Blackberry Creek Trucking, Inc And Mate Creek Trucking, Inc

National Labor Relations Board - Board Decisions

Oct 31, 1988

291 N.L.R.B. 474 (N.L.R.B. 1988)

474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Blackberry Creek Trucking, Inc and Mate Creek
Trucking, Inc and United Mine Workers of
America Case 9-CA-23230
October 31 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 26 1988 Administrative Law Judge
Elbert D Gadsden issued the attached decision
The Respondents filed exceptions and a supporting
brief and the General Counsel filed an answering
brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings i and
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Blackberry
Creek Trucking Inc and Mate Creek Trucking
Inc Matewan West Virginia their officers agents
successors and assigns shall take the action set
forth in the Order
i The Respondents have excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
tive law judge s credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re
versing the findings
2 The Respondents except to the judge s finding that the unilateral
transfer of the trucking operation from Blackberry Creek Trucking
(BCT) to Mate Creek Trucking (MCT) constituted a failure and refusal
to bargain in good faith with the Union on the grounds that no such vio
lation was specifically alleged in the complaint and that the issue was not
fully litigated at the hearing We find no ment in this exception The
complaint alleges the Respondents refused to bargain with the Union by
unilaterally changing the terms and conditions of employment of unit em
ployees by transferring work previously performed at BCT to MCT It
further alleges that MCT s conduct in requiring that employees in the ap
propnate bargaining unit perform services without the benefit of repre
sentation by the Union constituted an unlawful refusal to bargain by the
Respondents These allegations clearly put the Respondents on notice
that bargaining obligations concerning the transfer of operations were at
issue In such circumstances the litigation at the hearing of the alleged
unlawful aspects of the transfer constitutes full litigation of the allegation
that the transfer itself was an unlawful refusal to bargain in good faith
See Vulcan Hart Corp 248 NLRB 1197 (1980) modified on other
grounds 642 F 2d 255 (8th Cir 1981) Baughman Co 248 NLRB 1346 fn
2(1980)
Donald A Becker Esq for the General Counsel
Louis Dene Esq of Abingdon Virginia for the Re
spondent
James R Hampton Esq of Hazard Kentucky for the
Charging Party
DECISION
STATEMENT OF THE CASE
ELBERT D GADSDEN Administrative Law Judge On
a charge of unfair labor practices filed on 19 June 1986
by United Mine Workers of America (Union or Charg
ing Party) against Blackberry Creek Trucking Inc and
Mate Creek Trucking Inc (Respondents) a complaint
was issued on 14 September 1987 by the Regional Direc
tor for Region 9 on behalf of the General Counsel
In substance the complaint alleges that in June 1985
Respondent Blackberry Creek Trucking unilaterally
changed the terms and conditions of employment of its
unit employees by transferring their work to Respondent
Mate Creek Trucking and requiring the employees who
desired work with Mate Creek Trucking to work with
out representation of the Union in violation of Section
8(a)(1) and (5) of the Act that since June 1985 Respond
ent Mate Creek Trucking has been a disguised continu
ation and alter ego of Blackberry Creek Trucking and
as such constitutes a single employer that on or about
30 September 1984 certain unit employees of Blackberry
Creek Trucking ceased work concertedly and engaged in
a strike but after they made an unconditional offer to
return to work on 23 December 1985 Respondent has
failed and refused to reinstate them for varying periods
of time to their former or substantially equivalent posi
tions of employment in violation of Section 8(a)(1) and
(3) of the Act
The Respondent filed an answer on 22 September 1987
denying that it has engaged in any unfair labor practices
as set forth in the complaint
The hearing in the above matter was held before me in
Williamson West Virginia on 1 and 2 December 1987
Briefs have been received from counsel for the General
Counsel and counsel for the Respondent respectively
which have been carefully considered
On the entire record in this case including my obser
vation of the demeanor of the witnesses and my consid
eration of the briefs filed by respective counsel I make
the following
FINDINGS OF FACT
I JURISDICTION
Respondent Blackberry Creek Trucking (Blackberry
Creek) is and has been at all times material a Kentucky
corporation engaged in the interstate transportation of
coal in the States of Kentucky and West Virginia
Respondent Mate Creek Trucking (Mate Creek) has
been engaged in the interstate transportation of coal in
the States of Kentucky and West Virginia
II THE LABOR ORGANIZATION INVOLVED
The Union United Mine Workers of America is now
and has been at all times material a labor organization
within the meaning of Section 2(5) of the Act
291 NLRB No 82
BLACKBERRY CREEK TRUCKING 475
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background Information
Blackberry Creek was incorporated in the State of
Kentucky on 17 March 1983 for among other things the
purpose of operating coal lands by excavating removing
treating handling hauling storing transporting distribut
ing and selling coal (G C Exh 1 )
Respondent Mate Creek was incorporated in the State
of Kentucky on 17 June 1985 for among other things
the purpose of operating coal lands by excavating re
moving treating handling hauling storing transporting
distributing and selling coal (G C Exh 4 )
The parties stipulated that the following employees of
Respondent Blackberry Creek constitute a unit appropri
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
All employees employed by Blackberry Creek
Trucking engaged in the production of coal includ
ing removal of overburden and coal waste prepara
tion processing and cleaning of all coal and trans
portation of coal (except by waterway or rail not
owned by Respondents) repair and maintenance
work normally performed at the facilities of the
[Respondents] and maintenance of gob piles and
mine roads and work customarily related to all of
the above i
B Respondents Corporate Arrangement and Business
Relationship
Blackberry Creek Trucking was incorporated 3 March
1983 for the purpose among other things of hauling and
transporting coal On 16 April 1984 Jack Hatfield sole
shareholder of Blackberry Creek Trucking canceled his
certificate and transferred his shares to the following
new owners
Name Share Owners Office
Joby Fields 50 percent President
Joseph Fields son
of Joby Fields 50 percent Vice President
Brenda Fields none Secretary
Treasurer
When Blackberry Creek Trucking commenced hauling
coal in late April 1984 it did so from Fieldmore Enter
prises partially owned by Joby Fields to Sprouse Creek
Processing Plant At that time Blackberry Creek Truck
ing was not signatory to any wage or collective bargain
ing agreement However in July 1984 Blackberry Creek
Trucking became signatory to the National Bituminous
Coal Wage Agreement of 1981 which was to expire 3
months later (9-30-84) Pursuant to the agreement
Blackberry Creek Trucking hauled coal from Tall
Timber Mine to Sprouse Creek Processing Plant It in
hented 10 drivers from the predecessor hauler Cook
I The facts set forth above are not disputed and are not in conflict in
the record
Trucking Five drivers were still hauling from Joby
Fields partially owned Fieldmore Mine When hauling
from Fieldmore and Tall Timber the drivers were paid
$1 50 per ton That rate was not negotiated nor was it in
the agreement with the Union (District 30 UMWA)
which was aware that the drivers were not being paid
the contractual hourly rate
Regardless of the number of hours a driver worked
each day or week he reported 7 hours and 15 minutes
per day or 36 1/4 hours per week The hours worked
were deducted from the gross pay the driver earned on
tonnage Consequently the driver received two checks
one for the 36 1/4 hours based on the contractual rate
for drivers and the second check for the balance of the
gross made out to the driver owner or owner of the
truck Only driver Ronald Webb recorded the actual
number of hours he worked because he drove the truck
of Blackberry Creek Trucking and he was paid the con
tractual rate plus overtime Although the other drivers
were not paid overtime they never complained or filed a
grievance or complaint over the matter
Unemployment and social security taxes health insur
ance workers compensation and man hour royalties re
quired by the NBCWA 81 are deducted from the wages
of the driver and transmitted by the employer to the re
spective agencies on organizations
The NBCWA 81 expired 30 September 1984 and
Blackberry Creek Trucking drivers went on an economic
strike 1 October 1984 and the Company ceased oper
ations
In March 1985 Joby Fields mine was flooding out
with about 3 months work remaining Although negotia
tions between Blackberry Creek Trucking and the Union
had been in progress 6 months the Union had rejected
several offers by Blackberry Creek Trucking to execute
a successor agreement Fields requested the Union to
allow Blackberry Creek to resume operations and take
his coal to places other than the Sprouse Creek plant
but the Union refused his request Thereafter Fields dis
cussed the problem of mine flooding with accountant
Don Blankenship and decided to resume operations at
Fieldmore Fields then transferred his trucking operation
to Mate Creek Development which was already estab
lished with worker s compensation and liability insur
ance Mate Creek Development was a trucking company
with other truck owners and driver owners It was ini
tially organized to mine coal Fields said drivers were
difficult to find so Mate Creek Development started
hauling from Picko Cumberland Village and McNanny
Resources in March 1985 He said he had Mate Creek
Development do the hauling from Fieldmore starting in
April 1985 He also said he would have taken any driv
ers at that time because he was in a desperate situation
with his mine flooding out
Mate Creek Trucking was incorporated on or about 13
June 1985 to engage in essentially the same kind of mine
trucking operations for which Blackberry Creek Truck
ing was incorporated The strike against Blackberry
Creek Trucking was still in progress at that time
About 4 days later 17 June 1985 Mate Creek Truck
ing entered into a contract to haul coal for Blackberry
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Creek Trucking The contract was identical to the con
tract with Blackberry Creek Coal Company for rendition
of the same services Blackberry Creek Trucking hauled
coal from a number of mine sites to Sprouse Creek Proc
essing plant to which Mate Creek Trucking now hauls
Mate Creek Trucking replaced Mate Creek Development
and started hauling in October 1985
A mailgram was received from the Union by Black
berry Creek Trucking and Mate Creek Trucking on 23
December 1985 notifying that the Union was making an
unconditional offer to return to work and end the eco
nomic strike Fields however assumed the position that
Mate Creek Trucking had no obligation to recognize the
Union as either alter ego or successor of Blackberry
Creek Trucking that Mate Creek Trucking was a sepa
rate entity and different company performing work that
Blackberry Creek had not previously performed because
Mate Creek was hauling from different sites on 23 De
cember 1985 Moreover Fields said Blackberry Creek
Trucking had made several offers to execute the succes
sor agreement and the Union rejected its offers Addi
tionally Blackberry Creek Trucking has no drivers on its
payroll and Mate Creek Trucking has only truck owners
with drivers or driver owners In other words all dnv
ers must own their trucks or arrange to drive for a truck
owner
Truck owners have the authority to select the driver
of their trucks with the approval of Mate Creek Truck
mg (Supervisor Tom Copley) All checks for driver
earnings are prepared on Mate Creek Trucking checks
for convenience but Respondent contends not as em
ployees of Mate Creek Trucking Actually the owner
pays the driver workers compensation premium health
insurance and matching social security taxes The pay
ment for these benefits are deducted from the truck
owners earnings When an owner drives his own truck
he must also pay for his health insurance workers com
pensation and matching social security taxes Conse
quently the owner/driver receives two checks one for
his wages and one for the gross earnings less deductions
for benefits that are held by Mate Creek and paid to the
proper organization or agency
In January 1986 Mate Creek Trucking commenced
hauling from Elkhorn #1 mine and in February 1986 it
hauled from Northland and Tall Timber Gradually
Mate Creek Trucking started hauling from Elkhorn #2
and Glenn Allen Picko Cumberland Village Sweetwa
ter Big Walnut and Big Bottom
Subsequently during a negotiation session with Re
spondent (Louis Dene and Joby Fields) on 6 March
1986 Hampton testified that they talked about the recall
of the Blackberry Creek Trucking drivers and either
Dene or Fields advised him that Blackberry Creek
Trucking was not operating and had no intention of re
suming operations that Mate Creek Trucking had taken
over the hauling operations of Blackberry Creek Truck
ing between Fieldmore Enterprises and Tall Timber to
Sprouse Creek Processing and that both Dene and
Fields admitted that Blackberry Creek Trucking s trucks
were being utilized by the drivers of Mate Creek Truck
mg to haul coal
Comparative Business Operations of Blackberry
Creek Trucking and Mate Creek Trucking
According to the uncontroverted and credited testimo
ny of Respondents president Joby Fields the following
was established
Blackberry Creek Trucking
Share Owner Joby Fields president and head of
labor relations
Tom Copley former employee George Blanken
ship certified public accountant does most of the
accounting work
Address P 0 Box 570 Matewan West Virginia
Mine site equipment used Owns one end loader
leases one end loader end loaders are serviced by
an employee (Larry Mounts) of Mate Creek Truck
mg which purchases the parts fuels and grease for
Mounts to use
Mate Creek Trucking
Share Owner Joby Fields president and head of
labor relations
Tom Copley Supervisor George Blankenship cer
tified public accountant does most of the account
mg work
Address P 0 Box 570 Matewan West Virginia
Mine site equipment used Uses the same end load
ers owned by Mate Creek Trucking uses the same
end loader leased by Mate Creek Trucking
End loaders of Blackberry Creek Trucking and Mate
Creek Trucking are serviced by its own (Mate Creek
Trucking) employee Larry Mounts for whom Mate
Creek Trucking furnishes the parts fuel and grease
Joby Fields testified that Mate Creek Trucking pays
Blackberry Creek Trucking an amount equal to lease and
purchase of end loaders but he did not know whether
the money was ever physically transferred from Mate
Creek Trucking to Blackberry Creek Trucking He said
Blackberry Creek Trucking was compensated 50 cents
per ton by Mate Creek Trucking for the use of one of its
trucks and 65 cents per ton for the use of its other truck
He further stated however that there are no written
agreements covering any of the trucks use or end loader
use arrangements Four Blackberry Creek trucks were
used by Mate Creek Trucking as early as 4 October
1986 (G C Exh 26)
Drivers hired by Mate Creek Trucking
On or about 23 December 1985 the Union on behalf
of the following employees of Respondent Blackberry
Creek and other employees whose names were presently
unknown but who engaged in the strike described above
in paragraph 5(a) of the complaint made an uncondition
al offer for the employees to return to their former or
substantially equivalent positions of employment
Russell E Hardesty Bryan A Hatfield
George B Hayes Herbert Hayes
Belvin Huddle David L Justice
BLACKBERRY CREEK TRUCKING
Ricky Justice Everett E Kinder
Howard D Lockhart Larry Mounts
Sidney L Plaster Larry Smith
Claude E Starr Freddie D Taylor
Ronald C Webb
The strike against Blackberry Creek Trucking ended
23 December 1985 Mate Creek Trucking has since hired
over 15 drivers Some of the drivers hired were formerly
drivers of Blackberry Creek Trucking In hiring drivers
Mate Creek Trucking (Joby Fields) acknowledged it did
not refer to any seniority list of Blackberry Creek Truck
ing and that it did not hire all the drivers after Decem
ber 1985
Analysis and Conclusions
The issues raised by the complaint and the essentially
uncontroverted evidence of record are
Issue 1 Whether Respondent Mate Creek Trucking is
a disguised continuance and alter ego of Respondent
Blackberry Creek Trucking
Issue 2 Whether Respondent Mate Creek Trucking is
under a duty to recognize the recall rights of Blackberry
Creek Trucking strike drivers on their unconditional
offer to return to work and if so whether Mate Creek
Trucking recognized its obligation to recall and did in
fact recall employees according to such recall rights
Issue 3 Whether the truckdrivers of Blackberry Creek
Trucking or Mate Creek Trucking were employees or in
dependent contractors as Blackberry Trucking contends
or implies
Issue 4 Whether Respondents unilaterally in violation
of Section 8(a)(5) of the Act transferred work from
Blackberry Creek Trucking recognized the Union as the
collective bargaining representative of its drivers to
Mate Creek Trucking an entity that does not recognize
the Union as the collective bargaining representative of
its employees
Issue 1 Whether Respondent Mate Creek Trucking is
a disguised continuance or alter ego of Blackberry Creek
Trucking
The Board and the courts have consistently held that
the test for determining whether two or more companies
should be treated as a single employer depends on the
existence or presence of the following factors (1) interre
lation of business operations (2) common management
(3) centralized control of labor relations and (4)
common ownership of financial control Radio Union
Local 1264 v Broadcast Service 380 U S 255 256 (1965)
NLRB v MP Building Corp 411 F 2d 567 (5th Cir
1969) The alter ego doctrine is an extension of the single
employer concept McAllister Bros Inc 278 NLRB 601
(1986)
In applying these criteria to the corporations in the in
stant case the record evidence shows
(a) Interrelation of business operations of Respondent s
Blackberry Creek Trucking and Mate Creek Trucking
show that Joby Fields is president and 50 -percent owner
of Blackberry Creek Trucking and that his son Joseph
Fields is vice president the other 50-percent owner
while Brender Fields is secretary treasurer Correspond
ingly Joby Fields is president and 50 percent owner of
477
Mate Creek Trucking and his son Joseph Fields is vice
president and 50 percent owner and Brender Fields is
secretary treasurer of Mate Creek Trucking
Blackberry Creek Trucking and Mate Creek Trucking
share the common address P 0 Box 570 Matewan
West Virginia
Joseph Fields is in charge of labor relations for both
Blackberry Creek Trucking and Mate Creek Trucking
The accounting work for both Blackberry Creek
Trucking and Mate Creek Trucking is performed by the
same accountant George Blankenship C P A
Tom Copley a former truckdriver of Blackberry
Creek Trucking is now a supervisor who inspects
trucks hires some truckdrivers and enforces truckdriver
safety rules for Mate Creek Trucking
Blackberry Creek Trucking and Mate Creek Trucking
both use the same end loader owned by Blackberry
Creek Trucking
Larry Mounts Webb formerly a truckdriver for Black
berry Creek Trucking is now employed as manager of
the service department of Mate Creek Trucking As
such he services the end loaders for Mate Creek Truck
ing and Blackberry Creek Trucking
Additionally the articles of incorporation show that
the business purpose of both Blackberry Creek Trucking
and Mate Creek Trucking is identical-among other
things to haul coal Both Companies own fuel and lease
the majority of trucks used in hauling coal The agree
ment with the drivers of both Companies is substantially
the same Both Companies had a written agreement for
transporting coal with the same company Blackberry
Creek Coal Company There is some sharing of equip
ment (end loaders) and servicing of equipment The cus
tomers served by Blackberry Creek Trucking and cus
tomers which in all probability it would have eventually
served actually became the customers of Mate Creek
Trucking The Board has long held that the customers
need not be identical so long as they are the same type
of customers for continuity in business operations in find
ing alter ego status American Pacific Concrete Pipe Co
262 NLRB 1223 fn 14 (1982)
It is therefore abundantly clear from the evidence (es
sentially admitted) of record that the business operations
of Blackberry Creek Trucking would not have been
shifted to Mate Creek Development which ultimately
became Mate Creek Trucking if Blackberry Creek
Trucking could have reached an agreement with the
Union with which it was under an obligation to bargain
I therefore find on the foregoing evidence that there
is substantial interrelation of business operations between
Blackberry Creek Trucking and Mate Creek Trucking
and consequently that Mate Creek Trucking is the alter
ego of Blackberry Creek Trucking
(b) Common management Both Blackberry Creek
Trucking and Mate Creek Trucking are family corpora
tions of the family of Joby Fields The latter is president
and his son Joseph is vice president of both corpora
tions Both corporations share the same accountant in the
person of George Blankenship CPA and Joby Fields is
in charge of labor relations for both corporations
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Former employee Larry Mounts Webb is manager of
end loader maintenance services for both corporations
Based on the foregoing uncontroverted evidence I
find that Blackberry Creek Trucking and Mate Creek
Trucking have common management
(c) Centralized control of labor management Joby
Fields is in charge of labor relations for Blackberry
Creek Trucking and Mate Creek Trucking although
Blackberry Creek Trucking has no drivers but is still in
corporate existence Nevertheless Joby Fields continues
to be in charge of labor relations for Mate Creek Truck
ing of which he is also president Tom Copley was for
merly a truckdriver for Blackberry Creek Trucking He
is now a supervisor for Mate Creek Trucking who
sometimes hires other drivers inspects the trucks and
enforces truckdnver safety policy Both Fields and
Copley enforce work rules by disciplining drivers who
fail to comply with them
I conclude and find on the foregoing evidence that
there is centralized control over labor relations of Black
berry Creek Trucking and Mate Creek Trucking
(d) Common Ownership of Financial Control Joby
Fields is 50-percent owner of Blackberry Creek Truck
ing and his son Joseph Fields is 50 percent owner of the
remaining interests Joby Fields is also 50 percent owner
of Mate Creek Trucking and his son Joseph Fields is
owner of the remaining interest Joby Fields is also part
owner of Fieldmore Mines from which trucks of Black
berry Creek Trucking hauls and from which mines
trucks for Mate Creek Trucking now haul coal
The Board has long held that all four of the above de
scribed criteria (interrelation of business operations
common management centralized control of labor rela
tions and owned common ownership) need not be
present in order to support a finding of single employer
status As in Blumenfeld Theatres Circuit 240 NLRB 206
(1979) the Board found single employer status when the
relationship resembled a close family organization rather
than an independent company There major management
and labor relations decisions for four commonly held
corporations were made by the head of the single family
and the Board found single employer status
The alter ego doctrine is but an extension of the
single employer concept McAllister Bros 278 NLRB 601
(1986) Consequently two separate business entities may
be regarded as a single employer if one is the alter ego
or disguised continuance of the other Southport Petro
leum Co v NLRB 315 U S 100 106 (1942)
Alter ego status has also been found by the Board
when two enterprises have substantially identical owner
ship management business purpose operation equip
ment customers and supervision as are so in the instant
case
I therefore conclude and find on the foregoing essen
tially uncontroverted evidence and cited authority that
all or a substantial majority of the criteria for finding
single employer status here are satisfied that at all times
material Respondents Blackberry Creek Trucking and
Mate Creek Trucking constituted a single employer and
that Mate Creek Trucking is a disguised continuance of
Blackberry Creek Trucking Radio Union Local Local
1264 supra NLRB v M P Building Corp supra and
Blumnfield Theatres Circuit 240 NLRB 206 (1979)
I further find that any violations of the Act are ex
tended to each corporate entity (Blackberry Creek
Trucking and Mate Creek Trucking) Cooper & Cooper
Painting 804 F 2d 934 (6th Cir 1986) The latter author
ity is especially applicable to the Respondents here be
cause Blackberry Creek Trucking is still a corporation
on paper without any truckdriver employees but owned
and controlled by Mate Creek Trucking owners
The Board has declined to hold that antiunion motiva
tion is an indispensable factor in finding alter ego status
Apex Decorating Co 275 NLRB 1459 (1985) SKi Craft
Sales Corp 237 NLRB 122 126 ( 1978) Although the
evidence in the instant case supports a finding of antiun
ion motivation infra such a finding is not requisite to
the above finding of the alter ego status of Mate Creek
Trucking
Issue 2 Whether Mate Creek Trucking is under a duty
to recognize the Union and the recall rights of Blackber
ry Creek Trucking strike drivers on their unconditional
offer to return to work and if so whether Mate Creek
Trucking recognized its obligation to recall and did in
fact recall the employees according to such recall rights
The evidence established that 15 striking truckdrivers
were in the employ of Blackberry Creek Trucking when
the unconditional offer was made to return to work 23
December 1985 Since that date Mate Creek Develop
ment-Mate Creek Trucking has hired more than 15
drivers Some of these drivers began to work for Mate
Creek before the strike ended and some started to work
shortly thereafter At the hearing Mate Creek Trucking
(Joby Fields) acknowledged that it did not refer to a se
niority list of Blackberry Creek Trucking when it hired
the drivers for Mate Creek Trucking Nor did it recog
nize any obligation on its part to recall the 15 striking
drivers who offered to return to work
Joby Fields testified that he offered employment with
Mate Creek Trucking to Russell Hardesty Herbert
Hayes and Ronald Webb Hayes was hired December
1985 Hardesty was hired January 1986 and Webb testi
feed that after he asked Fields for work he was hired in
early January 1986 Webb did not acknowledge that
Fields offered him employment
Mate Creek Trucking s foreman Tom Copley testified
he offered employment to Howard Lockhart but Lock
hart denied anyone from Blackberry Creek Trucking or
Mate Creek Trucking contacted him about work
Foreman Copley testified he offered employment to
Sidney Plaster in early 1986 but Plaster testified that no
one from Mate Creek Trucking contacted him about
work Rather he said he contacted Fields several times
about work and finally he was hired in June or July
1986
Foreman Copley testified he offered Brian Hatfield
employment several times in 1985 and 1986 and Hatfield
said he had a job However Hatfield testified that no
one from Blackberry Creek Trucking or Mate Creek
Trucking contacted him about employment
Foreman Copley testified he offered employment sev
eral times to Belvin Huddle and Huddle said he was
BLACKBERRY CREEK TRUCKING
working and would stay where he was However
Huddle testified that no one from either Blackberry
Creek Trucking or Mate Creek Trucking contacted him
about returning to work
Foreman Copley testified that David Justice returned
to work but shortly thereafter left and returned again in
March or April 1986 However Justice testified that no
one from either Blackberry Creek Trucking or Mate
Creek Trucking contacted him about returning to work
Instead he said he applied for work and was hired
Foreman Copley testified he offered employment to
Everett Kinder and the latter said he had lost his truck
However Kinder testified that no one from Blackberry
Creek Trucking or Mate Creek Trucking contacted him
about returning to work
Foreman Copley testified he offered employment to
Larry Smith during the strike but Smith declined He
said he offered employment to Smith after the strike and
Smith returned to work June or July 1986 Smith how
ever testified that no one from Blackberry Creek Truck
ing or Mate Creek Trucking contacted him about return
ing to work He said he returned to work and was hired
in February 1986
Foreman Copley testified he offered employment to
Curtis Webb but Webb did not return Webb however
testified that no one from either Blackberry Creek
Trucking or Mate Creek Trucking contacted him about
returning to work Instead he said he asked Joby Fields
for work in late December 1985 or early 1986 Fields
told him he was no longer in the trucking business
Webb said he then asked Foreman Copley for work and
he now drives a truck for Joby Fields
Conclusion
It is unequivocally clear from the evidence that al
though Fields testified he offered employment to Har
desty Hayes and Webb only Hayes did not deny that
Fields made such an offer Both Hardesty and Webb of
firmatively or impliedly denied Fields offered them em
ployment but stated they requested employment and
were hired More significantly however all the drivers
to whom Manager Copley testified he offe' 'ed employ
ment denied Copley or anyone from Blackberry Creek
Trucking or Mate Creek Trucking offered them employ
ment even though some of them requested employment
and were eventually hired by Mate Creek Trucking
Some of them were hired as late as 2 to 7 months later
and others were never offered employment and are still
not employed by Mate Creek Trucking I was persuaded
not only by the demeanor of the driver witnesses as they
testified that they were testifying truthfully but also by
the precipitous shift of the trucking operation of Black
berry Creek Trucking to Mate Creek Trucking by
Fields and by the failure of either corporation to recall
the majority of drivers for work I was equally persuad
ed by the same circumstances and the demeanor of
Fields and Copley that they were not testifying truthful
ly
Moreover it is readily noted that Mate Creek Truck
ing hired 15 new drivers within a short period of time
after it was notified by the Union that the striking driv
ers offered to return to work The new drivers and the
479
few former drivers of Blackberry Creek Trucking now
constitute Mate Creek Trucking s driver complement of
15 I therefore credit the driver witnesses and discredit
the testimony of Fields and Manager Copley that Mate
Creek Development-Mate Creek Trucking offered em
ployment to any of the Blackberry Creek Trucking dnv
ers although it hired some drivers who requested work
Consequently I conclude and find on the credited testi
mony that neither Blackberry Creek Trucking nor Mate
Creek Trucking recalled or offered employment to any
of the 15 alleged discnminatee drivers after the strike
ended on 23 December 1985
The Supreme Court has held that failure or refusal to
reinstate economic strikers if not immediately on apple
cation for reinstatement at least at a later point when va
cancies occur has an adverse impact on rights of em
ployees and that strikers who have made an uncondi
tional offer to return to work retain their position as em
ployees entitled to reinstatement in the absence of an
employer s substantial justification This is true regardless
of whether union animus exists Laidlaw Corp 171
NLRB 1366 1369-1370 (1968 ) In Denzil & Alkire 259
NLRB 1323 1326 ( 1982) the Board held that an alter
ego of a struck employer has the same obligation to rein
state strikers as the struck employer would have
In the instant case the uncontroverted evidence of
record shows that during the first quarter of 1986 three
truckdrivers of Blackberry Creek Trucking returned to
work at Mate Creek Trucking However the record
shows that between the end of the strike when the strik
ers unconditionally offered to return to work on 23 De
cember 1985 and the hiring of Hardesty Hayes and
Starr Respondent Mate Creek Trucking had hired five
drivers who were not previously employed by Blackber
ry Creek Trucking before 23 December 1985 Other
strike drivers either returned to work several months
later or not at all Neither of the Respondents maintain
that it ever formerly recalled any of the strike drivers
and each admitted it did not offer employment to any of
the strike drivers according to seniority as vacancies for
employment occurred In fact Joby Fields of Mate
Creek Trucking impliedly acknowledged he did not
think he had an obligation to recall the strike drivers
Based on the foregoing evidence and cited legal au
thonty I find that Respondent Mate Creek Trucking
was under a duty to recall the striking Blackberry Creek
Trucking drivers on their unconditional offer to return to
work 23 December 1985 Having failed to do so Mate
Creek Trucking violated the recall rights of all the al
leged discriminatee striking Blackberry Creek Trucking
drivers I further find that even the recall rights of driv
ers who returned to work after the strike were violated
by Mate Creek Trucking because it admittedly hired
them as new employees under a different pay arrange
ment and in derogation of their recall rights Laidlaw
Corp supra
Additionally the drivers who abandoned the strike
before it ended and were rehired by Mate Creek Truck
ing are among those drivers entitled to reinstatement
with backpay because they were hired under a different
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pay scale Woodlawn Hospital 233 NLRB 782 (1977) and
cases cited therein at 791
Issue 3 Whether the truckdrivers of Blackberry Creek
Trucking or Mate Creek Trucking were employees or in
dependent contractors as Respondent contends or im
plies
In NLRB v United Insurance Co 390 U S 254 (1968)
the Supreme Court held that an employer employee rela
tionship exists when the employer reserves the right to
control not only the result to be achieved but also the
means to be used in obtaining the result
Whether an employer reserves such rights is deter
mined by an analysis of the facts in each case Capital
Parcel Delivery Co 256 NLRB 302 303 (1981) An anal
ysis of the essentially uncontroverted evidence here has
established the following
Mate Creek Trucking contends or implies its truck
drivers are not its employees but are independent con
tractors because they are owner drivers However the
evidence shows that some dnvers do not own trucks
and that all trucks are owned by corporate entities in
stead of individuals Some company truck owners drive
their trucks and some do not There are no written con
tracts between Mate Creek Trucking and its dnvers
Mate Creek Trucking s disciplinary rules prohibit
a Drivers from speeding or passing anytime
anywhere
b Using profane language on C B s
c Loading more than 12 inches on a bed truck
d Talking on the scalehouse phone
e Speed in excess of 15 miles per hour on
Sprouse Creek Property
f Speed in excess of 25 miles per hour on public
highways between 7 30 and 8 30 a in and 3 30 and 4
pm
Violation of any of the above rules will result in a 3
day suspension and/or termination
Drivers are also not allowed to swap hauls and the
written rules specifically state Changing Trucks on a
Random Basis is Strictly Prohibited -and- Changing
Shifts on a Random Basis is Strictly Forbidden Drivers
are also directed to start and end work at designated
times to drive only trucks assigned to them and to drive
from only assigned locations
Compensation
Mate Creek Trucking issues two types of checks for
hauling work
Check #1 to
Corporate entity which owns trucks are compen
sated on a tonnage basis The corporate truck
owner receives a check for the drivers pay includ
ing the cost of unemployment taxes workmens
compensation health insurance matching social se
cunty and group insurance which Respondent con
tends for convenience are deducted by Mate Creek
Trucking and paid to the respective agency or com
pany Truck owners do not negotiate the pay with
the driver nor do they give dnvers work and safety
rules
Check #2 to
Individual drivers based on number of loads
hauled whether or not the driver has ownerhip in
terests in the corporate entity owner Drivers with
ownership interests can elect to receive $8 a load
or like dnvers with no ownership interest earn a
higher figure for dnvers Social security state and
federal taxes are deducted by Mate Creek Trucking
and paid to the respective agencies or companies
Drivers with no truck ownership interests file applica
tions for employment with Mate Creek Trucking which
checks the drivers references If such driver applicant
completes a W 2 form and the physical examination he
is assigned a truck number by Mate Creek Trucking All
trucks are inspected every 3 months by Mate Creek
Trucking s supervisor Tom Copley
Joby testified that Mate Creek Trucking s drivers who
drive Blackberry Creek trucks are Mate Creek Trucking
employees Both individual drivers and drivers with
ownership interests complete a W 2 form which desig
nates Mate Creek Trucking as employer but the forms
reflect only the drivers pay
Both individual drivers and drivers with ownership in
terests are required by Mate Creek Trucking to take
physical examinations which includes a drug test the re
suits of which the drivers are not informed if hired
Respondents appear to be arguing that the drivers of
Blackberry Creek Trucking were not employees al
though Respondent admits Blackberry Creek Trucking
signed the UMWA contract on behalf of its drivers and
had been negotiating over terms and conditions of those
drivers at the time of the strike Such evidence clearly
indicates that the drivers of Blackberry Creek Trucking
were employees rather than independent contractors
Blackberry Creek Trucking had work rules similar to the
rules of Mate Creek Trucking
Conclusion
It is clear from the foregoing evidence that Respond
ent Mate Creek Trucking not only reserved the right to
control the coal delivery results of the hauling operation
but the many directives regarding the time to start and
end work the truck speed of the drivers language used
by drivers on CBs its inspection of the operating condi
tion of trucks its retention and processing of drivers
fringe benefits e g health insurance its disciplinary
action (suspension and layoff) of dnvers for noncompli
ance with work and safety rules promulgated and issued
by it its required physical examination and concern with
driver sensonun before approving them to drive and its
negotiation with the Union regarding the truckdrivers
all clearly demonstrate that both Respondents also re
served and exercised substantial control over the manner
and means by which their hauling operation was accom
plished Under these uncontroverted circumstances I
find that the truckdrivers of Respondent Mate Creek
Trucking were employees of Mate Creek Trucking and
BLACKBERRY CREEK TRUCKING 481
not independent contractors NLRB v United Insurance
Co supra Operating Engineers Local 701 276 NLRB
597 601 (1985) and Perrysville Coal Co 264 NLRB 380
(1982)
Issue 4 Whether Respondents unilaterally transferred
work from Blackberry Creek Trucking (which recog
nized the Union) to Mate Creek Trucking (which does
not recognize the Union) in violation of Section 8(a)(5)
of the Act
The Board has repeatedly held that withdrawal of rec
ognition by a newly established company of what has
been determined to be a single interrelated enterprise
constitutes a violation of Section 8(a)(5) of the Act Mar
Kay Cartage 277 NLRB 1335 (1985) Apex Decorating
Co 275 NLRB 1459 (1985) Advance Electric 268 NLRB
1001 (1984) and Weldment Corp 275 NLRB 1432
(1985)
Because Mate Creek Trucking has been previously de
termined to be a disguised continuance of Blackberry
Creek Trucking I find that Mate Creek Trucking is ob
ligated to continue to recognize and bargain with the
Union as the bargaining agent of its employees and to
apply to those employees the necessary consequence of
such recognition Allcoast Transfer 271 NLRB 1374
(1984)
Because Respondent Blackberry Creek Trucking uni
laterally transferred its trucking operation to Mate Creek
Trucking without notifying or bargaining with the
Union I further find that such transfer was a change in
the terms and conditions of employment of the unit em
ployees which is a mandatory subject of bargaining and
therefore violative of Section 8(a)(5) of the Act Dahl
Fish Co 279 NLRB 1084 fn 3 (1986) Additionally I
find that the transfer of the trucking operation also con
stituted a withdrawal of recognition of the employees
representation rights in violation of Section 8(a)(5) of
the Act Dahl Fish Co supra McAllister Bros supra
Outreach Marine Corp supra
Counsel for Respondents continues to argue with em
phasis that Respondents requested a successor agreement
on several bargaining occasions but the Union rejected
their requests The evidence does not show that Re
spondent offered any plausible alternatives to a successor
agreement Nor did they furnish any detailed explanation
of a business justification for transferring their trucking
operation prior to doing so Both the negotiation of a
contract (concerning hours wages and working condi
tions) as well as the transfer of their trucking operation
were bargainable subjects As such Respondents were
obligated to enter the negotiations with an open mind
As the Board held in Iron Workers Local 103 190 NLRB
741 742 (1971) Respondent Union [had a] fixed inflexi
ble position and was rigidly unwilling to consider sen
ously any possible alternatives and that such an attitude
is clearly contrary to the duty to bargain in good faith
and is thus unlawful also Iron Workers Local 103 195
NLRB 980 (1972)
Here the Respondents do not contend and the evi
dence has not established that Respondents bargained to
impasse in contract negotiations with the Union
Although the complaint does not specifically allege
that Respondents failed and refused to bargain with the
Union the evidence adduced by litigation at the hearing
established that Blackberry Creek Trucking still recog
nized the Union and was attempting to negotiate an
agreement with the Union during the strike and that
notwithstanding Blackberry Creek Trucking transferred
its trucking operation to Mate Creek Trucking that the
transfer was made by Blackberry Creek without notify
ing the Union and affording it an opportunity to bargain
on the transfer and that although Mate Creek Trucking
met in negotiation meetings with the Union in March
1986 it did not bargain with the Union but instead in
formed the Union that it had sold its trucks Under these
circumstances I find that Respondents unilateral transfer
of its trucking operation constituted a failure and refusal
to bargain with employees representative (the Union) in
violation of Section 8(a)(5) of the Act Vulcan Hart
Corp 248 NLRB 1197 (1980) Baughman Co 248
NLRB 1346 fn 2 (1980) AMC Air Conditioning Co 232
NLRB 283 285-286 (1977)
Although on 12 February 28 March and 2 June 1986
the Union requested relevant information from Respond
ents Respondents nevertheless failed to timely furnish
the requested information Having failed to furnish the
information I find that such failure constitutes a failure
and refusal to bargain in good faith in violation of Sec
tion 8(a)(1) and (5) of the Act NLRB v Acme Industrial
C o 385 U S 432 438 (1967)
IV THE REMEDY
Having found that Respondents have engaged in cer
tarn unfair labor practices I will recommend that it be
ordered to cease and desist therefrom and that it take
certain affirmative action designed to effectuate the poli
cies of the Act
Having found that as a single employer Respondents
unilaterally changed the terms and conditions of employ
ment of unit employees by transferring their work Re
spondents have discriminated against their employees in
violation of Section 8(a)(1) and (3) of the Act that by
requiring employees who desired to work to work with
out representation Respondents discriminated against
such employees in violation of Section 8(a)(1) and (3) of
the Act that by failing refusing or delaying the recall
or reinstatement of their striking employees according to
seniority after they unconditionally offered to return to
work Respondents discriminated against such employees
in violation of Section 8(a)(1) (3) and (5) of the Act
that by unilaterally transferring the work of unit employ
ees the Respondents have both failed and refused to bar
gain with the Union and that it withdrew recognition of
the Union in violation of Section 8(a)(1) and (5) of the
Act the recommended Order will provide that Respond
ents cease and desist from engaging in such unlawful
conduct that they be ordered to recognize and on re
quest bargain in good faith with the Union as the exclu
sive collective bargaining representative of the employ
ees in the appropriate unit that it make whole the strik
ing employees who unconditionally offered to return to
work for any loss of earnings they may have suffered by
reason of Respondents discrimination against them in
accord with the Boards decision in F W Woolworth
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Co 90 NLRB 289 (1950) New Horizons for the Retarded
283 NLRB 1173 (1987) 2 except as specifically modified
by the wording of such recommended Order
On the basis of the above findings of fact and the
entire record in this case I make the following
CONCLUSIONS OF LAW
1 By unilaterally transferring its trucking operations
without notifying or affording the Union an opportunity
to bargain Respondents have failed and refused to bar
gain with the authorized representative of its unit em
ployees and at the same time withdrew recognition of
the Union in violation of Section 8(a)(1) and (5) of the
Act
2 By requiring employees who desired work with Re
spondents to work without union representation Re
spondents have discriminated against such employees in
violation of Section 8(a)(1) and (3) of the Act
3 By failing and refusing or delaying the recall or re
instatement of striking employees after they uncondition
ally offered to return to work Respondents discriminat
ed against such employees in violation of Section
8(a)(1) (3) and (5) of the Act
4 By failing and refusing on about 12 February 28
March and 2 June 1986 respectively and at all times
thereafter to recognize and furnish information request
ed by the Union Respondents violated Section 8(a)(1)
and (5) of the Act
5 All the below described employees employed by
Mate Creek Trucking on 23 December 1985 constitute
an appropriate unit for purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All employees employed by Blackberry Creek
Trucking and Mate Creek Trucking engaged in the
production of coal including removal of overbur
den and coal waste preparation processing and
cleaning of coal and transportation of coal (except
by waterway or rail not owned by [Respondents]
repair and maintenance work normally performed at
the facilities of the [Respondents] and maintenance
of gob piles and mine roads and work customarily
related to all of the above
ORDER
The Respondents Blackberry Creek Trucking Inc
and Mate Creek Trucking Inc Matewan West Virgin
is their officers agents successors and assigns shall
I Cease and desist from
(a) Unilaterally transferring their trucking operation
without notifying or affording the Union an opportunity
to bargain over such transfer
(b) Withdrawing recognition of the Union by unilater
ally transferring their trucking operation
(c) Requiring employees who desire work with Re
spondents to work without union representation
(d) Failing and refusing or delaying the recall or rein
statement of striking employees after they have uncondi
tionally offered to return to work
(e) Failing and refusing to furnish information request
ed by the Union
(f) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Recognize and on request bargain collectively in
good faith with United Mine Workers of America as the
exclusive collective bargaining representative of all the
employees in the appropriate unit of Blackberry Creek
Trucking and Mate Creek Trucking
(b) Recall and offer to reinstate all striking employees
including the employees named below who uncondition
ally offered to return to work 23 December 1985 in ac
cordance with the seniority order in which they would
have been recalled for an available vacancy to their
former position or a substantially equivalent one without
prejudice to their seniority or other rights and pri% ileges
Russell E Hardesty
George B Hayes
Belvin Huddle
Ricky Justice
Howard D Lockhart
Sidney L Plaster
Claude E Starr
Ronald C Webb
6 At all times material United Mine Workers of
America has been the exclusive collective bargaining
representative of the employees in the above described
appropriate unit within the meaning of Section 9(a) of
the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed3
2 See generally Isis Plumbing Co 138 NLRB 716 (1962)
3 If no exceptions are filed as provided by Sec 10 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
Bryan A Hatfield
Herbert Hayes
David L Justice
Everett E Kinder
Larry Mounts
Larry Smith
Freddie D Taylor
(c) Make whole all employees who unconditionally of
fered to return to work on 23 December 1985 and were
not called in accordance with their seniority as they
would have been called on an available vacancy with in
terest
(d) Recognize and furnish the Union with the Informs
tion it requested
(e) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(f) Post at Respondents Mate Creek Trucking Inc
and Blackberry Creek Trucking Inc at P O Box 570
Matewan West Virginia the attached notice marked
BLACKBERRY CREEK TRUCKING
Appendix 4 Copies of the notice on forms provided
by the Regional Director for Region 9 after being
signed by the Respondents authorized representative
shall be posted by the Respondent immediately on re
ceipt and maintained for 60 consecutive days in conspic
uous places including all places where notices to employ
ees are customarily posted Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered defaced or covered by any other material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
4 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees the following
rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT fail and refuse to bargain in good faith
with the Union by engaging in the following conduct
(a) Unilaterally transferring our trucking operation
without notifying the Union and giving it an opportunity
to bargain on our decision to tiansfer
(b) Withdrawing recognition of the Union by unilater
ally transferring our trucking operations without notify
ing and affording the Union an opportunity to bargain on
our decision to transfer
(c) Failing and refusing to furnish information request
ed by the Union
483
WE WILL NOT discriminate against the conditions and
tenure of employment of our striking driver employees
by failing refusing or delaying the recall or reinstate
ment of them after they have unconditionally offered to
return to work
WE WILL recall or offer immediate reinstatement to
striking employees including all the following named
striking truckdrivers who unconditionally offered to
return to work on 23 December 1985 without prejudice
to their seniority or other rights previously enjoyed and
make them whole for any loss of earning suffered by the
discrimination against them with interest
Russell E Hardesty
George B Hayes
Belvin Huddle
Ricky Justice
Howard D Lockhart
Sidney L Plaster
Claude E Starr
Ronald C Webb
Bryan A Hatfield
Herbert Hays
David L Justice
Everett E Kinder
Larry Mounts
Larry Smith
Freddie D Taylor
WE WILL recognize and on request bargain with the
Union on our decision to transfer our trucking operation
WE WILL recognize and on request bargain with the
United Mine Workers of America as the exclusive col
lective bargaining representative of the employees in the
appropriate unit described below
All employees employed by Blackberry Creek
Trucking and Mate Creek Trucking engaged in the
production of coal including removal of overbur
den and coal waste preparation processing and
cleaning of coal and transportation of coal (except
by waterway or rail not owned by [Respondent]
repair and maintenance work normally performed at
the facilities of the [Respondent] and maintenance
of gob piles and mine roads and work customarily
related to all of the above
WE WILL recognize and on request furnish the Union
with the information it requested
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
All our employees are free to become remain or
refuse to become or remain members of United Mine
Workers of America or any other labor organization
BLACKBERRY CREEK TRUCKING INC AND
MATE CREEK TRUCKING INC