Goski Trucking Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 1032 (N.L.R.B. 1998)

1032
325 NLRB No. 192
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has moved to reopen the record to adduce
additional evidence regarding the employment status of certain indi-
viduals employed by Respondent Goski Trucking Corp. in June
1991. The Respondent filed an opposition brief in response to the
motion. The Charging Party then filed a reply brief to the opposition
brief. We deny the motion. The Charging Party has failed to show
that the evidence in question is newly discovered, has become avail-
able only since the close of the hearing, or otherwise satisfies the
requirements of Sec. 102.48(d)(1) of the Board’s Rules and Regula-
tions. See Silver Court Nursing Center, 313 NLRB 1141 fn. 2
(1994).
2 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the
findings.
3 The judge found that, in June 1991, GTC had approximately
eight other employees in addition to Simmons and Kondroski.
Goski Trucking Corp. and its alter ego, Go Trans-
port, Inc. and International Brotherhood of
Teamsters, Local Union No. 478. Case 22–CA–
19950
June 30, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
BRAME
On August 7, 1996, Administrative Law Judge D.
Barry Morris issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief. The Respondent filed an an-
swering brief to the other parties’ exceptions. The
Charging Party filed a reply brief.1
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
The complaint alleged that the Respondents Goski
Trucking Corp. (GTC) and Go Transport (Go), as a
single employer and/or alter egos, violated Section
8(a)(5) and (1) of the Act. Based on GTC’s contractual
relationship with the Union, the complaint alleged that
the Respondents unlawfully failed to recognize the
Union by failing to apply certain terms of the existing
contract between GTC and the Union to Go employees
and by failing to furnish the Union with requested in-
formation. Although the judge indicated that the com-
plaint was barred by Section 10(b) of the Act, he
found single-employer status, as the parties had stipu-
lated, and dismissed the 8(a)(5) allegations for lack of
proof that the parties had formed a 9(a) relationship.
For the reasons given by the judge, we adopt the dis-
missal of the complaint on the merits, and thus we find
it unnecessary to pass on his alter ego and 10(b) find-
ings.
The General Counsel and the Union except, inter
alia, to the judge’s crediting of Goski’s testimony con-
cerning the execution of the June 1991 agreement be-
tween GTC and the Union. On examination by counsel
for the Union, Goski testified that he and Daniel S.
McFall, the Union’s business agent, agreed to a con-
tract on June 6, 1991, which would apply to Thomas
J. Simmons and Richard Kondroski, the only GTC em-
ployees who were union members. Relying on Goski’s
testimony, the judge found that the parties’ contract
was a members-only contract and that the General
Counsel had failed to show that the Union represented
a majority of the Respondents’ employees in the ap-
propriate unit.3 Therefore, he concluded that, without
union majority status, the 8(a)(5) allegations must fail.
The General Counsel argues that he and the Union
had no opportunity to cross-examine Goski about the
execution of the June 1991 contract because some of
Goski’s testimony on this issue originally arose out of
an offer of proof proffered by the Respondents. The
Union essentially argues that McFall’s contrary testi-
mony about his June 6, 1991 meeting with Goski to
discuss the 1991 contract should have been credited by
the judge.
We affirm the judge’s ruling that Goski’s entire tes-
timony could be considered evidence, including his
earlier testimony proffered as an offer of proof, once
the Union opened up the matter and cross-examined
Goski about the execution of the June 1991 contract
without objection by the General Counsel. In these cir-
cumstances, it was proper for the judge to permit the
Respondents to then adduce evidence from Goski on
the very same subject. Furthermore, the record shows
that the General Counsel and the Union were afforded
ample opportunity, but chose not to examine Goski on
the 1991 contract and other matters relevant to this
proceeding, and we reject the argument that they were
prejudiced by the judge’s ruling. We additionally note
that the judge found only Goski and Thomas J. Sim-
mons, the union shop steward, to be credible wit-
nesses. We therefore find that the judge committed no
error in relying on Goski’s credited testimony rather
than McFall’s testimony. Accordingly, we find that the
contentions of the General Counsel and the Union are
without merit.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
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1033GOSKI TRUCKING CORP.
1 All dates refer to 1994 unless otherwise specified.
2 At the hearing I initially permitted evidence concerning the 1991
agreement only as an offer of proof. After questioning by counsel
for the Union opened up the matter, I ruled that the testimony could
be considered evidence and no longer as merely an offer of proof.
Stephen J. Holroyd, Esq., for the General Counsel.
Steven S. Glassman, Esq. (Grotta, Glassman & Hoffman), of
Roseland, New Jersey, for the Respondents.
Gary A. Carlson, Esq. (Kroll & Heineman), of West Orange,
New Jersey, for the Union.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Newark, New Jersey, on March 5
and 6, 1996. Upon a charge filed on June 13, 1994,1 and
amended on July 13, a complaint was issued on March 30,
1995, and amended on April 5, 1995, alleging that Goski
Trucking Corp. (GTC) and its alter ego, Go Transport, Inc.
(Go) violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act). The complaint specifically alleged
that Respondents failed to recognize the Union by failing to
apply certain terms of the collective-bargaining agreement
and that Respondents have failed to furnish the Union with
information requested by it. Respondents filed answers deny-
ing the commission of the alleged unfair labor practices. The
General Counsel has moved for the withdrawal of paragraph
14(d) of the complaint which alleged that Respondents im-
properly deducted healthcare contributions from employee
wages. The motion is granted.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by Respondent on April 15, 1996. Pursuant to
an order I issued on April 18, 1996, supplemental briefs were
filed by the parties on June 10, 1996.
Upon the entire record of the case, including my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent GTC, a corporation, with an office and place
of business in Harrison, New Jersey, has been engaged in the
interstate transportation of freight. It has been admitted, and
I find, that GTC is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. In addi-
tion, it has been admitted and I find, that International Broth-
erhood of Teamsters, Local Union No. 478 (the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The complaint alleges that GTC and Go constitute a single
employer and alter egos within the meaning of the Act. The
parties stipulated that GTC and Go constitute a single em-
ployer within the meaning of the Act.
Kenneth J. Goski, president of both Respondents and
Thomas J. Simmons, member of the Union and shop stew-
ard, both appeared to me to be credible witnesses. In late
winter 1990 or early spring of 1991, Daniel S. McFall, the
union business agent, contacted Goski and requested that
Goski sign a collective-bargaining agreement. Goski replied
that he was unwilling to do so because he ‘‘couldn’t afford
to.’’ On June 6, 1991, Goski attended a meeting at the New
Jersey State Board of Mediation with the state mediator and
McFall. McFall stated that he wanted Goski to sign a collec-
tive-bargaining agreement. Goski credibly testified that he
told those present that he would not sign a contract because
he could not afford to, however, he wanted to make sure that
Simmons and another employee, Richard Kondroski, contin-
ued to have pension coverage. McFall then told Goski that
he must sign a contract if he wanted to continue to make
pension and welfare contributions. Goski and McFall then
agreed to sign a contract that would only cover Kondroski
and Simmons. On questioning by counsel for the Union,
Goski credibly testified:
Q. At the time you reached agreement with Mr.
McFall in June 1991 how many employees were work-
ing for Goski, is that when there were about ten or fif-
teen?
A. Yes.
Q. And you intended to pay pension benefits on be-
half of two of those employees?
A. To the Union on behalf of Tom Simmons and
Rich Kondroski, pension and welfare benefits, yes.
Q. And you intended to apply the union contract to
only two employees?
A. Yes.
Q. You didn’t intend to apply it to the others?
A. No.
Q. Do you happen to know whether or not that is
legal?
A. No.
Q. Would you be surprised if I told you that that is
illegal?
A. I abided by the agreement I had with Mr.
McFall.2
The collective-bargaining agreement was effective for 3
years, until June 14, 1994. During the 3 years Goski contin-
ued to make pension and welfare contributions on behalf of
only Kondroski and Simmons. McFall testified that he did
not contact Goski or visit GTC during those years because
‘‘we had two people down there, where there were no prob-
lems with the job.’’ Simmons credibly testified that he never
filed a grievance during that period.
In November 1992, Goski received OTC’s 1993 driver li-
ability insurance premium. The new premium was in the
amount of $221,498. Goski credibly testified that the prior
year’s premium had been approximately $70,000. He testi-
fied, ‘‘I got a quote from my liability carrier which raised
my premiums so high that essentially it would have put me
out of business within 30 days.’’ Goski credibly testified that
he established Go in November 1992 because ‘‘it had be-
come apparent to me that I was going to be unable to secure
liability insurance for my company, which at that time was
Goski Trucking because of losses we had incurred for the
last couple of years.’’ Similarly, Simmons credibly testified
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1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he learned of the existence of Go in 1992, that he asked
Goski about Go and that Goski told him that he was having
insurance problems with GTC, that they were causing severe
hardships for the business and that he was establishing Go
because of the insurance problems.
Sometime during the winter of 1993–1994, McFall tele-
phoned Goski and told him that it was time to renew the
contract. This was the first time that Goski had heard from
McFall since they met on June 6, 1991. On April 29, 1994,
McFall and Goski met and signed a one-page memorandum
of agreement. McFall testified that he met with Simmons in
May 1994 at which time Simmons informed McFall of the
existence of Go. Simmons testified, however, that it was not
he who initially told McFall about Go. On June 1, McFall
sent a letter to GTC requesting information, including copies
of timecards and employee records, and a seniority list of
employees with date of hire, job classification, and wage
rates. Respondents have failed to furnish the information re-
quested.
B. Discussion and Conclusions
1. Alter ego
The complaint alleges that GTC and Go constitute a single
employer and alter egos within the meaning of the Act. The
parties stipulated that GTC and Go constitute a single em-
ployer under the Act. In addition, the parties stipulated that
GTC employees service Go customers. The criteria the Board
normally looks to in deciding whether nominally separate
businesses may be regarded as a single employer are com-
mon management, common ownership, centralized control of
labor relations, and interrelation of operations. With respect
to alter ego status, the relevant criteria include substantially
identical management, business purposes, operation, equip-
ment, customers, supervision, and ownership. See Merchants
Iron & Steel Corp., 321 NLRB 360 (1996).
In Perma Coatings, 293 NLRB 803, 804 (1989), the Board
stated:
While it is true that a sincere motivation for the cre-
ation or operation of a new corporation does not pre-
clude finding alter ego status, the absence of union ani-
mus nevertheless generally militates against finding a
‘‘disguised continuance’’ of the predecessor.
I have found that Goski established Go in November 1992
because to continue operating GTC as he had been would
have involved substantially increased insurance costs. GTC
had been making pension and welfare contributions on behalf
of Simmons and Kondroski. Although GTC had approxi-
mately eight other employees, there is no evidence in the
record that there was any request to make pension and wel-
fare contributions on behalf of those employees as well.
From the record evidence there does not appear any union
motivated reason why Goski would have wanted an alter ego
as a disguised continuance of GTC in November 1992. The
only plausible reason from the record is that testified to by
Goski, that he established Go in November 1992 because of
the substantially increased insurance premium. Accordingly,
I find that GTC and Go constituted a single employer within
the meaning of the Act, but that Go was not the alter ego
of GTC.
2. The 10(b) defense
Respondent contends that the complaint is barred by Sec-
tion 10(b) of the Act because the Union had actual notice of
Go’s existence more than 6 months prior to filing its charge.
Counsel for the General Counsel stated at the hearing that if
the Union had knowledge of Go outside of the 10(b) period
‘‘the Union would be precluded from trying to make an issue
out of the alter ego status now.’’ See John Morrell & Co.,
304 NLRB 896, 901 (1991); Consolidation Coal Co., 277
NLRB 545, 551 (1985). I have credited Simmons’ testimony
that he knew of the existence of Go in 1992. The charge in
this case was filed on June 13, 1994. Accordingly, Simmons,
the union steward, knew of the existence of Go approxi-
mately 2 years prior to the filing of the charge. While the
testimony indicates that McFall may not have known about
Go’s existence prior to 1994, inasmuch as Simmons was the
shop steward, his knowledge is imputed to the Union. See
Teamsters Local 886, 229 NLRB 832, 833 (1977). Simmons
testified that his duties as shop steward are ‘‘to maintain
labor relations, to keep harmony on the job and just to make
sure that we are running the operations in a fair manner.’’
I find that Simmons acted as Respondent’s agent and his
knowledge of Go in 1992 is imputed to the Union. See Car-
penters Local 17 (A & M Wallboard), 318 NLRB 196 fn. 3
(1995); Carpenters Local 296 (Acrom Construction), 305
NLRB 822 fn. 1 (1991).
3. Members only contract
I have credited Goski’s testimony that in June 1991 he and
McFall agreed that only Simmons and Kondroski would be
covered by the collective-bargaining agreement. Although at
the time GTC had approximately eight other employees, pen-
sion and welfare contributions were made only for Simmons
and Kondroski.
In Manufacturing Woodworkers Assn., 194 NLRB 1122,
1123 (1972), the Board stated:
A history of collective bargaining on a ‘‘members
only’’ basis does not provide an adequate basis for rep-
resentation nor the appropriateness of a bargaining unit
such as the statute contemplates. The Board has tradi-
tionally refused to give weight to such a bargaining his-
tory, or to require its continuance, and we will not do
so here.
Similarly, in Ace-Doran Hauling & Rigging Co., 171
NLRB 645, 646 (1968), the Board stated:
The evidence relating to the practice under the agree-
ments further makes it clear that the parties did not in-
tend them to be effective collective-bargaining con-
tracts, but instead merely regarded them as arrange-
ments under which Respondent agreed to check off
dues, health and welfare, and pension payments for
union members only. The acquiescence of the Unions
in Respondent’s failure both to enforce the union-secu-
rity provisions of the agreements and to pay health and
welfare contributions for all employees (ostensibly pro-
vided by the ‘‘contracts’’), makes it clear that the par-
ties did not believe that they were in true collective-bar-
gaining relationships.
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1035GOSKI TRUCKING CORP.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Since the alleged agreements are not such as would
give rise to a presumption of a majority status, we find
that the General Counsel has failed to sustain his bur-
den of proof and therefore that the complaint should be
dismissed.
In Don Mendenhall, Inc., 194 NLRB 1109, 1110 (1972),
the Board stated:
We must consider the alleged refusal to bargain against
this background of members-only dealing between the
parties. We conclude that, in the context of events, the
Respondent’s actions cannot be held violative of Sec-
tion 8(a)(5). That section, by reference to Section 9(a),
requires as a predicate for any finding of violation that
the employee representative has been designated or se-
lected as the exclusive representative of the employees.
It has been settled since the early days of the Act that
members-only recognition does not satisfy statutory
norms.
In Arthur Sarnow Candy Co., 306 NLRB 213 (1992), the
Board affirmed the judge’s dismissal of the complaint. The
judge found that the collective-bargaining agreement had
been applied only to those employees who were union mem-
bers. The judge noted that the union had a shop steward at
the premises, that there was no evidence that the employer
attempted to hide the existence of the contract from other
employees, nor was there any evidence that the employer re-
fused to meet with the union or that it made any efforts to
impede the union from talking with or having access to its
employees. Id. at 215. Similarly, in this proceeding the
Union had a shop steward, Simmons, on the premises. There
is no indication that McFall was ever denied access to GTC
employees. Instead, McFall testified that he chose not to visit
because ‘‘there were no problems.’’ In addition, Section
11(c) of the collective-bargaining agreement is substantially
similar to the visitation clause in Samow, supra. It provides
‘‘the representatives of the Union shall be permitted at all
times to enter upon the Employer’s premises for the purpose
of conducting the affairs of the Union in connection with any
and all grievances or disputes which may arise between the
Union and the Employer or the Employer and the employ-
ees.’’ Furthermore, there is no evidence that Goski attempted
to hide the presence of the Union or the existence of the col-
lective-bargaining agreement from other employees. Accord-
ingly, l conclude that the General Counsel has not estab-
lished that the Union represented a majority of Respondent’s
employees in the appropriate unit. Therefore, Respondents
have not violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondents, Goski Trucking Corp. and Go Trans-
port, Inc. constitute a single employer within the meaning of
the Act.
2. GTC is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
3. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
4. Respondent has not violated the Act in any manner as
alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The complaint is dismissed.
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