Chen-Ault Trucking Co.

530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD R & L Cartage and Sons, Inc , Schaller Trucking Corporation, John V Loudermilk, BVZ Enter- prises, Inc , and Danny Chenault d/b/a Chen- ault Trucking Company and Teamsters Local No 414, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO i Cases 25- CA-18023-1, 25-CA-18023-2, 25-CA-18171- 1, 25-CA-18171-2, 25-CA-18171-3, 25-CA- 18171-4, and 25-CA-18171-5 January 18, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 24, 1988, Administrative Law Judge John H West issued the attached decision Respondent Schaller Trucking Corporation filed exceptions and a supporting brief, and the General Counsel filed limited cross-exceptions and a sup- porting brief Respondents Schaller Trucking Cor poration and John V Loudermilk filed a joint brief in opposition to the General Counsel's limited cross-exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions3 and to adopt the recommended Order as modified and set forth in full below The judge found, inter alia, that Respondent Chenault acted unlawfully in failing to hire a ma- jority of Respondent R & L's former employees, and that had a majority been hired, Chenault would be a successor to R & L The judge also found that as a successor, Chenault unlawfully ' On November 1 1987 the Teamsters International Union was read nutted to the AFL-CIO Accordingly the caption has been amended to reflect that change 2 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative 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 reversing the findings 3 The judge found that R & L had committed several unfair labor practices including a refusal to recall six employees from layoff reneging on and refusing to abide by a grievance resolution agreement with the Union and refusing to bargain with the Union about the effects of its de cision to close its operations In the absence of exceptions we adopt the judge s findings as to the violations committed by R & L The j udge also found that R & L is not a joint employer single employer or alter ego of any of the other Respondents The General Counsel noted in her brief that the judge erroneously cited Remke Central Division 227 NLRB 1969 (1977) a case involving a single employer in his analysis of whether Schaller and R & L are joint employers This mistake by the judge does not affect our decision to adopt the judge s finding that R & L is not a joint employer with any of the other Respondents failed to recognize and bargain with the Union, un lawfully departed from existing rates of pay and benefits without first consulting with the Union, and unlawfully bypassed the Union to deal directly with employees We disagree I BACKGROUND Respondent Schaller Trucking Corporation is en gaged in the interstate transportation of freight and commodities Respondent John V Loudermilk pur chased Schaller in 1973, and currently serves as its president In 1977, Schaller contracted with Re spondent R & L Cartage and Sons, Inc to haul freight for Schaller's main customer, General Motors, for a percentage of the gross revenues gen- erated by what R & L hauled One year later, R & L's employees were organized and have been rep- resented by the Union since 1978 On July 29, 1986,4 R & L filed for bankruptcy On August 1, 1986, R & L ceased operations and laid off all its employees When R & L filed for bankruptcy, Loudermilk called Respondent Danny Chenault, an individual who operated a trucking company that had hauled other GM freight for Schaller,5 and made arrange- ments with him to go to the GM Central Foundry to handle the traffic there for which R & L had been responsible The following day Loudermilk and Chenault agreed that Chenault would take over the work for GM that had previously been handled by R & L, and would do so under the same terms as R & L As a result, Chenault leased its tractors and trailers from Schaller, used Schaller's terminal in Bedford rent free, and re ceived 82 percent of the revenues generated by the GM account On July 31 Roland Atchison, who had been em- ployed as a mechanic by R & L since early 1985, was at the Bedford terminal and asked Chenault about a job Chenault said that he needed drivers Atchison told Chenault to talk to Richard Borck ardt, another former R & L employee Chenault re- plied that he did not think that Loudermilk wanted him to hire anyone that had worked for R & L Chenault also stated that he might hire Willy Bolin (another former R & L employee) or Atchison be- cause Atchison had not worked for R & L for very long Former R & L employee Robert Terry was also present during this conversation and heard Chenault tell Atchison that Loudermilk did not want him to hire anybody that previously worked at R & L Atchison refused Chenault's offer of a 4 All dates are in 1986 unless otherwise noted 5 As noted by the judge the complaint was amended at the hearing to reflect the fact that Chenault did business first as DC Enterprises and later as DC & Sons Trucking Inc 292 NLRB No 59 R & L CARTAGE & SONS job, but Chenault did hire Bolin Bolin was initially hired by Respondent BVZ Enterprises who leased the tractor he drove to Chenault The lease expired in mid December 1986, at which time Chenault bought the tractor from BVZ and hired Bolin di rectly There is no evidence that any other former R & L employee ever sought employment with Chenault Chenault engaged in another conversation con cerning his inability to hire former R & L employ ees in January 1987 Former R & L employee Jerry Terry had begun working with a different trucking company and was at the Bedford terminal on business Chenault told Terry that he needed drivers Terry asked Chenault why he did not hire the former R & L drivers who were out of work Chenault replied that Loudermilk would not let him hire anyone who used to work there until the bankruptcy and labor matters were straightened up Approximately 2 months after R & L had ceased operations, Loudermilk sent a letter, dated Septem ber 30, 1986, to all the former R & L employees The letter stated that Loudermilk was willing to pay a total of $37,500 to the former R & L employ ees He also stated in the letter that he had been informed that Chenault was willing to put any driver back to work at 18 cents per mile The letter closed by saying that Loudermilk had made this offer to the union leadership who had refused to return his calls, and that if the employees were in- terested in accepting this offer, they should contact their business agent and ask him to settle the case II CONTENTIONS AND FINDINGS An amended consolidated complaint issued on October 31, 1986, alleging, inter alia, that Schaller and Chenault are joint employers, alter egos, and a single employer, and that Chenault is the successor employer to R & L's operations The complaint also alleges that the Respondents had violated the Act by refusing to recognize and bargain with the Union, by departing from existing rates of pay and benefits without first consulting with the Union, and by bypassing the Union and dealing directly with the employees through Loudermilk's Septem ber 30 letter The judge found that Schaller and Chenault are not a single employer or alter egos, but that they do constitute joint employers 6 The judge also 6 We find it unnecessary to pass on whether Schaller and Chenault are joint employers because of our finding infra that Chenault is not a suc cessor employer to R & L and therefore has not violated the Act by refusing to bargain with or by bypassing the Union We adopt the judge s finding that Schaller and Chenault are not alter egos or a single employ er 531 found that Chenault meets the criteria for a succes- sor employer except for the fact that it did not hire a mlajority of the former R & L employees With respect to Chenault's hiring policy, the judge noted that the Board has never held that an employer that purchases the assets of a business is obligated to hire its predecessor's employees, but that the failure to do so solely because the former employ ees are members of a union violates Section 8(a)(3) of the Act' The judge also noted that while there is no obligation on the part of a purchasing em ployer to initiate an employment relationship with the predecessor's employees," the company coming in cannot prevent the union from establishing a ma- jority by hiring discrimination In the present case, the judge found that regard- less of how many employees actually sought em ployment, Schaller and Chenault, by hiring dis- crimination, prevented the Union from establishing a majority The judge determined that Chenault's statements to Atchison created a "climate of futili ty" regarding the hire of former R & L employees The judge then cited State Distributing Co,9 and stated that because Schaller and Chenault's unlaw ful actions created the uncertainty concerning whether the former R & L employees would have applied or been hired, that uncertainty must be re- solved against them as wrongdoers, and the Union's majority status is presumed to continue Had Schaller and Chenault acted in a nondiscrim- inatory manner in the instant case and hired a ma- jority of the former R & L employees, the judge reasoned, they would have been obligated to rec- ognize and bargain with the Union i 0 Contrary to the judge, we find the General Counsel has not established that Chenault unlawful- ly discriminated against any former R & L employ ees There is no showing that Chenault refused to hire any former R & L employees Rather, the evi dence indicates that both of the former R & L em- ployees who did express an interest in working for Chenault were offered jobs, and there is no indica- tion that other former employees either applied or were prevented from applying for employment The judge found that the former R & L employees should be excused from their failure to apply for jobs with Chenault because of the climate of futili ty created by Chenault's remarks to Atchison in August We believe, however, that there is insuffi- cient evidence to establish a climate of futility In State Distributing, relied on by the judge, sev eral factors established that it would have been 7 See NLRB v Burns Security Services 406 U S 272 (1972) 8 Vantage Petroleum 247 NLRB 1492 (1980) 9 282 NLRB 1048 (1987) 10 Short way Suburban Lines 286 NLRB 323 (1987) 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD futile for the employees of the predecessor employ- er to apply for employment with the purchasing employer (the respondent). There, the respondent indicated to three employees in separate conversa- tions that it would not hire union help, and that it had been advised not to hire the predecessor's em- ployees.' 1 The employees' union representative was also told that the respondent did not intend to hire a majority of the predecessor's employees, and that the respondent was not going to be a union shop. In addition, the Board noted that the re- spondent failed to solicit applications from three unit employees who had stated that they would be in need of work after the sale took place, despite the fact that it did solicit applications from nonunit employees. Further, in order to conceal its hiring process, the respondent made use of blind adver- tisements in the local paper. The facts relied on by the Board in State Distrib- uting establish a much stronger case for finding a climate of futility than the facts in the present case. Here, Respondent Chenault made only one state- ment immediately after taking over for R & L indi- cating that he was not able to hire former R & L employees.12 In addition, the evidence indicates that Chenault did solicit an application from at least one former R & L employee. Thus, despite the fact that Chenault told Atchison that Louder- milk did not want him to hire any former R & L employees, in the same conversation, Chenault of- fered Atchison a job and indicated that he would consider hiring another former R & L employee, Willy Bolin. Further, we note that no obstacles were put in the way of former R & L employees who wished to apply for employment with Chenault, and there is no evidence that Cherault's statements deterred the former R & L employees in general from ap- plying to Chenault.13 Any potential feelings of fu- tility that might have been created by Chenault's remarks to Atchison were undercut by the fact that in that very same conversation, Chenault offered Atchison a job. Without evidence that Chenault unlawfully denied employment to any former R & L employ- ee, and with insufficient evidence to establish that a climate of futility was created, we do not find that 11 One employee was told that the respondent could only hire two of the predecessor's employees and that those positions had already been filled. 12 The second comment made by Chenault concerning his limitation on hiring former R & L employees was made to Jerry Terry in January 1987, some 6 months after R & L closed . Although this comment in Jan- uary is significant in establishing motive, it is too far removed in time from the closing of R & L to have contributed to a feeling of futility in August on the part of the former R & L employees concerning Chen- ault's hiring process. 13 See Kessel Food Markets, 287 NLRB 426 (1987). the Respondents committed an 8(a)(3) and (1) vio- lation by the failure to hire a majority of former R & L employees. Thus, Chenault is not a succes- sor employer to R & L, and it had no obligation to recognize or bargain with the Union. Accordingly, we reverse the judge's findings that the Respond- ents violated Section 8(a)(5) and (1) of the Act by failing to recognize and bargain with the Union since August 1, 1986, by departing from existing rates of pay and benefits without first consulting with the Union, and by attempting to bypass the Union on September 30, 1986, through Louder- milk's letter to the former R & L employees.14 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, R & L Cartage and Sons, Inc., Fort Wayne, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recall six employees about April 29, 1986, from work suspension. (b) Reneging on and refusing to abide by a griev- ance resolution agreement entered into between it and the Charging Union about May 5, 1986. (c) Refusing to bargain with Teamsters Local No. 414 and Local 135, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO with respect to the effect on its employees of its decision to close its operation. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make whole the six drivers who were not timely recalled for an unlawful reason from work suspension for any loss of earnings they may have suffered up until they were recalled to work in mid-July 1986, with interest. (b) Make whole the members in the unit de- scribed below who were terminated on August 1, 1986, when the Respondent closed its operations, normal wages for the period specified in the remedy section of the judge's decision. (c) On request, bargain collectively with the above-named labor organization, with respect to the effects on its represented employees of its deci- sion to close its operation, and reduce to writing 14 Accordingly , we reverse the judge's Conclusions of Law 9, 10, and 11. R & L CARTAGE & SONS any agreement reached as a result of such bargain ing (d) Establish a preferential hiring list of all em- ployees in the unit described below following the system of seniority provided for under the collec tive-bargaining contract with the Union and, if op- erations are ever resumed anywhere in Indiana, offer reinstatement to those employees If, howev er, R & L Cartage and Sons, Inc were to resume its operations at its former Fort Wayne, Indiana fa- cility or at any facility in these areas it shall offer all the employees in the unit described below rein- statement to their former or substantially equiva- lent positions All full time and regular part-time drivers and mechanic employees of the Respondent R&L Cartage and Sons, Inc formerly employed by it at its Fort Wayne and Bedford, Indiana fa cilities including all full-time and regular part time yard helpers, but excluding all office cler- ical employees, all janitors, all professional em- ployees, all guards and supervisors as defined in the Act (e) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (f) Mail a copy of the attached notice marked "Appendix" 15 to each of the employees in the unit described above who was employed by R & L Cartage and Sons, Inc at its Fort Wayne and Bed- ford, Indiana facilities immediately prior to R & L Cartage and Sons Inc 's cessation of operations on August 1, 1986 Copies of the notice, on forms pro- vided by the Regional Director for Region 25, after being signed by R & L's authorized represent ative, shall be mailed immediately on receipt, as di rected above (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 15 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 533 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 WE WILL NOT refuse to recall six employees about April 29, 1986, from work suspension WE WILL NOT renege on and refuse to abide by the grievance resolution agreement entered into be- tween us and the Charging Union about May 5, 1986 WE WILL NOT refuse to bargain with Teamsters Local No 414 and Local 135, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO, with re- spect to the effect on our employees of our deci sion to close our operation 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 the six drivers who were not timely recalled for an unlawful reason from work suspension for any loss of earnings they may have suffered up until they were recalled to work in mid July 1986, with interest WE WILL make whole the members in the unit described below who were terminated on August 1, 1986, when we closed our operations, normal wages for a period specified by the National Labor Relations Board, plus interest WE WILL, on request, bargain collectively with the Union with respect to the effects on its repre- sented employees of our decision to close our oper- ation, and reduce to writing any agreement reached as a result of such bargaining WE WILL establish a preferential hiring list of all employees in the unit described below following the system of seniority provided for under the col- lective-bargaining contract with the Union and, if our operations are ever resumed anywhere in Indi- ana, offer reinstatement to those employees If we resume operations at our former Fort Wayne, Indi- ana facility or at any facility in these areas we shall offer all the employees in the unit described below reinstatement to their former or substantially equiv- alent positions All full-time and regular part-time drivers and mechanic employees of R & L Cartage and Sons, Inc formerly employed by it at its Fort 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wayne and Bedford, Indiana facilities includ- ing all full time and regular part-time yard helpers, but excluding all office clerical em- ployees, all janitors , all professional employees, all guards and supervisors as defined in the Act R & L CARTAGE AND SONS, INC Robert Hayes Esq for the General Counsel Karen S Walker Esq (Boxberger Wernet Swihart Anta lis & Renz), of Fort Wayne, Indiana, for R & L Cart age and Sons, Inc and BVZ Enterprises, Inc Stephen M Gentry Esq, of Indianapolis Indiana for Schaller Trucking Corporation and John V Louder milk Daniel C McCarthy Esq, of Indianapolis Indiana , for all the Respondents Dan Chenault, of Bedford Indiana DECISION STATEMENT OF THE CASE JOHN H WEST, Administrative Law Judge Unfair labor practices were filed against R & L Cartage and/or R & L Fleet Service and/or Schaller Trucking Corp, as joint employers in Cases 25-CA-18023-1 and 25-CA- 18023-2 both on 27 May 1986 t by the Teamsters Local No 414, a/w International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO (the Union) A consolidated unfair labor prac tice complaint issued on 9 July in the above described cases, alleges among other things, that Respondent Schaller Trucking Corporation (Schaller) controls the labor relations policy of Respondent R & L Cartage and Sons Inc (R & L) and adminstered a common labor policy with R & L for the employees of R & L, that Schaller and R & L have been joint employers of the employees of R & L that on 22 June Schaller, acting through its owner and president John Loudermilk un lawfully warned its employees that they would be dis charged or they would not be recalled from disciplinary layoff and Respondents would not consummate a collec tive bargaining agreement if the Union2 did not concede to demands made by Respondents and if the Union did not withdraw its unfair labor practice charges against the Respondents 3 that since on or about 29 April Respond ents have unlawfully failed and refused to recall six named employees' because these employees among i All dates are in 1986 unless otherwise stated 2 The allegation includes Teamsters Local No 135 which as asserted in a subsequent complaint assisted Local No 414 in the administration of its representation of the employees in the involved unit as described infra 8 At the hearing the General Counsel amended this complaint to allege that on 4 February 1987 Respondents interrogated R & L employ ee Toni Hardesty in violation of Sec 8(axl) of the National Labor Rela tions Act (Act) 4 Gary Gase Charles Quinn Gail Miller Shabby Monssawalla Norman Beeks and Michael McKee The involved unit which is repre sented by the Union consists of all full time and regular part time truck drivers and mechanic employees of the Respondent R & L at its Fort other things, filed grievances against the Respondents and that on 5 May R & L reneged on and refused to abide by a grievance resolution agreement entered into between the Respondent R & L and the Charging Union providing inter alia that the Respondent R & L would reinstate to their employment those employees named in footnote 4 and that the Respondent R & L would pay to each said employee backpay as agreed on between the Respondent R & L and the Charging Party Union In their separate answers R & L and Schaller deny the commission of any unfair labor practice and they deny that they are joint employers Unfair labor practice charges were filed on 8 August by the Union in Cases 25-CA-18171-1 25-CA-18171-2, and 25-CA-18171-3 against R & L and/or BVZ Enter prises, Inc (BVZ) and Schaller These three charges were amended on 19 September to among other things, change the name of the employer to Loudermilk an indi vidual, Schaller, R & L, BVZ Danny Chenault an mdi vidual as individuals, joint employers and alter egos A consolidated unfair labor practice complaint was issued on 22 September in all five of the above described cases alleging that Schaller, R & L, and Respondent BVZ con stitute a single integrated business enterprise, a single em ployer, and alter egos that on 1 August, Schaller and R & L unlawfully ceased operations at the aforementioned Fort Wayne and Bedford facilities and discharged the employees because, inter alia the Union would not grant the above described concessions and because certain of the employees cooperated with the Board by giving tes timony and that on I August Respondents reopened and resumed the operations without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain Schaller filed an answer deny ing that it committed any unfair labor practice and de nying the above described allegations regarding single in tegrated business enterprise single employer, joint em ployer and alter ego Unfair labor practice charges were filed by the Union on 19 September in Cases 25-CA-18171-4 and 25-CA- 18171-5 against the employers described in the amended charges treated in the next preceding paragraph An amended consolidated unfair labor practice complaint was issued on 31 October in all seven of the aforemen tioned cases alleging additionally among other things that Loudermilk is, and has been at all times material an individual proprietorship doing business under the trade name Schaller Trucking Corporation that Respondent Danny Chenault doing business under the trade name DC & Son Trucking Inc (Chenault) and Schaller, and Loudermilk exercised control over the labor relations policy of Chenault and administered a common labor policy with Chenault for the employees of Chenault that the Respondents have been joint employers of the em ployees of R & L, that on 1 August BVZ and Chenault were established as disguised continuations of R & L, that Respondents are alter egos and a single employer, Wayne and Bedford Indiana facilities including all full time and regular part time yard helpers but excluding all office clerical employees all janitors all professional employees all guards and supervisors as defined in the Act R & L CARTAGE & SONS that on 1 August, Chenault and BVZ entered into an agreement with the other Respondents to acquire the business operations of R & L including the transporta tion of goods and materials for General Motors Corpora tion (GM) and since that date, have been engaged in the same business operations at the same location providing the same service to substantially the same customers that but for the acts and conduct described below Chenault and BVZ would have employed as a majority of their employees, individuals who were previously employees of R & L, that BVZ and Chenault have continued the employing entity and are a successor of R & L, that be cause of the acts and conduct described below a demand for recognition and bargaining by the Charging Union on the BVZ and Chenault would have been futile, that on 1 August the Respondents ceased certain operations at the Fort Wayne and Bedford Indiana facilities and unlawfully discharged specified employees, that BVZ and Chenault on and after their 1 August resumption of the operations of the Respondents, failed and refused to employ and/or reinstate the aforementioned discharged employees and/or acceded to discharge of said employ ces, that the discontinuance of R & L s operations, the discharge of the above described employees, and the re sumption of operations by BVZ and Chenault were done without prior notice to the Charging Union and without having afforded the Charging Union an opportunity to negotiate and bargain as the exclusive representative of the Respondents employees with respect to such acts and conduct and the effects of such acts and conduct and that on or about 30 September, Loudermilk bypassed the Union and dealt directly with employees in the unit by soliciting employees to work for Chenault at reduced wages In their separate answers, Respondents deny the commission of any unfair labor practice and they deny the complaint allegations regarding joint employers dis guised continuations alter egos single employer, and successor A hearing on these consolidated cases was held before me on 2-5 February 1987 Briefs were filed by the Gen eral Counsel and Respondents in April 1987 On the entire records in this case and from my obser vation of the witnesses and their demeanor I make the following FINDINGS OF FACT I JURISDICTION At all times material Schaller, which is incorporated in Indiana, has maintained its principal office and place of business at Indianapolis, Indiana and is and has been en gaged in the transportation of freight and commodities in interstate commerce At all times material R & L, which is incorporated in Indiana, maintained its principal office and place of business in Fort Wayne Indiana and vari ous other facilities in the State of Indiana inclusive of a Fort Wayne facility and a Bedford, Indiana facility and is and has been engaged at these facilities in the transpor tation of freight and commodities under contract to Schaller At all times material BVZ, which was incorpo 5 Transcript corrections are noted and corrected 535 rated in Indiana in 1982, maintains its principal office and place of business at Fort Wayne, Indiana, and is and has been engaged in the transportation of freight and com modities as agent of Schaller, R & L and Loudermilk 6 At all times material Chenault has maintained its princi pal office and place of business as here pertinent at Bed ford, and it is engaged in the transportation of freight and commodities as an agent of Schaller R & L and Loudermilk 'i The record reflects, and I find, that Re spondents Schaller R & L, BVZ, and Chenault are each individually and collectively engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act II THE LABOR ORGANIZATION The Charging Union and Teamsters Local Union No 135 are labor organizations within the meaning of Sec tion 2(5) of the Act III ALLEGED UNFAIR LABOR PRACTICES A Background Facts Loudermilk purchased Schaller Trucking Corporation along with its certificates of public convenience and ne cessity in 1973 8 At the time there were about eight dif ferent agents hauling under the Schaller authority Lou dermilk began to hire other agents including R & L a nonunion hauler at the time, to replace another agent of Schaller R & L was unionized 1 year later in 1978 Loudermilk testified that under the ICC authority and the Federal Department of Transportation (DOT) regu lations, the certificate holder is required to (1) check the drivers record periodically (2) make sure proper driv ers logs are maintained (3) make sure the equipment uti lized has safety checks (4) make sure the drivers are properly trained (5) make sure that the rules and regula tions pertaining to safety conditions are followed, (6) maintain the cargo property and public liability insurance coverage, (7) bill the shippers and (8) pay its agents Loudermilk also testified that regarding the ICC certifi cate and under DOT regulations he has the authority to inform the agent that a specified driver or drivers cannot operate a truck with Schaller s placard on it that while he believes he could he does not hire any of the agent's employees that except for 22 June, treated infra he has never participated in any of R & L s contract negotia tions, that neither he nor anyone else from Schaller ever participated in any grievance, contract negotiation or anything to do with labor relations of R & L and that he neither authorized nor precluded R & L utilizing Schaller s letterhead for any of their labor relations pur poses 6 At the hearing Respondents amended their answers to admit among other things this allegation r This allegation was also admitted at the hearing As indicated in fn I supra Chenault does business as DC & Son Trucking Inc which as separately alleged in the amended consolidated complaint and as further amended in the hearing was incorporated in Indiana 8 The authority had been granted by the Interstate Commerce Com mission (ICC) and the Public Service Commission of Indiana 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD R & L was incorporated in 1974. Its president, Robert Vande Zande, testified that when R & L began hauling for Schaller, he, Robert Vande Zande, leased the tractors and the trailers, and managed the entire operation includ- ing the hiring and the firing; that Schaller supplied the operating authority and the insurance and for that it re- ceived 18 percent of the revenues; that as business grew Loudermilk built a terminal at Bedford and he advised Robert Vande Zande that R & L could use the terminal free of rent as long as it paid the utilities; that R & L paid for the gasoline, the telephone charges, equipment repairs, and eventually the cost of leasing vehicles; that the operation in question involved having (1) a local driver (spotter) go from the Bedford terminal to the nearby GM Central Foundry where he would pick up a load of castings and bring it back to the Bedford termi- nal, (2) an over-the-road driver take the load from Bed- ford to the Fort Wayne terminal where he dropped that trailer and hooked up to another trailer which he re- turned to Bedford, and (3) the Fort Wayne driver take the load to wherever it was going, i.e., Flint, Lansing, or Detroit, Michigan, where he would unload, then reload empty bins or scrap which was remelted to make more castings, at another point, and return to the Fort Wayne terminal; that R & L would type the documentation for the load at Fort Wayne and a copy would go to Schaller's office which in turn would forward a check to R & L the following day; that the documentation would be sent to the Bedford terminal from where the bills were sent to the customer; and that the Schaller letter- head was used at the Bedford terminal to bill customers, mainly GM, for the hauling done by R & L. A certifi- cate of use of an assumed name dated March 9, 1977, Re- spondents' Exhibit 5, indicates that R & L conducts busi- ness under the following name other than as shown in its articles of incorporation: Schaller Trucking Company, Inc. R & L's first 5 years of operation were very profitable. It started with 2 tractors and at the peak of its operations it had about 50 trailers and 20 tractors. Deregulation of the motor carrier industry and high costs were cited as reasons, among others, Robert Vande Zande for the de- cline of R & L's profits.9 Although at one time R & L hauled between 45 and 50 loads a day out of the afore- mentioned foundry, by the mid-1980s it was only han- dling about 4 or 5 loads a day of the involved traffic. Sometime in 1984 Schaller lost the movement of castings to the GM hydramatic plant located at Willowrun, Michigan, when the routing was changed to another car- rier that was willing to handle the movement for less money than Schaller using R & L. The movement repre- sented $1 million in revenue a year, which was a signifi- cant portion of R & L's overall annual revenue. Schaller made a number of loans to R & L on Schaller Trucking Corporation checks. These advances were paid back out of the commissions R & L received from Schaller. Asser- 9 He also asserted that the Union "played a big part" in R & L's de- cline alleging "[W]e couldn't control the costs. Everytime we got slow in come all the grievances, all the drivers wanted free money. It just wasn't there." tedly all the loans except the last one, treated infra, were paid back. As noted above Robert Vande Zande testified that he managed R & L's entire operation. When he testified that Loudermilk did not control the day-to-day operations of R & L, he was shown an affidavit he gave to an agent of the National Labor Relations Board (Board) on 3 July (G.C. Exh. 12, par. 2, pp. 1 and 2): John Loudermilk as president of Schaller has com- plete authority over the day to day operations of R & L including control over the hiring and the em- ployment of the drivers. Schaller is paid 18% of the gross revenues of R & L. Robert Vande Zande testified that this portion of the af- fidavit was not correct;1° that he read the affidavit before signing it; that he had his attorney, Bruce Box- berger, also read the affidavit and Boxberger "said it's all right to sign"; that he and Boxberger told the Board agent that the above-described portion of pages 1 and 2 of the affidavit was incorrect; and that he and Boxberger had the Board agent add paragraph 6 on pages 3 and 4 of the affidavit which reads as follows: Schaller actually exercises control over the hire of drivers only in the areas of driver qualifications since Schaller pays for the insurance coverage. With respect to Robert Vande Zande's above-de- scribed affidavit, Boxberger testified as follows: I reviewed, read, the affidavit, and Paragraph 2, to me, did not look right. I did not recall Mr. Vande Zande saying it quite as indicated in the affi- davit, and I conferred then with Mr. Vande Zande concerning Paragraph 2. Specifically on the issue of control, or any ele- ment of control, exercised by Schaller over R & L, and I-again, as I say, was conferring with Mr. Vande Zande and indicated to him that, from my knowledge, and isn't it true that basically the con- trol that Schaller exercises with respect to your em- ployees, is one in the area of driver qualifications because of insurance. And Mr. Vande Zande confirmed that under- standing to me, and I then talked to Mr. Brase [the Board agent who took the affidavit], and I said, to Mr. Brase, that I did not think that Paragraph 2 re- flected reality, and it was incorrect, and I asked Mr. Brase to add a paragraph explaining the situation as far as the element of control. Mr. Brase then added Paragraph 6. Q. Okay. Do you have any recollection as to whether Mr. Brase agreed to take any action with regard to Paragraph No. 2? 11 He also testified that the second and third sentences of par. I on p. 1 of the affidavit are not correct where it is stated: "R & L leases the trac- tors from Schaller Trucking. Schaller owns the trailers and owns the Bedford terminal," because he and R & L owned the tractors and trailers and it leased them to Schaller. R & L CARTAGE & SONS A I believe I was under the impression that Paragraph 2 would be stricken from the affidavit but my recollection of that isn t any better than that I can t say for sure 11 Boxberger also testified that he represented R & L about 12 years including their labor contract negotia tions grievances, and things of that nature, that neither Loudermilk nor Schaller was ever involved in those ne gotiations that he never received any instructions from Loudermilk or anybody involved with Schaller regard ing R & L s labor negotiations, that he negotiated several contracts for R & L with the Charging Union, that he handled a number of grievances for R & L, that he re ceived his instructions from Robert Vande Zande con cerning the labor negotiations, and that he never had any contact with Schaller or Loudermilk for Schaller Jerry Terry, who was employed by R & L as a spotter out of the Bedford terminal, testified that while he worked for R & L, Robert Vande Zande or his son Bruce directed him, Jerry Terry to do certain things at the Bedford terminal stating that John [Loudermilk) wants this cleaned up, wants these trailers moved off of here, and over there , that Chenault would come into the Bedford terminal when Vande Zande was not there and say Well, John told me to come over here and do this or this , that he was told to move unusable trailers around by Robert or Bruce Vande Zande per the instructions of John Loudermilk three or four times in that last 4 years, and that the things he did at the behest of one of the Vande Zandes for Loudermilk which read sly came to mind involved the maintenance of the real estate the facilities or the cleaning up of those areas Dennis Arnold, a business agent with Local 414 spon sored the General Counsels Exhibit 2 which is a collec tive bargaining agreement between R & L and Local 414 effective from 16 January 1985 through 15 January 1988 The agreement was entered into 25 March 1985 and made retroactive to 16 January 1985 In addition to pro viding for ongoing negotiations regarding language it provided for an annual wage reopener commencing 15 January 1986 and 15 January 1987 for the years in ques tion In September and October 1985 R & L requested wage concessions from the Union involving an approxi mately 20 percent wage reduction for the drivers The Union commissioned a certified public accountant to ex amine R & L s financial records The following is the text of the letter forwarded to the Union from the certified public accountant on 22 No vember 1985 (R Exh 1) Pursuant to your request I met with Pattie Vande Zande of R & L Cartage & Sons, Inc at the company offices, 3220 Coliseum Blvd on Thurs day November 21 1985 The purpose of the meet mg was to examine certain financial information to 11 By subpoena dated 26 January 1987 Schaller attempted to have Brase appear at the hearing here on 4 February 1987 The petition to revoke the subpoena ad testificandum was granted because under Sec 102 118 of the Board s Rules and Regulations for a Board employee to testify prior written consent must be obtained from the General Counsel and such consent was not obtained 537 determine if the company s contention that they were experiencing severe financial hardship was warranted Pattie Vande Zande was extremely cooperative and made available to me all documents, records and financial statements that I requested During my review of the financial date [sic] I noted the following 1) The Corporation's revenues and profit (loss) has been as follows 1984 1983 To October 31 1985 Gross revenues 2 217 136 2 266 716 2 523 309 Profit (loss) (59 104) (15 743) (91 289) 2) At October 31 1985 the balance sheet indicat ed a negative net work of $194,294, which means that the company is technically bankrupt 3) The financial statements issued by the compa ny s independent CPA s have a Going Concern paragraph in their audit report This is normally in serted to alert readers that the company is experi encing financial problems and without some change in operations may not survive 4) Cash flow appears to be a real problem Ac counts payable have increased significantly since January 1 The company has also been advanced some $38 000 by John Loudermilk to make payroll in the last few weeks 5) The company s fleet appears to be rather old and maintenance costs are eating them up Mainte nance for the current year to October 31 is $335,000 compared to $146,000 for all of last year 6) Their insurance is up for renewal in early March and I would expect this to increase $50 000 to $60 000 I believe that the company s contention they are experiencing severe financial hardship is well founded Robert Vande Zande subsequently met with Walter Lytle the secretary treasurer of the Union who accord ing to Robert Vande Zande indicated that he felt sure that some concessions could be granted and that he would do everything in his power no guarantees but he was willing to work with us Robert Vande Zande tests fled that he told Loudermilk what Lytle said and Lou dermilk loaned R & L $250,000 to pay off R & L s loan on its trailer and repair its equipment 12 Loudermilk took title to R & L s trailers and a security interest on R & L s tractors and Robert Vande Zande s two homes R & L ordered engines for the tractors, bought $10000 worth of tires and started to repair the trailer roofs Lytle then advised Robert Vande Zande that the Union could not agree to R & L s proposal to reduce wages 12 At one point Robert Vande Zande testified when asked if the money was owed to Loudermilk or Schaller that to the best of his knowledge it was owed to Loudermilk 538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Boxberger sponsored Respondents' Exhibit 6 which is a letter from Local 135 dated 28 February 1986 indicat- ing, as here pertinent, that "this Local Union is not inter- ested in any concessions." Robert Vande Zande testified that General Counsel's Exhibit 13 is a mistake in that the secretary at the Bed- ford terminal should not have used the Schaller letter- head to notify specified R & L employees of their hours effective 14 January 1986; that he never authorized his secretary to use Schaller stationery for this purpose; and that Schaller's stationery was available at the Bedford terminal because that was where all the billing was done and R & L was authorized by Loudermilk to use Schaller's stationery on its behalf with GM. The in- volved secretary, Hardesty, testified that paper with the Schaller letterhead and paper with the R & L letterhead were available in the office in the Bedford terminal; that when she was instructed to use the R & L letterhead she did; and that she typed the above-desribed notice (G.C. Exh. 13) on Schaller letterhead because it was handy and she more than likely was not instructed to use R & L's letterhead. Arnold sponsored two exhibits, namely, General Counsel's Exhibits 20 and 21, which are notifications the Union received in the mail dated 13 February and 16 May, respectively. Both are on R & L letterhead and both are initialed by Bruce Vande Zande. The former states "Dick Uptgraft is being terminated from R & L Cartage and Sons/Schaller Trucking for the reason of lack of work. Dick's last day driving was 2-12-86." The latter states "Everett Davis is being terminated from Schaller Trucking/R & L Cartage for the reasons of per- sonal back problems." Paul Mills Sr., a retired Internal Revenue Service agent, testified that during the period of September through approximately December 1985 he conducted, before he retired, an examination of the employment taxes for Schaller. With respect to the examination, he testified as follows: By Mr. McCarthy: Q. Mr. Mills, during the course of your examina- tion, did you have an occasion to consider whether or not the employees of Schaller Trucking Corpora- tion's agents were employees of Schaller Trucking? A. No, because Schaller Trucking- I've made a determination that Schaller Trucking was in the nature of a broker, and that he had multiple compa- nies within Schaller Trucking. He explained to me, or I'm sorry. Mr. Louder- milk explained to me that he owned the franchises throughout the State of Indiana, and that when a trucking company, or a transport carrier, was estab- lished, that franchise was assigned to that company, so that this was a separate company, then, from Schaller Trucking. And I determined that the employees that Schaller Trucking Company.was reporting on their 941 were Schaller Trucking employees. The employees of these multiple companies, I did not examine. So therefore, I really couldn't say that they were Schaller Trucking agents. I would assume that they were the agents or working with these separate companies. Q. Okay. A. That's a usual procedure, you know. Mills, after the tax examination, recommended no change in Schaller's employment tax for 1982, 1983, and 1984. Mills believed his district director accepted the recom- mendation "because there were no reprecussions [sic] or a rebuttal that came back to . . . [Mills] signifying other- wise." R & L drivers Richard Borckardt and Quinn were fired assertedly because they intentionally damaged R & L's trucks while operating them over the highway. Allegedly the former ruined a transmission and the latter jack-knifed into a ditch.13 Before these incidents, the former worked for R & L for 6 or 7 years and the latter worked for R & L for 4 to 5 years. Both drivers filed grievances and, according to Robert Vande Zande's tes- timony, R & L owed backpay. Subsequently, April 1986, the Union was notified by R & L that nine of its drivers were laid off because they were declared uninsurable by the liability insurer of motor vehicles after their driving records were re- viewed. Borckardt and Quinn were among the nine. R & L's attorney, Boxberger, forwarded the following letter to Robert Vande Zande on 5 May (G.C. Exh. 3). Re: Insurance Coverage Dear Van: Enclosed you will find a copy of the letter I've received from the insurance company concerning six drivers. These drivers can now come back to work inasmuch as they are now covered by insur- ance. Denny Arnold is receiving a copy of this letter, as well as a copy of the insurance company's re- sponse. Both of you should note that in three months another check will be made by the insur- ance company. The enclosed letter was from the integral Insurance Company dated 29 April to International Risk Place- ment, Inc. and it reads as follows: In follow-up to Greg's letter of April 2, 1986, we received contact from Mr. Denny Arnold, a repre- sentative of the Teamster's Union regarding our driver exclusions. As a result, I agreed to allow the following driv- ers to remain on a probation basis: Michael Mckee Norman Beeks Shabbir Morissawalla Gary Gase Charles Quinn Gail Miller We agreed that MVR's would be ordered in 3 months and any further violations on any of these drivers would require them to be placed in a non- driving capacity. In the case of Mr. Beeks, he 13 As treated infra, Loudermilk subsequently referred to R & L's trac- tors as "junk." R & L CARTAGE & SONS claims the 8/30/85 accident was not his fault We will need a copy of the police report Please ensure that the insured understands these terms Arnold testified that between May 1983 and May 1985 McKee filed 10 grievances against R & L, Gase filed 26, Quinn filed 16, Miller filed 16, Morissawalla filed 6, and Beeks filed 3 The number of grievances filed by the first four drivers named above was said by Arnold to be above average for the involved period 14 Arnold also pointed out that McKee was the steward for Local 414 in Fort Wayne and Miller was the steward in Bedford Arnold advised the insurer that he was advised that Beeks accident, the reason he was initially declared un insurable, was not Beeks fault The Union received a self explanatory letter from Box berger on 5 May (G C Exh 4), which, as pertinent, reads as follows Re R & L Cartage/Teamsters-Labor Management Meeting of May 5, 1986 Gentlemen We met in my office on Monday , May 5 1986 The meeting was attended by the three of us and stewards Terry and McKee representing Locals 135 and 414, respectively We reviewed various con tractual language changes, and we will continue to meet on this subject , however, we also did meet and confer with respect to various pending gnev ances as follows 1 Insurance Related Grievances I have given to you the insurance company's re sponse and the six drivers in question will be put back to work immediately It appears that the union continues to maintain that the Company has a mon etary obligation for back pay , etc The Company disagrees If agreement cannot be reached on this subject the matter will be taken to arbitration By mutual agreement , the Tuesday, May 6 1986, panel date has been continued This continuance would be for all matters otherwise scheduled before the panel including the Janes grievance 2 Messrs Acheson, Miller, and KcKee will be paid by the end of this week, and Messrs Parks, Uptgraft and McIntyre by the end of next week Evidently there is a discrepancy on what has been paid Charles Quinn Van informs me that he has given Mr Quinn a breakdown I requested that Van forward Mr Young a copy of this paperwork for review 3 We have pending Borckardt Grievance No 88454 This is put on Company hold There appears to be some discrepancy in Mr Borckardt s driving record I ask that Van forward this information to me for review and dissemination to the Business Agents 14 Loudermilk testified that he did not know whether any of these drivers filed a higher than average number of grievances and that he never knew and never cared about how many grievances the Union filed against R & L 539 By letter dated 7 May (G C Exh 6 ), Boxberger ad vised the Union, as here pertinent, as follows Gentlemen Per our negotiation session of May 5 , 1986, I write you this letter Please note that my client, Mr Vande Zande, is receiving a copy of this letter I would specifically ask that he send to all reinstated drivers a registered letter requesting that they come back to work On 12 May Loudermilk went to Local 414 to discuss Schaller Courier Corporation Robert Vande Zande in troduced him to the union officials While there Louder milk brought up the R & L situation to the union offi cials and he asked what happened on the concessions The union officials advised Loudermilk that R & L s drivers were not interested Loudermilk then offered to speak to R & L s drivers The union officials indicated that they were not interested However, the next day, 13 May, the Union forwarded the following (R Exh 2) Mr John Loudermilk Schaller Trucking Corp 5702 W Minnesota St Indianapolis, Indiana 46241 Mr Robert Vande Zande R & L Cartage 3220 Coliseum Blvd W Fort Wayne Indiana 46808 Sirs Following our meeting of May 12, 1986 wherein you both pointed out problems with your company regarding non union competition rates being cut losses of accounts of Schaller Trucking etc, we at Local 414 [sic] further discussions regarding our mutual problems as listed above We decided that, rather than refuse you gentle men's offer to accept contract concessions , it would be in the best interest of our members your em ployees to accept Mr Loudermilk 's offer to hold a joint meeting between representatives of Local 414 Mr Vande Zande, Mr Loudermilk and the member/employees and allow Mr Loudermilk to explain the state of the business difficulties Will you both please advise me of some available dates you have for such a meeting Arnold met with Boxberger at the latter's office on 20 May to negotiate with respect to the language in the col lective bargaining agreement During the meeting Box berger was asked why the aforementioned laid off driv ers had not yet been recalled Arnold questioned Box berger s authority to negotiate for R & L Boxberger then telephoned Robert Vande Zande initially utilizing a speaker phone while Arnold was in the same room Arnold gave the following testimony about what then transpired A Mr Boxberger asked Mr Vande Zande if- why-why the drivers had not been returned to 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work. And there was a period of silence, and Mr. Boxberger said, well, I'm quite concerned, seeing that we issued a letter releasing those drivers to return to work, and they have not been returned to this day. He was quite concerned about the liability for back pay. Q. Did Mr. Boxberger make any comment about spinning his wheels? A. Yes. After that, he asked Mr. Vande Zande if he wanted him to continue negotiations on behalf of R & L Cartage. And there was another period of silence, and Mr. Boxberger then hung up, and came back to the table, and said there was no sense [in] him sitting there spinning his wheels at $75.00 an hour if the company's not going to agree to what he's there for. Arnold testified that he telephoned Robert Vande Zande on 22 May and asked him why the laid-off drivers had not been returned to work; and that Robert Vande Zande stated that he was waiting for a decision from Loudermilk to return these drivers to work, and "Lou- dermilk was reviewing the situation, the whole insurance matter." Robert Vande Zande also advised Arnold during this telephone conversation that Boxberger had full authority to negotiate the contract on Vande Zande's behalf. On 23 May Boxberger forwarded the following letter (G.C. Exh. 5) to the Union: Re: R & L Cartage/Insurance Coverage Gentlemen: This letter is sent to inform you that Mr. Louder- milk is reviewing the insurance company represent- atives in an attempt to resolve this situation. Mr. Loudermilk informs us that we should have some type of an answer by June 5, 1986. I will advise as soon as I know something further. Robert Vande Zande testified that he and Loudermilk met on the night of 21 June; that he was getting ready to file chapter 11; that Loudermilk came to see if there was anything he could do to save the account; and that during the meeting authorized Loudermilk to tell the drivers the following evening, as treated infra, that if they formed a new corporation, R & L would cease to exist. On the evening of 22 June Loudermilk spoke to R & L's employees at Local 414's hall. Also present were Mrs. Loudermilk, Robert and Bruce Vande Zande, Lytle, Arnold, and David Young, who is a business agent for Local 135.15 The following are pertinent portions of Loudermilk's presentation: So now, come January 1, and I keep telling them they're going to have to cut rates, and he [Robert Vande Zande] keeps saying we'll have to have 15 Because Bedford is in Local 135's jurisdiction, its request that R & L drivers at Bedford be transferred to its jurisdiction was granted. R & L drivers Quinn, Gase, and Miller are members of Local 135. Local 135's representative, Young, assisted in negotiations with Boxberger. more money, I suggested to him that he come to you guys and ask for concessions of some kind or other, and explain the case to you, that we cannot survive, unless we're willing to all sacrifice some- thing. Well, he thought that he had got the message across, and that we were going to be able to do that. So, I loaned him a quarter of a million dollars to get through, into this year, on the basis that we would get the holes fixed in our trailers, put some brakes on them, and get on down the road, and hopefully, some of our competitors would go broke by then, and you guys would all chip in, and we'd get a line of communication. We would all work to- gether, and we'd get on down the road. Well, that hasn't happened. A quarter of a million dollars has disappeared. It went right through the roofs of those trailers, and through the drive lines and ev- erything, and much of that equipment that you're struggling to get up and down the road, and it's all evaporated. So now we're at a point where something's got to give. I have to make a decision who is going to be the agent that hauls the freight in and out of Bedford. And I'm not going to invest any more money in a losing cause, because it becomes-it be- comes ridiculous. Well, in the meantime, we're already-we've got unfair labor practice charges, we've got grievances, we've got a complete lack of communications be- tween this whole group of people who is moving my freight out of Bedford to start with. So, it's compounded into this present meeting. And quite frankly, if it hadn't been-I discussed this with your Union officials about a month or so ago, and there wouldn't have been any need for this meeting, be- cause I was planning on turning your moves over to another company, as of June the 1st, anyway. There wouldn't have been any of you here at this meeting. And these guys are in the hot seat. There is no way for them to solve my management problems. I've been around long enough to know that. There is no way for the union to solve my management problems. And I suggested to them that we have a meeting, and I present it to you, and-to give you a picture of my side, and to present to you an alterna- tive to just giving somebody else the freight. Be- cause I wanted to make sure you understood that the move belongs to me and Schaller Trucking Cor- poration, not to R & L Cartage, or not to Robert Vande Zande. That move is my move. That termi- nal is my terminal. Those trailers are my trailers. And I just wanted to make sure that you under- stand that all the investment; all the capital, at the beginning, was mine. And now then, Van has 10 or 12 years of his equity capital investment poured right in there. He also has a mortgage on his house and cottage that's poured in there. We have-I have combined net of somewhere around three mil- lion bucks, that a lot of its is [sic] hinged right R & L CARTAGE & SONS down there with this particular move and my other businesses Van has a combined net probably, of a half of million dollars And I didn t ask him for per mission to expose some of this but this is the way it is, and it our role here to try to figure out do we survive We have a group of people, we have Bruce and Vande Zande that moves freight as efficiently as anyone does in the United States You have a cus tomer that s paying us around two, two and a half million dollars a year to move that freight I have the capital to buy, work with it, or do whatever I want if somebody can show me that we re all going to work together, and there 11 be some return that will at least get that investment back And these are some of the things that I asked to be able to present my own case to the guys, and quite frankly, they-they were not very interested in giving me the floor to do that because they have heard that shit now so much here lately about con cessions, that they realize that you people are-or their membership don t want to hear it either And so I told them the alternative was that none of you would be driving after June 1st anyway And then I got a letter back where somebody here decided that before that happens and we have that kind of response, then they wanted to know if I d still be interested I want to thank them for agreeing to let me get in front of you and talk to you Now, the solution is going to be whether or not we all chip in and make the thing work and the al ternative then is I in going to try to make it work all by myself if nobody else in here wants to And that s-that s where we re at right here today Do you have any questions? I see you have a question right here Employee You want everybody to work togeth er I been with this outfit for six and a half years How do you expect us to work together when we been cheated we been lied to we get taken off the board fired every other week And I don't know whose insurance company it was that tells us that we re uninsurable but we re still not back to work Now how can-how can you expect us to sit here and want to help want to give what you need to keep you going and to keep them going when all we get s the rotten end of the deal? Loudermilk Well Integral Insurance is the one who said that you and five other guys and I1 coun er drivers could not drive those vehicles, otherwise our insurance would be cancelled Coastal Truck Lines run into the same thing, and now the Coastal drivers are unemployed, because they don t have in surance It s because the period of time we re in The two reinsurance companies that I used to have when I wrote liability insurance, both went broke Which is Universal Reid, owned by Armco, and Mission out in California So that was their decision 541 Now somewhere you guys have pulled an amaz mg-your Union or somebody got them to turn that around to where they said we could put you back to work Were you the one responsible for the? Well that s the first time I ve heard of that hap pening, so that young man right there is the one who got the insurance company-not even-when you investigated that, did you-did they ever say anything about that we were the cause of it or- Arnold They said they d be willing to put back six guys immediately, May, whatever it was Loudermilk Did they justify why they did it in the first place? Arnold No Lytle I think the thrust of his problem is, that even though the insurance company says they can go back to work Bob Vande Zande has not put them back to work And you wonder why you get grievances He s been notified that these people were insurable at this point, and they re still off work, yet today Loudermilk Well, this has been a period of time whether or not any of you were going to be work mg Employee Can you explain something else? How come nobody in this room, tha [sic] I know of, except a few in January, have been paid for their Christmas and their holiday pay, which is an [sic] the dadburn contract? Now here we are six months down the road past the holidays and we re still waiting to try and get our money, that is owed to us Loudermilk There is no money I can answer that Employee Aren t you asking for concessions again? Employee There s a bunch of us that s got vaca tion time we can t even get I ve got seven years in, and I can t get a vacation Loudermilk There s no money to pay- Employee You got money to pay the damn guys that are driving every day What about the guys that s already put their time in? Loudermilk Well but if you don t pay those guys, there won t be any customers because the freight won t move Employee There you go again (Inaudible) Loudermilk You ve got a good point there Employee Well, we got the personality part cleared away how much is it going to cost us? Loudermilk That s the most sensible question brought up What I-what I propose to do, that we-which I haven t even discussed this with your union officials, but start an ESOP or some kind of a stock ownership program where you guys have a floor, and then you get whatever it costs to move that freight Employee Who s going to do the book work? 542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Loudermilk: You do the book work. Employee: (Inaudible.) Loudermilk: Got no problem. You can keep the books. Question here? Employee: Yeah. You was talking about the upkeep of these trucks. This upkeep of these trucks is going right back into R & L Fleet Services. Loudermilk: Well, first of all, we get rid of all those trucks. Then you have no problem. We'd have the fixed cost of the rental trucks. Employee: Well, this is in the past, where the money goes. Loudermilk: Well, we quit talking about the past. This man brought it right to a head. Who cares about the past? What is it going to cost? Employee: Some of us have lost seven, eight, nine thousand dollars. We're waiting to hear a word about the past. Employee: Yeah, some of us is out of work, kicked off the board. (Inaudible.) And you're won- dering why we're worried about the past. Loudermilk: No, I didn't say that. Lytle: I got a question. I've got a question I've got to ask at this point. What was that deal you just threw out? You're going to do what? Loudermilk: Provide where the group would own the company. They'd be their own corpora- tion. Lytle: But all the money's going to go in, and what's left after operating costs, you're going to let them divide up as wages? Is that the way it's- Loudermilk: No. No, no. Put a floor in there on the wages. Put a 16, 18 cents a mile floor. I'll stand any loss in excess of that, and then they can have anything that would accumulate in excess of that on up. In other words, I would make the investment. We do away with all the unknown costs, which is the tractors, the junk tractors, and we use the Gelco tractors of Ryder tractors, and go from that point. Employee: Then we'd be part of R & L Cartage? Loudermilk: R & L would cease to exist. Employee: I was going to say, anytime, if we was part ownership of R & L, anytime you wished to have it cease to exist, our stock and everything would be worthless. Loudermilk: That's right. That's the way it is right now. Employee: So it would be into what? Schaller or what? Loudermilk: No, we'd form a new corporation, and you guys would own the corporation. And you have no risk, other than the difference between the 16 or 18 cents floor, whatever we can do. Employee: And what about the bids on the runs? Loudermilk: I'd take care of all that. You mean the bids on who drives what? Employee: No. If you got stock into a company, and let's say, okay, you bid a run, we're going to get a percentage of that run, right: Well, if you're doing the bidding on the runs, you can really bid cheap, and we're going to be the losing end. Loudermilk : But I'm the one that's going to be fi- nancing the whole works. Employee: We're going to be guaranteed a cer- tain amount for our time- Loudermilk: Yes. Employee : -no matter what? Loudermilk : Yes. And it's-quite frankly,. I think McLean did something like that , and they filed bankruptcy then again , what, a year later? Lytle: About a month later. Loudermilk : A month later . I don't know of any tremendous success in any of these ventures . That's the same way with the one-Wilson . Wasn't it Wilson, over in Cincinnati? Lytle: Wilson, Suburban, Halls. Loudermilk : Suburban . Now-guys, keep it down. The difference between those names we just men- tioned, was the size and the complexity involved. We are not that size and it's not that complex for us to do it on a smaller scale . I have-I make-that company right there where you're drinking your coffee, pays me 600,000 bucks a year. I have a little appliance industry , that I took , with a group just like this, was hemorrhaging, that we turned-- Lytle: Excuse me a minute . Let's just have one meeting, so we can hear up here. Loudermilk : And what I'm saying is, it 's some- thing that a group this size can make it work, if you want to. You cannot make it work with a group like McLean, Halls, and with all the complexity and all of the size, and all the customers, and all that bullshit. But we've got one customer that we have to please, General Motors Corporation. Employee: Who's going to run this company? Loudermilk : You are. Employee: Where does Van fit in? Loudermilk : Van's going to be the dispatcher. Employee: Well, this company- Loudermilk: Well, now, is there someone here that can do a better job at dispatching than him and Bruce? Employee: Now, wait a minute. You said Van was going to be dispatcher. You didn 't say anything about Bruce. Loudermilk: Well, it's one entity back there. Lots of blood flows in between them. Employee: Let me ask you this. What are you going to do about the labor charges that are filed? Loudermilk : I'm going to ignore them. Employee: Why? Loudermilk: Because I'm more concerned with moving the freight Monday and keeping the cus- tomer, or there won't be any place you're going to get runs from anyway. If we don't have-if we don't move, and keep the account coming in, there isn't going to be anything. Employee: What about the rest of us, though, that are sitting here, that have lost seven, eight thousand dollars worth of back wages already, be- R & L CARTAGE & SONS 543 cause some insurance company said no, and then they say yes, and then the company refuses to put us back to work, because the man says, well, I don t know what was said, or this and that He won t show up at meetings or anything else But still yet you want us to forget everything, and say, hey, it s cool we're going to go back to work and we re going to make everything work Well, I personally can t do that I in not going to sit here after six and a half years, and keep bending over and getting screwed every time I turn around Not for you or anybody else Now, if I in treated right fine Employee I just have one more question, sir, and like you said, if we keep running and go out there and work at it, yes Go and solve the problems But for how long? You know do you want us to just get up and forget about it? Loudermilk Yes Employee Well, you tell us, okay, [inaudible] anyway You re not going to need your employees with no business Loudermilk That s exactly right That's the only reason I in here I in here because you guys have the ability and the experience to take care of the customer Employee And we do Employee How can you stand up there and dic tate who our corporations dispatcher is going to be, where our terminal is going to be so we can continue to support R & L Fleet Services I am t for that goddamn terminal Loudermilk In the back of my office there s a little-the Golden Rule You know what the Golden Rule is? He who has the gold, rules If you're going to use my- Employee In other words you re the boss- Loudermilk That s right If you re going to use my gold and you re going to use my half a million dollars to make this thing start and go then I in going to set the rules That s the only- Employee You said something about we re going to form a corporation What are you saying? Loudermilk In order for you to get your gold Somebody has to have- Employee We re still going to have him running it Loudermilk Do you have someone better to run it? Employee Get that son of his Bruce Loudermilk There s no problem there Van you can t run it anymore We'll let Bruce run it Employee Well, you say that Bruce has been in charge all this time Nobody has ever told Bruce Employee (Inaudible )-Van or Larry Larry will tell him to go screw himself (Inaudible )- Larry s been waiting to see him go broke for the last eight years Lytle One at a time Loudermilk We 11 take care of that too 111 build the building up there to do that We don t need to go through R. & L Fleet Service Employee Now you re saying Bruce is running the show I ve got a record- Loudermilk All I in saying is Monday morning he can be running the show Employee I got a letter in my pocket from Ken tucky that says they want to take my drivers license because of a damn ticket I got in one of their trucks for improper cab card When I called up to find out about it, hey we have no record of you turning the ticket in But still yet, the very next day they start getting the shit squared around in the damn truck Now, I ve not received any call, I ve not re ceived any letter I don t know if this ticket s ever been taken care of or not But I m facing losing my license on account of their junk equipment Now, what do you got to say about that? Bruce- Loudermilk Were going to park all the junk equipment Employee Well, who s going to take care of this ticket? Employee It warn t junk to begin with It was good equipment when we bought it Loudermilk Because it s wore out Employee Because it wasn t maintained Loudermilk Well a truck-when you get a mil lion miles on some of them trucks, and so forth, they re hard to maintain Employee None of them s got a million miles on them Loudermilk What are we going to do Monday The man right here asked the question First of all, as I say, your union officials were not all for this meeting They said it was-they thought it was a hopeless situation That you guys were so bitter that everybody d be wasting their time So we re at that point now to-I in just telling you here let s tell you what I'm willing to do I in willing to capitalize a company, and we 11 use all rental tractors We 11 fix the trailers We 11 put Bruce in charge You are going to be guaranteed 17 cents a mile regardless if we go broke, you re going to get 17 cents Then you can have whatever s left, after we pay the insurance after you pay Bruce s wages whatever your mechanics are How many mechanics do you want? And after all the costs are out of there the corporation-whatever is in the corporation belongs to you Employee Well the only way you re going to solve everything is to give everybody their back wages, pay the grievances that we got coming and you 11 have the happiest group here that you know what to do with Loudermilk I am not trying to make you happy That is for-that s forces that are out of my control 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Employee: It seems to me, my single impression is, that you're a little bit scared yourself, or you wouldn't be here wanting us to give up our mileage, to give up everything, and go work like this, be- cause I think you know in the back of your head that you're not going to find a better group of em- ployees, who's going to care about your company, and keeping your business going. And still yet, you want to stand there and tell us that you could give a shit about what's happened. And you want us to forget about everything, too. Well, you have been a major part of this compa- ny all down the line, just like the Vande Zandes have, and you want us to forget all this garbage and say, okay, we're willing to take a cut in pay and do this and do that. When you're just as scared as any- body else.. Loudermilk: Question here? Employee: Yeah. I heard 17 cents. Is there any- thing that goes with it, like hospital insurance. Loudermilk: Well, first of all, is there a meeting of the minds to address what this young man brings up first? If you all take a position that we're going to clean up all those old grievances, and pay all these guys for all the time they've been off and so forth, we're never going to get to the 17 cents. So, it's going to be-and you're not going to decide this while we're here. That's what you pay these guys dues for, for their counsel and advise. And that's where-when he mentioned that after we leave, you're going to have your own meeting. Because that's what a democratic society is about. And again, I would say those who are not here, they shouldn't have any voice in what the hell hap- pens anyway, because they were supposed to have been here. Then I would say you're going to-the next step should be, are you willing to sit down and discuss, is it 16 cents? Is it health care? Is it the various other things? Or, do you, number one, have to be paid for all old grievances, redress all the things that have been in the past? And you have to come back to me and tell me what the result is of your own demands and meeting, that is going to be after we leave. And then I'll respond to that. But I'm just telling you, my proposition is, that we will park the junk; that we will repair them and rebuild the trailers; that we will kiss the customer's ass to keep the ac- count, and figure out how much I'm going to have to cut the rates in order to do that. And after we do that, we'll put Bruce in charge. Employee: Nobody wants to walk the streets. Nobody wants to collect unemployment. Hell, jobs don't just grow on trees. We all know this. But, when you got labor charges that has been filed, you got numbers of employees that have wages, vaca- tions, holidays, stuff like this, that is owed to them, and as I said before, you've been a major part of this company, and, you know, you're wanting to say the heck with it. I think, to me, that if you helped clean this act up, and get everybody happy, that they'll be more than willing to try to help you to get the gold and everything. I know darn well that you're not going to sit there, and if you got a company that owes you eight, nine, $10,000.00, for your services, that you're not going to say, oh well, hey, that's in the past, forget about it. Lord no. You're going to get your high-powered attorneys on him and get your money. Loudermilk: There is no way to bring redress to the past and get anything done in the future. That's a waste of effort. That's water already passed under the bridge. I'm talking about what to do Monday, as to whether or not we survive and go on down the road. I think we can do a better job than they're get- ting done by those brokers down there, and I think eventually we're going to get some of those moves back, if we get off of this here demoralization, which we brought up earlier, to where everybody's concerned about making it work. And I'm the one that can help make-I've made the thing work so far. But, I'm about at my end of making it work. Somebody brought that up. Someone says, you're scared I am scared that this thing is on its last legs. He's right. But I'm rather fortunate. I have a few other things going, that to me, it will just be, that was my experience of hauling long haul trucks. . . . you've got to get past whether or not you're going to let the dead stuff lay dead. If you're not going to let that lay dead, we're all wasting our time anyway. If we're not going to start off with a new, fresh atti- tude, and get down the road, as of Monday, then there's no point in worrying about the other. Employee: You said yet, you'd hire every one of us as brokers. How are you going to hire us, if they won't even insure half of us now? Loudermilk: Well, but he said that they would. He said that they agreed to take- Employee: Well, I used to own my tractor. I didn't have no trouble with insurance. Loudermilk: Well, okay, but he said the ones that the insurance company bounced out, now he's saying that we can take them back. Loudermilk: Am I right about that? Did they say they would take-they could drive? Arnold: That's right. Employee: Van told us that you were the one that wouldn't let us come back. Employee: That's right. You're the one explain- ing. You're the one standing up there telling us why. Loudermilk: Im just telling you, if this-if you're all ready to go to work, it will be whatever the in- surance company says. R & L CARTAGE & SONS Employee (Inaudible ) Van says that you would not let the guys come back (Inaudible ) Loudermilk Well, we re talking about Monday Employee Is that true? Employee Why do we keep evading the ques tions that we ask you? Loudermilk Because they re unlimited Employee No, they re not unlimited Employee You can answer yes or not Loudermilk They would have no meaning, to keep it boiling on and on Employee What you re trying to tell us is, you want us to set up another trucking, you re going to manage it with your money but you re the one that s managed the money this whole time that Vans had it, and we re still all going broke, and you had to set up a special meeting, to come up and try to straighten it up Why didn t you do it 2 years ago? Loudermilk Because I was never invited Employee Why do you have to be invited? If you got the finances of the company? If we set up another company, are we going to have to fight with you to straighten it up? Loudermilk This is-this what you fellows will have to decide after I leave Employee But that s what we re saying, though You want us to set up a company, and you finance it, but you didn t come in earlier to straighten it up, we're in the position we re in now Loudermilk Well first of all, you have to decide what s best for yourself Employee That s what we re trying to do Employee Most of us are sitting around not working Loudermilk I decided-I decided against it Employee Did you keep these guys from coming back to work? Loudermilk Yes Employee That s what we want to know Employee Why? Loudermilk Because I didn't figure we d be here June anyway because there was going to be an other agent hauling your freight if we don t agree to solving these problems Lytle Excuse me a minute Excuse me a, minute guys Keep it down You were the sole purpose of these guys not being put back to work even after they filed a grievance? And they were insurable? Loudermilk Well, yes Lytle You told Vande Zande not to put the people back to work Loudermilk Yes Lytle Why? Loudermilk Because we needed to see whether or not they're going to exist Lytle Damn they could have been existing for the last 2 months with a paycheck 545 Loudermilk Well but-I have-I have another agent that wants this move that I already told him he could have this move as of June 1st And I told the president of your union that That as of June 1st, none of these people would be hauling Schaller freight anyway Lytle So were the one that was solely response ble for these people to be out of work , and now you want to turn around and ask them to forget their grievances? Loudermilk No you're jumping right over Inte gral Insurance is the one that said you cannot run these people, they can t be insured Lytle From the time that they said they could run these people , you were the one that was solely responsible for them not working and then you have the audacity to ask them to forget about their money? John that s a little low cut Employee He ought to be horsewhipped Loudermilk Okay I think we re reached the point where, you know there s nothing more to be said The decision is all you guys Employee Just lock the goddamn doors and forget it That s just the whole ball of wax The presentation was tape recorded by the Union unbe known to Loudermilk to almost the end With respect to the drivers who were cleared by the insurer to drive again but not reinstated at that time, Loudermilk testified And these particular six drivers or nine drivers- they were not really critical to anything as far as moving the freight as long as the freight was moved And it really was not an important thing to me The important thing to me was whether or not we were going to be a viable company to stay in buss ness Arnold testified that neither Schaller nor Loudermilk was ever a party to the grievances pending against R & L before the Local freight board panel and the Union did not notify Schaller or Loudermilk other than to notify Robert Vande Zande as Loudermilk s represents tive and that other than 22 June and when Loudermilk asked to speak to R & L s drivers Arnold never contact ed Loudermilk concerning R & L s employees The six drivers who were originally declared uninsur able returned to work in mid July 1986 None of R & L s drivers were paid for the last 2 weeks in July when R & L declared bankruptcy and ceased operations on 1 August Danny Chenault, who has been an agent of Schaller and who has transported GM traffic, among others for Schaller testified that he received a phone call from Loudermilk on Friday 29 July that Loudermilk told him to go to central foundry to start to handle the involved traffic, that Loudermilk indicated that R & L filed for bankruptcy and no one was running the terminal, that during this conversation he and Loudermilk did not dis 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cuss the terms of the arrangement, that nonetheless, he went to the terminal and started to operate it and that the following day, 30 July Loudermilk told him he, Chenault, would receive 82 percent of the ievenue, which were the same terms R & L had Hardesty, who was the secretary of the Schaller term[ nal in Bedford, testified that she started working in 1977 for Schaller and in 1978 she was paid and hired by R & L, that on 31 July she was advised that R & L went bankrupt, and that Robert Vande Zande telephoned her from Fort Wayne and asked her to be in the office 4 August at 8 a in and he would tell her what was going to happen Roland Atchison, who was a mechanic for R & L since the beginning of 1985, testified that on 31 July, at the Bedford terminal, he asked Danny Chenault about a job, that Danny Chenault said that he was looking for drivers at that time and he did not know what he was going to do about the people in the garage, that Danny Chenault said that there was some money coming down that John was sending down to start his op eration that Danny Chenault said he needed some dnv ers for that night and Atchison told Chenault to talk to Borckardt who worked for R & L and Danny Chenault said that he didn't think John wanted him to hire anyone that had worked for R & L , that Danny Chen ault also said that they might hire Willy Bolin or him, Atchison, because he had not worked at R & L that long, that he asked Danny Chenault about getting paid for the last 2 weeks in July and Danny Chenault replied that he did not have any control over that and he did not know if the money owed would be paid that Danny Chenault said that John was planning a trip to Europe, or was in Europe and that John would pay us our 2 weeks pay when he returned from Europe and that R & L employee Robert Terry was with him when he had the above described conversation with Chen ault 16 Danny Chenault testified that he told Atchison that Loudermilk said that he would try and see if he could get them [R & L employees] their last two weeks pay they had coming if all the tools that belong to Schaller were returned to [the Bedford terminal] 17 Loudermilk explained the circumstances as follows When I sent Danny [Chenault] over to fire up his operation and to start moving the freight, he dis covered that the tools had all disappeared Our impact wrenches our cutting torches, our spare parts, our tires, our wheels-the place had been cleaned out more or less And then in further conversation he related to me that he would see if he could find out who did it 16 Robert Terry testified that he heard Danny Chenault tell Atchison on that day that he Chenault did not know whether he was not sup posed to or he didn t feel like he [was] supposed to hire anyone that had previously worked there that John [Loudermilk] didn t want him to hire anybody that previously worked there 17 Ethyl Ilene Chenault testified that she overheard her husband tell Atchison that if the tools were returned Loudermilk would see their last two weeks of pay was paid to them Loudermilk would see that they got their last 2 weeks pay I said, `Well, find out who it is and pay a reward And whatever it takes see if you can t get the tools in there Either that, or you re going to be out of your pocket to have to go to buy the tools in order for you to operate Monday And I think that was the gist of the conversation, and nothing come of it As far I know to this date, the tools haven t reappeared yet Robert Terry testified that the following day, 1 August, he went to the Bedford terminal to see if any checks had been sent down from Fort Wayne, that a lady in the office who he did not know asked him to wait because Danny Chenault wanted to speak to him, that Danny told him that there was no pay yet but that there would be pay down there but he [Danny Chen ault] was waiting on John to send it down, John was going to pay us our two weeks backpay , and that when Danny Chenault referred to John he was referring to John Loudermilk Ethyl Chenault testified that she was in the terminal office throughout 4 August, that Danny Chenault hired a Shawn Browning who began working in the office on 4 August, that she was there the entire time Browning was there on 4 August that she did not see either of the Terry brothers at the Bedford terminal on 1 or 4 August, and that she never told either of the Terry brothers that Danny wanted to see them Danny Chenault testified that he began hauling freight for Schaller on 1 August after R & L ceased to exist, that Schaller supplied the trailers, that neither Louder milk nor anyone else from Schaller told him who to hire or who to fire or the rate of pay that he never received any kind of advance moneys from Loudermilk or Schaller that he has never been paid anything by Schaller other than commissions for services rendered that on 1 or 4 August Atchison asked him for a job in the presence of his wife Ethyl that he did not recall anyone else being present when Atchison asked for the job that he offered Atchison and accepted a job but he did not show up the next morning that he knew Atchi son previously worked for R & L 18 that Loudermilk did not tell him he could not hire R & L personnel or that he Loudermilk would be unhappy if Chenault hired somebody who had previously worked for R & L, that he did not recall Atchison ever suggesting the names of some drivers who would be available that at one point he also offered Atchison a driving job but he did not show up for that either and that when he started the involved operation on 1 August he had no knowl edge that unfair labor practice charges had been filed against R & L Initially Loudermilk testified that he never told Danny Chenault who to hire Loudermilk then gave the follow mg testimony 18 Ethyl Chenault corroborated her husband regarding what was said who was there and the fact that Atchison did not show up for work the next day When asked how she answered the telephone at the Bedford terminal she testified [l]ust like always Schaller Trucking R & L CARTAGE & SONS And I would like to qualify on who to hire was-as the NLRB charges did develop and I tried to see some peaceful solution to all of this, and I didn't like the idea of people not getting paid either, then I had discussed with Danny that should we be able to resolve that, then he should hire who ever it is that's qualified and can move the freight And they do have to be qualified to be out on the road They do have an acceptable BMV record, which is a Bureau of Motor Vehicles record, and be insurable On or about 1 August Danny Chenault entered into a verbal business arrangement with Barry Vande Zande, through Bruce Vande Zande, to lease a tractor which was driven by Bolin, a former driver of R & L Chenault agreed to pay BVZ 80 cents a mile Barry, who is vice president of R & L is president of BVZ (R Exh 4) BVZ paid Bolin At the time of the hearing here Bolin had become an employee of Danny Chenault With respect to movements that occurred when Danny Chenault initially began hauling the involved freight, Loudermilk testified that the pros had been al ready cut on some of those loads by R & L Accordingly the box in the upper right hand of the pro utilized to designate the agent that handled the traffic continued to show R & L s agency number Loudermilk testified that the pro is matched with the delivery receipt and he spec ulated that during the transition period the agent desig nation was changed on certain pros to reflect the fact that Danny Chenault received the revenue because he was probably the one who consummated the delivery (R Exhs 12 and 13 ) Katherine Ann Smith, a Schaller employee who han dles the pros that are submitted by the various agents for Schaller, testified, with respect to Respondents Exhibit 12 which are the pros with the agents designation changed, that the pros are pretyped and if another agent handles the movement the latter would change the agent number on the pro so that it would get paid and that evidently the changes on the involved pros were made in Danny Chenault s office The parties stipulated that R & L transported three loads on 1 August and one load on 2 August 19 Hardesty testified that Robert Vande Zande tele phoned her at the Bedford terminal on 4 August that Vande Zande told her he filed for bankruptcy and he asked her if she would be willing to work for Danny Chenault to which she replied no and that she then spoke with Danny Chenault asking him what was going on and Chenault told her he had no idea yet he was waiting to receive a check from John Loudermilk to get things going and he had anticipated nothing as far as what would be going on with the office work ' On 5 August the Union filed a grievance asserting that various articles of the involved collective bargaining agreement were violated when on 1 August R & L and Schaller as joint employers through Robert Vande Zande and Loudermilk ceased operations under R & L 19 Previously the parties stipulated that R & L hauled five loads on I August and one load on 4 August for GM to Michigan 547 terminated all drivers, and then used nonunion drivers 20 (G C Exh 8) Robert Vande Zande testified that a petition in bank ruptcy was filed on 5 August, that he believed21 that R & L's operation ceased at midnight 2 August, that R & L's employees were laid off because R & L had no money, and that to survive the Union would have to had to agree to a 20 percent reduction in wages and also (1) the cancellation of all insurance coverage on the employ ees, (2) the cancellation of all work rules, and (3) the em ployees giving up their days off with pay, their sick days with pay and their vacation Bolin testified that he worked for R & L from 1977 until I or 2 August, that he found out that R & L filed for bankruptcy when he saw the notice posted on the bulletin board in Fort Wayne, that the following day he received a telephone call from Barry Vande Zande asking if he, Bolin, wanted to drive for BVZ, that he ac cepted the offer and he transported castings and scrap from Bedford to points in Michigan in a truck which he believed was leased to Schaller, that BVZ s lease agree ment was terminated 13 December, that when he han dled the traffic after R & L closed he used Schaller logs and Schaller's permit was on the side of his tractor, that he told the Board agent who took his affidavit that while he worked for R & L about two loads a day were trans ported to the Oldsmobile plant in Michigan, three loads a week went to Pontiac, Michigan, and about three loads a day went to the Cadillac plant in Michigan, that he start ed driving for Danny Chenault on 14 December, that while he worked for BVZ he observed about six drivers who previously did not drive for R & L making runs out of the Bedford terminal, that he did not know whether the drivers were new employees of Danny Chenault, that while he drove for BVZ Danny Chenault and not Schaller did the dispatching that he did not know for sure" where the other trucks were going when Danny Chenault was at the Bedford terminal that he believed the statement in the affidavit he gave to the Board on 9 September namely, There are about four broker trucks new to me at Bedford They are running like me We have about two loads a day to Oldsmobile about three a week to Pontiac about three a day to Cadillac and scrap back from Willowrun Detroit and Warren varied from one day to more was true because that s about the amount we d always run , that he intended the Board agent to take his word on this point as the truth and that his word was not based on specific personal knowledge but rather on an assumption Danny Chenault testified that he did not confer with Loudermilk or anybody from Schaller about whether he could hire Bolin, that he and not Schaller dispatches his 20 On cross examination Arnold conceded that R & L and not Schaller hires lays off and fires the dnvers participates in the grievances dis patches and maintains the fleet 21 Robert Vande Zande explained that as of 3 February he became an agent for Schaller Courier Service in Fort Wayne and his son Bruce was in charge of running R & L 548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD drivers that also runs a spotting service for Can Truck, and that he hired all his drivers On the date indicated , the following was forwarded on Schaller letterhead by Loudermilk who signed as presi dent of Schaller (G C Exh 15) To Employees of R&L Cartage, Inc September 30 1986 Elvin E Jones Leonard G McIntyre Norman Beeks Jack J Johnson Paul J Goff Jr M Rex Bussard Gary M Childress Paul L Trout Everett M Davis Charles J Quinn S H Monssawalla Gail R Miller Michael McKee Richard J Barchardt Timothy S Rigby Gary J Gase Dennis C Lucas Daniel D Melton Matthew McIntosh Jerry D Terry Roland E Atchison Robert E Terry III Toni Hardesty Donna Baker Willis L Bolin As you are aware R&L Cartage, Inc has filed for protection under the US Bankruptcy Code Many of you were owed two weeks wages that were not paid Your union has taken the approach of a deep pocket theory which means they are now seeking money from me, since they realize that in all proba bility R&L will never be able to pay you anything In all the years I have owned Schaller Trucking Corporation no driver has lost any wages or been abused by myself My one and only meeting with you was as an agent of R&L at the request of Dennis Arnold The purpose of that meeting was to try and prevent you from becoming unemployed At the end of R&L Cartage being able to move Central Foundry GM freight I gave the move to Danny Chenault who moved GM freight for me for years It was told to me by Danny that he was willing to hire any of you who would drive for him with two of you expressing that desire He stated to me that he was offering $ 18 per mile wages He further stated to me that the office ladies refused to work for him and left Should this not be a true statement I would be interested in hearing from you From the day that R&L shut its doors your Teamster Union has directed all your anger and frustration toward me in order to get the heat off their back The Teamsters knew that all the compe tition at Bedford for Schaller were non union driv ers who were working for 25% less wages than you were making They also knew the financial situation of R&L Cartage, Inc and were told that GM was reducing the rates paid to Schaller which meant the 82% agent commission paid to R&L was being re duced On moves that Schaller did not reduce the rates GM gave those moves to non union compa rites To my knowledge the Teamsters made no at tempt to organize the Schaller competition thereby making it possible for R&L and Schaller to remain competitive As a result of the attack by the Teamsters I have spent $7,000 00 in representative fees through this date that would have been better spent for groceries for your families Until October 10, 1986, I am willing to pay $37,500 00 to all the former R&L Cartage, Inc em ployees In talking to Danny Chenault he stated to me that subject to a settlement with the NLRB he agreed to put to work any driver who will work for the $ 18 per mile, the maximum he can offer to pay and remain a viable agent of Schaller Trucking Cor poration As of this date Schaller is not broke and is able to make you this offer which was made to your union leadership who has refused to return the phone calls to my representatives I would suggest that you consider my offer care fully and realize that Schaller Trucking Corporation wishes only what is best for you and would like to remain in business as a viable corporation that could offer to employees a good place to work If you are interested in accepting this offer, then contact Dennis Arnold and ask him to settle the case At the hearing counsel for the General Counsel took the following position regarding Loudermilk s above de scribed 30 September letter This exhibit was offered into evidence to show that Mr Loudermilk dealt directly with the em ployees and by passed the union A B, it shows that Mr Loudermilk has-and Schaller Corporation- effect the labor relations of R and L Employees and that its further evidence of General Counsel s theory that Mr Loudermilk Schaller Corporation are now-are joint employers and that Schaller Corporation and R and L and Danny Chenault are alter egos And the fact that Mr Loudermilk offered 37 thousand dollars to individual members by passed the union is not evidence of settlement as advanced by Mr McCarthy especially when we re talking about back pay in the neighborhood of 400 thou sand dollars Counsel for Respondents, McCarthy, subsequently elicited the following from Loudermilk regarding the above described 30 September letter Q Okay Were you trying to settle this case- A Yes Q -with this letter9 A Yes I wanted to be rid of it I wanted to-we can t survive in this day of age-be rid of the mci dent and if these people wanted to go drive trucks and they go drive trucks seniority wise Q Now I would like you to look through the list of the names of the employees at the head of that letter please R & L CARTAGE & SONS 549 A Yes Q Okay Now do you know all the employees of Schaller Trucking personally' A No I know Toni, the young lady that was here, and I know none of them actually personally, I ve had no personal dealings with any of these with the exception of Hi, How are you, as I walk by or something Q Okay Let me rephrase the question With regard to Schaller Trucking- A Well, Schaller Trucking- Q -do you know- A -their records- Q -do you know all your employees of Schaller Trucking? A No Q Okay Are any of those people on that list Schaller Trucking employees that you re aware of? A Today Q Back on the 30th of September A Well Willie Bolin I see is still on here Q Who was driving for? A I believe he was driving for R&L Cartage and then he drove for Barry and then Danny hired him in there in the process too, somewhere along the line Q Okay but he wasn t a Schaller Trucking em ployee MR HAYES Objection Leading the witness JUDGE WEST Overruled THE WITNESS No He was not an employee of Schaller Trucking Subsequently Loudermilk testified that Hardesty was an employee of Schaller 10 years ago Jerry Terry, a former R & L employee, testified that about mid January 1987 he spoke to Danny Chenault who said he needed drivers that he asked Danny Chen ault why he did not hire some of the drivers that were out of work and Chenault then said John won t let me hire anyone that used to work here until we get the bankruptcy and the labor matters straightened up that as a driver for Santana Express he is at Schaller s Bed ford terminal daily to pick up loads and he has seen six to eight new drivers employed by Danny Chenault or Schaller at the Bedford terminal that the work he did is still being done by Schaller It s different people with some-some different equipment but it is still the same as it was when I was there except it s just different people that the paperwork for the new drivers is in the same place in the terminal as his paperwork and he sees the paperwork for the new drivers which shows that the destinations are Cadillac Buick-these are the names of the plants now We re talking Livonia Michigan Flint Michigan Lansing Michigan-the same-its the same freight that we were pulling Ethyl Chenault testified that one of the Terry brothers comes to the Bedford terminal to pick up trailers which are spotted there for his employer that she has seen the Terry brothers in the outer office of the terminal and that she did not have an occasion to see either of the Terry brothers in the last 17 days in January 1987 or the first 4 days in February 1987 speak to Danny Chenault Hardesty testified that just before testifying on 4 Feb ruary 1987 she was questioned by the Respondents at torneys Gentry and McCarthy neither of whom advised her that her participation in the questioning was volun tary and that no reprisals would be taken against her if she refused to answer their questions On cross examination Hardesty who was an office clerical employee was specifically excluded from the in volved unit, testified that she talked with Respondents two attorneys in the hall outside the hearing room in volved here and that when she talked to two of Re spondents attorneys she (1) did not feel threatened (2) did not think she would not get a job if she did not talk to them, (3) did not think there would be any repercus sions if she did not talk to the Respondents two attor neys (4) was not intimidated by either of the attorneys, and (5) did not feel compelled to talk to Respondent s two attorneys When the interview occurred Hardesty had already testified for the General Counsel After the interview, she was called as a witness by Respondents to explain how Schaller s letterhead came to be used in typing General Counsels Exhibit 13 Respondents did not subpoena Hardesty Danny Chenault testified that at the time of the hear ing he was making between 6 and 11 runs a day for GM Respondent introduced certain summaries making available to counsel for the General Counsel the volumi nous underlying documents More specifically Respond ent introduced R & L s general ledger computer printout covering the period 1 January 1985 through 31 July 1986 (R Exh 7) A one page summary of the total and average R & L monthly revenue between January 1985 and August 1986 (R Exh 9) was then introduced to demonstrate the decline in business The exhibit shows that in January 1985 R & L had $268 196 in pertinent revenues in July 1985 it had $229 871 in pertinent reve nues and in July 1986 it had $134 579 in pertinent reve nues Respondents Exhibit 10 is a computer printout covering Schaller checks issued to specified agents in cluding R & L between 3 January 1985 and 31 Decem ber 1986 As here pertinent the printout specifies the purpose of the check the amount the number the agent and the date 22 Respondent s Exhibit 11 is a computer printout covering the pro information, the voucher infor mation and the check payment information The purpose of this printout, according to its sponsor is to show that Schaller paid R & L exactly what it owed R & L Re spondents Exhibits 14 15 and 16 all graphs, were intro duced to show the decline in R & L s business and the 22 The exhibit demonstrates a fact that the General Counsel attempted to demonstrate with the checks themselves G C Exhs 16(a)-(q) namely that on I week intervals beginning I April Schaller advanced either $4000 or $5000 a week to R & L with 15 of the checks dated on a Monday 2 of the checks on a Tuesday and I of the checks dated on a Sunday Additionally there was an advance of $10000 on 27 March 1985 an advance of $8000 on 9 August 1985 an advance of $26 000 on 5 September 1985 an advance of $25 000 on I January an advance of $5000 on 21 March and Schaller issued a check to R & L dated 23 Jana ary for $139 935 for trailer repair 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD first two of the above described graphs show a decline in the number of runs and in the gross billing dollars The following occurred when certain of the above de scribed exhibits were offered MR MCCARTHY Your Honor, at this time, Re spondents would offer R&L Exhibits 9,10 11, 14, 15, and 16 into evidence JUDGE WEST Any objection? MR HAYES Yes, Your Honor I object on the grounds that the exhibits that Mr McCarthy is of fermg into evidence have not been authenticated by underlying documents , in that the witness [as indi cated above , Katherine Ann Smith , who works for Schaller, is responsible for filing the pros which are submitted by the agents to Schaller] has not demon strated that she had actual control of the records in terms of their preparation and handling Therefore, the summaries are hearsay JUDGE WEST Are you differentiating now or dis tinguishing between the pros and the checks? MR HAYES The-yes, Your Honor, I m saying that the pros have not been authenticated, and I m saying, therefore, the summaries are hearsay JUDGE WEST Any comment'? MR MCCARTHY None, sir JUDGE WEST Objection overruled Respondent R&L Cartage s 9, 10, 11 14 15 and 16 are received in evidence B Contentions On brief the General Counsel contends that R & L and Schaller are joint employers in that they shared or codetermined those matters governing the essential terms and conditions of employment that evidence of record which demonstrates joint employer status includes (1) Robert Vande Zande s above described affidavit to the Board which affidavit indicates that Loudermilk as president Schaller has complete authority over the day to day operations of R & L, (2) Loudermilk s 22 June relevations that Schaller controlled and made important decisions regarding, inter alia hiring rate of pay layoff discharge and insurance coverage, (3) Schaller and Lou dermilk controlled the very existence of R & L to cease to exist (4) Loudermilk s 22 June firing of Robert Vande Zande (5) Schaller s participation in the gnev ances of R & L by soliciting employees on 22 June to drop their grievances (6) Schaller s participation in the collective bargaining process of R & L by soliciting wage concessions , (7) the loan of substantial sums of money by Schaller and/or Loudermilk to R & L to assist it in remaining operational and to meet its payroll, (8) the use of Schaller letterhead paper to post the R & L work schedules, (9) the documentary evidence that at least two R & L employees in 1986 were terminated from Schaller and R & L, (10) the testimony of employ ees that they considered R & L and Schaller to be one and the same ( 11) the trailers pulled by R & L drivers bore the name of Schaller (12) logbooks maintained by R & L drivers were in Schaller s name (13) Schaller s and Loudermilk's direct bargaining with R & L employ ees in offering them jobs with Chenault and direct bar gaining employees in an attempt to settle the instant case and ( 14) the fact that since 9 March 1977 R & L has been doing business under the assumed name of Schaller Trucking, Inc according to its articles of incor poration that Chenault and BVZ are alter egos of Schaller and R & L because (a) there was no hiatus be tween the demise of R & L and the commemcement of operations by Chenault and BVZ, (b) Chenault utilizes the same terminal in Bedford formerly utilized by R & L rent free, (c) Schaller provided the trailers for Chenault s operation, (d) the primary customer , GM, remained the same and the work remained unchanged , (e) the tele phones at the involved Bedford terminal answered Schaller, (f) BVZ assisted Schaller in continuing the operation of R & L (g) there is no evidence of a sale or purported arm s length transaction but rather the record shows only the incredible testimony of Danny Chenault that about the first of August Loudermilk told him to get over to the Schaller terminal and start handling the GM traffic because Robert Vande Zande went out of busi ness, and the terms of the arrangement were not dis cussed until the following day, (h) the destinations of the traffic were unchanged from when R & L performed the work, (i) that there is union animus which flows from the finding by the Board in 1984 [in Schaller Trucking Corpora tion , 269 NLRB 392] that Schaller Trucking Corpo ration violated Section 8(a)(5) (3) and (1) of the Act by discharging 50% of the bargaining unit be cause they supported Local 414 and by refusing to bargain with the Union union animus was demonstrated by Robert Vande Zande s testimony that the Union played a big part in R & L s demise and (k) Schaller and Loudermilk cre ated R & L s successor for the purpose of avoiding the collective bargaining obligations imposed on R & L that all the Respondents are a single integrated business enter prise and all the above described elements which estab lish joint employer and alter ego also establish this that there is functional integration of operations in that Chen ault is totally dependent for its existence on Schaller and Loudermilk as was R & L that the lack of an arm s length transaction with respect to the commencement of BVZ and Chenault s involvement in the involved oper ation demonstrates that they are alter egos/successors that but for the unfair labor practices of the R & L Schaller and Loudermilk a majority of R & L employ ees would have been hired by Chenault and/or BVZ to continue the employing industry serving the same cus tomer without a hiatus in operation that neither Lou dermilk nor Chenault specifically denied that the latter told Jerry Terry that Loudermilk would not let him hire anyone who use to work at R & L until the bankruptcy and labor matters were straightened out that the con duct of R & L Schaller, and Loudermilk is so inherently prejudicial to employee rights that no other proof of an tiumon motive is required, even if weight is given to evi dence introduced that purports to establish business or economic motivation , and in the alternative assuming ar guendo, that the effect of the discriminatory conduct is R & L CARTAGE & SONS 551 comparatively slight then R & L, Schaller and Louder milk harbored an antiunion motivation and failed to show a business justification for their unlawful conduct that by conditioning continued employment on wage concessions, withdrawal of grievances, and unfair labor practice charges, R & L Schaller and Loudermilk violat ed Section 8(a)(1), (3), (4), and (5) of the Act that the 22 June threats of discharge constitute independent viola tions of Section 8(a)(1), that by reneging on the 5 May agreement to reinstate the six drivers R & L, Schaller, and Loudermilk violated Section 8(a)(5), that by refusing to recall the six drivers by closing the terminal on 1 August and by discharging all employees of R & L, R & L, Schaller, and Loudermilk further violated Section 8(a)(1), (3), (4), and (5) of the Act, that Hardesty s above described interrogation was coercive and did not take place in a context free from Employer hostility to union organization, that Loudermilk should be found personally liable because he so integrated or intermingled his assets and affairs that no distinct corporate lines are maintained i e (a) the $250,000 loan to R & L, (b) Lou dermilk was an active participant in the scheme to evade statutory and collective bargaining obligations, (c) while the record is unclear that Loudermilk owns Chenault, it is clear that he controlled the labor relations of that com pany, and (d) Respondents Exhibit 10 does not show that any advances were paid out by Schaller to R & L for the period 1 October to 31 December 1985 but rather shows moneys disbursed by Schaller to R & L for fuel or for commissions that conflicts with Respondents' Ex hibit 1 in that it shows that toward the end of 1985 Schaller advanced $38,000 to R & L in order to help meet its payroll that because of the lack of identification and authentication of the checks, Respondents Exhibits 9, 10 11, 14 15, and 16 are hearsay and he renews his objection to the admission of these exhibits 23 and that Respondents should be required to (1) offer all employ ees discriminatorily refused recall since 29 April or dis charged on 1 August as a result of the Fort Wayne ter minal closing, and all employees who lost 2 weeks pay immediately prior to the discharges immediate and full reinstatement to their former jobs in its present operating enterprise or if those jobs no longer exist to substantial ly equivalent jobs, without prejudice to their seniority or other rights and privileges previously enjoyed dismiss ing if necessary present employees of Respondents and make the aforesaid employees whole for any loss of earn ings they may have suffered by reason of the discrimina tion against them, and (2) apply the terms of the extant collective bargaining agreement to all alter egos of R & L/Schaller 23 The ruling stands Initially one of Respondents attorneys indicated that 9000 documents consisting of checks vouchers and pros were going to be offered into evidence It was agreed that instead summaries would be offered into evidence and all the underlying documentation the 9000 documents would be given to the General Counsel for his review before the summaries were offered This was done The General Counsel used some of the underlying documentation in his cross examination When it came time to make his objection the above described exchange occurred The pros were authenicated The evidence was introduced to show the financial condition of R & L As noted above in November 1985 the Union s own certified public accountant indicated that R & L was techm cally bankrupt Respondents, on brief, contend that the General Coun sel has filed to allege the requisite jurisdictional limits to show that Loudermilk personally, as opposed to the president of Schaller, was engaged in commerce as de fined by the Act, that consequently the only work the General Counsel can assert jurisdiction over Loudermilk personally is to show that Loudermilk was an alter ego of, single integrated enterprise with or a joint employer with one of the other Respondents because no jurisdic tion is independently plead or proven by the General Counsel Respondents also contend that the General Counsel failed to prove that Loudermilk s actions were not on behalf of Schaller, that R & L has a Wright Line defense (251 NLRB 1083 (1980)) and the General Counsel did not demonstrate that the bankruptcy and the loss of income over the last 18 months of its operation was a sham or pretextual, that there is not a single shred of evi dence that any employee was discharged for cooperating with the Board by giving testimony as alleged in para graph 5(c) of the amended consolidated complaint and the record is completely devoid of any indication who these employees might be, that Schaller s delay in allow ing the reinstatement of the six drivers was not occa sioned by union animus and the General Counsel failed to show that the business reasons for Loudermilk s and Schaller's action was a sham, and that there is no evi dence that Loudermilk or Schaller independently moved the GM work from R & L to Chenault because of the protected activities of R & L employees Respondents further contend that the above described 30 September letter was forwarded by Loudermilk as an agent of Schaller to specified individuals who are not employees of Schaller or Loudermilk that the letter was not an attempt to bargain directly with the individuals because the letter specifically indicates that the recipients should contact the union business agent and ask him to settle the case that the above-described 30 September letter informed the specified individuals that an offer had been made to the Union and taken as a whole the letter was [an] attempt to get the unfair labor practice com plaint outstanding at the time settled (R Br 22) that the 30 September letter is not an admission that Schaller is the employer of the addresses, that the General Coun sel s witnesses who testified regarding what Danny Chenault said about Loudermilk not wanting Chenault to hire former R & L employees are not credible Furthermore Respondents contend that with respect to the Hardesty interview, while Schaller concedes that its representatives interviewed her without advising her of her rights, it takes the position that such an interview was not a coercive interrogation under the Board's totals ty of circumstances approach that when one considers the pertinent factors, namely, the location of the interro gation, the parties that are participating, the subject matter discussed and whether the employee is there vol untarily, a violation of the Act did not occur in view of Hardesty s testimony that (1) the interview occurred in the hallway outside the hearing room, (2) she was nei ther threatened nor felt threatened by either McCarthy or Gentry and (3) she did not feel that there would be 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any reprisals for her participation or nonparticipation in the interview or that she was compelled to participate in the interview that after the interview Hardesty testified voluntarily for Respondents regarding a matter not relat ed to her union activities and when the totality of cir cumstances are considered the interview did not consti tute a violation In addition Respondents contend that there is no evi dence of record that BVZ or Danny Chenault commit ted any unfair labor practice independently that a major ity of the courts in alter ego cases usually find facts that include an element of intentional employers evasiveness or at least indicate that the original employer received or could reasonably expect to receive a benefit from the transfer of operations to the new business entity that the General Counsel presented no evidence that Loudermilk manipulated R & L for his own personal gain that while the pleadings admit that Loudermilk is the president of Schaller and as late as 1973 owned all of Schaller there was no showing that Loudermilk during any relevant time owned any of Schaller let alone the majority of it 24 that Loudermilk represented himself at all times as an agent of Schaller that there was no showing that Loudermilk owned R & L that Loudermilk and R & L are not alter egos, that the General Counsel has failed to show common ownership common management or di rectors common supervision or that Loudermilk even held himself out as one and the same as any of the same as any of the Respondents and therefore the General Counsel has failed to establish a prima facie case that Loudermilk was an alter ego with R & L or any other Respondent that the General Counsel has failed to present any evidence that there was any common owner ship between any of the corporate respondents and Schaller or that any of the Respondents shared common management or supervision or that they shared common premises and facilities or that Schaller even held itself out as any other entity than itself that although Schaller s name was on the building that R & L used it indicates only ownership of the building that while all the agents driving under the Schaller certificate are re quired by DOT regulations to show a banner of the cer tificate holder the public with whith Schaller Chenault and R & L dealt would not be misled and none of the Respondents held themselves out to the general public that the General Counsel did not demonstrate that BVZ was disguised continuance of R & L that the evidence fails to disclose any common ownership between R & L and BVZ that the only common director or manage ment between R & L and BVZ was Robert Vande Zande that there is no evidence that Robert Vande Zande owned any part of R & L that the General Court sel did not show that BVZ and R & L exercised any common labor relations policy or that they ever held themselves out to the public as a single integrated enter prise 24 It is noted that in its answer to the aforementioned 22 September consolidated complaint Schaller admitted the part of par 4 which assert ed that at all times material Loudermilk was Owner and President of Respondent Schaller (G C Exh 1 (ii)) Also Respondent contends that the General Counsel has failed to demonstrate the alter ego status of BVZ with R & L or any other Respondent that General Counsel presented no evidence to establish that Chenault shared a common management, common ownership common directors or officers, common premises, facile ties, common supervision of any respondent other than a single employee of BVZ, Bolin, that there was any inter change of employees between Chenault and any other Respondent or that he Chenault held himself out to the public as a single integrated enterprise that the General Counsel failed to establish a prima facie case that Chen ault was an alter ego with any of Respondents, that re garding whether Chenault is a successor of R & L the General Counsel has failed to show that the majority of the Chenault s employees were employees of R & L that regarding Atchison s testimony that Chenault said that Loudermilk did want Chenault to hire R & L employees there is absolutely no testimony that such a request, if it occurred at all, was union related or that Chenault corn plied especially in light of the fact that Chenault hired former R & L employee Bolin and offered a job to former R & L employee Atchison and telephoned him about another job, that to determine whether a single in tegrated enterprise exists the Board considers the extent of administrative integration, the extent of employee interchange common facilities and equipment, financial interdependence the nature of the business enterprises whether the businesses hold themselves out to the public as one and whether centralized control and direction of labor exists, that as noted above, Barry Vande Zande is the only corporate officer in two of the involved corpo rations, namely, R & L and BVZ that there is no evi dence of any common administrative services that there is no evidence of record that shows that any employees of any of Respondents were interchanged that there is no evidence that the building or equipment was ever shared by any of the Respondents at any time that finan cial operations between R & L and Schaller were at arms length, that R & L billed GM for the runs that they made, they purchased their own fuel did their own maintenance and paid their own bills that is not just the potential one company may have to exercise control over the labor relations of another company in determin ing the status of joint employer but the degree of control that may be exercised by one company over the employ ees of another company that while Schaller provided the certificate of public convenience and necessity the insurance for the drivers and cargo the building and the tools, there is no evidence in the record of any agree ment between R & L and Schaller that would permit the latter to control the essential terms and conditions of em ployment of the employees of R & L that there is no evidence that Schaller had the authority to hire or fire any employee, to direct work, to settle grievances, or to set wages or hours or any other working conditions that on 22 June when Loudermilk facetiously fired Robert Vande Zande from the proposed new corporation which he would be capitalizing he Loudermilk, was not talking about R & L and those listening to the statement under stood that, that neither Schaller nor Loudermilk was R & L CARTAGE & SONS 553 ever a participant in any contract negotiation or griev ance hearing involving R & L that the General Coun sel s Exhibits 20 and 21, which purport to terminate cer tam employees from Schaller and R & L, do no more than to identify to the employee that portion of R & L from which the driver was separated because R & L also had a spotting service and maintenance operation that the asserted admission by Robert Vande Zande in his above described affidavit does not make it a fact in that the statement must be viewed in the light of all other facts and there is no evidence that Schaller ever partici pated in setting wages, hours, resolved grievances, hired or fired any employee or disciplined them or directed the employees work, that Schaller had no right to refuse employment of any individual, only the authority to deny driving status to any employee that does not meet the Company's driving standard and that R. & L hires and fires its employees and the terms and conditions of employment are provided for by collective bargaining agreements C Analysis Are R & L and Schaller joint employers? Did they co determine those matters governing the essential terms and conditions of employment of the involved R. & L employees9 Boire v Greyhound Corp, 376 U S 473 (1964), NLRB v Browning Ferris Industries, 691 F 2d 1117 (3d Cir 1982) As noted above there is a collec tive bargaining agreement between R & L and the Union Schaller is not a party to that contract The con tract covers the terms and conditions of employment of the involved employees Putting aside 22 June for the moment, neither Loudermilk nor a representative of Schaller was ever involved in either R & L s contract negotiations with the Union or grievances involving R & L employees There is no common management, corporate officer ownership, or financial control between R. & L and Schaller 25 Nonetheless, these two separate business enti ties can be joint employers But there is no written agreement which gives Schaller a right of power of con trol over R. & L s prerogatives of management in general or over its labor relations in particular 26 Despite the lack of such an agreement, did Schaller exercise control over the labor relations affairs and policies of R. & L9 In other words did Schaller meaningfully affect matters relating to the employment relationship such as hiring firing discipline, suspension and direction Laerco Trans portatton 269 NLRB 324 (1984) Schaller held the involved operating authority it even tually owned the trailers utilized, it eventually held title to the tractors utilized it let R & L use rent free27 the 25 Consequently they are not a single employer 28 As pointed out in American Air Filter Co 258 NLRB 49 52 (1981) control of the essential elements of labor relations is a prerequisite to the existence of a joint employer relationship 27 On the one hand R & L paid Schaller the same percentage 18 per cent of the revenues both before and after the terminal was built On the other hand as the volume of traffic increased Schaller s 18 percent in terms of dollars it received increased until GM began to pay less then it had in the past for the same movement Despite the fact that when Chen ault began to handle the involved traffic his volume was low he received the same terms as R & L regarding the Bedford terminal Bedford terminal which Schaller owned it owned the tools R & L utilized, GM was Schaller s customer, it paid the drivers insurance and cargo insurance, the trucks carried Schaller s name the logbooks utilized were Schaller s it has the right to advise R & L that a driver could not operate a truck with Schaller s placard on it its president Loudermilk testified that although he has not done it he believes he has the authority to hire any of the agent s drivers, and it advanced (loaned) money to R & L for among other things, payroll pur poses Also as noted above, R & L obtained a certificate of use to conduct business under the assumed name of Schaller Regarding the only demonstrated use of the Schaller letterhead to post the R & L work schedules Robert Vande Zande s explanation that the secretary who typed General Counsels Exhibit 13 should not have used Schaller stationery is credited He did not sign the typed work schedule and the secretary who did testify that she used Schaller paper because it was handy and she more than likely was not told to use R & L s letterhead Robert Vande Zande testified that he never authorized his secretary to use Schaller s stationery for this purpose The General Counsels evidence does not warrant a con clusion that Schaller played some role in establishing the work schedules of some of R & L s employees Bruce Vande Zande s reference to Schaller in the two termination notices on R & L letterheads (G C Exhs 20 and 21) does not without more indicate that Schaller played any role in these terminations This part of the notice does nothing more then describe in Bruce Vande Zande s terms the trucking operation from which the men were terminated namely, the R. & L/Schaller oper ation It does not demonstrate shared control by Schaller of R & L s termination authority The General Counsel cites Loudermilk s above de scribed 22 June speech contending that portions thereof demonstrate that (1) Schaller controlled and made im portant decisions regarding hiring rate of pay, layoff discharge and insurance coverage (2) Schaller could make R & L cease to exist 28 (3) Schaller participated in the grievances of R. & L soliciting employees to drop their grievances and (4) Schaller participated in the col lective bargaining process of R & L soliciting wage con cessions The focal point of Loudermilk s 22 June presentation was the formation of a new corporation in which R & L s drivers would hold stock Loudermilk did not want to lose the GM traffic and this proposal was his attempt to keep the traffic and R. & L s work force The discus sion of a rate of pay and hiring referred to the new cor poration and not to R. & L The layoff and drivers incur ance coverage matters discussed during this presentation 28 Loudermilk s 22 June firing of Robert Vande Zande was nothing more than Loudermilk s statement that Robert Vande Zande who Lou dermilk originally said run the new corporation could not because of driver opposition to this aspect of the proposal Robert Vande Zande tes tified that in 1977 Loudermilk fired him but he Vande Zande was at the terminal the next day and Loudermilk did not press the issue It appears therefore that Loudermilk was of the opinion that he could fire Robert Vande Zande He had not however attempted to exercise this preroga tive since 1977 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD did deal with R & L. However, this aspect of the discus- sion does not demonstrate that Schaller or Loudermilk controlled or even codetermined R & L's layoff policy or layoffs in general . The discussion, as set forth above, centered on the fact that six of R & L's drivers who had previously been determined to be uninsurable were not recalled once the insurer decided they were insurable. As Loudermilk conceded, he told Vande Zande not to put the six drivers who were in layoff status back to work "[b]ecause we needed to see whether or not they're going to exist." Thus their recall did not turn strictly on the insurability question , rather on an economic issue. It must, however, be kept in mind that these six drivers were not originally taken off the board for an economic reason. They were removed over an insurance question. It was not demonstrated that either Schaller or Louder- milk had them declared uninsurable . Consequently, Lou- dermilk's actions amounted to withholding approval of their return to the board . This was an exercise, albeit limited in scope, of control by Schaller through Louder- milk. But it was not demonstrated that either Schaller or Loudermilk played any role in any other layoff of R & L's employees, if in fact other layoffs occurred. Loudermilk's one-time solicitation of what the General Counsel describes as wage concessions and the dropping of grievances on 22 June does not, as the General coun- sel argues, amount to Schaller participating in R & L's collective-bargaining process or grievance process, re- spectively. Both of these points were made in a context other than the normal collective-bargaining negotiating process and the normal grievance process. These solicita- tions, which were made in the union hall in front of union representatives and most if not all the unit mem- bers, were made in terms of forming a new corporation in which the unit members would be stockholders. When Loudermilk on 22 June said that "R & L would cease to exist" and that if he "wished to have it cease to exist" he could, what he was saying was that the traffic was Schaller's to give to whatever agent Schaller decid- ed should handle the traffic and if Schaller decided that the new employee stock ownership plan corporation should handle the traffic, then R & L would cease to exist. On 21 June Robert Vande Zande agreed with this approach in his meeting with Loudermilk . In my opinion Loudermilk's statement should not be interpreted to mean that Schaller controlled R & L to the point where it, Schaller, alone could bring about the dissolution of the corporation. As noted above, the General Counsel argues that Robert Vande Zande's above-described affidavit demon- strates that R & L and Schaller are joint employers in that it is indicated: 2. John Loudermilk as president of Schaller has complete authority over the day-to-day operations of R & L including control over the hiring and the employment of the drivers. Schaller is paid 18% of the gross revenue of R & L. [Emphasis added.] As noted above, the last paragraph of the affidavit reads: 6. Schaller actually exercises control over the hire of drivers only in the areas of driver qualifications since Schaller pays for the insurance coverage. R & L's attorney, Boxberger, testified that he believed that he was under the impression that paragraph 2 was supposed to be stricken from the affidavit after para- graph 6 was added but he was not sure. A comparison of these two paragraphs of the affidavit indicates that the paragraph which appears later in the affidavit, namely, paragrpah 6, speaks only to "control over the hire." Paragraph 2 speaks to "complete authority over the day- to-day operations of R & L including control over the hiring." (Emphasis added.) Paragraph 2 also speaks to Schaller's share of the gross revenue. It does not appear, therefore, that the inclusion of paragraph 6 in the affida- vit in and of itself should result in removing or not con- sidering the content of paragraph 2. As qualified by para- graph 6, paragraph 2 would read as follows: 2. John Loudermilk as president of Schaller has complete authority over the day-to-day operations of R & L including control over the hiring [only the areas of driver qualifications since Schaller pays for the insurance coverage] and the employment of the driver. Schaller is paid 18% of the gross reve- nue of R & L. The affidavit must be viewed in the light of (1).Robert Vande Zande's testimony that Loudermilk did not con- trol the day-to-day operations of R & L; (2) Louder- milk's testimony that while he believes he could, he does not hire any of the agent's employees; (3) Union Business Agent Arnold's testimony that R & L and not Schaller hires, lays off, and fires the drivers, participates in the grievances , dispatches, and maintains the fleet; and (4) the evidence of record which demonstrates that Schaller was not involved in the day-to-day operation of R & L. If what is stated in the affidavit is correct, it indicates only that the authority existed. The evidence of record fails to demonstrate that such authority was exercised on a day-to-day basis. As pointed out in Remke Central Division, 227 :NLRB 1969 (1977), [In] Poole's Warehousing Inc.,2 . . . . [t]here must be . . . such actual or active common control, as distinguished from merely a potential , as to denote an appreciable integration of operations and man- agement policies. 158 NLRB at 1286. 2 Drivers, Chauffeurs and Helpers Local No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Poole's Warehousing, Inc.), 158 NLRB 1281 (1966). Those usual accouterments of an interstate motor car- rier's operations as an agent of the certificate holder, i.e., insurance, placards, logbooks, drivers' qualifications, drivers' records, safety checks of equipment , and the fact that the shipper is Schaller's customer, speak to the exer- cise of some control of the drivers' functions by Schaller. But it does not speak to control of the essential elements of labor relations such as wages , benefits, and working R & L CARTAGE & SONS conditions Compare American Air Filter Ca, supra and Midlands Express, 236 NLRB 619 (1978) Rent free use of the Bedford terminal and ownership of the tools R & L utilized at that terminal considered either alone or in conjunction with the aforementioned factors does not in my opinion, warrant a finding that Schaller con trolled the essential elements of labor relations The agency relationship between Schaller and R & L lasted from 1977 to 1986 It was not until just before the end of that relationship that Schaller or Loudermilk became involved with loans to R & L and taking and holding title to the trailers and tractors, respectively These actions were not indicia of control Rather they were an attempt to bail out a failing R & L and retain the 18 percent of the GM revenue and at the same time protect Schaller/Loudermilk interests regarding the loans to the extent possible under the circumstances Those developments which occurred in the last months of the R & L operation did not destroy the autonomous operation of the two companies Compare Milo Express, 212 NLRB 313 (1974) In my opinion the degree and the nature of Schaller s involvement in the operations of R & L do not warrant a finding that Schaller is a joint employer with R & L The first complaint alleges that R & L and Schaller re fused to recall six named drivers from work suspension after they were declared insurable by Schaller s insurer It is asserted that the six were not recalled because of the number of grievances they filed and the fact that two were union stewards On 22 June Loudermilk admitted that he told Robert Vande Zande not to put the six back to work because he needed to see if R & L was going to continue to exist R & L s revenues had declined Lou dermilk testified that he did not know whether any of the involved drivers filed a higher than average number of grievances But Robert Vande Zande was surely aware of grievances because he testified [e]verytime we got slow in come all the grievances, all the drivers wanted free money It just wasn t there ' It is well set tled that the filing of a grievance under a contractual procedure is concerted activity protected by Section 7 of the Act Town & Country LP Gas Service Co 255 NLRB 1149 (1981) Although the protected activity may not have been a factor in the insurer originally declaring them uninsurable, there was no demonstrated legitimate justification no demonstrated lawful reason for not re calling the six once they were declared insurable Lou dermilk s asserted justification must be viewed in the light of the fact that the six were recalled in mid July al though nothing had changed regarding whether R & L was going to continue to exist There was no lawful reason for refusing to recall six One is left therefore with the unlawful reason Loudermilk knew about the grievances the president R & L Schaller s agent, knew and he Robert Vande Zande, was the one who dealt with Loudermilk regarding whether to recall the six The six were treated as a group and so even though not all in the group had a high number of grievances, none were to be treated individually for that would have served only to highlight the fact that R & L and Schaller were taking advantage of an opportunity R & L s subse quent reneging on the 5 May grievance resolution, be 555 cause it was a continuation of the unlawful activity de scribed above, was also an unfair labor practice Regarding Loudermilk s above described 22 June speech, the General Counsel contends as noted above that by soliciting wage concessions and the dropping of grievances Loudermilk for Schaller participated in the collective bargaining process and grievance process, re spectively Also, it is contended that the threats of dis charge made in 22 June speech are independent viola tions of Section 8(a)(1) Pertinent portions of the speech are set forth above Over 6 months before the speech was given the Union s certified public accountant found that R & L was technically bankrupt R & L had been attempting to get concessions from the Union Are Lou dermilk s 22 June comments to be viewed in a collective bargaining negotiations context as apparently the Gener al Counsel contends (at least in part)? In my opinion Loudermilk's 22 June remarks were not unfair labor practices Loudermilk was outlining a proposal and he was stating the factors which he believed had to be con sidered In that context nothing he said, in my opinion, can be considered coercive or threatening The second above described complaint alleges that Schaller and R & L unlawfully ceased operations at the Fort Wayne and Bedford facilities and discharged the employees because the Union would not grant the afore mentioned concessions and because certain of the em ployees cooperated with the Board by giving testimony R & L operated autonomously as a separate employer Its closing and the discharge of its employees was not unlawful In Textile Workers v Darlington Mfg Co, 380 U S 263, 273-274 (1965) the Court held that when an employer closes his entire operation, even if the liquida tion is motivated by vindictiveness towards the union, such action is not an unfair labor practice "29 The amended consolidated complaint alleges that the discontinuance of R & L s operations and the discharge of R & L s employees were done without prior notice to the Charging Union and without having afforded the Charging Union an opportunity to negotiate and bargain as the exclusive representative of the Respondents em ployees with respect to such acts and conduct and the effects of such acts and conduct Although R & L had no duty to bargain about the decision to close, it did have a legal obligation to bargain with the Union over the effects on the employees of this decision 30 By failing to notify the Union of its decision to shut down its oper ations and to afford the Union an opportunity to bargain about the effects of the shutdown on employees, Re 29 It was not demonstrated that R & L either owns or operates any other facilities It was also not demonstrated that R & L was dissolved R & L filed for bankruptcy under chapter 11 which according to Robert Vande Zande is for reorganization as opposed to a termination Nonethe less it has not been demonstrated that this is a partial or temporary shut down In any event in my opinion R & L was closed for economic rea sons and its cessation of all operations was not motivated by union animus and was not an attempt to evade remedying unfair labor prac tices 90 First National Maintenance Corp v NLRB 452 U S 666 (1981) The obligation is unaffected by the fact that R & L has filed for bankruptcy Burgmeyer Bros. 254 NLRB 1027 (1981) 556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. Are Chenault and BVZ alter egos of R & L? Before treating that matter, however, the relationship between Chenault and BVZ should be resolved. In my opinion, under the above-described joint employer criteria Chen- ault and BVZ were joint employers of Bolin while he drove BVZ's tractor which was leased to Chenault and which was dispatched by Chenault. Other than leasing a truck with a driver to Chenault there is no evidence that demonstrates that BVZ or its president had anything to do with the Chenault operation. Consequently, the ques- tion actually is, "is Chenault the alter ego of R & L?" For the reasons set forth below, in my opinion it is not, To find alter ego status a threshold consideration is common ownership and control. There is no common ownership or control between R & L and Chenault. Consequently, the latter is not, in ray opinion, the alter ego of the former. Morton's I.G.A. Foodliner, 240 NLRB 1246 (1979), which distinguishes Crawford Door Sales Co., 226 NLRB 1144 (1976).3' But a finding that Chenault is not the alter ego of R & L does not preclude a finding that it is a successor of R & L. Bell Co., 243 NLRB 977 (1979). In NLRB v. Burns Security Services, 406 U.S. 272, 281 fn. 5 (1972), the Court held: The Board had never held that the National Labor Relations Act itself requires that an employer who . . . purchases the assets of a business to be obligated to hire all of the employees of the prede- cessor . . . . However, an employer who declines 31 Crawford, supra, states: ... each case must turn on its own facts but generally we have found alter ego status where the two enterprises have "substantially identical" management, business purpose, operation, equipment, cus- tomers, and supervision, as well as ownership. There both Respondents were wholly owned by members of the same family and never lost their character as a closed corporation. Similarly in Advance Electric, 268 NLRB 1001, 1004 (1984), "[alt all times all stock in both corporations was owned by members of ... [one] family and all corporate officers and directors also were members of that family." The Board in Fugazy Continental Corp., 265 NLRB 1301 (1982), in listing the aforementioned factors to be considered, indicated that not one of the factors, taken alone, is the sine qua non of alter ego status. The Board concluded, as here pertinent, that it must be determined whether (1) the employers constitute "the same business in the same market," (2) the pur- pose behind the creation of the alleged alter ego was legitimate or wheth- er, instead, its purpose was to evade responsibilities under the Act. In Fugazy, supra, Fugazy directed and managed both ends of the sale of the involved business and Fugazy continued to retain a financial interest in the alter ego assuming direct responsibility for the latter's electric bills, secretaries, guards, and bill collectors. Such is not the case here. R & L filed for bankruptcy 9 months after the Union's certified public account- ant indicated that R & L was technically bankrupt. It has not been shown that R & L's cessation was part of some scheme like that in NLRB Y. Ozark Hardwood Co., 282 F.2d 1 (8th Cir. 1960), in which an unnecessary default on a mortage was effected as a means of forcing a transfer in an attempt to evade the consequences of the unfair labor practices commit- ted there. Chenault is not a disguised continuance. See Southport Co. V. NLRB, 315 U.S. 100 (1942). Whether Robert Vande Zande's testimony that the union was to blame in big part for R & L's demise amounts to union animus, as the General Counsel asserts, is highly questionable. Unlike Woodline Motor Freight, 278 NLRB 1141 (1986), it cannot be said here that the union animus was the sole motive for R & L's ceasing oper- ations. As noted above, according to the Union's accountant, R & L was technically bankrupt months before the alleged unfair labor practices were committed. to hire employees solely because they are members of a union commits a § 8(a)(3) unfair labor practice. But for the fact that Chenault hired a totally new com- plement of employees, it would have been the successor of R & L in that Chenault, without a hiatus, conducted essentially the same operations out of the same Bedford terminal utilized by R & L. In the circumstances present here, the fact that R & L ceased operations and filed for bankruptcy does not affect this.32 On the one hand, Atchison testified that on 31 July Danny Chenault said "that he didn't think John wanted him to hire anyone that had worked for R & L," and Robert Terry testified that he heard Danny Chenault tell Atchison that he, Chenault, did not "know whether he was not supposed to, or he didn't feel like he [was] sup- posed to hire anyone that had previously worked . . . that John [Loudermilk] didn't want him to hire anybody that previously worked there."33 On the other hand, Danny Chenault testified that neither Loudermilk nor anyone else from Schaller told him to hire. And initially Loudermilk testified that he never told Danny Chenault who to hire. According to Danny Chenault's testimony, Atchison was the only former R & L employee, in addition to Bolin, who asked about working for Chenault. Atchison did not deny Danny Chenault's testimony that he, Atchi- son, was offered a job by Chenault. Indeed Atchison tes- tified that on 31 July Danny Chenault told him that he might be hired because he had not worked at R & L that long. As noted above, Loudermilk's 30 September letter in- dicates that two of R & L's former employees expressed a desire to Danny Chenault to drive for him. The only former R & L employee who worked for Chenault was Bolin, who drove a tractor of BVZ which was leased to Chenault up to mid-December 1986 and then subsequent- ly drove strictly for Chenault. It is not clear exactly how many former R & L em- ployees asked Danny Chenault for a job. While there may not be an obligation on the part of a company taking over an operation to "initiate the employment re- lationship,"34 the company taking over the operation cannot by hiring discrimination prevent the Union from actually establishing a majority in the Respondent's work force. Arguably Chenault and Schaller (as will be con- 32 Although R & L ceased to exist as a going concern when Chenault commenced the involved operation (the few loads which the parties stip- ulated were handled by R & L within a few days of its declared cessation of operations do not effect this (conclusion) and R & L filed for bank- ruptcy within a few days of the cessation operations, the situation at hand is not the same as that which existed in Cladding Corp., 192 NLRB 200 (1971), because here (1) there was no hiatus, (2) the nature and the char- acter of the employing industry at the involved facility had not been suf- ficiently altered to preclude finding a successorship, and (3) the major shipper of both was GM. In Gladding Corp., supra, the predecessor effec- tively lost control over its own existence, and control over its day-to-day operations during the hiatus was granted by the bankruptcy court to the Small Business Administration, a Government Agency. 33 Robert Terry's brother, Jerry, testified that 6 months later Danny Chenault, while indicating he needed drivers, said that "John won't let me hire anyone that used to work here until we get the bankruptcy and the labor matters straightened up." 34 Vantage Petroleum Corp., 247 NLRB 1492 (1980). R & L CARTAGE & SONS cluded, infra, they are joint employers) might have as sumed that because R & L employees had already reject ed wage and other concessions, they would not have been willing to work for the rate Chenault/Schaller was willing to pay (Arguably this was borne out by Atchi sons failure to accept a job offer On the other hand Bolin eventually did work for Chenault/Schaller) But neither Chenault not Loudermilk indicated that this was the case Indeed Loudermilk s 30 September letter would seem to indicate otherwise From the outset Chenault/Schaller by hiring discrimi nation prevented the Union from actually establishing a majority Atchison's and Robert Terry's testimony re garding what Danny Chenault said on or about 31 July is credited Chenault/Schaller created a climate of futil ity" regarding the hiring of former R & L unit employ ees Uncertainty whether a majority of the involved em ployees would have sought the involved jobs and been hired under lawful hiring practices is created by Chenault/Schaller's own wrongful acts under Section 8(a)(3) and (1) and must be resolved against these Re spondents State Distributing Co 282 NLRB 1048 (1987) There the Board found that the Union s majority status presumptively would have continued Had Chenault/ Schaller acted nondiscnminatonly and hired a majority from R & L s unit employees, it would have been bound to recognize their collective bargaining representative and wages would at least have been subject to negotia tion Shortway Suburban Lines 286 NLRB 323 (1987) 35 Chenault and Schaller are joint employers of Chen ault's drivers As noted in Laerco Transportation, supra, 269 NLRB 324 The joint employer concept recognizes that two or more business entities are in fact separate but that they share or codetermine those matters governing the essential terms and conditions of employment Whether an employer possesses sufficient indicia of control over employees employed by another employer is essentially a factual issue To establish joint employer status there must be a showing that the employer meaningfully affects matters relating to the employment relationship such as hiring firing, discipline, suspension and direction Although the GM account required immediate attention and Danny Chenault was already an agent of Schaller elsewhere, for Chenault to take over the involved oper ation without first knowing the terms of the agency agreement and without even attempting to look into the possible ramifications demonstrates the control that Lou dermilk had over Danny Chenault Loudermilk then dic tated Chenault s hiring policy In turn Loudermilk dictat ed whether Chenault would voluntarily be union The 18 cents a mile Chenault offered drivers was the same ss There the Board indicated that a successor employer is ordinarily free to set initial terms on which it will hire the predecessors employees that this rule does not apply however when the successor has unlawful ly failed to hire the employees because of their union affiliation and that the successor therefore was not entitled to set the initial terms of em ployment without first consulting the Union Loves Barbeque Restaurant No 62 245 NLRB 78 (1979) 557 amount Loudermilk proposed on 22 June Loudermilk's heavy hand, the one he refrained from using in the R & L operation, is all too evident in the Chenault operation Chenault was evading its responsibility This evasion was orchestrated by Loudermilk Schaller through Louder milk exercised sufficient control of the terms and condi tions of employment of Chenault s employees to qualify as a joint employer 36 NLRB v Browning Ferris Indus tries supra and Boire v Greyhound Corp, supra (1964) Having found that joint employers Chenault and Schaller unlawfully refused to hire R & L employees, it follows that Chenault and Schaller refused to recognize and bargain with the Union and unilaterally changed the terms and conditions of employment of the unit employ ees 37 The amended consolidated complaint alleges that Lou dermilk bypassed the Union and dealt directly with em ployees in the unit by soliciting employees to work for Chenault at reduced wages The vehicle, the 30 Septem ber letter, which is set forth above, appears to raise, as here pertinent, two questions namely, (1) can it be con sidered in view of Respondents assertion that it was an offer to settle, and (2) even if it can be considered does the last sentence in the letter, [i]f you are interested in accepting this offer, then contact Dennis Arnold [a union business agent] and ask him to settle case preclude a finding of direct dealing Because Rule 408 of the Federal Rules of Evidence excludes offers to compromise only when the purpose is proving the validity or invalidity of the claim or its amount, an offer for another purpose is not within the 3a The knowledge of one employer Schaller is imputed to the joint employer Chenault as well American Air Filter Co supra No serious question exists concerning Chenault s and Schaller s liability to remedy unfair labor practices as successor with knowledge of the unremedied violations at the time Chenault and Schaller took over the R & L oper ation Golden State Bottling Co v NLRB 414 U S 168 (1973) Perma Vinyl Corp 164 NLRB 968 (1967) enfd sub nom US Ape & Foundry Co v NLRB 398 F 2d 544 (5th Cir 1968) The fact that the instant pro ceeding does not involve an acquisition does not in my opinion warrant a different result in view of the following Board language in Perma Vinyl Corp supra at 969 When a new employer is substituted in the employing industry there has been no real change in the employing industry insofar as the vie tims of past unfair labor practices are concerned or the need for remedying those unfair labor practices Appropnate steps must still be taken if the effects of the unfair labor practices are to be erased and all employees reassured of their statutory rights And the Court in Golden State supra at 182-183 fn 5 held that as long as there is continuity in the employing industry the public policy un derlying the successorship doctrine will be served by its broad applica Lion and the Board will not be required to distinguish among mergers consolidations and purchases of assets Even though this case does not fall into one of these specified categories in my opinion Golden State supra and Perma Vinyl Corp supra apply in view of the continuity of the employing industry Additionally certain equities namely (1) the role Schaller played both regarding R & L s unfair labor practices and as joint employer with Chenault in the continuing employer industry (2) the fact that Schaller benefits from the continuation of the industry and (3) the fact that Chenault acted in haste and in total disregard of possible ramifications (Danny Chenault acted more like an employee than motor carver agent) weigh in favor of taking this approach 31 A successor is obligated to bargain with the collective bargaining representative of the employees of its predecessor NLRB v Burns Secure ty Services supra The Union should have been given poor notice and been accorded an opportunity to negotiate and bargain Chenault s and Schaller s failure to do so violated the Act 558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rule.38 Additionally the rule states that it does not re- quire exclusion when the evidence is offered for another purpose such as proving an effort to obstruct a criminal investigation or prosecution. The letter was not intro- duced to show the strength or the weakness of the claim Loudermilk ostensibly was trying to settle. Rather the primary purpose was to prove that Loudermilk engaged in an unlawful activity, bypassing the Union. While an employer (as noted above, Schaller is a joint employer with Chenault of Chenault's drivers) may communicate to employees offers it has made to a union, and may even urge the employees to prevail on the Union to accept its offer, the employer's action must be viewed in the light of the employer's entire course of action re- garding this matter. Compare Safeway Trails, 233 NLRB 1078 (1977). Here Schaller was engaged in other unlaw- ful activity in that its president, Loudermilk, directed Danny Chenault not to hire R & L drivers because of their union activity and to avoid an obligation to bargain with the Union. The joint employers, Chenault and Schaller,. by this conduct were refusing to recognize and bargain with the Union while they unilaterally changed the terms and conditions of employment. The letter was part of Loudermilk's scheme to take advantage of R & L's bankruptcy and undermine the Union's position as the bargaining representative of the involved drivers. Schaller's39 letter violated Section 8(a)(5) in that it was an attempt to bypass the Union. The amended consolidated complaint alleges: (y) At all times material herein, the Joint Re- spondents [Loudermilk, Schaller, and R & L], the Respondent BVZ, and the Respondent Chenault have been affiliated business enterprises with common officers, ownership, directors, manage- ment, and supervision; have formulated and admin- istered a common labor policy affecting employees of said operations, have shared common premises and facilities; have provided services for each other; have interchanged personnel with each other; and have held themselves out to the public as a single integrated business enterprise. (z) By virtue of the operations described above in .. . [the next preceding paragraph], the Joint Re- spondents, the Respondent BVZ, and the Respond- ent Chenault constitute a single integrated business enterprise and a single employer within the meaning of the Act. Barry Vande Zande is vice president of R & L and president of BVZ. Other than him, the companies do not have common owners or common officers. As pointed out in NLRB v. Browning-Ferris Industries, supra at 1122. 38 Under 29 U.S.C. § 160(b) the Board conducts its hearings in accord- ance with the Federal Rules of Evidence "so far as [is] practicable." Al- though the Federal Rules carry great weight, they do not absolutely bind the Board. NLRB Y. Maywood Do-Nut Ca, 659 F.2d 108, 110 (9th Cir. 1981). 39 Although the complaint speaks to Loudermilk, he signed the letter, however, as president of Schaller and nothing in the letter itself indicates that he was acting in other than a representative capacity. Consequently, the finding of this violation should be limited to Schaller vis a vis Lou- dermilk. 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." In answering questions of this type, the Board considers the four factors approved by the Radio Union [C]ourt. (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. Thus the "single em- ployer" standard is relevant to the determination that "separate corporations are not what they appear to be, that in truth they are but divisions or departments of a single enterprise." NLRB v. Deena Artware, Inc., 361 U.S. 398, 402, 80 S.Ct. 441, 443, 4 L.Ed.2d 400 (1960). "Single Employer" status ulti- mately depends on all the circumstances of the case and is characterized as an absence of an arm's length relationship found among unintegrated com- panies." Contrary to the allegations in the complaint, the in- volved companies do not have common management and supervision. Except for Schaller and Chenault, as treated, supra, they have not formulated and administered a common labor policy affecting employees of the oper- ation, Although Chenault uses the same premises R & L formerly utilized, the involved companies have not "shared common premises and facilities," they do not share equipment except on a lease basis familiar in the trucking industry. They do not interchange personnel with each other .40 Although (1) the office workers of Chenault answer the phone "Schaller," (2) the trucks have the name Schaller on them, and (3) according to Respondents' brief, the involved Bedford terminal has the name Schaller on it, the involved companies do not hold or have not held themselves out to the public as a single-integrated business. It was not demonstrated that R & L or Chenault held themselves out as anything other than an agent of Schaller. The only shipper in- volved, GM, would appreciate the necessity for and the significance or insignificance of the trappings of an agent in the trucking industry. The Respondents are not a single-integrated business enterprise. Describe the above-made finding that Chenault and Schaller are joint employers, these two do not meet the criteria for a single employer and accordingly they are not a single-integrated business enterprise. As indicated in footnote 3, supra, at the hearing, the General Counsel alleged that on 4 February 1987, Re- spondents interrogated Hardesty in violation of the Act in that she was not advised that her participation in the questioning was voluntary and that no reprisals would be taken against her if she refused to answer. In Johnnie's 4o Bolin was not interchanged. After being terminated by R & L he was employed by BVZ and drove BVZ's tractor which was leased to Chenault. When that lease terminated he became an employee of Chen- ault. The services that any one of the companies provided for another of the involved companies is minimal and considered either alone or in con- junction with any other circumstances would not warrant a finding of single employer or single-integrated business enterprise. R & L CARTAGE & SONS 559 Poultry Co, 146 NLRB 770 at 774-775 (1964) it was concluded Despite the inherent danger of coercion therein the Board and courts have held that where an em ployer has a legitimate cause to inquire he may ex ercise the privilege of interrogating employees on matters involving their Section 7 rights without in curnng Section 8(a)(1) liability The purposes which the Board and courts have held legitimate are to two types the verification of a union s claimed ma jority status to determine whether recognition should be extended, involved in the preceding dis cussion, and the investigation of facts concerning issues raised in a complaint where such interroga tion is necessary in preparing the employers de fense for trial of the case In allowing an employer the privilege of ascer taming the necessary facts from employees in these given circumstances the Board and Courts have es tablished specific safeguards designed to minimize the coercive impact of such employer interrogation Thus, the employer must communicate to the em ployee the purpose of the questioning, assure him that no reprisal will take place, and obtain his par ticipation on a voluntary basis, the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature, and the questions must not exceed the ne cessities of the legitimate purpose by prying into other union matters eliciting information concern ing an employees subjective state of mind or other wise interfering with the statutory rights of employ ees When an employer transgresses the boundaries of these safeguards he loses the benefits of the privilege In Safelite Glass 283 NLRB 929 (1987), the administra tive law judge, citing Mineola Ford Sales, 258 NLRB 406 (1981)41 concluded that Johnnie s Poultry Co supra, ap plies only to situations where an employer interrogates employees about matters involving their Section 7 rights 42 As noted above the subject of the attorneys in terrogation in the instant case had nothing to do with Section 7 rights Alternatively even if Johnnie Poultry Co supra does apply in my opinion it does not to the case at hand the interrogation should be viewed in terms of the totality of the circumstances Rossmore House 269 NLRB 1176 (1984) When viewed in these terms in my opinion there was no violation of the Act in this regard R & L Chenault and Schaller are jointly and severally liable for remedying the unfair labor practices Riley Aer onautics Corp 178 NLRB 495 (1969) The General Counsel seeks to hold Loudermilk personally liable for the unfair labor practices on the theory that he so ante 41 There the Board Members Fanning Jenkins and Zimmerman con cluded that the alleged unlawful interrogation the Respondent there con ducted did not pertain to the employees involvement in conduct protect ed by Section 7 of the Act and accordingly the Johnnie Poultry Co supra allegation was dismissed 42 Board Member Babson viewed such a reading of Johnnie s Poultry as perhaps unduly restrictive especially in light of the circumstances of that case grated or intermingled his assets and affairs that no dis tinct corporate lines are maintained Riley Aeronautics Corp, supra at 501, sets forth the ap plicable law (E)asily the most distinctive attribute of the cor poration is its existence in the eye if the law as legal entity and artificial personality distinct and separate from the stockholders and officers who compose it Wormser, Disregard of the Corporate Fiction and Allied Corporation Problems (Baker, Voorhis and Company 1927) p 11 The insulation of a stock holder from the debts and obligations of his corpo ration is the norm, not the exception NLRB v Deena Artware Inc, 361 U S 398, 402-403 Never theless, the corporate veil will be pierced whenever it is employed to perpetrate fraud evade existing obligations, or circumvent a statute Isaac Schieber et al individually and Allen Hat Co, 26 NLRB 937 964, enfd 116 F 2d (C A 8) Thus, in the field of labor relations, the courts and Board have looked beyond organizational form where an individual or corporate employer was no more than an alter ego or a disguised continuance of the old employer (Southport Petroleum Co v NLRB, 315 US 100, 106), or was in active concert or participation in a scheme or plan of evasion (NLRB v Hopwood Re tinning Co, 104 F 2d 302 304 (C A 2)), or siphoned off assets for the purpose of rendering insolvent and frustrating a monetary obligation such as backpay (NLRB v Deena Artware Inc supra, 361 U S 398), or so integrated or intermingled his assets and of fairs that no distinct corporate lines are main tained (Id at 403) Here the General Counsel has not demonstrated that Loudermilk so integrated or intermingled his assets and affairs that no distinct corporate lines are maintained R & L as determined by the Union s own certified public accountant, was financial trouble notwithstanding Lou dermilk s attempts to aid it financially As noted above, Loudermilk s involvement in R & L just before it filed for bankruptcy was insufficient to find Schaller was a joint employer with R & L R & L s bankruptcy filing was not demonstrated to be other than bona fide and in effect it was forseen by the Union s own certified public accountant 8 months before R & L filed The General Counsel failed to demonstrate that Loudermilk was acting in any capacity other than as Schaller s president In my opinion Loudermilk is not personally liable for remedying the unfair labor practices CONCLUSIONS OF LAW 1 The Respondents R & L Chenault Schaller, and BVZ, are all employers engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Charging Union and Teamsters Local Union No 135 are and have been at all times material labor organizations within the meaning of Section 2(5) of the Act 3 The following described unit is an appropriate one for collective bargaining purposes 560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time truckdrivers and mechanic employees of the Respondent R & L for- merly employed by it at its Fort Wayne, Indiana and Bedford, Indiana facilities including all full-time and regular part-time yard helpers; but excluding all office clerical employees, all janitors, all profession- al employees, all guards, and supervisors as defined in the Act. 4. At all times since 1978, the Union, by virtue of Sec- tion 9(a) of the Act, has been, and is, the exclusive repre- sentative of the employees in the unit described above. 5. By refusing to recall the following named employ- ees from work suspension on or about 29 April 1986, R & L violated Section 8(a)(1) and (3) of the Act: Gary Gase Shabbir Morissawalla Charles Quinn Norman Beeks Gail Miller Michael McKee 6. By reneging on and refusing to abide by a grievance resolution agreement entered into between it and the Charging Union, R & L, on or about 5 May violated Section 8(a)(1) of the Act. 7. By failing to notify the Charging Union of the ces- sation of operations and by failing to afford the Charging Union an opportunity to negotiate and bargain concern- ing the effects of that decision on unit employees, R & L violated Section 8(a)(5) and (1) of the Act. 8. Chenault and Schaller are joint employers of the in- volved employees of Chenault. 9. By their refusal on or about 31 July 1986, and there- after to hire the employees of R & L after taking over that operation because of the union affiliation of these employees and to avoid an obligation to bargain with the Union, Respondent joint employers Chenault and Schaller violated Section 8(a)(3) and (1) of the Act. 10. Joint Employer Respondents Chenault and Schaller are the successor employer to R & L and by failing to recognize and bargain with the Union since 1 August 1986 as the exclusive collective-bargaining repre- sentative of the employees in the above-described unit, including by departing from preexisting rates of pay and benefits without prior notification to and consultation with the Union, they violated Section 8(a)(5) and (1) of the Act. 11. By attempting to bypass the Union on 30 Septem- ber 1986 joint employer Schaller violated Section 8(a)(1) and (5) of the Act. 12. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 13. The Respondents have not violated the Act in any other manner. THE REMEDY Having found that Respondents R & L, Chenault, and Schaller have and are engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Because it has been found that R & L unlawfully re- fused to recall the six drivers named above from work suspension on or about 29 April 1986, it shall be ordered that R & L make them whole for any loss of earnings they suffered up until that point in time when they were recalled by R & L in mid-July 1986, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987).43 With Respect to R & L's unlawful failure to bargain with the Union about the effects of its decision to cease operations, the terminated employees have been denied an opportunity to bargain through their collective-bar- gaining representative at a time when R & L still had some loads to be handled and a measure of balanced bar- gaining power existed. Meaningful bargaining cannot be assured until some measure of economic strength is re- stored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed. Accordingly, it is deemed necessary, in order to effec- tuate the purposes of the Act, to require R & L to bar- gain with the Union concerning the effects of the show- down on its employees, the order shall be accompanied with a limited backpay requirement designed both to make whole the employees for losses suffered as a result of the violations and to recreate in some practicable manner a situation in which the parties' bargaining posi- tion is not entirely devoid of economic consequences for R & L. This shall be done by requiring that R & L pay backpay to its employees in a manner similar to that re- quired in Contris Packing Co., 268 NLRB 193 (1983).44 Thus, R & L shall pay employees backpay at the rate of their normal wages when last in R & L's employ from 5 days after the date of this Decision and Order until oc- currence of the earliest of the following conditions: (1) the date R & L bargains to agreement with the Union on those subjects pertaining to the effects of the cessation of operations on its employees; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargain within 5 days of the date of this Decision and Order, or to commence negotiations within 5 days of R & L's notice of its desire to bargain with the Union; (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any of these em- ployees exceed the amount they would have earned as wages from 1 August 1986, the date on which R & L terminated its operations, to the time they secured equiv- alent employment elsewhere, or the date on which R & L shall have offered to bargain, whichever occurs sooner; provided, however, that in no event shall this sum be less than these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ. 43 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). 44 The so-called Transmarine Corp., backpay remedy (170 NLRB 389 (1968)). Compare the administrative law judge's decision in Signal Com- munications, 284 NLRB 423 (1987), and cases cited there, including Burg- meyer Bros., supra at fn. 30. R & L CARTAGE & SONS Having found that Respondent joint employers Chen ault and Schaller discriminatorily refused to offer em ployment to the former employees of Respondent R & L it shall be ordered that their employment status be re stored to what it would have been but for the discrimina tion against them and that Respondent joint employers Chenault and Schaller offer them immediate and full re instatement to their former jobs or if those jobs no longer exist to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed discharging, if necessary employees hired from sources other than R & L to make room for them, and make them whole for any loss of earnings that they may have suffered due to the discrimination prac ticed against them, as prescribed in F W Woolworth Co supra, with interest thereon to be computed in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977) 45 Further, it shall be ordered that Respondent joint em ployers Chenault and Schaller bargain with the Union, on request, concerning any terms and conditions of em ployment on which joint employers Chenault and Schaller would have been required to bargain had the Union s lawful status been acknowledged on 1 August 1986 the date Respondent joint employers Chenault and Schaller took over the R & L operation In addition, it shall be ordered that Respondent joint employers Chen ault and Schaller cancel, on request by the Union changes in rates of pay and benefits unilaterally effectuat ed and make the employees whole by remitting all wages and benefits that would have been paid absent the unlaw ful conduct of Respondent joint employers Chenault and Schaller as found herein from 1 August 1986 until these Respondents negotiate in good faith with the Union to agreement or to impasse The following Board language in State Distributing Co, supra, bears repeating In sum we acknowledge that the make whole remedy that the Board imposes in [successor] cases such as this is not invulnerable to all criticism We are however faced with a set of less than perfect remedial choices The remedy the Board has chosen has the drawback of retroactively imposing on the Respondent terms and conditions of employment that had been set by the contract negotiated by its predecessor but it has the advantage of giving some recompense to the victims of the discrimination and preventing the Respondent from enjoying a finan cial position that is quite possibly more advanta 45 As modified by New Horizons supra at fn 43 561 geous than the one it would occupy had it behaved lawfully A remedy that allowed to stand the re duced terms and conditions of employment that the Respondent imposed unilaterally would give full effect to the right of a Burns successor to set its own terms but this would quite possibly leave vic tims uncompensated and it would confer Burns rights on an employer that has not conducted itself like a lawful Burns successor because it has unlaw fully blocked the process by which the obligations and rights of such a successor are incurred A remedy such as the court suggested in Loves Barbe que [namely to require a successor employer only to pay the higher contract rates for a reasonable time of bargaining since in all probability bar gaining would have led to an impasse allowing the employer unilaterally to reduce wages] is virtually impossible to calculate, and to the extent that it involves imposing contractual terms based on this Agency's conjecture without an adequate factu al basis it seems hardly preferable to imposing on the Respondent the terms under which the Allstate employees had worked just before the Respondent took over the enterprise Finally it must be noted that the Board faces this set of less than perfect remedial choices because of the uncertainties created by the Respondents mis conduct The Board makes such choices pursuant to the congressional delegation of power to deter mine when the policies of the Act would be effectu ated by a particular remedy, and it makes those choices subject only to a test of reasonableness She pard v NLRB, 459 U S 348 (1983) Accord Fibre board Paper Products v NLRB, 379 U S 203 215- 216 (1964) For all of the reasons set forth above, we believe that the Love s Barbeque remedy meets that test 4 4As explained above the circumstances in this case are some what different from those in Loves Barbeque in which the Ninth Circuit declined to accept the remedy in full We also note that a similar order in a case subsequent to Love s Barbeque was enforced in full by the court although it appears that the remedial issue was not argued in the case Stone Boat Yard 264 NLRB 981 983 (1983) enfd 715 F 2d 441 (9th Cir 1983) Because joint employers Schaller and Chenault are successors to R & L they are also jointly and severally liable for the backpay due to (1) the six drivers who were not recalled for an unlawful reason and (2) unit members under the limited backpay remedy recommend ed herein regarding R & L [Recommended Order omitted from publication ]