General Drivers and Helpers Un., Loc. No. 749

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1330 (N.L.R.B. 1975)

1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Drivers and Helpers Union , Local No. 749,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and Transport, Inc. Cases 18-CC-530
and 18-CC-536
June 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
1975, in Minneapolis, Minnesota. Unfair labor practice
charges in the respective cases were filed on October 25,
1974, and on November 13, 1974. General Counsel issued a
consolidated complaint on December 20, 1974. Respon-
dent's answer to the complaint is dated January 3, 1975.
Following the, close of the hearing in which all parties
participated, General Counsel and Respondent submitted
written briefs which were received on February 18, 1975.
Upon the entire record in this proceeding, upon my
observation of the witnesses, and after careful considera-
tion of the briefs, I make the following:
FINDINGS AND CONCLUSIONS
On March 31, 1975, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, General Drivers and
Helpers Union, Local No. 749, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Sioux Falls,
South Dakota, its officers, agents, and representa-
tives, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: The
ultimate question to be decided in this proceeding is
whether Respondent violated Section 8(b)(4)(i) and (ii)(B)
of the National Labor Relations Act, as amended, by
certain picketing activities directed against Transport, Inc.,
which was allegedly a neutral in a labor dispute between
Respondent and Transport, Inc., of South Dakota. The
only disputed issue , to which the hearing was addressed, is
whether Transport, Inc., herein called Transport, and
Transport Inc. of South Dakota, herein called TISD, are so
closely allied or interrelated as to strip Transport of
statutory protection against extension of Respondent's
primary dispute with TISD.
Hearing in the above-entitled consolidated proceeding
was conducted before me on January 14, 15, 16, and 17,
218 NLRB No. 203
1. JURISDICTION
Transport is a Minnesota corporation with its principal
place of business at Moorhead, Minnesota, and is engaged
as a motor common carrier in the interstate and intrastate
transportation of petroleum and related products. Its
annual revenue from its interstate operations is in excess of
$50,000 and it annually purchases goods, valued in excess
of $50,000, which are shipped to it in Minnesota directly
from points outside Minnesota.
TISD is a South Dakota corporation with offices and
principal place of business in Sioux Falls, South Dakota,
and is also engaged in the interstate and intrastate
transportation of petroleum and related products. TISD
derives annual revenues in excess of $50,000 from its
interstate operations and annually purchases goods, valued
in excess of $50,000, which are shipped to its South Dakota
facilities directly from points outside South Dakota.
Upon the facts alleged in the complaint and not
challenged by Respondent, I find that Transport and
TISD, respectively, are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
I find further on the allegations of the complaint,
likewise unchallenged by Respondent, that Respondent is
a labor organization within the meaning of Section 2(5) of
the Act.
Accordingly, I find that the assertion of jurisdiction in
this matter is warranted.
II. THE UNFAIR LABOR PRACTICE
A. Preliminary Statement
As noted, the consolidated complaint in this proceeding
alleges that Respondent violated Section 8(b)(4Xi) and
(ii)(B) of the Act by certain picketing activities directed
against Transport. With specific reference to the unfair
labor practice allegations, the complaint asserts that
Respondent has a current labor dispute with TISD but has
no current labor dispute with Transport. The complaint
further asserts that on various occasions beginning late in
October 1974 and for a considerable period thereafter,
Respondent picketed various facilities of Transport in
Minnesota and North Dakota and during this period also
picketed vehicles owned and/or operated by Transport at a
facility of Standard Oil Company in Sioux Falls, South
Dakota. Additional complaint allegations averred that the
picket signs utilized on those occasions by Respondent
indicated that its dispute was with TISD and that no
GENERAL DRIVERS AND HELPERS UN., LOC. NO. 749 1331
employees of TISD were present on these occasions.
Finally, the complaint alleged that objects of Respondent's
conduct in this regard were to force and require Transport
to cease doing business with its customers and suppliers
and to force or require customers, suppliers, and other
neutral persons to cease doing business with Transport.
Accordingly, the complaint concluded, Respondent violat-
ed Section 8(b)(4)(i) and (ii)(B) of the Act.
The sole factual averment of the complaint which
Respondent denied in its answer to the complaint was the
allegation that it had no labor dispute with Transport.
Apart from that, it challenged only "the legal conclusions"
constituting the gravamen of the alleged unfair labor
practice. Respondent did, however, set forth an affirmative
defense in its answer, alleging, in substance, that because
of common ownership, control, and other considerations
enumerated therein Transport is not a "neutral" with
respect to the labor dispute between Respondent and TISD
and is not immunized as a "secondary" employer from the
effects of that dispute.
The issue presented was further crystallized at the
opening of the instant hearing. Respondent adhered to its
denial that it had no labor dispute with Transport.
However, Respondent stated on the record that "for
purposes of these proceedings, and these proceedings
only," it was not denying the jurisdictional allegations of
the complaint or that "there was picketing of the type that
is described in the Complaint." All parties orally agreed on
the record that " the sole issue" to be resolved was whether
Transport and TISD are "allied employers so that the
dispute which is primarily between Respondent, Local No.
749, and Transport Inc. of South Dakota might be
expanded to Transport, Inc." Respondent's defense to the
alleged unfair labor practice is that such a relationship
between Transport and TISD does exist and, hence, that its
conduct is not subject to the statutory prohibition.
The relevant evidence and legal considerations are set
forth hereunder.
B. The Evidence
1. Ownership and corporate structure of
Transport and TISD
Transport is a Minnesota corporation. Roger O. Pitsen-
barger is president, Ronald B. Pitsenbarger is vice
president, and M. B. Vanderlinden is secretary-treasurer.
Roger O. Pitsenbarger owns 3,000 of the 3,002 shares
which Transport has outstanding. Ronald P. Pitsenbarger
and Vanderlinden own one share each.
TISD is a South Dakota corporation. Roger O. Pitsen-
barger is president, Ronald B. Pitsenbarger is vice
president, and Ernest Sifrar is secretary-treasurer. TISD
has two classes of stock outstanding. Of the 50 shares of
Class A or voting stock, Roger O. Pitsenbarger owns 39
shares, Ronald B. Pitsenbarger owns 7 shares, and Ernest
Sifrar owns the remaining 4 shares. Of the 200 shares of
Class B, equity or nonvoting stock, Roger O. Pitsenbarger
owns 124 shares, Ronald B. Pitsenbarger owns none, and
Ernest Sifrar owns 76 shares.
By dint of his position as majority stockholder of both
Transport and TISD, Roger O. Pitsenbarger can, of course,
to the extent he wishes to do so, exercise control over all
facets of each of the enterprises.
2. Corporate relationships of Transport and TISD
Regor, Inc., which had absorbed an earlier corporation
known as Nokken & Ryan Motors, is a corporate facility
of which Roger O. Pitsenbarger is essentially the sole
owner. Regor, Inc., leases terminals and trucking equip-
ment to Transport and also performs management services
for Transport pursuant to a written contract. Regor, Inc.,
derives the bulk of its revenue from Transport; it performs
no services for TISD.
Interstate Trucking Company is a corporation with the
same ownership as TISD and was created to hold interstate
operating authority for TISD. Interstate Trucking Compa-
ny also leases hauling equipment to TISD and TISD pays
Interstate Trucking Company for the equipment furnished.
Lloyd Ward, Incorporated, is another enterprise which
leases tractors to TISD and a now defunct company, A-l,
also apparently did business with TISD. TISD has a
financial interest in Lloyd Ward, Incorporated and may
have had such an interest in A-1.
3. ICC report
Transport, as an interstate common carver , files annual
reports with the Interstate Commerce Commission setting
forth a detailed summary of its operations. In its 1973
annual report Transport listed TISD as an affiliate.
4. Organizational and physical facilities of
Transport and TISD
Roger O. Pitsenbarger, in addition to being president
and virtually sole owner of Transport, is also its general
manager and runs that enterprise. In addition to certain
interstate hauling authorities granted it by the Interstate
Commerce Commission, Transport also has intrastate
hauling authorities in Minnesota and North Dakota
granted it by the respective regulatory commissions in
those States.' For this purpose Transport has its main
office and terminal in Moorhead, Minnesota, and operates
terminals in Esko, Minnesota, and in Grand Forks,
Jamestown, Mandan, and Minden, North Dakota. Its
employee complement at these locations varies between
125 and 200 persons.
TISD was not incorporated until 1952, some 7 years after
Transport came into being under its former name, Super
Transport, Inc. TISD was formed by Roger O. Pitsenbar-
ger, Ernest Sifrar, and Willis Couch. Transport transferred
certain of its intrastate operating authorities to TISD as did
Willis Couch who at that time operated a transportation
company based in Yankton, South Dakota. In addition,
Roger O. Pitsenbarger and Willis Couch funded TISD with
$5100 each and Ernest Sifrar put up $4800. Sifrar, who had
had extensive experience in the hauling business and who
initiated the idea of forming TISD, was made general
1 The term "authorities" has reference to certificates granted by the
Interstate Commerce Commission or by the state commissions to haul
certain products between certain geographical points.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager of TISD and was given full and unrestricted
authority to operate and run TISD.
TISD, in addition, to its main office and terminal
facilities in Sioux Falls, South Dakota, also operates
terminal facilities at Watertown, Aberdeen, and Mitchell,
South Dakota. A smaller operation than Transport, TISD
has an employee complement consisting of about 15 to 20
drivers and 25 to 30 owner-operators.
Ronald B. Pitsenbarger, an attorney, is vice president of
both Transport and TISD. He maintains his offices at
Transport's Moorhead, Minnesota, facilities. So far as
TISD is concerned, the sole function which Ronald B.
Pitsenbarger performs is that of legal representation before
regulatory commissions in matters relating to hauling
authorities and the relevant tariffs or charges for such
services. By virtue of his vice presidency in TISD, Ronald
B. Pitsenbarger, a member of the Minnesota bar, is
qualified to represent TISD before South Dakota authori-
ties without being a member of the South Dakota bar. He
draws no compensation from TISD for being vice
president, receives no dividends from his TISD stock and
has no office facilities at TISD. The legal services he
renders for TISD are billed to TISD on the same basis as
the billing he submits to other motor carriers whom he
represents for legal purposes.
At the time of the instant hearing, Transport's operations
were conducted in a three-state area consisting of North
Dakota, Minnesota, and Wisconsin. Operations Transport
formerly conducted in South Dakota were turned over to
TISD. Together with the South Dakota intrastate hauling
rights turned over by Willis Couch, TISD's operations were
essentially confined to South Dakota. TISD does have
some interstate authorities but there is no overlapping with
interstate authorities held by Transport.
5. Corporate operations of Transport and TISD
Just as the operating authorities of Transport and TISD,
both interstate and intrastate, are separate, so too are their
respective facilities, equipment, and method of operation.
Transport uses only International Harvester or Diamond
Reo tractors; TISD uses a number of tractor models. To
the extent that hauling equipment requires painting,
however, both enterprises use the same color, "Apache
Yellow," on which their respective company names are
affixed. Transport generally finances its purchases of
equipment through the equipment manufacturer whereas
TISD usually obtains such financing from local banking
sources. TISD, as noted, utilizes the services of 25 to 30
owner-operators; Transport, a larger operation, uses only
four or five owner-operators. There is no interchange of
employees between the two enterprises although an
occasional individual may at some point in time be on the
payroll of one company and at another point in time
appears on the payroll of the other. TISD has purchased
several used trailers from Transport over the past 6 years.
However, these purchases represent only a small portion of
TISD's purchases of used equipment and, in turn only a
small portion of Transport's sales of such equipment to
various carriers.
Transport uses an IBM computer to handle its account-
mg. TISD finds manual bookkeeping adequate for its
purposes. Transport and TISD separately file any state or
Federal reports required of them. None of these reports is
filed jointly; Ernest Sifrar independently arranges for the
rates or tariffs charged by TISD. Transport and other
interested parties learn of these rates or tariffs only after
the figures are published and distributed in the normal
course of business. TISD compiles and maintains its
business books and records at its own facilities. Neither
Roger O. Pitsenbarger nor any of Transport's personnel
ever examines any of these books and records. The only
financial data furnished to Roger O. Pitsenbarger by TISD
is its annual profit-and-loss statement.
The record shows no instance where Roger O. Pitsenbar-
ger or Transport ever interfered with Sifrar's management
of TISD or countermanded any decision of the latter in
that regard.2 In 1954 Roger O. Pitsenbarger, along with
Sifrar, was given the authority to borrow money from a
Sioux Falls Bank on behalf of TISD and to pledge its
credit. However, that authority, although unrevoked, has
been unused since 1954 and, on the basis of the credited
testimony of a bank official, would now be regarded as
"stale" and subject to verification if sought to be used. The
fact is that Ernest Sifrar alone pledges the credit of TISD
which is now regarded as a responsible borrower on its
own record without benefit of cosigners. Sifrar also signs
all checks for TISD and is the only person authorized to do
so. Similarly, Sifrar makes the decisions for TISD as to the
purchase, sale, or lease of equipment.
6. Labor relations of TISD
Neither Roger O. Pitsenbarger nor any official of
Transport plays any role in setting the terms and
conditions of employment at TISD. Ernest Sifrar sets those
terms and conditions. Indeed, Sifrar sets the salary of
Roger O. Pitsenbarger as TISD president with no consulta-
tion in that regard with the latter. In 1972 TISD held
numerous contract negotiations with Respondent. All
TISD decisions with respect to the course and content of
these bargaining sessions were made by Ernest Sifrar who
did not consult with Roger O. Pitsenbarger or any other
official of Transport with respect to those decisions.
Similarly, Sifrar exercised unfettered control over the
course of an earlier unfair labor practice proceeding
against TISD initiated by Respondent. That matter was
processed before the Board, TISD perfected an appeal
before the court and, following enforcement of the Board
order in 1971, made a backpay settlement in the amount of
$26,000. Sifrar made all the determinations as to the
litigational steps and made the decision to settle the
backpay claim, all without prior consultation with Roger
0. Pitsenbarger or any Transport official.
2 Attempted interference by Couch interests early in the history of TISD
was eliminated when the Couch share of TISD was sold to Roger 0
'Prtsenbarger.
GENERAL DRIVERS AND HELPERS UN., LOC. NO. 749 1333
7. Evidence proffered to show relationship
between Transport and TISD
Respondent proffered evidence to show a closer relation-
ship between Transport and TISD than would appear from
the foregoing recital. Thus, the record shows that Roger O.
Pitsenbarger, as president of TISD drew an annual salary
from TISD ranging from $23,900 in 1969 to $40,000 m
1974. As noted, however, that salary was set by Ernest
Sifrar independently and, as further noted, Roger O.
Pitsenbarger initially contributed both operating authori-
ties and a substantial financial contribution to enable the
formation of TISD in the first instance. Early in the history
of TISD, Roger O. Pitsenbarger also took over the share of
TISD formerly held by Willis Couch.
Evidence was also adduced as to three named employees
of TISD, two of whom, Sifrar admitted, had previously
worked for Transport - Sifrar could not remember
whether or not the third named employee had previously
worked for Transport. Of the two Sifrar did remember, one
had been discharged by Transport and was later dis-
charged by TISD. No other instances were cited where
TISD had placed former employees of Transport on its
regular payroll.
Considerable evidence was presented relating to leased
hauling arrangements between Transport and TISD.
Leased hauling arrangements arse quite frequently in the
motor carrier industry when the carrier holding the
authority to make the particular haul does not have the
equipment or has inadequate equipment to do the job
required. In such situations the carrier holding the
authority contracts with a second carrier which makes the
"leased" haul under the authority held by the first carrier.
The percentage of the total tariff or charge for the haul
kept by the leasing carrier as opposed to the percentage
kept by the carrier doing the actual hauling varies and is
negotiated by the contracting carriers, the major percent-
age going, of course, to the carrier actually doing the
hauling.
Transport uses several leased haulers including TISD.
When TISD is used, TISD retains 92 percent of the tariff.
Jacobson Transport, also used by Transport, retains 93
percent of the tariff. Matich Brothers, when it hauls for
Transport retains 90 percent. Clanmont and Englund use
Transport trailers when they do their leased hauling and,
consequently, retain only 70 percent of the tariff. The
billing to the customer for whom the haul is made is
rendered by the carrier holding the operating authority.
TISD has never contracted any of its hauling to
Transport. However, as noted, TISD has performed leased
hauling services for Transport as have other carriers. TISD
also performs leased hauling services for other carriers.
Much of the leased hauling services TISD has performed
for Transport consists of hauling jet fuel from Sioux Falls,
South Dakota, to an air base in Grand Forks, North
Dakota, a major hauling operation which Transport was
unable to handle fully with its own equipment and drivers.
For obvious reasons carriers will not generally contract out
hauls with a consequent diminution of revenue if they can
handle the work with their own equipment and personnel.
The record manifests, however, that the total amount of
leased hauling done by TISD for Transport is not
significant when compared to the amount of leased hauling
done for Transport by other carriers. A brief table
introduced into evidence and reproduced here gives the
breakdown.
Total Loads
Hauled by No . Hauled
Year Other Carriers By TISD
1974 2,043 13
1973 2, 680 172
1972 2,503 1
1971 2,784 19
1970 3,582 80
1969 3,243 17
Totals 16,835 302 3/
Less than 2 percent of Transport's total leased hauling was
done by TISD. An additional amount, again of insignifi-
cant proportion, was done by Thompson Brothers. Inas-
much as Thompson Brothers was already under contract to
do leased hauling for TISD, it proved convenient to have
this arrangement continue while Thompson Brothers
performed leased hauling for Transport, all of which
hauling was done for a single customer.
Frequent instances appear in the above-described
situations when TISD drivers sign trip leases on behalf of
Transport, Inc. This is generally attributable to the short
notice common to leased hauls and reflects a practice not
uncommon in the industry in leased hauling situations.
Other consequences follow in leased hauling situations
which again are not uncommon in the industry. Thus,
TISD trucks often obtain their fuel at Transport terminals
which then bill TISD for the fuel so obtained. The reverse
process occurs on occasion for reasons of convenience.
Thus, Transport vehicles will refuel at TISD facilities and
TISD then bills Transport. The common practice in such
refueling situations is that billing is done on an "at-cost"
basis. Another consequence flowing from leased hauling
situations is that under Interstate Commerce Commission
regulations, the carrier holding the operating authority
must have on its files the physical examination records for
leased haul drivers. To this end Transport has in its files
such records for all 25-30 TISD drivers. Transport also
must have such records for leased haul drivers from other
companies it uses in its operations. Thus, for example,
Transport maintains such records for drivers from Dan
Dugan, a competing enterprise which Transport utilizes for
leased hauling. Because the latter is a very large enterprise
and has a great many drivers, Transport does not maintain
physical examination records of all Dan Dugan drivers in
its files.
Respondent also points to evidence of common insur-
ance coverage for Transport and TISD employees. The
3 Throughout these several years the percentage of TISD's gross income derived from Transport ranged from 3 percent to 1.5 percent per year.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record in this regard shows that at the beginning of its
operations TISD had too few employees to qualify for
group health and accident coverage. Accordingly, Ernest
Sifrar, who had complete authority in this as in other
matters involving the operation of TISD, approached
Roger O. Pitsenbarger to see whether such coverage could
be obtained under insurance policies issued to Transport.
Such arrangements were made and TISD employees were
included under the same general insurance policies as
Transport employees but with different rates and benefit
levels. TISD paid the premiums for the portion of the
insurance which covered its employees. This arrangement
continued until the end of 1971. In 1972, Ernest Sifrar
switched the coverage of his employees in TISD to a
separate policy under Blue Cross/Blue Shield.
The only other factual matter of consequence in the
record relating to the nature of the relationship between
Transport and TISD has to do with the handling of labor
relations. As previously noted, Sifrar independently con-
trolled the terms and conditions of employment of the
employees in TISD, was in complete charge of handling
prior unfair labor practice proceedings brought against
TISD, and attended all bargaining sessions with Respon-
dent, making all the relevant decisions with respect to
TISD's conduct and strategy in those bargaining sessions.
The record discloses, however, that in 1968 Jack McIlven-
na (referred to in the record as Mcllvenney) a Teamsters
official, met with representatives of an employer associa-
tion in Fargo, North Dakota. Roger O. Pitsenbarger was
one of the employer representatives present. A strike by the
Teamsters was then in progress against TISD in an effort
to obtain recognition. TISD was not a member of the
employer association and was not represented at the
meeting in question . Ernest Sifrar was not present.
Nonetheless, a proposal was advanced to Roger O.
Pitsenbarger by McIlvenna for the settlement of the strike
against TISD. Roger O. Pitsenbarger called Sifrar and
thereafter indicated to Mcllvenna that a settlement was
feasible. However, this proposal later foundered and Roger
0. Pitsenbarger emphasized to Mcllvenna that he had no
authority to speak for TISD or Ernest Sifrar.
Ronald B. Pitsenbarger was also party to conversations
held in 1974 respecting bargaining negotiations between
Respondent and TISD. This series of conversations was
initiated by Clem Weber at meetings which Ronald B.
Pitsenbarger and Clem Weber attended in their respective
capacities as management and union representatives
involving Respondent, Transport, and other employers,
but not TISD. It is clear from Weber's testimony that he
understood any resolutions he reached respecting the
4 The foregoing subsections contain a summary of the significant factors
bearing on the relationship between Transport and TISD. Not discussed at
length herein or at all are other bits of evidence adduced during the 4-day
hearing conducted herein showing, for example , that Roger 0. Pitsenbarger
and Ernest Sifrar on occasion informed each other or consulted concerning
possible individual stock purchases , discussed purchases of real property or
availability of equipment , used similar lease forms or other forms in the
conduct of their business , or did each other business favors. None of this
occurred in a significant degree nor is much of it atypical of relationships
between admittedly independent entities operating in the same industry.
Moreover , the nature and quantum of the evidence herein referred is not of
such a character as would be dispositive of the question here presented or of
such a character as to alter the conclusion that would derive from the
differences between Respondent and TISD would have to
be acceptable to Ernest Sifrar. Indeed, Weber, after several
meetings with Ronald B. Pitsenbarger, doubted the latter's
authority to consummate an agreement. Ronald B.
Pitsenbarger, for his part, credibly testified, and I find, that
while he sought to contribute his efforts towards a
settlement, he was informed by Sifrar that he, Ronald
Pitsenbarger, had no authority to speak for TISD and was
finally told explicitly by Sifrar to cease his efforts. Ronald
B. Pitsenbarger further testified, and I find, that he
transmitted this information to Respondent and broke off
communications with Respondent.4
C. Analysis and Conclusionary Findings
General Counsel correctly argues, as a well-settled
proposition, that common ownership of separate corpora-
tions is not enough to establish an "ally" relationship and
that there must be, in addition, "actual or active common
control, as distinguished from merely potential control, to
establish an appreciable integration of operations and
management policies" (Brief, citing Drivers, Chauffeurs and
Helpers Local No. 639, IBCTWHA (Poole's Warehousing
Inc.), 158 NLRB 1281 (1966), and Miami Newspaper
Printing Pressmen's Local No. 46 [Knight Newspapers] v.
N.LRB., 322 F.2d 405 (C.A.D.C., 1963)). Indeed, as
General Counsel also notes, this requirement of actual
common control has even been extended to separate
divisions of the same corporation (citing Los Angeles
Newspaper Guild Local 69, et al. (Hearst Corporation), 185
NLRB 303 (1970), enfd. 443 F.2d 1173 (C.A. 9, 1971)).
Respondent does not really take issue with this legal
position. Indeed, in its brief, it cites the same cases cited in
General Counsel's brief. However, it also cites other Board
and court decisions in which the respective tribunals have
found that "separate legal entities occupying premises
some distance apart may be treated as one for purposes of
§ 8(b)(4) if certain standards of common ownership and
control are fulfilled." 5 This is, of course, true. But
Respondent here does no more than restate the issue
already presented; namely, whether on the evidence
presented in this case Transport and TISD are separate
legal entities.
On this record that issue is not difficult to resolve.
Admittedly Transport and TISD are commonly owned and
that ownership is vested essentially in one individual,
Roger O. Pitsenbarger. It follows, of course, from the fact
of his ownership, that Roger O. Pitsenbarger, as he
candidly admitted, had and has potential authority to settle
all matters relating to the operation of either enterprise
whether those matters are of purely business import or
factors set forth more fully in this decision.
S E.g., Milwaukee Plywood Company v. N.LR.B., 285 F.2d 325 (C.A 7,
1960); Tennessee Coal & Iron Division, 127 NLRB 823 (1960) (claim of an
"ally" relationship rejected), Irvin-Lyons Lumber Co, 87 NLRB 54 (1949),
NLRB. v Local810, Steel, Metals, Alloys, IBT [Sid Harvey, Inc.], 460 F 2d
I (C.A. 2, 1972), Local 24 International Brotherhood of Teamsters [A.C.E.
Transportation] v. NLRB, 266 F.2d 675 (C.A.D.C., 1959), Truck Drivers
v. Empire State Express, 293 F.2d 414 (C.A 5, 1961); and also Manley
Transfer Co. v. N.LR.B., 390 F .2d 777 (C A. 8, 1968). These decisions are
not inconsistent - and, indeed, Respondent does not so contend - with
the principles here set forth. They turn rather, as examination discloses, on
the application of the principles to the facts of the particular cases.
GENERAL DRIVERS AND HELPERS UN., LOC. NO. 749 1335
whether they have to do with labor relations. But that is
true in every situation where different enterprises are
commonly owned. Yet equally true, as Respondent
concedes, is the proposition that common ownership does
not in and of itself create an "ally" relationship. Hence,
Respondent is not aided when it stresses that the instant
situation is one where "common ownership is clearly
present and where, as here, the potential for control is
clearly admitted." The test is actual, not potential, control.
Viewed from this perspective the evidence in the instant
case abundantly establishes the conclusion that the actual
control over the operations of Transport and TISD,
respectively, was separate and not common. Day-to-day
management of Transport is exercised by Roger O.
Pitsenbarger with some aid from Ronald B. Pitsenbarger.
On the other hand, neither of these individuals or any other
Transport official has any voice in the day-to-day
operations of TISD. All the management authority with
respect to TISD is vested in Ernest Sifrar who is in
complete and unfettered control of that operation.
The evidence in that regard has already been summa-
rized and need not be recapitulated here. The short of the
matter is that Transport and TISD, though commonly
owned, are separate enterprises, not only physically
separate, but separate in all aspects of their business
relationships. Though engaged in the same industry, they
have different, and not overlapping, operating authorities,
different business records and different methods of
bookkeeping. Although in a few instances the same
employee may appear at different times on the payroll of
one or the other enterprise there is no interchange of
employees . In sum, in virtually every facet of their
respective operations, TISD and Transport are insulated
from one another.
To be sure, there are points of contact between the two
enterprises , a quite normal circumstance , particularly in
the motor carrier industry, when such enterprises are
engaged in the same business in the same general
geographical area. Again, recapitulation of that evidence,
already summarized is not required here. Thus, the fact
that TISD performed leased hauling for Transport is of
minor significance viewed in total context . TISD's work-
load and revenue in this regard are paltry compared with
its workload and revenue from other independent and
unrelated enterprises for whom it did the same kind of
work. And Transport, for its part, did not confine the
assignment of leased hauling work to TISD. Transport
utilized other motor carriers also for this purpose.
Similarly, little can be made of the fact that for a period of
time Sifrar, who at that time had only a handful of
employees, took advantage of the opportunity to obtain
insurance coverage under a blanket policy issued to
Transport. Even here the rates and benefits for the TISD
employees differed from the rates and benefits applicable
to Transport employees, TISD separately paid for its
prorata share of the premiums, and the arrangement was
terminated when, with an enlarged work force, Sifrar
found it feasible to get separate and independent insurance
coverage for the TISD work force.
Other points of contact between Transport and TISD
having to do with such matters as purchase of equipment
or parts, utilization of each other's facilities, occasional
consultative discussions between Sifrar and Roger O.
Pitsenbarger are set forth in the record and will not be
enlarged upon here. The salient fact is that nothing in these
points of relationship alters the basic fact that Sifrar, and
not Roger O. Pitsenbarger, was the one who made all the
critical and final determinations as to matters in which
TISD was involved. Moreover, as already noted, many of
the points of contact between Transport and TISD upon
which Respondent relies, were not atypical of relationships
quite common in the motor carrier industry between
concededly independent entities.
In short, exclusive control in all matters relating to the
operation of TISD lay with Ernest Sifrar, both as to purely
business decisions and as to labor relations. The fact that
Roger O. Pitsenbarger and Ronald B. Pitsenbarger were
importuned, or even volunteered, to help resolve labor
disputes between TISD and Respondent is of little
significance. The record is clear that the final word as to
TISD's position in this respect as in other respects was with
Sifrar and that Respondent's agents knew or soon were
made aware of that fact.
To repeat, the critical determinant in the issue here
presented is the actual control and management of the
enterprise or enterprises under consideration. Here there
can be no question, and I find, that TISD was separately
controlled and managed by Sifrar and that no "ally"
relationship, as urged by Respondent, existed between
TISD and Transport. The kind of countervailing consider-
ations urged by Respondent do not avail it. The Board and
the courts have discounted such considerations even when
they were of larger proportions than those presented here.
See Bachman Machine Company v. N.LRB., 266 F.2d 599
(C.A. 8, 1959) (dealing with purchases and sales of
material); Poole's Warehousing, Inc., 158 NLRB 1281
(1966) (use of common background and common station-
ery); Milo Express, Inc., 212 NLRB 313 (1974) (leased
hauling); American Federation of Television and Radio
Artists, 185 NLRB 593, 599 (1970) (use of common legal
counsel); Los Angeles Newspaper Guilty Local 69, 185
NLRB 303 (1970) (common insurance); Milo Express, Inc.,
supra (labor relations).
Inasmuch as Transport and TISD are, as herein found,
separate enterprises for purposes relevant here , it follows
that Respondent, by picketing the facilities of Transport, in
furtherance of its primary dispute with TISD, violated
Section 8(bX4)(i) and (iiXB) of the Act, I so find.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. Transport and TISD are employers engaged in
commerce or industries affecting commerce within the
meaning of Sections 2(2), (6), and (7) and 8(b)(4) of the
Act.
3. Transport is a neutral in the primary labor dispute
between Respondent and TISD.
4. By picketing the facilities of Transport, with which
Respondent had no labor dispute, Respondent in further-
ance of its primary dispute with TISD, has engaged in, and
has induced or encouraged individuals employed by
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transport to engage in, a strike or a refusal to perform
services , and has threatened , coerced and restrained
Transport, with an object in each case of forcing or
requiring Transport to cease doing business with its
customers and suppliers , and to force or require customers,
suppliers and other neutral persons to cease doing business
with Transport , and thereby has violated Section 8(b)(4)(i)
and (ii)(B) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
upon receipt thereof, and shall be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Sign and mail to the Regional Director for Region 18
sufficient copies of said notice, on forms provided by him,
for posting by Transport, Inc., if willing.
(c) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps have been
taken to comply herewith.
Having found that Respondent has violated Section
8(b)(4)(i) and (ii)(B) of the Act, I shall recommend the
customary cease-and-desist order and the usual affirmative
relief ordered in cases of this nature, including posting of
notices and reporting requirements.
Upon the basis of the foregoing findings of fact and
conclusions of law, upon the entire record, and pursuant to
Section 10(c) of the Act, I recommend entry of the
following:
ORDER6
General Drivers and Helpers Union, Local No. 749,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed by
Transport, Inc., or by any other person engaged in
commerce or in an industry affecting commerce with
whom it has no primary dispute, to engage in a strike or a
refusal in the course of his employment to perform
services, where an object thereof is to force or require said
persons to cease doing business with Transport, Inc.
(b) Threatening, coercing, or restraining Transport, Inc.,
or any other person engaged in commerce or in an industry
affecting commerce, with whom it has no primary dispute,
where an object thereof is to force or require persons
engaged in commerce or in an industry affecting commerce
to cease doing business with Transport, Inc.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its offices and meeting hall copies of the
attached notice marked "Appendix." 7 Copies of said
notice , on forms provided by the Regional Director for
Region 18, after being duly signed by its authorized
representative , shall be posted by Respondent immediately
6 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the fmdmgs,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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 AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individual
employed by Transport, Inc., or by any other person
engaged in commerce or in an industry affecting
commerce with whom we have no primary dispute, to
engage in a strike or a refusal to perform services,
where an object thereof is to force or require said
persons to cease doing business with Transport, Inc.
WE WILL NOT threaten, coerce, or restrain Transport,
Inc., or any other person engaged in commerce or in an
industry affecting commerce with whom we have no
primary dispute, for such an object.
GENERAL DRIVERS AND
HELPERS UNION, LOCAL
No. 749, AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA