Blackberry Creek Trucking, Inc And Mate Creek Trucking, Inc

474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Blackberry Creek Trucking, Inc and Mate Creek Trucking, Inc and United Mine Workers of America Case 9-CA-23230 October 31 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 26 1988 Administrative Law Judge Elbert D Gadsden issued the attached decision The Respondents filed exceptions and a supporting brief and the General Counsel filed an answering 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 briefs and has decided to affirm the judge s rulings findings i and conclusions2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Blackberry Creek Trucking Inc and Mate Creek Trucking Inc Matewan West Virginia their officers agents successors and assigns shall take the action set forth in the Order i The Respondents have excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings 2 The Respondents except to the judge s finding that the unilateral transfer of the trucking operation from Blackberry Creek Trucking (BCT) to Mate Creek Trucking (MCT) constituted a failure and refusal to bargain in good faith with the Union on the grounds that no such vio lation was specifically alleged in the complaint and that the issue was not fully litigated at the hearing We find no ment in this exception The complaint alleges the Respondents refused to bargain with the Union by unilaterally changing the terms and conditions of employment of unit em ployees by transferring work previously performed at BCT to MCT It further alleges that MCT s conduct in requiring that employees in the ap propnate bargaining unit perform services without the benefit of repre sentation by the Union constituted an unlawful refusal to bargain by the Respondents These allegations clearly put the Respondents on notice that bargaining obligations concerning the transfer of operations were at issue In such circumstances the litigation at the hearing of the alleged unlawful aspects of the transfer constitutes full litigation of the allegation that the transfer itself was an unlawful refusal to bargain in good faith See Vulcan Hart Corp 248 NLRB 1197 (1980) modified on other grounds 642 F 2d 255 (8th Cir 1981) Baughman Co 248 NLRB 1346 fn 2(1980) Donald A Becker Esq for the General Counsel Louis Dene Esq of Abingdon Virginia for the Re spondent James R Hampton Esq of Hazard Kentucky for the Charging Party DECISION STATEMENT OF THE CASE ELBERT D GADSDEN Administrative Law Judge On a charge of unfair labor practices filed on 19 June 1986 by United Mine Workers of America (Union or Charg ing Party) against Blackberry Creek Trucking Inc and Mate Creek Trucking Inc (Respondents) a complaint was issued on 14 September 1987 by the Regional Direc tor for Region 9 on behalf of the General Counsel In substance the complaint alleges that in June 1985 Respondent Blackberry Creek Trucking unilaterally changed the terms and conditions of employment of its unit employees by transferring their work to Respondent Mate Creek Trucking and requiring the employees who desired work with Mate Creek Trucking to work with out representation of the Union in violation of Section 8(a)(1) and (5) of the Act that since June 1985 Respond ent Mate Creek Trucking has been a disguised continu ation and alter ego of Blackberry Creek Trucking and as such constitutes a single employer that on or about 30 September 1984 certain unit employees of Blackberry Creek Trucking ceased work concertedly and engaged in a strike but after they made an unconditional offer to return to work on 23 December 1985 Respondent has failed and refused to reinstate them for varying periods of time to their former or substantially equivalent posi tions of employment in violation of Section 8(a)(1) and (3) of the Act The Respondent filed an answer on 22 September 1987 denying that it has engaged in any unfair labor practices as set forth in the complaint The hearing in the above matter was held before me in Williamson West Virginia on 1 and 2 December 1987 Briefs have been received from counsel for the General Counsel and counsel for the Respondent respectively which have been carefully considered On the entire record in this case including my obser vation of the demeanor of the witnesses and my consid eration of the briefs filed by respective counsel I make the following FINDINGS OF FACT I JURISDICTION Respondent Blackberry Creek Trucking (Blackberry Creek) is and has been at all times material a Kentucky corporation engaged in the interstate transportation of coal in the States of Kentucky and West Virginia Respondent Mate Creek Trucking (Mate Creek) has been engaged in the interstate transportation of coal in the States of Kentucky and West Virginia II THE LABOR ORGANIZATION INVOLVED The Union United Mine Workers of America is now and has been at all times material a labor organization within the meaning of Section 2(5) of the Act 291 NLRB No 82 BLACKBERRY CREEK TRUCKING 475 III THE ALLEGED UNFAIR LABOR PRACTICES A Background Information Blackberry Creek was incorporated in the State of Kentucky on 17 March 1983 for among other things the purpose of operating coal lands by excavating removing treating handling hauling storing transporting distribut ing and selling coal (G C Exh 1 ) Respondent Mate Creek was incorporated in the State of Kentucky on 17 June 1985 for among other things the purpose of operating coal lands by excavating re moving treating handling hauling storing transporting distributing and selling coal (G C Exh 4 ) The parties stipulated that the following employees of Respondent Blackberry Creek constitute a unit appropri ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All employees employed by Blackberry Creek Trucking engaged in the production of coal includ ing removal of overburden and coal waste prepara tion processing and cleaning of all coal and trans portation of coal (except by waterway or rail not owned by Respondents) repair and maintenance work normally performed at the facilities of the [Respondents] and maintenance of gob piles and mine roads and work customarily related to all of the above i B Respondents Corporate Arrangement and Business Relationship Blackberry Creek Trucking was incorporated 3 March 1983 for the purpose among other things of hauling and transporting coal On 16 April 1984 Jack Hatfield sole shareholder of Blackberry Creek Trucking canceled his certificate and transferred his shares to the following new owners Name Share Owners Office Joby Fields 50 percent President Joseph Fields son of Joby Fields 50 percent Vice President Brenda Fields none Secretary Treasurer When Blackberry Creek Trucking commenced hauling coal in late April 1984 it did so from Fieldmore Enter prises partially owned by Joby Fields to Sprouse Creek Processing Plant At that time Blackberry Creek Truck ing was not signatory to any wage or collective bargain ing agreement However in July 1984 Blackberry Creek Trucking became signatory to the National Bituminous Coal Wage Agreement of 1981 which was to expire 3 months later (9-30-84) Pursuant to the agreement Blackberry Creek Trucking hauled coal from Tall Timber Mine to Sprouse Creek Processing Plant It in hented 10 drivers from the predecessor hauler Cook I The facts set forth above are not disputed and are not in conflict in the record Trucking Five drivers were still hauling from Joby Fields partially owned Fieldmore Mine When hauling from Fieldmore and Tall Timber the drivers were paid $1 50 per ton That rate was not negotiated nor was it in the agreement with the Union (District 30 UMWA) which was aware that the drivers were not being paid the contractual hourly rate Regardless of the number of hours a driver worked each day or week he reported 7 hours and 15 minutes per day or 36 1/4 hours per week The hours worked were deducted from the gross pay the driver earned on tonnage Consequently the driver received two checks one for the 36 1/4 hours based on the contractual rate for drivers and the second check for the balance of the gross made out to the driver owner or owner of the truck Only driver Ronald Webb recorded the actual number of hours he worked because he drove the truck of Blackberry Creek Trucking and he was paid the con tractual rate plus overtime Although the other drivers were not paid overtime they never complained or filed a grievance or complaint over the matter Unemployment and social security taxes health insur ance workers compensation and man hour royalties re quired by the NBCWA 81 are deducted from the wages of the driver and transmitted by the employer to the re spective agencies on organizations The NBCWA 81 expired 30 September 1984 and Blackberry Creek Trucking drivers went on an economic strike 1 October 1984 and the Company ceased oper ations In March 1985 Joby Fields mine was flooding out with about 3 months work remaining Although negotia tions between Blackberry Creek Trucking and the Union had been in progress 6 months the Union had rejected several offers by Blackberry Creek Trucking to execute a successor agreement Fields requested the Union to allow Blackberry Creek to resume operations and take his coal to places other than the Sprouse Creek plant but the Union refused his request Thereafter Fields dis cussed the problem of mine flooding with accountant Don Blankenship and decided to resume operations at Fieldmore Fields then transferred his trucking operation to Mate Creek Development which was already estab lished with worker s compensation and liability insur ance Mate Creek Development was a trucking company with other truck owners and driver owners It was ini tially organized to mine coal Fields said drivers were difficult to find so Mate Creek Development started hauling from Picko Cumberland Village and McNanny Resources in March 1985 He said he had Mate Creek Development do the hauling from Fieldmore starting in April 1985 He also said he would have taken any driv ers at that time because he was in a desperate situation with his mine flooding out Mate Creek Trucking was incorporated on or about 13 June 1985 to engage in essentially the same kind of mine trucking operations for which Blackberry Creek Truck ing was incorporated The strike against Blackberry Creek Trucking was still in progress at that time About 4 days later 17 June 1985 Mate Creek Truck ing entered into a contract to haul coal for Blackberry 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Creek Trucking The contract was identical to the con tract with Blackberry Creek Coal Company for rendition of the same services Blackberry Creek Trucking hauled coal from a number of mine sites to Sprouse Creek Proc essing plant to which Mate Creek Trucking now hauls Mate Creek Trucking replaced Mate Creek Development and started hauling in October 1985 A mailgram was received from the Union by Black berry Creek Trucking and Mate Creek Trucking on 23 December 1985 notifying that the Union was making an unconditional offer to return to work and end the eco nomic strike Fields however assumed the position that Mate Creek Trucking had no obligation to recognize the Union as either alter ego or successor of Blackberry Creek Trucking that Mate Creek Trucking was a sepa rate entity and different company performing work that Blackberry Creek had not previously performed because Mate Creek was hauling from different sites on 23 De cember 1985 Moreover Fields said Blackberry Creek Trucking had made several offers to execute the succes sor agreement and the Union rejected its offers Addi tionally Blackberry Creek Trucking has no drivers on its payroll and Mate Creek Trucking has only truck owners with drivers or driver owners In other words all dnv ers must own their trucks or arrange to drive for a truck owner Truck owners have the authority to select the driver of their trucks with the approval of Mate Creek Truck mg (Supervisor Tom Copley) All checks for driver earnings are prepared on Mate Creek Trucking checks for convenience but Respondent contends not as em ployees of Mate Creek Trucking Actually the owner pays the driver workers compensation premium health insurance and matching social security taxes The pay ment for these benefits are deducted from the truck owners earnings When an owner drives his own truck he must also pay for his health insurance workers com pensation and matching social security taxes Conse quently the owner/driver receives two checks one for his wages and one for the gross earnings less deductions for benefits that are held by Mate Creek and paid to the proper organization or agency In January 1986 Mate Creek Trucking commenced hauling from Elkhorn #1 mine and in February 1986 it hauled from Northland and Tall Timber Gradually Mate Creek Trucking started hauling from Elkhorn #2 and Glenn Allen Picko Cumberland Village Sweetwa ter Big Walnut and Big Bottom Subsequently during a negotiation session with Re spondent (Louis Dene and Joby Fields) on 6 March 1986 Hampton testified that they talked about the recall of the Blackberry Creek Trucking drivers and either Dene or Fields advised him that Blackberry Creek Trucking was not operating and had no intention of re suming operations that Mate Creek Trucking had taken over the hauling operations of Blackberry Creek Truck ing between Fieldmore Enterprises and Tall Timber to Sprouse Creek Processing and that both Dene and Fields admitted that Blackberry Creek Trucking s trucks were being utilized by the drivers of Mate Creek Truck mg to haul coal Comparative Business Operations of Blackberry Creek Trucking and Mate Creek Trucking According to the uncontroverted and credited testimo ny of Respondents president Joby Fields the following was established Blackberry Creek Trucking Share Owner Joby Fields president and head of labor relations Tom Copley former employee George Blanken ship certified public accountant does most of the accounting work Address P 0 Box 570 Matewan West Virginia Mine site equipment used Owns one end loader leases one end loader end loaders are serviced by an employee (Larry Mounts) of Mate Creek Truck mg which purchases the parts fuels and grease for Mounts to use Mate Creek Trucking Share Owner Joby Fields president and head of labor relations Tom Copley Supervisor George Blankenship cer tified public accountant does most of the account mg work Address P 0 Box 570 Matewan West Virginia Mine site equipment used Uses the same end load ers owned by Mate Creek Trucking uses the same end loader leased by Mate Creek Trucking End loaders of Blackberry Creek Trucking and Mate Creek Trucking are serviced by its own (Mate Creek Trucking) employee Larry Mounts for whom Mate Creek Trucking furnishes the parts fuel and grease Joby Fields testified that Mate Creek Trucking pays Blackberry Creek Trucking an amount equal to lease and purchase of end loaders but he did not know whether the money was ever physically transferred from Mate Creek Trucking to Blackberry Creek Trucking He said Blackberry Creek Trucking was compensated 50 cents per ton by Mate Creek Trucking for the use of one of its trucks and 65 cents per ton for the use of its other truck He further stated however that there are no written agreements covering any of the trucks use or end loader use arrangements Four Blackberry Creek trucks were used by Mate Creek Trucking as early as 4 October 1986 (G C Exh 26) Drivers hired by Mate Creek Trucking On or about 23 December 1985 the Union on behalf of the following employees of Respondent Blackberry Creek and other employees whose names were presently unknown but who engaged in the strike described above in paragraph 5(a) of the complaint made an uncondition al offer for the employees to return to their former or substantially equivalent positions of employment Russell E Hardesty Bryan A Hatfield George B Hayes Herbert Hayes Belvin Huddle David L Justice BLACKBERRY CREEK TRUCKING Ricky Justice Everett E Kinder Howard D Lockhart Larry Mounts Sidney L Plaster Larry Smith Claude E Starr Freddie D Taylor Ronald C Webb The strike against Blackberry Creek Trucking ended 23 December 1985 Mate Creek Trucking has since hired over 15 drivers Some of the drivers hired were formerly drivers of Blackberry Creek Trucking In hiring drivers Mate Creek Trucking (Joby Fields) acknowledged it did not refer to any seniority list of Blackberry Creek Truck ing and that it did not hire all the drivers after Decem ber 1985 Analysis and Conclusions The issues raised by the complaint and the essentially uncontroverted evidence of record are Issue 1 Whether Respondent Mate Creek Trucking is a disguised continuance and alter ego of Respondent Blackberry Creek Trucking Issue 2 Whether Respondent Mate Creek Trucking is under a duty to recognize the recall rights of Blackberry Creek Trucking strike drivers on their unconditional offer to return to work and if so whether Mate Creek Trucking recognized its obligation to recall and did in fact recall employees according to such recall rights Issue 3 Whether the truckdrivers of Blackberry Creek Trucking or Mate Creek Trucking were employees or in dependent contractors as Blackberry Trucking contends or implies Issue 4 Whether Respondents unilaterally in violation of Section 8(a)(5) of the Act transferred work from Blackberry Creek Trucking recognized the Union as the collective bargaining representative of its drivers to Mate Creek Trucking an entity that does not recognize the Union as the collective bargaining representative of its employees Issue 1 Whether Respondent Mate Creek Trucking is a disguised continuance or alter ego of Blackberry Creek Trucking The Board and the courts have consistently held that the test for determining whether two or more companies should be treated as a single employer depends on the existence or presence of the following factors (1) interre lation of business operations (2) common management (3) centralized control of labor relations and (4) common ownership of financial control Radio Union Local 1264 v Broadcast Service 380 U S 255 256 (1965) NLRB v MP Building Corp 411 F 2d 567 (5th Cir 1969) The alter ego doctrine is an extension of the single employer concept McAllister Bros Inc 278 NLRB 601 (1986) In applying these criteria to the corporations in the in stant case the record evidence shows (a) Interrelation of business operations of Respondent s Blackberry Creek Trucking and Mate Creek Trucking show that Joby Fields is president and 50 -percent owner of Blackberry Creek Trucking and that his son Joseph Fields is vice president the other 50-percent owner while Brender Fields is secretary treasurer Correspond ingly Joby Fields is president and 50 percent owner of 477 Mate Creek Trucking and his son Joseph Fields is vice president and 50 percent owner and Brender Fields is secretary treasurer of Mate Creek Trucking Blackberry Creek Trucking and Mate Creek Trucking share the common address P 0 Box 570 Matewan West Virginia Joseph Fields is in charge of labor relations for both Blackberry Creek Trucking and Mate Creek Trucking The accounting work for both Blackberry Creek Trucking and Mate Creek Trucking is performed by the same accountant George Blankenship C P A Tom Copley a former truckdriver of Blackberry Creek Trucking is now a supervisor who inspects trucks hires some truckdrivers and enforces truckdriver safety rules for Mate Creek Trucking Blackberry Creek Trucking and Mate Creek Trucking both use the same end loader owned by Blackberry Creek Trucking Larry Mounts Webb formerly a truckdriver for Black berry Creek Trucking is now employed as manager of the service department of Mate Creek Trucking As such he services the end loaders for Mate Creek Truck ing and Blackberry Creek Trucking Additionally the articles of incorporation show that the business purpose of both Blackberry Creek Trucking and Mate Creek Trucking is identical-among other things to haul coal Both Companies own fuel and lease the majority of trucks used in hauling coal The agree ment with the drivers of both Companies is substantially the same Both Companies had a written agreement for transporting coal with the same company Blackberry Creek Coal Company There is some sharing of equip ment (end loaders) and servicing of equipment The cus tomers served by Blackberry Creek Trucking and cus tomers which in all probability it would have eventually served actually became the customers of Mate Creek Trucking The Board has long held that the customers need not be identical so long as they are the same type of customers for continuity in business operations in find ing alter ego status American Pacific Concrete Pipe Co 262 NLRB 1223 fn 14 (1982) It is therefore abundantly clear from the evidence (es sentially admitted) of record that the business operations of Blackberry Creek Trucking would not have been shifted to Mate Creek Development which ultimately became Mate Creek Trucking if Blackberry Creek Trucking could have reached an agreement with the Union with which it was under an obligation to bargain I therefore find on the foregoing evidence that there is substantial interrelation of business operations between Blackberry Creek Trucking and Mate Creek Trucking and consequently that Mate Creek Trucking is the alter ego of Blackberry Creek Trucking (b) Common management Both Blackberry Creek Trucking and Mate Creek Trucking are family corpora tions of the family of Joby Fields The latter is president and his son Joseph is vice president of both corpora tions Both corporations share the same accountant in the person of George Blankenship CPA and Joby Fields is in charge of labor relations for both corporations 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Former employee Larry Mounts Webb is manager of end loader maintenance services for both corporations Based on the foregoing uncontroverted evidence I find that Blackberry Creek Trucking and Mate Creek Trucking have common management (c) Centralized control of labor management Joby Fields is in charge of labor relations for Blackberry Creek Trucking and Mate Creek Trucking although Blackberry Creek Trucking has no drivers but is still in corporate existence Nevertheless Joby Fields continues to be in charge of labor relations for Mate Creek Truck ing of which he is also president Tom Copley was for merly a truckdriver for Blackberry Creek Trucking He is now a supervisor for Mate Creek Trucking who sometimes hires other drivers inspects the trucks and enforces truckdnver safety policy Both Fields and Copley enforce work rules by disciplining drivers who fail to comply with them I conclude and find on the foregoing evidence that there is centralized control over labor relations of Black berry Creek Trucking and Mate Creek Trucking (d) Common Ownership of Financial Control Joby Fields is 50-percent owner of Blackberry Creek Truck ing and his son Joseph Fields is 50 percent owner of the remaining interests Joby Fields is also 50 percent owner of Mate Creek Trucking and his son Joseph Fields is owner of the remaining interest Joby Fields is also part owner of Fieldmore Mines from which trucks of Black berry Creek Trucking hauls and from which mines trucks for Mate Creek Trucking now haul coal The Board has long held that all four of the above de scribed criteria (interrelation of business operations common management centralized control of labor rela tions and owned common ownership) need not be present in order to support a finding of single employer status As in Blumenfeld Theatres Circuit 240 NLRB 206 (1979) the Board found single employer status when the relationship resembled a close family organization rather than an independent company There major management and labor relations decisions for four commonly held corporations were made by the head of the single family and the Board found single employer status The alter ego doctrine is but an extension of the single employer concept McAllister Bros 278 NLRB 601 (1986) Consequently two separate business entities may be regarded as a single employer if one is the alter ego or disguised continuance of the other Southport Petro leum Co v NLRB 315 U S 100 106 (1942) Alter ego status has also been found by the Board when two enterprises have substantially identical owner ship management business purpose operation equip ment customers and supervision as are so in the instant case I therefore conclude and find on the foregoing essen tially uncontroverted evidence and cited authority that all or a substantial majority of the criteria for finding single employer status here are satisfied that at all times material Respondents Blackberry Creek Trucking and Mate Creek Trucking constituted a single employer and that Mate Creek Trucking is a disguised continuance of Blackberry Creek Trucking Radio Union Local Local 1264 supra NLRB v M P Building Corp supra and Blumnfield Theatres Circuit 240 NLRB 206 (1979) I further find that any violations of the Act are ex tended to each corporate entity (Blackberry Creek Trucking and Mate Creek Trucking) Cooper & Cooper Painting 804 F 2d 934 (6th Cir 1986) The latter author ity is especially applicable to the Respondents here be cause Blackberry Creek Trucking is still a corporation on paper without any truckdriver employees but owned and controlled by Mate Creek Trucking owners The Board has declined to hold that antiunion motiva tion is an indispensable factor in finding alter ego status Apex Decorating Co 275 NLRB 1459 (1985) SKi Craft Sales Corp 237 NLRB 122 126 ( 1978) Although the evidence in the instant case supports a finding of antiun ion motivation infra such a finding is not requisite to the above finding of the alter ego status of Mate Creek Trucking Issue 2 Whether Mate Creek Trucking is under a duty to recognize the Union and the recall rights of Blackber ry Creek Trucking strike drivers on their unconditional offer to return to work and if so whether Mate Creek Trucking recognized its obligation to recall and did in fact recall the employees according to such recall rights The evidence established that 15 striking truckdrivers were in the employ of Blackberry Creek Trucking when the unconditional offer was made to return to work 23 December 1985 Since that date Mate Creek Develop ment-Mate Creek Trucking has hired more than 15 drivers Some of these drivers began to work for Mate Creek before the strike ended and some started to work shortly thereafter At the hearing Mate Creek Trucking (Joby Fields) acknowledged that it did not refer to a se niority list of Blackberry Creek Trucking when it hired the drivers for Mate Creek Trucking Nor did it recog nize any obligation on its part to recall the 15 striking drivers who offered to return to work Joby Fields testified that he offered employment with Mate Creek Trucking to Russell Hardesty Herbert Hayes and Ronald Webb Hayes was hired December 1985 Hardesty was hired January 1986 and Webb testi feed that after he asked Fields for work he was hired in early January 1986 Webb did not acknowledge that Fields offered him employment Mate Creek Trucking s foreman Tom Copley testified he offered employment to Howard Lockhart but Lock hart denied anyone from Blackberry Creek Trucking or Mate Creek Trucking contacted him about work Foreman Copley testified he offered employment to Sidney Plaster in early 1986 but Plaster testified that no one from Mate Creek Trucking contacted him about work Rather he said he contacted Fields several times about work and finally he was hired in June or July 1986 Foreman Copley testified he offered Brian Hatfield employment several times in 1985 and 1986 and Hatfield said he had a job However Hatfield testified that no one from Blackberry Creek Trucking or Mate Creek Trucking contacted him about employment Foreman Copley testified he offered employment sev eral times to Belvin Huddle and Huddle said he was BLACKBERRY CREEK TRUCKING working and would stay where he was However Huddle testified that no one from either Blackberry Creek Trucking or Mate Creek Trucking contacted him about returning to work Foreman Copley testified that David Justice returned to work but shortly thereafter left and returned again in March or April 1986 However Justice testified that no one from either Blackberry Creek Trucking or Mate Creek Trucking contacted him about returning to work Instead he said he applied for work and was hired Foreman Copley testified he offered employment to Everett Kinder and the latter said he had lost his truck However Kinder testified that no one from Blackberry Creek Trucking or Mate Creek Trucking contacted him about returning to work Foreman Copley testified he offered employment to Larry Smith during the strike but Smith declined He said he offered employment to Smith after the strike and Smith returned to work June or July 1986 Smith how ever testified that no one from Blackberry Creek Truck ing or Mate Creek Trucking contacted him about return ing to work He said he returned to work and was hired in February 1986 Foreman Copley testified he offered employment to Curtis Webb but Webb did not return Webb however testified that no one from either Blackberry Creek Trucking or Mate Creek Trucking contacted him about returning to work Instead he said he asked Joby Fields for work in late December 1985 or early 1986 Fields told him he was no longer in the trucking business Webb said he then asked Foreman Copley for work and he now drives a truck for Joby Fields Conclusion It is unequivocally clear from the evidence that al though Fields testified he offered employment to Har desty Hayes and Webb only Hayes did not deny that Fields made such an offer Both Hardesty and Webb of firmatively or impliedly denied Fields offered them em ployment but stated they requested employment and were hired More significantly however all the drivers to whom Manager Copley testified he offe' 'ed employ ment denied Copley or anyone from Blackberry Creek Trucking or Mate Creek Trucking offered them employ ment even though some of them requested employment and were eventually hired by Mate Creek Trucking Some of them were hired as late as 2 to 7 months later and others were never offered employment and are still not employed by Mate Creek Trucking I was persuaded not only by the demeanor of the driver witnesses as they testified that they were testifying truthfully but also by the precipitous shift of the trucking operation of Black berry Creek Trucking to Mate Creek Trucking by Fields and by the failure of either corporation to recall the majority of drivers for work I was equally persuad ed by the same circumstances and the demeanor of Fields and Copley that they were not testifying truthful ly Moreover it is readily noted that Mate Creek Truck ing hired 15 new drivers within a short period of time after it was notified by the Union that the striking driv ers offered to return to work The new drivers and the 479 few former drivers of Blackberry Creek Trucking now constitute Mate Creek Trucking s driver complement of 15 I therefore credit the driver witnesses and discredit the testimony of Fields and Manager Copley that Mate Creek Development-Mate Creek Trucking offered em ployment to any of the Blackberry Creek Trucking dnv ers although it hired some drivers who requested work Consequently I conclude and find on the credited testi mony that neither Blackberry Creek Trucking nor Mate Creek Trucking recalled or offered employment to any of the 15 alleged discnminatee drivers after the strike ended on 23 December 1985 The Supreme Court has held that failure or refusal to reinstate economic strikers if not immediately on apple cation for reinstatement at least at a later point when va cancies occur has an adverse impact on rights of em ployees and that strikers who have made an uncondi tional offer to return to work retain their position as em ployees entitled to reinstatement in the absence of an employer s substantial justification This is true regardless of whether union animus exists Laidlaw Corp 171 NLRB 1366 1369-1370 (1968) In Denzil & Alkire 259 NLRB 1323 1326 (1982) the Board held that an alter ego of a struck employer has the same obligation to rein state strikers as the struck employer would have In the instant case the uncontroverted evidence of record shows that during the first quarter of 1986 three truckdrivers of Blackberry Creek Trucking returned to work at Mate Creek Trucking However the record shows that between the end of the strike when the strik ers unconditionally offered to return to work on 23 De cember 1985 and the hiring of Hardesty Hayes and Starr Respondent Mate Creek Trucking had hired five drivers who were not previously employed by Blackber ry Creek Trucking before 23 December 1985 Other strike drivers either returned to work several months later or not at all Neither of the Respondents maintain that it ever formerly recalled any of the strike drivers and each admitted it did not offer employment to any of the strike drivers according to seniority as vacancies for employment occurred In fact Joby Fields of Mate Creek Trucking impliedly acknowledged he did not think he had an obligation to recall the strike drivers Based on the foregoing evidence and cited legal au thonty I find that Respondent Mate Creek Trucking was under a duty to recall the striking Blackberry Creek Trucking drivers on their unconditional offer to return to work 23 December 1985 Having failed to do so Mate Creek Trucking violated the recall rights of all the al leged discriminatee striking Blackberry Creek Trucking drivers I further find that even the recall rights of driv ers who returned to work after the strike were violated by Mate Creek Trucking because it admittedly hired them as new employees under a different pay arrange ment and in derogation of their recall rights Laidlaw Corp supra Additionally the drivers who abandoned the strike before it ended and were rehired by Mate Creek Truck ing are among those drivers entitled to reinstatement with backpay because they were hired under a different 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pay scale Woodlawn Hospital 233 NLRB 782 (1977) and cases cited therein at 791 Issue 3 Whether the truckdrivers of Blackberry Creek Trucking or Mate Creek Trucking were employees or in dependent contractors as Respondent contends or im plies In NLRB v United Insurance Co 390 U S 254 (1968) the Supreme Court held that an employer employee rela tionship exists when the employer reserves the right to control not only the result to be achieved but also the means to be used in obtaining the result Whether an employer reserves such rights is deter mined by an analysis of the facts in each case Capital Parcel Delivery Co 256 NLRB 302 303 (1981) An anal ysis of the essentially uncontroverted evidence here has established the following Mate Creek Trucking contends or implies its truck drivers are not its employees but are independent con tractors because they are owner drivers However the evidence shows that some dnvers do not own trucks and that all trucks are owned by corporate entities in stead of individuals Some company truck owners drive their trucks and some do not There are no written con tracts between Mate Creek Trucking and its dnvers Mate Creek Trucking s disciplinary rules prohibit a Drivers from speeding or passing anytime anywhere b Using profane language on C B s c Loading more than 12 inches on a bed truck d Talking on the scalehouse phone e Speed in excess of 15 miles per hour on Sprouse Creek Property f Speed in excess of 25 miles per hour on public highways between 7 30 and 8 30 a in and 3 30 and 4 pm Violation of any of the above rules will result in a 3 day suspension and/or termination Drivers are also not allowed to swap hauls and the written rules specifically state Changing Trucks on a Random Basis is Strictly Prohibited -and- Changing Shifts on a Random Basis is Strictly Forbidden Drivers are also directed to start and end work at designated times to drive only trucks assigned to them and to drive from only assigned locations Compensation Mate Creek Trucking issues two types of checks for hauling work Check #1 to Corporate entity which owns trucks are compen sated on a tonnage basis The corporate truck owner receives a check for the drivers pay includ ing the cost of unemployment taxes workmens compensation health insurance matching social se cunty and group insurance which Respondent con tends for convenience are deducted by Mate Creek Trucking and paid to the respective agency or com pany Truck owners do not negotiate the pay with the driver nor do they give dnvers work and safety rules Check #2 to Individual drivers based on number of loads hauled whether or not the driver has ownerhip in terests in the corporate entity owner Drivers with ownership interests can elect to receive $8 a load or like dnvers with no ownership interest earn a higher figure for dnvers Social security state and federal taxes are deducted by Mate Creek Trucking and paid to the respective agencies or companies Drivers with no truck ownership interests file applica tions for employment with Mate Creek Trucking which checks the drivers references If such driver applicant completes a W 2 form and the physical examination he is assigned a truck number by Mate Creek Trucking All trucks are inspected every 3 months by Mate Creek Trucking s supervisor Tom Copley Joby testified that Mate Creek Trucking s drivers who drive Blackberry Creek trucks are Mate Creek Trucking employees Both individual drivers and drivers with ownership interests complete a W 2 form which desig nates Mate Creek Trucking as employer but the forms reflect only the drivers pay Both individual drivers and drivers with ownership in terests are required by Mate Creek Trucking to take physical examinations which includes a drug test the re suits of which the drivers are not informed if hired Respondents appear to be arguing that the drivers of Blackberry Creek Trucking were not employees al though Respondent admits Blackberry Creek Trucking signed the UMWA contract on behalf of its drivers and had been negotiating over terms and conditions of those drivers at the time of the strike Such evidence clearly indicates that the drivers of Blackberry Creek Trucking were employees rather than independent contractors Blackberry Creek Trucking had work rules similar to the rules of Mate Creek Trucking Conclusion It is clear from the foregoing evidence that Respond ent Mate Creek Trucking not only reserved the right to control the coal delivery results of the hauling operation but the many directives regarding the time to start and end work the truck speed of the drivers language used by drivers on CBs its inspection of the operating condi tion of trucks its retention and processing of drivers fringe benefits e g health insurance its disciplinary action (suspension and layoff) of dnvers for noncompli ance with work and safety rules promulgated and issued by it its required physical examination and concern with driver sensonun before approving them to drive and its negotiation with the Union regarding the truckdrivers all clearly demonstrate that both Respondents also re served and exercised substantial control over the manner and means by which their hauling operation was accom plished Under these uncontroverted circumstances I find that the truckdrivers of Respondent Mate Creek Trucking were employees of Mate Creek Trucking and BLACKBERRY CREEK TRUCKING 481 not independent contractors NLRB v United Insurance Co supra Operating Engineers Local 701 276 NLRB 597 601 (1985) and Perrysville Coal Co 264 NLRB 380 (1982) Issue 4 Whether Respondents unilaterally transferred work from Blackberry Creek Trucking (which recog nized the Union) to Mate Creek Trucking (which does not recognize the Union) in violation of Section 8(a)(5) of the Act The Board has repeatedly held that withdrawal of rec ognition by a newly established company of what has been determined to be a single interrelated enterprise constitutes a violation of Section 8(a)(5) of the Act Mar Kay Cartage 277 NLRB 1335 (1985) Apex Decorating Co 275 NLRB 1459 (1985) Advance Electric 268 NLRB 1001 (1984) and Weldment Corp 275 NLRB 1432 (1985) Because Mate Creek Trucking has been previously de termined to be a disguised continuance of Blackberry Creek Trucking I find that Mate Creek Trucking is ob ligated to continue to recognize and bargain with the Union as the bargaining agent of its employees and to apply to those employees the necessary consequence of such recognition Allcoast Transfer 271 NLRB 1374 (1984) Because Respondent Blackberry Creek Trucking uni laterally transferred its trucking operation to Mate Creek Trucking without notifying or bargaining with the Union I further find that such transfer was a change in the terms and conditions of employment of the unit em ployees which is a mandatory subject of bargaining and therefore violative of Section 8(a)(5) of the Act Dahl Fish Co 279 NLRB 1084 fn 3 (1986) Additionally I find that the transfer of the trucking operation also con stituted a withdrawal of recognition of the employees representation rights in violation of Section 8(a)(5) of the Act Dahl Fish Co supra McAllister Bros supra Outreach Marine Corp supra Counsel for Respondents continues to argue with em phasis that Respondents requested a successor agreement on several bargaining occasions but the Union rejected their requests The evidence does not show that Re spondent offered any plausible alternatives to a successor agreement Nor did they furnish any detailed explanation of a business justification for transferring their trucking operation prior to doing so Both the negotiation of a contract (concerning hours wages and working condi tions) as well as the transfer of their trucking operation were bargainable subjects As such Respondents were obligated to enter the negotiations with an open mind As the Board held in Iron Workers Local 103 190 NLRB 741 742 (1971) Respondent Union [had a] fixed inflexi ble position and was rigidly unwilling to consider sen ously any possible alternatives and that such an attitude is clearly contrary to the duty to bargain in good faith and is thus unlawful also Iron Workers Local 103 195 NLRB 980 (1972) Here the Respondents do not contend and the evi dence has not established that Respondents bargained to impasse in contract negotiations with the Union Although the complaint does not specifically allege that Respondents failed and refused to bargain with the Union the evidence adduced by litigation at the hearing established that Blackberry Creek Trucking still recog nized the Union and was attempting to negotiate an agreement with the Union during the strike and that notwithstanding Blackberry Creek Trucking transferred its trucking operation to Mate Creek Trucking that the transfer was made by Blackberry Creek without notify ing the Union and affording it an opportunity to bargain on the transfer and that although Mate Creek Trucking met in negotiation meetings with the Union in March 1986 it did not bargain with the Union but instead in formed the Union that it had sold its trucks Under these circumstances I find that Respondents unilateral transfer of its trucking operation constituted a failure and refusal to bargain with employees representative (the Union) in violation of Section 8(a)(5) of the Act Vulcan Hart Corp 248 NLRB 1197 (1980) Baughman Co 248 NLRB 1346 fn 2 (1980) AMC Air Conditioning Co 232 NLRB 283 285-286 (1977) Although on 12 February 28 March and 2 June 1986 the Union requested relevant information from Respond ents Respondents nevertheless failed to timely furnish the requested information Having failed to furnish the information I find that such failure constitutes a failure and refusal to bargain in good faith in violation of Sec tion 8(a)(1) and (5) of the Act NLRB v Acme Industrial C o 385 U S 432 438 (1967) IV THE REMEDY Having found that Respondents have engaged in cer tarn unfair labor practices I will recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action designed to effectuate the poli cies of the Act Having found that as a single employer Respondents unilaterally changed the terms and conditions of employ ment of unit employees by transferring their work Re spondents have discriminated against their employees in violation of Section 8(a)(1) and (3) of the Act that by requiring employees who desired to work to work with out representation Respondents discriminated against such employees in violation of Section 8(a)(1) and (3) of the Act that by failing refusing or delaying the recall or reinstatement of their striking employees according to seniority after they unconditionally offered to return to work Respondents discriminated against such employees in violation of Section 8(a)(1) (3) and (5) of the Act that by unilaterally transferring the work of unit employ ees the Respondents have both failed and refused to bar gain with the Union and that it withdrew recognition of the Union in violation of Section 8(a)(1) and (5) of the Act the recommended Order will provide that Respond ents cease and desist from engaging in such unlawful conduct that they be ordered to recognize and on re quest bargain in good faith with the Union as the exclu sive collective bargaining representative of the employ ees in the appropriate unit that it make whole the strik ing employees who unconditionally offered to return to work for any loss of earnings they may have suffered by reason of Respondents discrimination against them in accord with the Boards decision in F W Woolworth 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Co 90 NLRB 289 (1950) New Horizons for the Retarded 283 NLRB 1173 (1987) 2 except as specifically modified by the wording of such recommended Order On the basis of the above findings of fact and the entire record in this case I make the following CONCLUSIONS OF LAW 1 By unilaterally transferring its trucking operations without notifying or affording the Union an opportunity to bargain Respondents have failed and refused to bar gain with the authorized representative of its unit em ployees and at the same time withdrew recognition of the Union in violation of Section 8(a)(1) and (5) of the Act 2 By requiring employees who desired work with Re spondents to work without union representation Re spondents have discriminated against such employees in violation of Section 8(a)(1) and (3) of the Act 3 By failing and refusing or delaying the recall or re instatement of striking employees after they uncondition ally offered to return to work Respondents discriminat ed against such employees in violation of Section 8(a)(1) (3) and (5) of the Act 4 By failing and refusing on about 12 February 28 March and 2 June 1986 respectively and at all times thereafter to recognize and furnish information request ed by the Union Respondents violated Section 8(a)(1) and (5) of the Act 5 All the below described employees employed by Mate Creek Trucking on 23 December 1985 constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act All employees employed by Blackberry Creek Trucking and Mate Creek Trucking engaged in the production of coal including removal of overbur den and coal waste preparation processing and cleaning of coal and transportation of coal (except by waterway or rail not owned by [Respondents] repair and maintenance work normally performed at the facilities of the [Respondents] and maintenance of gob piles and mine roads and work customarily related to all of the above ORDER The Respondents Blackberry Creek Trucking Inc and Mate Creek Trucking Inc Matewan West Virgin is their officers agents successors and assigns shall I Cease and desist from (a) Unilaterally transferring their trucking operation without notifying or affording the Union an opportunity to bargain over such transfer (b) Withdrawing recognition of the Union by unilater ally transferring their trucking operation (c) Requiring employees who desire work with Re spondents to work without union representation (d) Failing and refusing or delaying the recall or rein statement of striking employees after they have uncondi tionally offered to return to work (e) Failing and refusing to furnish information request ed by the Union (f) 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) Recognize and on request bargain collectively in good faith with United Mine Workers of America as the exclusive collective bargaining representative of all the employees in the appropriate unit of Blackberry Creek Trucking and Mate Creek Trucking (b) Recall and offer to reinstate all striking employees including the employees named below who uncondition ally offered to return to work 23 December 1985 in ac cordance with the seniority order in which they would have been recalled for an available vacancy to their former position or a substantially equivalent one without prejudice to their seniority or other rights and pri% ileges Russell E Hardesty George B Hayes Belvin Huddle Ricky Justice Howard D Lockhart Sidney L Plaster Claude E Starr Ronald C Webb 6 At all times material United Mine Workers of America has been the exclusive collective bargaining representative of the employees in the above described appropriate unit within the meaning of Section 9(a) of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3 2 See generally Isis Plumbing Co 138 NLRB 716 (1962) 3 If no exceptions are filed as provided by Sec 10 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 put poses Bryan A Hatfield Herbert Hayes David L Justice Everett E Kinder Larry Mounts Larry Smith Freddie D Taylor (c) Make whole all employees who unconditionally of fered to return to work on 23 December 1985 and were not called in accordance with their seniority as they would have been called on an available vacancy with in terest (d) Recognize and furnish the Union with the Informs tion it requested (e) 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 (f) Post at Respondents Mate Creek Trucking Inc and Blackberry Creek Trucking Inc at P O Box 570 Matewan West Virginia the attached notice marked BLACKBERRY CREEK TRUCKING Appendix 4 Copies of the notice on forms provided by the Regional Director for Region 9 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately on re ceipt and maintained for 60 consecutive days in conspic uous places including all places where notices to employ ees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 4 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 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 Section 7 of the Act gives employees the following rights To organize To form join or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT fail and refuse to bargain in good faith with the Union by engaging in the following conduct (a) Unilaterally transferring our trucking operation without notifying the Union and giving it an opportunity to bargain on our decision to tiansfer (b) Withdrawing recognition of the Union by unilater ally transferring our trucking operations without notify ing and affording the Union an opportunity to bargain on our decision to transfer (c) Failing and refusing to furnish information request ed by the Union 483 WE WILL NOT discriminate against the conditions and tenure of employment of our striking driver employees by failing refusing or delaying the recall or reinstate ment of them after they have unconditionally offered to return to work WE WILL recall or offer immediate reinstatement to striking employees including all the following named striking truckdrivers who unconditionally offered to return to work on 23 December 1985 without prejudice to their seniority or other rights previously enjoyed and make them whole for any loss of earning suffered by the discrimination against them with interest Russell E Hardesty George B Hayes Belvin Huddle Ricky Justice Howard D Lockhart Sidney L Plaster Claude E Starr Ronald C Webb Bryan A Hatfield Herbert Hays David L Justice Everett E Kinder Larry Mounts Larry Smith Freddie D Taylor WE WILL recognize and on request bargain with the Union on our decision to transfer our trucking operation WE WILL recognize and on request bargain with the United Mine Workers of America as the exclusive col lective bargaining representative of the employees in the appropriate unit described below All employees employed by Blackberry Creek Trucking and Mate Creek Trucking engaged in the production of coal including removal of overbur den and coal waste preparation processing and cleaning of coal and transportation of coal (except by waterway or rail not owned by [Respondent] repair and maintenance work normally performed at the facilities of the [Respondent] and maintenance of gob piles and mine roads and work customarily related to all of the above WE WILL recognize and on request furnish the Union with the information it requested 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 All our employees are free to become remain or refuse to become or remain members of United Mine Workers of America or any other labor organization BLACKBERRY CREEK TRUCKING INC AND MATE CREEK TRUCKING INC