc- cessor without first securing the agreement of the succes- sor to assume Rebel Coal Co.'s obligations under the agreement. 11. ISSUES The complaint in this case alleges that Respondent Richlands Supply Corp. is a subordinate instrument to, and a disguised continuance of, Respondent Rebel Coal., Inc., and that the two enterprises have at all material times been alter egos and a single employer within the meaning of the Act. The complaint further alleges that the Respondents committed unfair labor practices, in vio- lation of Section 8(a)(1) and (3) of the Act, by refusing to employ three named individuals at Respondent Rich- lands' Cedar Bluffs, Virginia facility because the individ- uals had joined, supported, or assisted a union, and had engaged in protected concerted activities. The General Counsel argues that Respondent Rich- lands and Respondent Rebel Coal are alter egos and a single employer within the meaning of the Act because Respondent Richlands was set up to perform work previ- ously performed by Respondent Rebel's own employees, and at the relevant time control of labor relations and actual management of Respondent Richlands was exer- cised by officials of Respondent Rebel Coal, and ulti- mately by A. Odell Rogers, who owned Rebel Coal. The General Counsel further contends that the unrebutted evidence shows that Respondent Richlands refused to hire Donnie Butcher, Bill McIntyre, and Jimmy Blanton, three employees of Respondent Rebel Coal, because Re- spondent Richlands did not want to hire anyone who had been a member of or supported the Union. Finally, the General Counsel requests that the recommended re- medial order include a visitatorial clause, authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure so it can monitor compliance with its order. The Charging Party joins in the General Counsel's ar- gument that Respondent Richlands and Respondent Rebel Coal are alter egos and a single employer within the meaning of the Act, and that Respondent Richlands discriminated against Rebel Coal employees Butcher, Blanton, and McIntyre. In addition, the Charging Party argues that the judge should have granted its motion at trial to amend the complaint to cover the layoffs of Rebel Coal employees, as charged, even over the objec- tion of the General Counsel. For its part, Respondent Rebel Coal Co., Inc., by a posthearing letter dated 4 November 1985, argues that it has been discharged of any and all liabilities, other than debts or obligations which are expressly created or as- sumed by Rebel Coal under the modified plan of reorga- nization which was approved by the United States Bank- ruptcy Court for the Eastern District of Kentucky on 28 October 1985. There being no mention of proceedings before the National Labor Relations Board in the reorga- nization plan, Respondent Rebel Coal apparently reasons that it is discharged of any liability for alleged past REBEL COAL CO unfair labor practices and, it says in its letter of 4 No- vember 1985, it "cannot proceed further in this alleged cause." The General Counsel, by a pleading dated 15 Novem- ber 1985, opposes Respondent Rebel Coal's letter of 4 November 1985, which the General Counsel character- izes as an "apparent contention that the administrative law judge dismiss the instant complaint." Says the Gen- eral Counsel, even assuming, arguendo, there is no finan- cial remedy against Respondent Rebel Coal, there may be one against Respondent Richlands. Further, argues the General Counsel, even assuming, arguendo, no finan- cial remedy can be obtained against either Respondent, they could be ordered to offer employment to alleged discriminatees, to cease and desist from engaging in the unfair labor practices found, and to post an appropriate notice to employees. The order of the bankruptcy court, notes the General Counsel, applies only to Respondent Rebel Coal's financial obligations. III. FINDINGS AND CONCLUSIONS A. Single Employer The threshold question in this case is whether or not Respondent Richlands Supply Corp. is the alter ego or the disguised continuance of Respondent Rebel Coal Co., Inc., so that they may be considered a single employer under the Act. In Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106 (1942), the Supreme Court said that "[w]hether there was a bona fide discontinuance and a true change of ownership-which would terminate the duty of reinstate- ment created by the Board's order-or merely a dis- guised continuance of the old employer . . . is a question of fact . . ." The Supreme Court noted that if "there was merely a change in name or in apparent control .. . there is added ground for compelling obedience." In such cases, where there is only a technical change in the structure or identity of the employing entity, "without any substantial change in its ownership or man- agement," the Courts have held that the new employer "is in reality the same employer" and subject to the same legal and contractual obligations. Howard Johnson v De- troit Joint Board, 417 U.S. 249, 252 fn. 5, 262 fn. 9 (1974). In Truck & Dock Services, 272 NLRB 592 In. 2 (1984), the Board repeated the criteria for determining whether two companies may fairly be treated as a single employ- er: To determine whether two entities are sufficient- ly integrated so that they may fairly be treated as a single employer, the Board and the courts examine four principal factors: (1) common management; (2) centralized control of labor relations; (3) interrela- tion of operations; and (4) common ownership. Radio Union v. Broadcast Service of Mobile, 380 U.S. 255, 256 (1965); NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir. 1982); Shellmaker, Inc., 265 NLRB 749, 754 (1982). Although none of these factors, viewed separately, has been held control- ling, the Board has stressed the first three factors, particularly centralized control of labor relations. 143 Parklane Hosiery Co., 203 NLRB 597, 612 (1973). Single employer status depends on all of the cir- cumstances and has been characterized as an ab- sence of an "arm length relationship among .. . un- integrated companies." Blumenfeld Theatres Circuit, 240 NLRB 206, 215 (1979), enfd. 626 F.2d 865 (9th Cir. 1980). The same four factors were cited by the Board in its earlier decision in Sakrete of Northern California, 137 NLRB 1220, 1222 (1962), in which the Board said that it "often treats separate corporations as one employer for jurisdictional purposes, where it is found that the firms, despite their nominal separation, are highly intergrated with respect to ownership and operation." And, the Board again referred to the same four factors in Holiday Inn of Benton, 237 NLRB 1042, 1044 (1978), as the basis for determining whether two arguably separate employ- ers will be considered joint employers under the Act. The Board has found alter ego status where "two en- terprises have `substantially identical' management, busi- ness purpose, operation, equipment, customers, and su- pervisors, as an ownership." Crawford Door Sales Co., 226 NLRB 1144 (1976). To some degree, the Board and the Courts have tended to use the terms "alter ego," "single employer," and "joint employer" somewhat interchangeably. The terms, in fact, however, refer to different concepts. Technically, "alter ego" refers to a situation in which the original employer has transferred its work to a second employer, the alter ego, and has gone out of business. Crawford Door Sales Co., supra. "Single employer" and "joint employer" apply to two companies operating in a unified fashion. See Naccarato Construction Co., 233 NLRB 1394 (1977); Schultz Painting Co., 202 NLRB 111 (1973). Referring to the difference between "single em- ployer" and "joint employer" relationships, the Third Circuit Court of Appeals said in NLRB v. Browning- Ferris Industries, 691 F.2d 1117, 1122 (3d Cir. 1982): A "single employer" relationship exists where two nominally separate entities are actually part of a single integrated enterprise so that, for all pur- poses, there is in fact only a "single employer." The question in the "single employer" situation, then, is whether the two nominally independent enterprises, in reality, constitute only one integrated enterprise . . In answering questions of this type, the Board considers the four factors approved by the Radio Union court. (380 U.S. at 256, 85 S.Ct. at 877): (1) functional integration of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership . . . "Single employer" status ultimately depends on all the circumstances of the case and is characterized as an absence of an "arm's length relationship found among unintegrated companies." (Citation omitted.) In contrast, the "joint employer" concept does not depend upon the existence of a single integrated enterprise and therefore the above-mentioned four factor standard is inappropriate . . . . In "joint em- ployer" situations no finding of lack of arm 's length 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transaction or unity of control or ownership is re- quired, as in "single employer" cases. . . . The basis of the finding is simply that one employer while contracting in good faith with an otherwise inde- pendent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other. .. . Thus, the "joint employer" concept recognizes that the business entities involved are in fact sepa- rate but that they share or co-determine those mat- ters governing the essential terms and conditions of employment. [Citation omitted.) Determination of single-employer status is "essentially a factual determination." NLRB v. M. P. Building Corp., 411 F.2d 567, 568 (5th Cir. 1969). Here, the evidence of record conclusively establishes that Respondent Rebel Coal Company, Inc., and Respondent Richlands Supply Corp. were a single employer under the Act. They shared common ownership and management; Respondent Rebel Coal controlled the labor relations of Respondent Richlands Supply; and there was a complete interrelation of operations between the two. There was, in fact, a complete absence of an arm's-length relationship between them. Although they were nominally separate, in the sense they were separately incorporated, in reality they constituted one integrated enterprise, and were, for all practical purposes, the same employer.2 The evidence that Respondent Rebel Coal and Re- spondent Richlands Supply are a single employer is largely circumstantial, but it is also overwhelming. 1. Common ownership and control; interrelation of operation It is undisputed that A. Odell Rogers is the sole stock- holder of Rebel Coal Co., and that until the company was reorganized and filed for bankruptcy, actively man- aged and controlled its affairs. In its amended disclosure statement, filed with the bankruptcy court on 17 September 1985, Rebel Coal Co., as debtor-in-possession, listed Richlands Supply Corp. and Monument Mining Corp. as companies owned or controlled by A. O. Rogers (A. Odell Rogers). Although Rogers did not sign the disclosure statement, I find the circumstances under which the list of companies which he owned or controlled was prepared to be such that the list is credible and reliable. It was, first of all, prepared and submitted by Rebel Coal Co., which Rogers, with- out question, owns, and was not disputed or challenged by Rogers. Further the list was prepared, in part, on the basis of information furnished by his uncle. Finally, the same John G. Rocovich Jr., who, as an attorney repre- senting Rebel Coal and A. Odell Rogers in 1983, was in- volved in the incorporation of Richlands Supply Corp., later, participated in preparing and filing the amended disclosure statement . Because Mr. Rocovich had actual 2 The Respondents were not technically alter egos, because although Respondent Rebel Coal transferred work to Respondent Richlands, Rebel Coal Co did not go out of business, in fact, the evidence establishes that it was ultimatley Richlands Supply Corp which became dormant There is no evidence that the two entities were joint employers, as that term is used by the Board and the courts. knowledge of who the principals of Richlands Supply were, the presumption of regularity attached to the pleading which he filed in 1985 on behalf of Rebel Coal Co., which is owned by A. Odell Rogers, is such that the enclosed list of companies owned or controlled by Rogers may be presumed to be true, at least with respect to Richlands Supply. Until their resignations on 12 April 1983, Malcolm E. Van Dyke and W. Roy Debo were directors and officers of the corporation, but it is clear that they had no au- thority except that which A. Odell Rogers delegated to them. Although he resigned as`an officer and director of the corporation, on 12 April 1983, Malcolm E. Van Dyke re- mained an employee of Rebel Coal during all relevant subsequent times. W. Roy Debo, who, until 12 April 1983, had been Re- spondent Rebel Coal's vice president, treasurer, assistant secretary, and, it appears, general manager, ostensibly left Rebel Coal to become the sole stockholder and offi- cer of Frontier Management Company. I find, however, that although Frontier Management Company, which ap- parently came into existence about April or May 1983, may have been nominally independent, in reality it, too, was owned and controlled by A. Odell Rogers and there was no arm's-length relationship between it and Rebel Coal. In reality, Frontier Management never had any exist- ence separate and apart from A. Odell Rogers and Rebel Coal. It was set up, ostensibly by Debo, in early 1983, to provide data processing services to Rebel Coal and other companies. The only other companies to which it pro- vided any services, however, were Richlands Supply Corp. and Monument Coal Co., two businesses which I find were owned or controlled by A. Odell Rogers. In fact, Frontier Management did not even receive a fee from Richlands Supply Corporation for the services which it performed for the latter. Joining Debo at Frontier Management was Edward F. Kim, Rebel Coal's controller, who became Frontier's controller. He held that position until April 1984, when Frontier Management terminated operations and he went back to work for Rebel Coal, which was then being re- organized. Indicative of the control exercised by A. Odell Rogers over Frontier (in addition to the fact that only Rogers' companies were serviced by Frontier), Kirn did not even find it necessary to submit a letter of resig- nation when he left Rebel Coal for Frontier Manage- ment; he simply went with Debo, Rebel Coal's former vice president and general manager, and continued to do exactly the same work for Rebel Coal, as controller of Frontier Management, as he had done while employed by Rebel Coal. Finally, subsequent events involving W. Roy Debo quite clearly establish that he never left Rebel Coal's employ, even though he was on paper the sole stock- holder and officer of Frontier Management. Rebel Coal Co.'s records show that W. Roy Debo was not terminat- ed as an employee of Rebel Coal at its rebel #7 mining operation unttl 4 May 1984, a year after he supposedly left Rebel Coal to set up and manage Frontier Manage- REBEL COAL CO. ment. This date ties in closely with the bankruptcy of Rebel Coal Co., which was filed on 22 June 1984, and the takeover of management of Rebel Coal under a man- agement contract by Coal Financial Management, which retained the contract for 30 days, then was replaced on 1 June 1984 by Minmag. According to Edward F. Kirn, while he was still em- poyed as controller of Rebel Coal, he had discussions with Debo about establishing a supply company. It was thought that because W. Roy Debo had knowledge of the parts business in the area, he would use his talents to make Richlands Supply a viable company. But, the initial establishing and maintaining of a warehouse operation was more in Malcolm Van Dyke's area of expertise, and he would oversee the operation at first. Richlands Supply Corp. was set up with Carl L. Doderer as presi- dent.3 According to Kim, Van Dyke, who was not an em- ployee of Frontier Management, exercised supervision over Richlands Supply until November 1983, when he was replaced by Debo. Kim testified that for as long as Kirm remained at Frontier Management, Debo remained in control of Richards. Doderer made only the decisions about where he would buy parts and what price he would pay. Copies of the signature cards for Richlands Supply Corp.'s account in the Grundy National Bank, Grundy, Virginia, show that when the account was first opened on 15 June 1983, A. O. Rogers, Malcolm Van Dyke, Edward F. Kirn, and W. Roy Debo were authorized to draw on the account. On 12 September 1983 new signa- ture cards were completed, with the signatures of Carl Doderer and Tommy Thompson appearing in place of those of Rogers and Van Dyke. The General Counsel's key witness was Carl Doderer, who, at the time he testified, was a current employee of Rebel Coal Co. and was in charge of its parts depart- ment. Doderer's testimony established unequivocally that Respondent Richlands Supply Corp. was merely a dis- guised continuance of Respondent Rebel Coal Co. I find that Doderer was straightforward in his testimony, with- out giving any appearance of evasiveness or lack - of candor. I find his testimony, which is unrebutted, to be credible. Doderer testified that in spring 1983 he was Rebel Coal's purchasing manager, and that he worked at Rebel Coal's offices in Auxier, Kentucky. He reported to Mal- colm Van Dyke, Rebel Coal's purchasing director. At that time, Rebel Coal's mining operations were at a loca- tion known as Rebel #7, near Davella, Kentucky. An- other location previously operated by Rebel Coal, known as Rebel #2, in Holden, West Virginia, had changed names and was operating under the name of Monument Mining. According to Doderer, Odell Rogers was the president of Rebel Coal;4 Roy Debo was the vice president and general manager. 3 As previously noted , Richlands Supply Corp. was incorporated in Virginia on 23 May 1983 The sole director named in the articles of in- corporation was C L Doderer 4 As previously noted, Rogers also has been identified in the bankrupt- cy proceedings as owning or controlling Monument Mining 145 In March 1983 Doderer testified, he was informed by Malcolm Van Dyke that Rebel would be closing its office in Auxier, and Van Dyke offered him a position somewhere in Virginia, doing the same job, but for four or five different companies. Doderer accepted the offer, and in May 1983, together with Roy Debo and Ed Kim, moved to offices in Prestonsburg, Kentucky, occupied by Frontier Management Company. Doderer continued doing exactly the same job of buying parts for Rebel Coal as he had done previously, except that he made the purchases briefly in the name of Frontier Management, then in the name of Richlands Supply Corp. At first, he was told, he was an employee of Frontier Management, then an employee of Richlands Supply. In July 1983, according to Doderer, he met with Van Dyke in the latter's office in Auxier. Also present were Odell Rogers and John Rocovich, whom Doderer knew to be Rebel Coal's attorney. At the meeting, Doderer learned for the first time that he was the chairman of the board, president, and secretary-treasurer of Richlands Supply Corp. He signed various documents at the meet- ing, including minutes of a meeting of Richlands' board of directors, dated 23 May 1983, stating he was in attend- ance and had been elected chairman of the board. In fact, Doderer had not attended any such meeting. He also signed in blank 10 shares of Richlands' stock, which the minutes stated he had received at the May meeting. All the documents and the shares of stock were retained by Mr. Rocovich. Doderer testified that when he moved to Frontier Management's offices, Debo was in charge of Frontier Management, but Doderer said he understood Debo still held a position with Rebel Coal and continued to do so until spring or summer of 1984. Doderer said that, to the best of his knowledge, Van Dyke never was associated with Frontier Management, and continued his employ- ment with Rebel Coal until mid-1984, about the same time as Debo and Rogers ceased to be associated with the management of Rebel Coal. After moving to Prestonsburg, Doderer said, he con- tinued using Rebel Coal employees as parts runners and talked daily to Rebel Coal's warehouse at Rebel #7 to get fuel readings and about parts they needed. He contin- ued to supervise the Rebel employees at Rebel Coal's warehouse in Auxier until January 1984. In the meantime, in early September 1983, Odell Rogers hired an individual named Mike Stevenson to work for Richlands Supply Corp. as a tractor-trailer driver. Doderer was not consulted in advance. After moving to Prestonsburg, Doderer testified he re- ceived some directions from Van Dyke, but not on a daily basis. He had little contact with Debo about Rich- lands Supply until October 1983 when Debo took charge Doderer, it appears, resented reporting to Debo and, in November 1983, threatened to quit. He did not follow through on his threat, however, after being told by Odell Rogers that Debo was only helping him move to Virginia and would be out of it as soon as Richlands Supply made the move. Around Christmas 1983, Doderer attended a meeting in Prestonsburg which was also attended by Debo, Van 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dkye, Kim, and several Rebel Coal Co. supervisors. Debo announced that all the parts stored at Rebel #7 would be moved to Richlands Supply Corp. in Virginia, and that the parts department at Rebel #7 would be closed. Debo indicated the parts might be sold to Rich- lands for a few dollars. When not everyone agreed, Van Dyke said, "That's the way he, Rogers, wanted it and that's the way it would be done. Van Dyke also said, "If he said bum the office down, I'd burn the office down. Whatever the man says, that's what we'll do." On 8 January 1984 Richlands Supply moved into a building owned by M & T Equipment, located in Cedar Bluff, Virginia. Although Doderer saw a lease agreement for the building, he did not sign it, and he does not know if any rent was ever paid to M & T Equipment.5 Rich- lands Supply occupied only the first floor of the build- ing. The second floor contained offices, some of which were used by one Calvin Cantrell, who worked for Odell Rogers and Pinion Mesa Mining (another company owned or controlled by Rogers). On several occasions Odell Rogers used the second floor of the building for meetings. Contrary to the assurance he had received from Odell Rogers, Doderer testified, Debo continued to tightly contol the operations of Richlands Supply after it moved to its location in Cedar Bluff, Virginia. Debo would not allow Doderer to advertise in the yellow pages, or put a sign on the building identifying it as Richlands Supply Corp., nor would he permit Doderer to try to make a profit by purchasing and reselling parts. After Richlands Supply moved into the building in Cedar Bluff, Virginia, Debo hired a number of employ- ees to work there, most of whom had previously worked for Rebel Coal. Doderer had no voice in who was hired. While Richlands Supply was in operation, it continued to supply parts to Rebel #7 as before and, said Doderer, it delivered some parts to Monument Mining and Pinion Mesa Mining (both identified as companies owned or controlled by A. Odell Rogers in Rebel Coal's amended disclosure statement). Doderer said Rebel Coal Co. was billed for parts, but not the parts runners' time. Accord- ing to Doderer, he performed basically the same work he had performed at Frontier Management and Rebel Coal. In March 1984 Doderer said he was told by Debo not to talk to Donald Becker of the NLRB. Doderer testified he learned in April 1984 that Rich- lands Supply's bank account was overdrawn by $80,000. He said he called Debo several times, wanting to talk about this, the IRS, and the Labor Board, but when he finally had a telephone conversation with him on 13 April 1984, Debo said only that he would call back. When Debo called back later that day, he told Doderer to turn in everyone's keys, including Doderer's own, be- cause Richlands Supply was being closed down. Doderer said he went back to work for Rebel Coal in July 1984 after Odell Rogers was no longer in control of it. Doderer further testified that recently he has been told by Mike Stevenson, who has come to Rebel #7 for parts, ° A Odell Rogers has been identified in pleadings in the bankruptcy proceedings as owning or controlling M & T Equipment Co that he still works out of the warehouse in Cedar Bluff, but that "they" are using the name "Frontier" now.6 2. Centralized control of labor organizations In 1983 Doderer testified, Dale Mosely, Rebel Coal Co's truck boss, related a conversation he had with Odell Rogers. Mosely said he had been instructed by Rogers to have a Rebel Coal Co. employee, named Bill McIntyre, move from a company-owned house because McIntyre had signed a union card and went union. In late 1983 McIntyre, while still employed by Rebel Coal Co., asked Doderer for a job with Richlands Supply Corp. Doderer relayed the request to Roy Debo, but Debo was not interested in hiring McIntyre because, Debo said, he was union and there would not be any union people working at Richlands Supply. Doderer received a similar response from Debo about hiring Jimmy Blanton, another Rebel Coal Co. employee who asked Doderer for employment at Richlands Supply Corp., once in late 1983 and again in early 1984. Debo told Doderer it was Rogers' idea that there would not be a union at Richlands Supply Corp. According to Debo, it would defeat the purpose of Richlands Supply. Finally, Debo would not allow Doderer to hire Donnie Butcher to work for Richlands Supply Corp. be- cause Butcher, another Rebel Coal Co. employee who asked Doderer in late 1983 for employment at Richlands Supply, was a union member. In February 1984, Doderer said, Debo told him that before Odell would let the place (Richlands Supply) go union, he would shut the doors. 3. Single employer status All the circumstances brought out in this proceeding establish beyond any question that Respondent Richlands Supply was never anything more than an empty shell of a corporation, created by, absolutely controlled by and, in due time, effectively terminated by A. Odell Rogers. Rogers' sole purpose in creating Richlands Supply was for it to serve as a disguised continuance of Rebel Coal Co.'s parts operation. Rogers also wielded absolute own- ership and control over Rebel Coal Co. and all aspects of its operations. For their part, Malcolm Van Dyke and W. Rob Debo were mere functionaries of Rogers. They had no independent authority of their own and exercised no independent judgment. Frontier Management appears to have been no more than another of Rogers' shell cor- porations, likewise created to shield his interests and ac- tivities. It is unimportant to this case why Rogers caused the creation of Richlands Supply Corp. or for that matter, why he terminated its activities. Whether Rogers' pur- poses may have been proper or improper, and even if a scheme to defraud creditors might have been involved, the important fact for purposes of this case, is that he owned and controlled both, they were integrated compa- 6 Bill Hackworth testified that he called the warehouse on the morning of the second day of the trial of this case, and the woman who answered the telephone said "Frontier Management " REBEL COAL CO. 147 nies with closely interrelated operations, and Rogers ex- ercised centralized control of the labor relations of both. The two Respondents meet all the relevant criteria, and I find them to be a single employer under the Act. B. Unfair Labor Practices From the foregoing testimony and from the entire record, I find that the General Counsel has met his burden of proving by a preponderance of the evidence that Respondent Rebel Coal Co. and Respondent Rich- lands Supply Corp. are a single employer for purposes of the Act, and they committed unfair labor practices, in violation of Section 8(a)(1) and (3) of the Act, by refus- ing to employ Donnie Butcher, Bill McIntyre, and Jimmy Blanton at Respondent Richlands' Cedar Bluff, Virginia facility because they supported and had joined a union. The evidence is unequivocal that in late 1983 those three individuals, who were employees of Respondent Rebel Coal. Co. and members of the United Mine Work- ers of America, each requested employment by Respond- ent Richlands Supply Corp. In the case of each of them, employment by Richlands Supply Corp. was refused by W. Roy Debo because they belonged to and supported the Union. Respondent Richlands Supply is the disguised continuance of Respondent Rebel Coal Co., and the two are a single employer under the Act. In refusing employ- ment to the three individuals, Debo acted on behalf of, under the authority of, and at the direction of A. Odell Rogers who owned and controlled both Respondents. C. Visitatorial Clause Without citing any specific authority for such relief at this stage of the proceeding, the General Counsel asks that the recommended remedial order include "a visita- torial clause, authorizing the Board to engage in discov- ery under the Federal Rules of Civil Procedure so that it will be able to monitor compliance with the Board's Order, as enforced by the Court of Appeals." The General Counsel notes that Section 10(c) of the Act "charges the Board with the task of devising reme- dies to effectuate the policies of the Act." NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 (1953). Since 1950, the General Counsel points out, the Board has rou- tinely included a type of visitatorial provision in backpay orders requiring the Respondent to preserve and make available for copying all payroll records and reports and all other records necessary to analyze the amount of backpay due under the Board's order. In the absence of a vistatonal clause such as sought here, the General Coun- sel asserts, the Board must either apply to a court of ap- ' The requested visitatonal provision provides that Respondent Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply therewith For the purpose of determining or securing compliance with this Order, the Board or any of its duly authorized representatives, may obtain discovery from Respondent, its officers, agents, successors or assigns, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure Such discov- ery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had upon any matter reason- ably related to compliance with this Order, as enforced by the court peals for discovery or obtain enforcement in district court of a subpoena issued under Section 11 of the Act, neither of which is a satisfactory way of gaining the dis- covery the Board may need and, in one circuit, at least, the Board is not entitled to discovery prior to filing a contempt citation, which may be a premature step to take before discovery. On the other hand, the General Counsel argues, other agencies (the antitrust division of the U.S. Department of Justice, for one) routinely utilize similar visitatorial clauses. Finally, the General Counsel contends that a visitatonal clause, which would only be conducted under the supervision of a court of appeals, works no undue hardship upon a Respondent who has already been found to have violated the Act The requested clause appears to be reasonable under the circumstances of this case. Inasmuch as discovery under the clause can be conducted only under the super- vision of a United States court of appeals, inclusion of the visitatorial clause in my recommended remedial Order imposes no undue hardship on the Respondent, nor does it place the Respondent at an unfair disadvan- tage at any later stage of these proceedings. According- ly, the General Counsel's request for inclusion of a pro- posed visitatorial clause in the recommended remedial Order is granted. D. Motion to Amend the Complaint The Charging Party renews its motion made, and denied, at trial to amend the complaint in this case to in- clude, as alleged unfair labor practices, the layoffs of cer- tain employees of Rebel Coal Co. At trial I found that the complaint did not include such an allegation, and I ruled that the complaint could not be amended to in- clude such an allegation over the opposition of the Gen- eral Counsel. It is well settled that an administrative law judge may amend a complaint only upon the motion of or with the consent of the General Counsel, or when evidence has been received into the record without ob- jection. GTE Automatic Electric, 196 NLRB 902 (1972); Winn Dixie Stores, 224 NLRB 1418, 1420 (1976). Here, the General Counsel has not only not consented to the amendment proposed by the Charging Party, he has ob- jected to it. And, the issue of whether or not Respondent Rebel Coal Co. committed unfair labor practices by laying off any of its employees was not litigated at trial. I find that my ruling at trial was proper, and the Charg- ing Party has cited no new authority which would re- quire a different result. Accordingly, the Charging Party's motion to amend the complaint is denied. E. Respondent's letter of 4 November 1985 Apparently Seeking Dismissal of the Complaint In its posthearing letter of 4 November 1985, Respond- ent Rebel Coal Co. states it "cannot proceed further in this alleged cause," because an order of the United States Bankruptcy Court for the Eastern District of Kentucky, dated 22 October 1985, discharged it of all liabilities except those approved by the Court, of which liability for unfair labor practices was not one. The General Counsel, who considers the Respondent's letter to be a motion to dismiss the complaint, objects on the grounds 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent Richlands Supply Corp. has not been excused from financial liability, and nothing in the bank- ruptcy court's order precludes Respondents from posting a notice to employees, or offering employment to the al- leged discriminatees. I have considered the arguments made by both Re- spondent Rebel Coal Co. and the General Counsel. I find nothing in the order of the bankruptcy court of 22 Octo- ber 1985 which precludes Respondent Rebel Coal Co. from proceeding further in this matter. Indeed, there is no mention in the bankruptcy court's order of proceed- ings before the National Labor Relations Board. It is premature to consider at this stage of the proceeding what action the General Counsel can legally take, or may elect to take, to enforce any remedy approved by the Board in this case. At such time as Respondent Rebel Coal Co. may refuse to comply with any Order of the National Labor Relations Board, and the General Coun- sel may institute enforcement action, Respondent Rebel Coal Co. may raise whatever legal defenses it believes it has. Accordingly, Respondent Rebel Coal Co.'s motion to dismiss the complaint is denied. CONCLUSIONS OF LAW 1. Rebel Coal Company, Inc. and Richlands Supply Corp. are a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Mine Workers of America, District 30 is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing in late 1983 or early 1984 to employ Donnie Butcher, Bill McIntyre, and Jimmy Blanton at Respondent Richlands Supply Corp.'s facility in Cedar Bluffs, Virginia, because they had joined, supported, or assisted the Union, and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, Respondent Rebel Coal Company, Inc., and Respondent Richlands Supply Corp., violated Section 8(a)(1) and (3) of the Act. REMEDY Having found that Respondent Rebel Coal Company, Inc. and Respondent Richlands Supply Corp. engaged in certain unfair labor practices, I find it appropriate to order then to cease and desist and to take certain affirm- ative action designed to effectuate the policies of the Act. Respondent Rebel Coal Company, Inc. and Respond- ent Richlands Supply Corp. shall make whole employees Donnie Butcher, Bill McIntyre, and Jimmy Blanton for any loss of wages or other benefits caused by the failure of the Respondents to hire them to work at Respondent Richlands Supply Corp.'s Cedar Bluff, Virginia facility at the times the three employees requested such employ- ment in late 1983 or early 1984. Backpay shall be com- puted in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 76 (1962). If employees Donnie Butcher, Bill McIntyre, and Jimmy Blanton are not currently employed by Respond- ent Rebel Coal Company, Inc., in their former jobs, Re- spondent Rebel Coal Company, Inc. shall offer them im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to susbtantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them . Backpay shall be computed as prescribed in F. W. Woolworth Co., supra, plus interest as computed in Florida Steel Corp., supra. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER Respondent Rebel Coal Company, Inc., and Respond- ent Richlands Supply Corp., Cedar Bluff, Virginia, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to hire employees because they have joined, supported, or assisted a union, and engaged in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection. (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) Make whole Donnie Butcher, Bill McIntyre, and Jimmy Blanton for any loss of wages or other benefits cause by the failure of the Respondents to hire them to work at Respondent Richlands Supply Corp.'s Cedar Bluffs, Virginia facility in late 1983 or early 1984, in the manner set forth in the remedy section of this decision. (b) Offer them immediate and full reinstatement to their former jobs with Respondent Rebel Coal Company, Inc., if they are not currently employed in those jobs by Respondent Rebel Coal Company, Inc. or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (c) 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- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at their facilities in Davella, Kentucky, Cedar Bluffs, Virginia, and at any other facilities which the Re- spondents operate in Kentucky, West Virginia, and Vir- 8 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 REBEL COAL CO ginia, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- 9 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 " 149 ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply therewith. For the purpose of determin- ing or securing compliance with this Order, the Board, or any of its authorized representatives, may obtain dis- covery from the Respondent, its officers, agents, succes- sors, or assigns, or any other person having knowledge concerning any compliance matter, in the manner pro- vided by the Federal Rules of Civil Procedure. Such dis- covery shall be conducted under the supervision of the United States court of appeals enforcing this Order any may be had upon any matter reasonably related to com- pliance with this Order, as enforced by the court.