Teamsters Local 776 (Pennsy Supply)

National Labor Relations Board - Board Decisions

Apr 29, 1994

313 N.L.R.B. 1148 (N.L.R.B. 1994)

1148
313 NLRB No. 203
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was re-
admitted to the AFL–CIO. Accordingly, the caption has been amend-
ed to reflect that change.
2 In adopting the judge’s finding that Pennsy Supply, Inc. did not
perform struck work and did not forfeit its neutral status, we rely
on, in addition to the cases cited by the judge, Service Employees
Local 32-B-32-J (Dalton Schools), 248 NLRB 1067, 1069 (1980). In
that case, Dalton had a maintenance contract with Allied. The union
struck Allied and picketed Dalton, contending that Dalton’s perform-
ance of the maintenance work constituted the performance of
‘‘struck work.’’ The Board rejected that argument, finding instead
that by performing the cleaning work itself during the period of the
strike, Dalton was attending to its own needs as a neutral employer.
Its performance of the work was of no economic benefit to Allied
and did not permit Allied to escape the economic impact of the
strike.
In this case, as the judge found, there is no evidence that Drivers
had a contractual right to perform the work at issue. Drivers did not
therefore transfer the work to Pennsy that it would have performed
but for the strike. By performing the work itself, Pennsy was attend-
ing to its own needs as a neutral employer, continuing its operations
as before the strike. There was no benefit to Drivers, Inc., and Driv-
ers was not thereby enabled to escape the economic impact of the
strike.
1 These corporations include Mumma Realty Associates, Inc.; Rob-
ert M. Mumma, Inc.; Elco Concrete Products, Inc.; Kim and Kim,
Inc.; Hummelstown Quarries, Inc.; and, Morgan and White, Ltd.
Chauffeurs, Teamsters and Helpers Local Union
No. 776, a/w International Brotherhood of
Teamsters, AFL–CIO1 and Pennsy Supply, Inc.
Case 4–CC–1918
April 28, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On April 29, 1993, Administrative Law Judge Wil-
liam A. Pope II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party each filed an-
swering briefs.
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 the light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Chauffeurs, Teamsters and
Helpers Local Union No. 776, a/w International Broth-
erhood of Teamsters, AFL–CIO, Harrisburg, Pennsyl-
vania, its officers, agents, and representatives, shall
take the action set forth in the Order.
Timothy J. Brown. Esq., for the General Counsel.
Ira H. Weinstock, Esq. and Wendy Bowie, Esq., of Harris-
burg, Pennsylvania, for the Respondent.
Arthur M. Brewer, Esq., of Baltimore, Maryland, for the
Charging Party.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. The com-
plaint, filed on March 28, 1991, alleges that from on or
about November 8 to on or about December 6, 1990, the Re-
spondent, Chauffeurs, Teamsters and Helpers Local Union
No. 776 (Local Union 776), committed unfair labor practices
in violation of Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act (the Act), by picketing the Harrisburg,
Pennsylvania facility of Pennsy Supply, Inc. (the Charging
Party or Pennsy Supply), in order to induce Pennsy Supply’s
employees to refuse to perform work there, and by picketing
construction sites in Harrisburg and Hershey, Pennsylvania,
in order to induce employees of Pennsy Supply and other
companies to refuse to perform work at the construction
sites, and for the purpose of forcing the other companies to
refuse to do business with Pennsy Supply. The original
charge was filed on November 13, 1990. Trial was held be-
fore me on 17 days between June 19, 1991, and February 21,
1992, in Harrisburg, Pennsylvania.
Background
Pennsy Supply, Inc. sells and delivers building materials,
including cement, sand, gravel, limestone, and asphalt, to the
construction industry in the Harrisburg and Hershey, Penn-
sylvania area. Its offices and main facility are located on
Paxton Street, in Harrisburg, and it operates several other
concrete plants, blacktop plants, and quarries in the Harris-
burg area. In November 1990, Pennsy Supply operated a
fleet of approximately 135 vehicles of different kinds to de-
liver concrete, blacktop, and other construction and building
products, including approximately 55 transit concrete mixer
trucks, 50 to 55 tri-axle dump trucks, 12 dump trailers, 2
road oilers with tankers, 4 tractor and cement trailers, and
various pickup and fuel trucks.
In Early November 1990, Pennsy Supply employed ap-
proximately 40 drivers of its own, and leased most of the ad-
ditional drivers it needed to operate its fleet of vehicles on
a daily basis from another company, Drivers, Inc. During the
busiest time of the year in the construction industry in the
Harrisburg area, Pennsy Supply used a daily average of 70
to 75 Drivers, Inc. drivers, who were dispatched in Pennsy
Supply vehicles primarily from its Paxton Street facility.
Pennsy Supply is a wholly owned subsidiary of Nine,
Ninety-Nine, Inc., one of a number of corporations owned by
Robert M. Mumma until his death in 1986, and now owned
by his wife and children.1 His widow, Kim Barbara Mumma,
is the president and chief executive officer of Pennsy Supply,
and his daughter, Lisa Mumma-Morgan, is general counsel
and a vice president of Pennsy Supply. At all times relevant
to this case, Donald Eshleman was the executive vice presi-
dent of Pennsy Supply, Ward Rice was the vice president of
operations, Ronald Nye was the vice president of aggregate
and blacktop sales, and Harry G. Lake, Jr., was the vice
president of finance and administration. Eshleman, Rice,
Nye, and Lake have no ownership interest in Pennsy Supply
or in any of the Mumma family corporations.
1149TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
2 A PUC regulated company owned by Robert Mumma and en-
gaged in the business of hauling heavy equipment for various con-
tractors and builders.
3 Drivers, Inc. was apparently owned by Pennsylvania Supply
Company, the principal owner of which was Robert M. Mumma.
Pennsylvania Supply Company was liquidated in 1986.
4 According to Harry G. Lake, Jr., Robert Mumma wanted to sell
Drivers, Inc. for estate planning purposes.
5 According to Harry G. Lake, Jr., he asked Barbara Mumma for
a written contract after the death of her husband in 1986, but she
declined, saying that she was satisfied to continue with the arrange-
ment Drivers, Inc. had with her husband.
Drivers, Inc. operates from a rented trailer and employee
parking lot located on a parcel of land situated entirely with-
in Pennsy Supply’s Paxton Street facility. Drivers, Inc. and
Pennsy Supply jointly lease the parcel of land from another
Mumma family corporation, Mumma Realty Associates,
which apparently owns the entire tract of land making up
Pennsy Supply’s Paxton Street facility. The balance of the
parcel not used by Drivers, Inc. is used by Pennsy Supply.
Access to Drivers, Inc.’s trailer and parking lot must be
through one of the four entrances to the Paxton Street facil-
ity. The entrance closest to Drivers, Inc.’s trailer and parking
lot, and the entrance designated for the use of Drivers, Inc.
and its employees is the Sycamore Street entrance.
Robert M. Mumma formed Drivers, Inc. as a separate cor-
poration for the purpose of supplying truckdrivers needed by
Pennsy Supply, and another of his corporations, Robert M.
Mumma, Inc.2 Drivers, Inc. has had a collective-bargaining
agreement with Teamsters Local Union 776 since sometime
in the 1970s. The most recent collective-bargaining agree-
ment was signed in April 1991. The preceding agreement
which it replaced expired on August 31, 1990. The drivers
employed by Pennsy Supply have never been represented for
collective-bargaining purposes by Local Union 776.
In 1985, Robert M. Mumma sold his interest in Drivers,
Inc.3 to three Pennsy Supply vice presidents, Harry G. Lake,
Jr., Ronald Nye, and Ward Rice, for $3600.4 The sales
agreement was oral. Drivers, Inc. had no physical assets, and
nothing other than the purchase money and stock certificates
changed hands. The parties to this proceeding stipulated that
prior to the 1985 sale Pennsy Supply and Drivers, Inc. were
joint employers under the Act.
At the time of the sale, all of Drivers, Inc.’s business was
leasing drivers on an hourly or daily basis, as needed, to
Pennsy Supply and Robert M. Mumma, Inc. The new owners
reached an understanding with Robert M. Mumma that Driv-
ers, Inc. would continue leasing drivers to Pennsy Supply;
however, it was not contemplated that Pennsy Supply would
have exclusive use of Drivers, Inc.’s drivers. During the first
year under the new ownership, Drivers, Inc. did a small
amount of work for other companies but the majority of its
business as high 98 to 99 percent in recent years, continued
to be with Pennsy Supply and Robert M. Mumma, Inc.
After the death of Robert M. Mumma in 1986, his widow,
Barbara Mumma, who took over as president of Pennsy Sup-
ply and other Mumma family-owned corporations, including
Robert M. Mumma, Inc., orally agreed to continue paying
Drivers, Inc. under the compensation arrangement which the
new owners had reached with her husband.5
At all times relevant to this proceeding, Harry G. Lake, Jr.
was president of Drivers, Inc., Ward Rice was vice president
and secretary, and Ronald Nye was the treasurer. In the
spring of 1987, the three owners hired Charles Welsh as the
general manager of Drivers, Inc. Minutes of the board of di-
rectors of Drivers, Inc. show that Charles Welsh was made
vice president and general manager on August 31, 1987, with
responsibility for all day-to-day activities of Drivers, Inc.
Issues
The complaint alleges that the Charging Party, Pennsy
Supply, Inc., was engaged in supplying concrete and other
building materials to three construction sites in the Harris-
burg-Hershey, Pennsylvania area, and that from on or about
November 8 through December 6, 1990, the Respondent
Union at various times picketed Pennsy Supply’s Harrisburg
facility and three construction sites in order to induce and en-
courage Pennsy Supply’s employees to refuse to perform
work at its Harrisburg facility, and to induce and encourage
employees of other companies at the construction sites to
refuse to perform work at the sites and to force or require
their employers to cease doing business with Pennsy Supply,
in violation of Section 8(b)(4)(i) and (ii)(B) of the Act.
General Counsel and the Charging Party, Pennsy Supply,
Inc., contend that the violations of the Act occurred while
Respondent Teamsters Local Union 776 and employees of
Drivers, Inc. who were represented for collective-bargaining
purposes by Teamsters Local Union 776, were on strike
against Drivers, Inc. a separate company which supplied
drivers to Pennsy Supply to drive its cement mixers and
other types of trucks. They argue that the evidence shows
that the Respondent Union’s picketing of Pennsy Supply’s
Paxton Street facility and construction sites where it deliv-
ered its products violated the Act because Pennsy Supply
was a secondary employer or neutral. General Counsel and
the Charging Party conclude that the evidence shows that
Pennsy Supply and Drivers, Inc. are not joint employers,
alter egos, allies, or a single employer, and that Pennsy Sup-
ply did not perform struck work during Respondent’s strike
against Drivers, Inc. As to two other issues which arose dur-
ing the hiring, they argue that the testimony of witness Lisa
Mumma-Morgan should not be barred because she violated
the witness sequestration rule in effect during the hearing,
and Respondent Union’s request for an adverse inference
should not be granted because Pennsy Supply refused to
comply with an order directing compliance with a subpoena
duces tecum.
Respondent argues that the General Counsel has failed to
establish that the Union carried on picketing at the Postal
Service construction site on November 17, 18, or 19, 1990,
and therefore, the Union is entitled judgment in its favor as
to those dates. Respondent contends its picketing while on
strike against Drivers, Inc., did not violate the Act, because
the evidence shows that its picketing was legal under a vari-
ety of alternative theories.
First, Respondent argues that the evidence shows that
Pennsy Supply, Inc. and Drivers, Inc. are a single employer
under the Act because there is functional integration of their
operations at every level, the same persons control their labor
relations, and they share common management at both the
executive and lower levels of management. It is not nec-
essary to show that common ownership to prove single em-
ployer status where the evidence shows that two companies
act as one company.
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Witnesses did not agree on when the work stoppage started. Don-
ald Eshleman, Pennsy Supply’s executive vice president, and Harry
G. Lake, president of Drivers, Inc., and a vice president of Pennsy
Supply, both said the work stoppage began on November 7, 1990.
Charles Welsh, the general manager of Drivers, Inc. at different
times, used the dates of November 15 and November 5. Daniel
Witmer, a driver for Drivers, Inc. and Local 776’s union steward at
Drivers, Inc. and Sherry Bounoutas, also a driver for Drivers, Inc.,
testified that the strike began on November 8, 1990. On the record
before me, I find that the work stoppage began on November 7,
1990, and that pickets for Local Union 776 were present at all four
gates to Pennsy Supply’s Paxton Street facility on November 8.
7 It appears that Local Union 776 did not plan the strike in ad-
vance of the work stoppage initiated by the Drivers, Inc. drivers on
the morning of November 7.
8 Charles Welsh testified that one concrete mixer driver and three
dump truck drivers continued to work throughout the strike.
9 In a letter dated on or about December 5, 1990, Union President
Griffith made an offer to return to work, which Drivers, Inc. General
Manager Charles Welsh turned down.
10 The picketers apparently knew when Pennsy Supply concrete
mixers were on their way to the construction sites by monitoring the
radio frequencies used by Pennsy dispatchers to communicate with
the concrete mixer drivers.
11 One Paxton Street entrance leads to Pennsy Supply’s main of-
fice, showroom, and warehouse; another Paxton Street entrance leads
to a parking lot used by Pennsy Supply employees to park their pri-
vate vehicles; and the third Paxton Street entrance is used by Pennsy
Supply trucks making deliveries to customers.
12 Paxton Street and Sycamore Street are approximately one-half
mile apart at the location of Pennsy Supply’s facility. Drivers, Inc.
employees use the Sycamore Street entrance, which is designated for
their use, to reach the parking lot behind the trailer used by Drivers,
Inc. as its office. Pennsy Supply trucks can use either the Paxton
Street or the Sycamore Street gates to exit or return after making
deliveries, but, according to Executive Vice President Eshleman,
typically use one of the Paxton Street gates.
13 Eshleman testified that on one of the early days of the picketing,
he saw a ‘‘Preston 151’’ truck which was to deliver computer paper
to Pennsy Supply stop at the entrance to main office, talk to a Driv-
ers, Inc. picketer, and then leave without completing the delivery.
In the alternative, the evidence shows that Pennsy Supply,
Inc. and Drivers, Inc. are joint employers because Pennsy
Supply’s supervisors assign work to the employees of Driv-
ers, Inc., the two companies share a ‘‘sameness of workplace
conditions,’’ Pennsy Supply establishes working rules for the
employees of Drivers, Inc. and has the authority to discipline
Drivers, Inc.’s employees for violating Pennsy Supply’s
rules. Some Drivers, Inc. drivers continued to drive Pennsy
Supply trucks during the strike, and it was not possible to
tell from a distance whether a Pennsy Supply employee or
Drivers, Inc. employee was driving a particular truck. Any
picketing that occurred, argues Respondent, was permissible
because Pennsy Supply and Drivers, Inc. are joint employers.
Alternatively, Respondent argues that Pennsy Supply and
Drivers, Inc. are alter egos. In support of this position, Re-
spondent contends that the evidence shows Pennsy Supply
and Drivers, Inc. (which were admittedly joint employers
prior to the 1985 sale), before and after the sale, shared sub-
stantially identical management, business purposes, oper-
ations, equipment, customers, supervision, and ownership. Fi-
nally, Respondent argues, as another alternative, that Pennsy
Supply and Drivers, Inc. are allies. Respondents contends
that Pennsy Supply’s neutrality was compromised because
the two employers are a single enterprise, but, regardless of
that fact, during the strike, Pennsy Supply employees per-
formed struck work, or the work normally performed by
Drivers, Inc. drivers.
Two collateral issues were raised during the hearing. Re-
spondent argues that Lisa Mumma-Morgan’s testimony
should be stricken because she failed to comply with witness
sequestration order that was in effect during the trial, and an
adverse inference should be drawn against Pennsy Supply
and the General Counsel because Pennsy Supply refused to
comply with the administrative law judge’s order to disclose
to the Respondent certain blacked-out figures on certain
Pennsy Supply insurance policies supplied under subpoena.
Bargaining over a new collective-bargaining agreement be-
tween Local Union 776 and Drivers, Inc. started in mid-Au-
gust 1990 and continued at intervals until the morning of on
or about November 7, 1990,6 when a number of Drivers, Inc.
drivers gathered outside the Sycamore Street gate and re-
fused to work. The work stoppage turned into a strike by
Teamsters Local Union 776 against Drivers, Inc.7 and contin-
ued until Local Union 776 and Drivers, Inc. signed a new
agreement on April 14, 1991. Approximately four Drivers,
Inc. drivers continued to work during the strike.8 Drivers,
Inc. did not hire replacement drivers during the strike.
From on or about November 7 to December 5, 1990,9
members of Local Union 776 steadily picketed the entrances
to Pennsy Supply’s Paxton Street facility, and intermittently
picketed entrances to three construction sites in the Harris-
burg-Hershey area where Pennsy Supply delivered con-
crete.10 The picketers carried or wore signs reading:
TEAMSTERS LOCAL 776
ON STRIKE
AGAINST
DRIVERS, INC.
UNFAIR LABOR PRACTICES
NO OTHER EMPLOYERS INVOLVED
Pennsy Supply’s Paxton Street facility has four entrances,
three on Paxton Street,11 and one on Sycamore Street, which
runs parallel to Paxton Street. The Sycamore Street entrance
is the only entrance to the Paxton Street facility which is
designated for use by Drivers, Inc. and its employees.12 Don-
ald Eshleman, Pennsy Supply’s executive vice president, ob-
served picketing at the Sycamore Street entrance on Novem-
ber 7, 1990, and by November 8, 1990, picketing by Local
Union 776 had spread to the three Paxton Street entrances,
as well.13 The picketing at Pennsy Supply’s Paxton Street fa-
cility continued until on or about December 5, 1990, usually
5 days a week from Monday through Friday. The picketers
walked in front of the four entrances, carrying or wearing
signs like those described above. Eshleman stated that he
recognized some of the picketers as employees of Drivers,
Inc.
On November 13, 1990, Pennsy Supply’s labor counsel
sent a letter to Thomas B. Griffith, president of Local Union
776, stating that effective immediately no Drivers, Inc. driv-
ers would be used to drive Pennsy Supply vehicles to six
construction sites, including three which figure in this case:
the Hershey Foods Corporate Center at Sand Beach Road;
1151TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
14 One concrete mixer driver who continued to work for Drivers,
Inc. during the strike was Ed Dundorf. He was observed driving a
Pennsy Supply concrete mixer to the Hershey Medical Center con-
struction site early in the strike.
15 Eshleman testified that the drivers from other companies did not
operate Pennsy Supply-owned vehicles.
the Hershey Medical Center at Bullfrog Valley Road; and the
United States Postal Facility at Crooked Hill Road and
Elmerton Avenue. There is nothing in the record establishing
that Pennsy Supply used Drivers, Inc. drivers to make con-
crete deliveries to the six sites after November 13, 1990.14
Pennsy Supply continued to operate its business through-
out the strike, using company employees who had
truckdriving experience, and drivers and trucks from approxi-
mately 40 other companies,15 to make deliveries of concrete
and other construction materials to customers. Donald Eshle-
man testified Pennsy Supply continued to request drivers
from Drivers, Inc. during the strike, but Drivers, Inc. was un-
able to furnish more than one to five drivers a day until the
strike ended in April 1991. Eshleman said that from the in-
ception of the strike until December 1990, the Company used
only cement mixers owned by Pennsy Supply to deliver con-
crete.
One of Pennsy Supply’s customers when the strike began
was Rice & Weidman, a concrete contractor at the Hershey
Foods Corporate Center construction site. Stanley Shadel, a
materials technician employed by Astrotech, Inc., an inde-
pendent testing laboratory hired by Hershey Foods to test
concrete used in the project, saw six to eight picketers on
November 9, 1990, at the Sand Beach Road entrance, which
he said was the union entrance to the construction site and
the entrance used by Pennsy Supply trucks. The picketers,
whom he recognized as Pennsy Supply drivers, carried signs
saying that their union local was on strike. Shadel said he
was not expecting any deliveries of concrete by Pennsy Sup-
ply on that day, and when he told that to the picketers, they
seemed to lose interest. The picketing lasted several hours.
He did not observe picketing on any other day.
Leon Martz, a Pennsy Supply sales representative, saw
picketing at the Sand Beach Road entrance, which he also
described as the entrance Pennsy Supply, used early in the
morning of November 8, 1990. He observed that the picket-
ers were carrying signs, like those described above. He said
there were no Pennsy Supply vehicles on the construction
site when he arrived.
Pennsy Supply had two concrete customers at the Hershey
Medical Center construction site while Local Union 776 was
on strike, Reliance Drilling and H. B. Alexander. Reliance
Drilling’s superintendent on the job was David Schiding.
Schiding testified that there was only one entrance to the job-
site, and that Pennsy Supply cement mixer trucks entered
through that gate. He observed picketing outside that gate on
4 to 5 days, or possibly more, in November 1990. Some of
the picketers carried signs on which the words, ‘‘On Strike,’’
appeared in big letters, with a Teamsters local’s number in
smaller letters at the top. He said he recognized some of the
picketers, who numbered from four to five, as drivers of
Pennsy Supply trucks. Schiding said he had never heard of
Drivers, Inc. and at the time he thought the drivers of Pennsy
Supply’s cement trucks were Pennsy Supply employees.
Schiding observed that most of the time the picketers
stood around or sat in their vehicles, with their signs on the
hoods of their vehicles or in the back of their pickup trucks,
until a Pennsy Supply truck approached, and then they put
their signs on. He thought that the signs were probably not
visible from approaching vehicles until the picketers put
them on. Schiding recalled one incident in which the driver
of a truck from another company refused to deliver his load
of precast concrete because of the presence of the picketers.
Leon Martz, the Pennsy Supply sales representative, testi-
fied that on November 12, 1990, while he was at the Her-
shey Medical Center construction site, ‘‘Wib’’ Schiding, the
project superintendent for Reliance Drilling, told him there
had been picketing on November 9, and gave him a flyer,
or leaflet, which Schiding said he had received. Martz did
not observe any picketing at the construction site on that day,
but did observe picketing at the site on one occasion, the
date of which he did not recall.
Although there is no agreement as to precise time and
place when copies of the flyer or leaflet were distributed, the
Respondent does not dispute that at some point while Local
Union 776 conducted picketing, the picketers passed out cop-
ies of the leaflet supplied by Schiding. The leaflet contains
the statement: ‘‘On November 7, 1990, employees of Driv-
ers, Inc., a subsidiary of Pennsy Supply, went on strike be-
cause of unfair labor practices by the management.’’ Else-
where in the leaflet appears the statement:
Drivers, Inc. and Pennsy Supply are operating in a joint
effort with SCAB labor, which has made Pennsy an
ally to this labor dispute. We would appreciate your
support in this labor dispute. Please do not support
SCABBING. BOYCOTT DRIVERS, INC./PENNSY
SUPPLY, ON STRIKE AGAINST DRIVERS, INC. (no
other employer involved).
Another Pennsy Supply customer during the strike was
Baker Concrete Co., at the Postal Service Facility construc-
tion site in Harrisburg, located on Crooked Hill Road and
Elmerton Avenue. There were four entrances to the construc-
tion site off of Crooked Hill Road. On November 9, 1990,
Frank Cirillo, a Pennsy Supply salesman, arrived at the site
about 6:30 a.m., and as he drove up Crooked Hill Road, ob-
served approximately 20 people standing near or seated in
vehicles parked on both sides of the road. He recognized two
of them as Drivers, Inc. drivers. He saw picket signs, as de-
scribed above. When a Pennsy Supply cement mixer truck
turned onto Crooked Hill Road from Elmerton Avenue,
Cirillo was instructed by Michael Dayton, the field super-
intendent for Baker Concrete, to have the truck pull off on
the left side of Crooked Hill Road. Dayton left, then a half
hour later returned and informed Cirillo that Baker Concrete
had decided to cancel the concrete pour for the day because
its union employees refused to work because of the picket-
ing.
When Cirillo visited the construction site on November 13,
1990, at 6:30 to 7 a.m., he again observed a number of vehi-
cles parked on both sides of Crooked Hill Road, and he saw
a number of people, some carrying picket signs like those
described above. The first Pennsy Supply concrete mixer
truck arrived about 8 a.m., but instead of turning onto Crook-
ed Hill Road, entered the construction site through the
Elmerton Avenue gate. Several minutes later, the group of
picketers drove to the Elmerton Avenue gate, and began
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 (b) It shall be an unfair labor practice for a labor organization
or its agents—
. . . .
(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, mate-
rials, or commodities or to perform any services; or (ii) to
threaten, coerce, or restrain any person engaged in commerce or
in an industry affecting commerce, where in either case an ob-
ject thereof is—
. . . .
(B) forcing or requiring any person to cease using, selling,
handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person . . . Provided, that noth-
ing contained in this clause (B) shall be construed to make un-
lawful, where not otherwise unlawful, any primary strike or pri-
mary picketing . . . .
picketing there. The picketers blocked the next Pennsy Sup-
ply concrete mixer truck from turning left into the Elmerton
Avenue gate, but after a short delay, allowed the truck to
enter the construction site. During the delay, Cirillo observed
Lowell Journegan, Baker Concrete’s operations manager,
speak to Dan Virtue, Local Union 776’s business agent.
Afterwards, Virtue appeared to talk to the picketers, who
then allowed the Pennsy Supply concrete mixer to proceed
into the construction site. The concrete mixer was operated
by an employee of Pennsy Supply.
Donald Eshleman, Pennsy Supply’s executive vice presi-
dent, arrived at the Postal Service construction site on No-
vember 13, 1990, about 7:45 a.m., accompanied by the first
Pennsy Supply cement mixer truck of that day. The next
mixer arrived at between 8:20 a.m. and 8:45 a.m., and its ac-
cess to the construction site through the Elmerton Avenue
gate was blocked by union picketers until approximately 9:17
a.m. The driver of the vehicle was an employee of Pennsy
Supply. The remaining deliveries scheduled by Pennsy Sup-
ply for that day were canceled.
Eshleman returned to the Postal Service construction site
on November 16, 1990, accompanied by a Pennsy Supply
cement mixer truck. He saw eight union picketers, at the
Elmerton Road gate, but the truck was allowed to pass.
Eshleman’s assertion that no Drivers, Inc. drivers were used
to make cement deliveries to this and five other construction
sites stands uncontradicted.
Section 8(b)(4)(B) of the Act prohibits secondary picketing
by a union against an employer ‘‘with whom it does not
have a labor dispute, in order to force that [employer] to
cease doing business with another [employer] (usually an
employer with whom the union does have a dispute).’’16
Mine Workers (Boich Mining Co.), 301 NLRB 872, 873
(1991). However, only secondary activity for the forbidden
statutory objectives violates the Act. Prohibited is picketing
by a union which has as its object enmeshing neutral em-
ployers in a dispute not their own. The type of conduct con-
demned is ‘‘union pressure calculated to induce the employ-
ees of a secondary employer to withhold their service in
order to force their employer to cease dealing with the pri-
mary employer.’’ NLRB v. Servette, Inc., 377 U.S. 46, 52–
53 (1964). Speaking of the purpose of Section 8(b)(4), the
Board, in Teamsters Local 560, 248 NLRB 1212 (1980), said
that ‘‘We start with the fundamental proposition that Section
8(b)(4) was designed to preserve the traditional right of strik-
ing employees to bring pressure against employers who are
substantially involved in their dispute, while protecting neu-
tral employers from being enmeshed it it.’’
The standards applied by the Board in determining if pick-
eting of secondary employers is primary were set out in
Moore Dry Dock Co., 92 NLRB 547, 549 (1950). There the
Board held that picketing was primary if it met the following
conditions:
(a) The picketing is strictly limited to times when the
situs of dispute is located on the secondary employer’s
premises; (b) at the time of the picketing the primary
employer is engaged in its normal business at the situs;
(c) the picketing is limited to places reasonably close
to the location of the situs; and (d) the picketing dis-
closes clearly that the dispute is with the primary em-
ployer.
None of the picketing carried out by the Union, other than
at the Sycamore Street entrance to Pennsy Supply’s Paxton
Street facility, qualifies as primary picketing under the
Board’s criteria.
Drivers, Inc. shares a portion of Pennsy Supply’s Paxton
Street facility as a common situs under a joint lease arrange-
ment, but by established practice and notice before the strike
began, the Sycamore Street entrance, which is the entrance
nearest Drivers, Inc.’s trailer and parking lot, was the des-
ignated entrance or gate for use by Drivers, Inc. and its em-
ployees. Charles Welsh, the general manager of Drivers, Inc.
since mid-1987, credibly testified that at least twice a year
he had posted notices on the bulletin board at Drivers, Inc.’s
trailer, informing Drivers, Inc., employees that they were to
use only the Sycamore Street gate to enter and leave in their
personal vehicles. He said that if he saw a Drivers, Inc. em-
ployee coming in through another gate, he reminded the driv-
er to use only the Sycamore Street gate.
Respondent’s Exhibit 11 is a copy of a letter, dated June
21, 1990, signed by Charles S. Welsh, addressed to six em-
ployees of Drivers, Inc. who were regularly leased to Robert
M. Mumma, Inc., as low-bed drivers. The drivers regularly
leased to Robert M. Mumma, Inc. were the last of the Driv-
ers, Inc. employees brought under Welsh’s direct supervisory
control. Until the effective date of the letter, June 25, 1990,
they had clocked in and out, and received their work assign-
ments and paychecks at the Pennsy Supply dispatcher’s of-
fice. In the letter, Welsh informed the six employees that ef-
fective June 25, 1990, they would ‘‘punch in and out at the
Drivers, Inc. trailer.’’ In the letter, Welsh stated that ‘‘the
above employees will use the Sycamore Street entrance to
enter and exit the property, the Paxton Street entrance will
not be used.’’ The letter states that failure to follow the di-
rections given in the letter will subject the employees to dis-
ciplinary measures.
I find the evidence sufficient to show that a reserved gate
system had been established and maintained before the strike
began. The Respondent Union’s right to picket Pennsy
Supply’s Paxton Street facility, therefore, was limited to that
entrance. Laborers Local 135, 300 NLRB 920 (1990).
The Respondent Union, however, did not limit its picket-
ing to the Sycamore Street gate reserved for Drivers, Inc.’s
1153TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
17 The Union picketed the Hershey Foods Corporate Center con-
struction site on November 8, 1990, when no Pennsy Supply vehi-
cles were on the site, and again on November 9, 1990, when there
were no Pennsy Supply vehicles on the site or scheduled to be on
the site that day. Picketing outside the Postal Service construction
site began on November 13, 1990, approximately 1-1/2 hours before
the first Pennsy Supply cement mixer truck arrived about 8:20 a.m.
18 Pickets blocked the path of the second Pennsy Supply mixer
which arrived at the Elmerton Avenue gate on November 13, 1990,
about 8:45 a.m. The record indicates that the driver of the vehicle
was an employee of Pennsy Supply. There is nothing in the record
discrediting Pennsy Supply’s contention that Drivers, Inc. drivers
were not used after November 13, 1990, to make concrete deliveries
to this and five other construction sites. Thus, it may be inferred
from the evidence that the Pennsy Supply mixer truck which arrived
at the Elmerton Road gate on November 16, 1990, while picketing
was going on, was not driven by a Drivers, Inc. driver.
19 Regardless of that statement on the picket signs, employer rep-
resentatives from the construction sites recognized some of the strik-
ers as drivers of Pennsy Supply trucks, and interpreted the strike as
being against Pennsy Supply.
20 Respondent requests judgment in its favor as to the allegations
of the complaint that picketing occurred at the Postal Service con-
struction site on November 17, 18, and 19, 1990, because of lack
of any evidence of picketing on those dates. Although there is evi-
dence of picketing at the various construction sites on other
unrecalled dates in November 1990, there is no specific evidence of
picketing on those three dates; therefore, Respondent’s request is
granted.
21 Included on the list of additional named insureds are Nine Nine-
ty Nine, Inc. (holding company); Pennsy Supply, Inc. (operating en-
tity); Robert M. Mumma, Inc. (wholly owned subsidiary Pennsy
Supply, Inc.); Pennsylvania Supply Company; Bobali Corporation;
Middle Park, Inc.; Drivers, Inc.; Elco Concrete Products, Inc.; Leb-
anon Rock, Inc.; Mumma Realty Assoc.; Mumma Realty Assoc.
Inc.; Hummelstown Quarries, Inc.; Lisa M. Morgan; Linda M. Roth;
Barbara M. McK. Mumma; Robert M. Mumma II; and Robert M.
Mumma Marital Trust. The ‘‘Schedule of Hazards,’’ upon which the
premium appears to based includes various properties owned by
Pennsy Supply, Inc.; Mumma Realty Associates II; Nine Ninety
Nine Inc., t/a Amity Farms; Lebanon Rock, Inc.; Mumma Realty As-
sociates I; Bobali Corp.; Hummelstown Quarries, Inc.; Robert M.
Mumma; and Elco Concrete Products, Inc.
use. By the next day, the Union had broadened the situs of
its picketing to include the three Paxton Street entrances to
the Paxton Street facility, which were used exclusively by
Pennsy Supply’s customers, employees, and vehicles. The
Union also expanded its picketing to construction sites where
Pennsy Supply had customers to which it sold and delivered
concrete. Drivers, Inc. had no business relations with any of
the contractors or suppliers at the construction sites; more-
over, the record of this preceding clearly shows that Pennsy
Supply’s customers at those sites) had no knowledge of Driv-
ers, Inc. and assumed that the drivers of Pennsy Supply’s ce-
ment mixer trucks were employees of Pennsy Supply. In any
event, it is clear from the record that the Union at times
picketed the construction sites when Pennsy Supply trucks
were not present,17 and when Pennsy Supply trucks were
present, but were not being driven by Drivers, Inc. drivers.18
There can be no doubt in this case about the objectives of
the Union’s picketing, which were clearly spelled out in the
leaflet which its picketers distributed. The leaflet referred to
Drivers, Inc. as a subsidiary of Pennsy Supply, and to
Pennsy Supply as an ally of Drivers, Inc. and urged a boy-
cott of Drivers, Inc. and Pennsy Supply. Clearly, the Union
was attempting to enmesh Pennsy Supply and other second-
ary employer-customers of Pennsy Supply in the Union’s
dispute with Drivers, Inc., the primary employer. Despite as-
sertions by the Union printed on its picket signs that no em-
ployer other than Drivers, Inc. was involved in the strike,19
the Union’s self-declared objective was much broader. The
Union clearly picketed the premises of secondary employers
for the purpose of inducing the employees of secondary em-
ployers to withhold their services from Pennsy Supply and
to force neutral employers to cease dealing with Pennsy Sup-
ply. Picketing of neutral secondary employers for such pur-
poses violates Section 8(b)(4)(i) and (ii)(B) of the Act.
Unless the evidence establishes that Drivers, Inc. and
Pennsy Supply were a single employer, joint employers, alter
egos, or allies in the strike, as claimed by the Respondent
as affirmative defenses, the picketing conducted by the
Union at the three Paxton Street entrances to Pennsy
Supply’s Paxton Street facility during November and Decem-
ber 1990, at the Hershey Medical Center during November
1990, at the Hershey Foods Corporate Center construction
site on November 8 and 9, 1990, and at the Postal Service
construction site on November 13 and 16, 1990,20 was ille-
gal, and violated Section 8(b)(i) and (ii)(4) of the Act.
III.
Respondent moves that an adverse inference be drawn
from Pennsy Supply’s refusal to disclose information which
it blacked out on various casualty insurance policies which
it furnished pursuant to a subpoena duces tecum served on
it by the Respondent. The inference which Respondent re-
quests be drawn against Pennsy Supply and the General
Counsel is that:
Pennsy Supply provided substantial insurance coverage
for Drivers, Inc., its employees, and the property that
Drivers, Inc., leases from Mumma Realty Associates, at
no cost to Drivers, Inc., and at significant cost to
Pennsy Supply.
The insurance policies at issue are Pennsy Supply’s Com-
mercial General Liability Policy, Commercial Excess Liabil-
ity Policy, and Commercial Package Policy for the years
1987 through 1991, issued by the PMA Group, which list a
number of additional named insureds, one of which is Driv-
ers, Inc.21 Pursuant to a subpoena duces tecum, served by
Respondent, Pennsy Supply produced a copy of the Commer-
cial General Liability Policy, covering the period from March
3, 1988, to March 3, 1989, which was admitted in evidence
as Respondent’s Exhibit 26. However, before turning over
the copy of the policy to the Respondent, Pennsy Supply
blacked out the figures shown on the policy as ‘‘Limits of
Insurance’’ in the part of the policy entitled ‘‘Commercial
General Liability Declarations,’’ and the figures in the col-
umns under the headings of ‘‘PREMIUM BASIS; TERR.;
RATE (PREM OPS/PRODUCTS); and, PREMIUM (PREM
OPS/PRODUCTS),’’ in the part of the policy entitled ‘‘Com-
mercial General Liability Supplemental Declarations.’’ Be-
cause all of the numerical figures are blacked out on the
copy of the policy in evidence, it is not possible to determine
from the face of the policy what the premium was, or upon
what it was based.
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Counsel for the General Counsel’s motion to sequester witnesses
was granted on the first day of the hearing, before any witness testi-
fied.
Lisa Mumma-Morgan, general counsel and vice president
of Pennsy Supply, testified that the premium for its commer-
cial general liability insurance is based upon Pennsy
Supply’s gross sales, and there is no additional cost to
Pennsy Supply involved in adding Drivers, Inc. as an addi-
tional named insured.
Charles J. Cavanaugh, who handles the Pennsy Supply ac-
count for PMA, testified that a commercial package policy
adds property coverage to a general liability policy. The in-
surance policy protects the insured against sums which the
insured may become legally obligated to pay as damages be-
cause of ‘‘bodily injury’’ or ‘‘Property damage.’’ He said
that sales and payroll are the main basis for charging pre-
miums for general liability policies. He said PMA Group’s
general policy is that there is no specific charge for addi-
tional insureds on its liability policies.
After hearing considerable argument from the parties dur-
ing the hearing on the issue of the blacked out figures, I
ruled that the figures are relevant to the issues in this case,
and I ordered Pennsy Supply to produce the figures which
it had blacked out. Before requiring compliance, I offered
Pennsy Supply the opportunity to request a protective order
limiting disclosure to third parties of the blacked out infor-
mation. I declined an offer by Pennsy Supply to examine the
withheld information in camera, and the parties were unable
to agree upon terms for disclosure. Pennsy Supply declined
to produce the information as ordered. I found Pennsy Sup-
ply to be in violation of the disclosure order, but, as it did
not appear that the information alone would be dispositive of
the case, I found that an adequate remedy for Pennsy
Supply’s failure to comply with my order would be the
drawing of an adverse inference against Pennsy Supply, and
by implication, against General Counsel.
Pennsy Supply refused to disclose the blacked out figures
because they show Pennsy Supply’s estimated sales, and that
figure is close to its actual sales. Counsel for Pennsy Supply
asserts that the figures are not relevant, and because Pennsy
Supply is a closely held corporation which is family owned
and operated, its sales figures are proprietary information.
Pennsy Supply contends that disclosure of sales information
in an extremely competitive market would cause Pennsy
Supply substantial harm, and the potential for harm out-
weighs Respondent’s need for the information.
Respondent argues that the policies covered property used
by Drivers, Inc. and that the premium information would
show that Pennsy Supply has been providing the insurance
coverage at no cost to Drivers, Inc., but at a substantial or
significant cost to Pennsy Supply. Payment of insurance pre-
miums for insurance protecting Drivers, Inc. is relevant be-
cause it shows an element of control by Pennsy Supply over
Drivers, Inc.
General Counsel states that he ‘‘does not condone failures
to produce relevant information required by Board subpoe-
nas,’’ and that where a party in control of relevant informa-
tion refuses to disclose the information without sufficient jus-
tification, ‘‘an inference may be drawn that the non-disclosed
information would be adverse to the non-disclosing party’s
interests.’’ General Counsel argues that the most that can be
inferred from Pennsy Supply’s failure to disclose the blacked
cut figures is that whatever benefit inured to Drivers, Inc.
from the insurance coverage ‘‘came at some cost, or a cost,
to Pennsy Supply.’’ Such an inference, concludes counsel for
the General Counsel, ‘‘does not support Respondent’s affirm-
ative defenses.’’
I have considered the posthearing briefs submitted by the
parties on the issue of whether or not an adverse inference
should be drawn, as requested by the Respondent. I agree
with the General Counsel’s position that under circumstances
such as exist in this case, it is proper to infer that if dis-
closed, the information would be unfavorable to Pennsy
Supply’s position that the liability insurance coverage af-
forded to Drivers, Inc. as an additional named insured on
Pennsy Supply’s policy, was provided without cost to Pennsy
Supply. Lemay Caring Center, 280 NLRB 60 fn. 2 (1986).
I further agree with General Counsel that it would be im-
proper to infer that the cost to Pennsy Supply was ‘‘substan-
tial’’ or ‘‘significant,’’ as opposed to unsubstantial or insig-
nificant. Such terms are imprecise and relative. What may be
substantial or significant in one context, may not be in an-
other. Accordingly, I draw the inference that the blacked out
figures, if disclosed, would be unfavorable to Pennsy
Supply’s position, and would support the inference that the
insurance coverage provided Drivers, Inc. under Pennsy
Supply’s commercial general liability insurance policy was at
no cost or without cost to Pennsy Supply.
IV.
Respondent moves that the testimony of Lisa Mumma-
Morgan, who was called as a witness by the Charging Party,
Pennsy Supply, be stricken because she violated the seques-
tration of witnesses rule in effect during the hiring.22
There is no dispute that Lisa Mumma-Morgan, general
counsel and vice president of Pennsy Supply, was present in
the hearing room on the first day of the hearing when the
administrative law judge ordered sequestration of the wit-
nesses, and that she remained in the hearing room for some
or all of that day after all witnesses were directed to leave
the hearing room. The only factual issue in dispute is wheth-
er she left the hearing room on the first day, and did not re-
turn until she was called as a witness, or she returned and
remained in the hearing for part of the second day of the
hearing.
Lisa Mumma-Morgan acknowledged that she remained in
the hearing room after the sequestration order was granted on
the first day of the hiring. She said that she left the room
when Pennsy Supply’s attorney raised the possibility she
might be called as a witness, but did not recall if it was be-
fore or after the luncheon recess. She said that she recalled
only being present while attorneys in the case argued about
documents. She did not recall who, if anyone, was testifying
when she left. She said she believes that Attorney Brewer,
who represents Pennsy Supply, said that while he did not
have any intention at the time of calling her as a witness,
that largely depended on the evidence, and just to be safe,
she should leave, and she did, ahead of everyone else in the
Pennsy Supply group she had accompanied to the hearing.
Daniel Witmer, who testified as a witness for the Re-
spondent, was present during the first and second days of the
hearing. He was present when the sequestration order was
given, and observed that Lisa Mumma-Morgan remained in
1155TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
23 Attorney Brewer stated that he made his decision to call her as
a witness some 10 days earlier.
24 In Gossen Co., supra, the judge found there was no violation
of his sequestration order because he had not issued a sequestration
order. What was violated, he said, was a sequestration arrangement
agreed to by the parties.
25 At the time of the sale of Drivers, Inc. and at all relevant times
since then, Harry G. Lake Jr. was Pennsy Supply’s vice president
of finance and administration, Ward Rice was its vice president of
Continued
the hearing room after other potential witnesses left. He said
that she did not leave until about 3:30 p.m., on the first day
of the hearing, and he recalled that she was again present on
the second day, and left the hearing room while Donald
Eshleman was testifying.
Lisa Mumma-Morgan subsequently was called as a wit-
ness by the Charging Party on December 16, 1991, 6 months
after the hearing began,23 and was permitted to testify over
the objection of the Respondent. Before she was allowed to
testify, Respondent was afforded the opportunity to fully liti-
gate the issue of whether or not her testimony should be sup-
pressed because she violated the witness sequestration order.
After considering the evidence adduced on this issue, I de-
nied preliminarily the Respondent’s motion.
Although not inconsequential, Lisa Mumma-Morgan’s tes-
timony was for the most part cumulative, and was not dis-
positive of any issue. Her testimony touched on a number of
issues. She answered questions about the property lease to
which Mumma Realty Associates, Pennsy Supply, and Driv-
ers, Inc. are parties, and about her decision that rather than
the two lessees splitting the $500-per-month lease payment,
Drivers, Inc. would pay $300, and Pennsy Supply would pay
$200, and Pennsy Supply would pay utility costs rather than
attempt to separate out those costs attributable to Drivers,
Inc. She also testified on the commercial general liability in-
surance policy issue, and stated that the premium is based on
gross sales. She said that her mother, she, and Donald Eshle-
man exercise policy decisional authority in the operation of
Pennsy Supply, with her mother holding final decisional au-
thority. She answered questions concerning the role of
Pennsy Supply Vice Presidents Eshleman Lake, Rice, and
Nye in the operation of Pennsy Supply. She identified the
Mumma family corporations in which she is a corporate offi-
cer, and testified that her mother runs Robert M. Mumma,
Inc. She stated that Nine Ninety Nine, Inc., is a Pennsylvania
corporation owned by her father’s estate and her family.
Rule 615 of the Federal Rules of Evidence provides for
exclusion of witnesses by the trial judge at the request of a
party or on his own motion. The Board has approved the
policy underlying the sequestration rule. Unga Painting
Corp., 237 NLRB 1306, 1307 (1978). In Gossen Co., 254
NLRB 339, 339 fn. 1 (1981), the Board adopted the adminis-
trative law judge’s ruling refusing to exclude certain testi-
mony because the respondent’s counsel had allegedly vio-
lated a sequestration arrangement.24 The administrative law
judge in that case noted that the remedy for disobedience is
left to the sound discretion of the judge, and that total exclu-
sion of a witness’ testimony is a harsh result. In U.S. v.
Torbert, 496 F.2d 154, 158 (9th Cir. 1974), the court of ap-
peals held that ‘‘it is ordinarily an abuse of discretion to dis-
qualify a witness [because of violation of a sequestration
order] unless a defendant or his counsel somehow cooperated
in the violation of the order.’’
I find nothing of that nature in the circumstances of the
admitted failure of witness Lisa Mumma-Morgan to comply
with the sequestration order in this case, or in the apparent
failure of the Charging Party’s attorney to anticipate at the
outset of the hearing that she would be needed as a witness.
Lisa Mumma-Morgan testified credibly that when she re-
mained in the hearing room after the sequestration order was
given she did not expect to be called as a witness in the
case. I further credit her testimony that when the Charging
Party’s attorney advised her that the occasion might arise
when he would need her testimony, she left the hearing
room, and did not return until she was called as a witness.
I do not find that witness Daniel Witmer has a clear enough
recollection some 6 months later concerning who was or was
not in the hearing room during the second day of the hearing
to support a finding that that Lisa Mumma-Morgan was ei-
ther mistaken or untruthful in her testimony.
On the record before me, I find that Lisa Mumma-Mor-
gan’s violation of the sequestration order was inadvertent and
unintentional. I further find that there is nothing in the record
indicating that Attorney Brewer intentionally allowed her to
remain in the hearing room even though he knew at the time
that he would call her as a witness, or that he purposefully
or negligently failed to comply with the sequestration order
by seeing to it that all of his witnesses were excluded from
the hearing room.
Finally, I perceive no prejudice to the Respondent from
the witness’ inadvertent violation of the sequestration order
during the first and, possibly, the second days of the hearing.
While, as noted by Respondent, both Donald Eshleman, who
testified on the first 2 days of the hearing, and Lisa Mumma
Morgan testified concerning the lease between Mumma Real-
ty Associates, Pennsy Supply, and Drivers, Inc. and gave tes-
timony concerning the corporate structure of Pennsy Supply
and other Mumma family corporations, there is little factual
dispute concerning the terms and conditions of the lease or
the corporate structure of the various companies. Lisa
Mumma-Morgan’s testimony added little that was new to the
evidence in the case. In evaluating her testimony, and deter-
mining what weight, if any, to give it, I have taken into con-
sideration that she may have had the opportunity to hear
other witnesses’ testimony on the same issues about which
she testified.
In the absence of any showing that there was an inten-
tional or purposeful disregard of the sequestration rule, and
in the absence of any showing of prejudice to the Respond-
ent, I do not find it appropriate to exclude the testimony of
Lisa Mumma-Morgan.
V.
Whether Pennsy Supply and Drivers, Inc. were at any rel-
evant time a single employer, joint employers, alter egos, or
allies depends on the relationship between the two employ-
ers. Considerable evidence was presented on this issue during
the hearing.
(a) Ownership and and financial control. Drivers, Inc. was
one of a number of companies owned and controlled by Rob-
ert M. Mumma until he sold his interest in the Company in
1985 for $3600 to Harry G. Lake Jr., Ronald Nye, and Ward
Rice, three vice presidents of Pennsy Supply,25 another com-
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
operations, and Ronald Nye was its vice president of aggregate and
blacktop sales. Since late 1991 or early 1992, however, Lake and
Nye are no longer vice presidents of Pennsy Supply. Lake was reas-
signed to head two Mumma subsidiaries, Elco Concrete Products and
Smith Quarry, and Nye retired. They each have a one-third interest
in Drivers, Inc. Lake is president of Drivers, Inc., Rice is vice presi-
dent and secretary, and Nye was treasurer until he terminated his in-
volvement in Drivers, Inc. on September 12, 1991, when he retired.
General Manager Charles Welsh took over the function of signing
Drivers, Inc. checks after Nye left.
26 Barbara Mumma, the president and chief executive officer of
Pennsy Supply and others of the Mumma family corporations, ex-
plained that Lake, Rice, and Nye were removed from the board of
directors of Pennsy Supply because Barbara Mumma decided she
wanted the Mumma-family businesses to be strictly Mumma family
run.
27 This billing arrangement applies only to Pennsy Supply and
Robert M. Mumma, Inc. Other non-Mumma corporation customers
are billed at an hourly rate which includes a figure for workman’s
compensation and unemployment insurance.
28 Welsh testified that NCAS also processes Pennsy Supply em-
ployees’ health insurance claims; however, he said that Drivers, Inc.
has a separate arrangement with NCAS.
29 Forms received by Drivers, Inc. employee Jay K. Umbrell from
the Commonwealth of Pennsylvania, Department of Labor and Bene-
fits, Bureau of Unemployment Compensation Allowances and Bene-
fits, relating to his claim for unemployment compensation, show the
name of his employer as Sulky Corporation, not Drivers, Inc. Driv-
ers, Inc.’s unemployment compensation account with the Common-
wealth of Pennsylvania was opened in 1969 under the name of
Sulky Corporation, apparently a corporation owned by Robert M.
Mumma. Commonwealth records indicate that the current account
name is Drivers, Inc. resulting from a corporate name change. When
the account was first opened in the name of Sulky Corporation, it
received a partial transfer of experience (used to determine the un-
employment compensation tax rate) from the experience rating
record and reserve account of a predecessor business, Pennsy Supply
Inc. While the corporate name change to Drivers, Inc. was recorded
in the Commonwealth’s records, for unknown reasons the Pennsyl-
vania Bureau of Unemployment Compensation Benefits and Allow-
ances still uses the name of Sulky Corporation on their forms.
pany owned and controlled by Robert M. Mumma. The sales
agreement was oral. At the time of the sale, Drivers, Inc. had
no assets, and Pennsy Supply was its only customer. Lake,
Nye, and Rice do not have any ownership or other financial
interest in Pennsy Supply or any other Mumma corporation;
however, until they were removed in 1991, Lake, Nye, and
Rice were members of the board of directors of Pennsy Sup-
ply.26 Lake is still a member of the board of directors of at
least one other Mumma family corporation, Robert M.
Mumma, Inc. The parties stipulated that prior to the 1985
sale of Drivers, Inc. to the three vice presidents of Pennsy
Supply, Drivers, Inc. and Pennsy Supply were joint employ-
ers.
Under the payment arrangement agreed to by Robert M.
Mumma at the time of the sale, and continued essentially un-
changed since his death in 1986 by his widow, Barbara
Mumma, who succeeded him as president of Pennsy Supply,
Pennsy Supply and Robert M. Mumma, Inc., reimbursed
Drivers, Inc. for all of its labor costs related to providing
drivers to Pennsy Supply and Robert M. Mumma, Inc., in-
cluding overtime and benefits which pass through, plus 1
percent, and Pennsy Supply pays Drivers, Inc. a minimum
service charge fee of $700 per month.27 Under this arrange-
ment, Drivers, Inc.’s gross revenues in 1989 were approxi-
mately $3 million, and its owners realized a profit of ap-
proximately $25,000.
In 1986, Lake asked Barbara Mumma for a written con-
tract covering services provided by Drivers, Inc. Barbara
Mumma refused to give Lake a written contract for Drivers,
Inc.’s services, as he requested. She told Lake that Pennsy
Supply would honor the existing compensation agreement if
Drivers, Inc. supplied drivers when Pennsy Supply requested
them.
Barbara Mumma, whose testimony I credit, said that it
was obvious that if the pay of Drivers, Inc. employees in-
creased, the cost to Pennsy Supply of using Drivers, Inc.
drivers would also increase. She said that over the years
Pennsy Supply continued using Drivers, Inc. and there have
been increases in the invoices from Drivers, Inc. She dis-
cussed the increased costs with her daughter, Lisa Mumma-
Morgan, and Donald Eshleman, Pennsy Supply’s executive
vice president, after it was brought to her attention that it
cost Pennsy Supply more to use Drivers, Inc. drivers than it
did to use Pennsy Supply drivers. When the 1991 collective-
bargaining agreement between Drivers, Inc., and Local Union
776 was signed and went into effect, the additional costs
were passed on by Drivers, Inc. to Pennsy Supply.
Drivers, Inc.’s general manager, Charles Welsh, submits
invoices to Pennsy Supply for gross wages, FICA tax, sales
tax, variable fees, Federal employment insurance, unemploy-
ment insurance, workmen’s compensation insurance, and
once a month, for health insurance, pension contributions,
and the $700 minimum service charge. Checks received from
Pennsy Supply are deposited in Drivers, Inc.’s regular check-
ing account. A check for the net pay amount is drawn simul-
taneously and deposited in Drivers, Inc.’s payroll account.
Pennsy Supply performs computer services for Drivers,
Inc., including processing Drivers, Inc.’s payroll and prepar-
ing its payroll checks, and bills Drivers, Inc. for computer
time by charging it a fee of $1 per check. Pennsy Supply
buys blank checks and timecards for Drivers, Inc., ostensibly
because Pennsy Supply can buy them in bulk at a better unit
price from its supplier, Moore Business Forms, and Drivers,
Inc. reimburses Pennsy Supply for the cost of the blank
checks and timecards which it uses.
Before changing the health insurance plan for Drivers,
Inc.’s employees in 1990, Drivers, Inc. purchased health in-
surance for its employees through the Teamsters health and
welfare program. Since Drivers, Inc. dropped the Teamsters
health insurance program in 1990, it is reimbursed dollar for
dollar by Pennsy Supply for the health benefits claims of
Drivers, Inc. employees. Health benefits claims of Drivers,
Inc. employees are processed by a third-party insurer, NCAS,
a subsidiary of Blue Cross/Blue Shield.28 Drivers, Inc. pays
NCAS for the amount paid out for employees’ health bene-
fits claims, and then bills Pennsy Supply monthly for the
amount it spends on its employees for health benefits.
Drivers, Inc. pays quarterly unemployment compensation
premiums to the State of Pennsylvania.29 It bills Pennsy Sup-
ply for the premiums as one of the benefits which it is al-
lowed to charge to Pennsy Supply under the compensation
agreement.
The cost of workmen’s compensation insurance coverage
for the employees of Drivers, Inc. is another employee bene-
fit which Drivers, Inc. charges to Pennsy Supply. Pennsy
1157TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
30 Included on the list of additional named are Nine Ninety Nine,
Inc. (holding company); Pennsy Supply, Inc. (operating entity); Rob-
ert M. Mumma, Inc. (wholly owned subsidiary Pennsy Supply, Inc.);
Pennsylvania Supply Company; Bobali Corporation; Middle Park,
Inc.; Drivers, Inc.; Elco Concrete Products, Inc.; Lebanon Rock, Inc.;
Mumma Realty Assoc.; Mumma Realty Assoc. Inc.; Hummelstown
Quarries, Inc.; Lisa M. Morgan; Linda M. Roth; Barbara M. McK.
Mumma; Robert M. Mumma II; and Robert M. Mumma Marital
Trust. The ‘‘Schedule of Hazards,’’ on which the premium appears
to based include various properties owned by Pennsy Supply, Inc.;
Mumma Realty Associates II; Nine, Ninety-Nine Inc., t/a Amity
Farms; Lebanon Rock, Inc.; Mumma Realty Associates I; Bobali
Corp.; Hummelstown Quarries, Inc.; Robert M. Mumma; and Elco
Concrete Products, Inc.
31 Harry G. Lake Jr. described Drivers, Inc. as being in the chauf-
feuring business.
32 Pennsy Supply sets the rate of pay for the 40 drivers it employs.
The rate of pay for Drivers, Inc. drivers, is set by the collective-bar-
gaining agreement between Drivers, Inc. and Local Union 776.
33 Ten dump truck drivers and five to six concrete mixer drivers.
34 Lovett was a personnel assistant at Pennsy Supply.
35 According to Harry G. Lake Jr., one-third owner and president
of Drivers, Inc., Robert M. Mumma agreed at the time of the 1985
purchase of Drivers, Inc. by Lake and his two partners, that they
could use Lovett for such services until they found a suitable re-
placement.
Supply obtains the insurance coverage for Drivers, Inc. as an
additional insured under Pennsy Supply’s policy. This results
in a substantial savings to Drivers, Inc. compared to the
higher premiums which it would be charged if it obtained the
coverage on its own. Pennsy Supply bills Drivers, Inc. for
the premium expense for Drivers, Inc. employees, and Driv-
ers, Inc. then bills Pennsy Supply for the cost of coverage
for its employees who drive Pennsy Supply vehicles.
Drivers, Inc. is listed as an additional insured on Pennsy
Supply’s vehicle liability insurance policy, at no additional
cost to Pennsy Supply. Pennsy Supply also carries a com-
mercial general liability insurance policy, issued by the PMA
Group, which lists a number of additional named insureds,
one of which is Drivers, Inc.30 Whether coverage of Drivers,
Inc. under that policy comes at a cost to Pennsy Supply can-
not be determined with certainty from the face of the policy,
because before turning over the copy, which has been admit-
ted in evidence as Respondent’s Exhibit 26, to the Respond-
ent pursuant to a Board subpoena, Pennsy Supply blacked
out the limits of coverage and the premium information. An
adverse inference has been drawn against Pennsy Supply that
this insurance coverage is not provided to Drivers, Inc. with-
out cost to Pennsy Supply.
(b) Interrelation of operations. Drivers, Inc. is the main
supplier of drivers to Pennsy Supply.31 When Robert M.
Mumma sold Drivers, Inc. to its current owners, all of its
business was with two Mumma companies, Pennsy Supply
and Robert M. Mumma, Inc. Although no written sales
agreement exists, the new owners of Drivers, Inc., there was
an understanding among the principals that the Company
would continue supplying drivers to Pennsy Supply when re-
quested. Barbara Mumma, who assumed the presidency of
Pennsy Supply after the death of her husband, Robert M.
Mumma, in 1986, orally agreed to continue the existing com-
pensation arrangement with Drivers, Inc. if Drivers, Inc. sup-
plied drivers to Pennsy Supply and Robert M. Mumma, Inc.
when they requested them.
As noted earlier, at the time of the work stoppage and
strike in November 1990, Pennsy Supply directly employed
approximately 40 drivers, and got most of the rest of the
drivers it needed from Drivers, Inc.32 During the busiest time
of year in the construction industry in the Harrisburg area,
Pennsy Supply uses from 70 to 75 drivers from Drivers, Inc.
who regularly drive Pennsy Supply vehicles each day. Dur-
ing November and December, Pennsy Supply’s need for
Drivers, Inc. drivers decreases to 15 to 16 drivers daily, de-
pending on the weather.33 Drivers, Inc. drivers usually drive
Pennsy Supply’s concrete mixers and triaxle dumptrucks, and
over-the-road haulers. When driving Pennsy Supply vehicles,
Drivers, Inc. drivers sometimes wear hats or jackets with
Pennsy Supply’s name on them. The other vehicles operated
by Pennsy Supply, which include dump trailers, haulers, and
cement haulers, are driven almost exclusively by its own em-
ployee-drivers. At its Newport and Holly Springs, Pennsyl-
vania facilities, Pennsy Supply contracts with at least two
outside companies to supply additional trucks and drivers, on
a daily basis, as needed. All of Pennsy Supply’s vehicles are
maintained by its mechanics.
On infrequent occasions, Drivers, Inc. employees per-
formed other duties than driving trucks for Pennsy Supply.
Jay K. Umbrell, a low-bed driver employed by Drivers, Inc.
for 11 years, testified he has filled in for loader operators in
Pennsy Supply’s yard, and was paid by Drivers, Inc. for
doing the work. Herb Morrow, another Drivers, Inc. driver,
sometimes filled in for Pennsy Supply dispatchers.
Company President Lake testified that it was not con-
templated that Pennsy Supply would have exclusive use of
Drivers, Inc. drivers, and after purchasing the company in
1985, Lake and his partners sought new customers. During
the first year under the new ownership, Drivers, Inc. leased
drivers on a couple of occasions to a company named High-
way Equipment company, and in 1990 leased drivers to
Highway Equipment Company and several other non-
Mumma companies, including Stewart Amos Equipment,
Stevenson Equipment, and Groft Tractor. However, a sub-
stantial percentage of Drivers, Inc.’s business continued to be
with Pennsy Supply and Robert M. Mumma, Inc. Lake
placed the percentage of Drivers, Inc.’s business with Pennsy
Supply and Robert M. Mumma, Inc. in the year after the
purchase at 90 percent or close to it. Charles Welsh, the gen-
eral manager of Drivers, Inc., placed the percentage of the
Company’s business with Pennsy Supply and Robert M.
Mumma, Inc. at 98 to 99 percent over the past several years.
(c) Management. Following their purchase of the Com-
pany, the new owners of Drivers, Inc. turned over the day-
to-day operation of Drivers, Inc. to Bruce Lovett, an em-
ployee of Pennsy Supply,34 who ran Drivers, Inc. from the
offices of Pennsy Supply for a period of 2 years until
Charles Welsh was hired by Drivers, Inc. as its general man-
ager and vice president in July 1987. Lovett’s salary during
the 2-year period was paid entirely by Pennsy Supply.35
Until Welsh was hired, Lovett solicited and interviewed ap-
plicants for employment by Drivers, Inc. and made offers of
employment. He had authority to issue disciplinary warnings
to Drivers, Inc. employees, and assisted in handling other
personnel matters involving Drivers, Inc. employees. Clerical
employees of Pennsy Supply, who from time-to-time assisted
Lovett in preparing correspondence for Drivers, Inc. also re-
ceived no pay from Drivers, Inc. for their services. Lovett,
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 At times not all drivers received driving assignments for the
next day.
37 The lease was redone on June 22, 1989, after the Kim Company
was taken over by Mumma Realty Associates, another Mumma cor-
poration.
38 The lease came about after Lake asked Lisa Mumma-Morgan if
Drivers, Inc. could lease some property from Pennsy Supply to use
as a site for an office. Lake indicated that he was considering using
a trailer for the office. Lisa Mumma-Morgan and her mother, Bar-
bara Mumma, had no objection, as long as the lease did not impede
Pennsy Supply’s operations, and a lease agreement was negotiated.
39 Welsh testified that at least twice a year he posted notices on
the bulletin board at the trailer, instructing Drivers, Inc. employees
to use the Sycamore Street gate when entering and leaving in their
personal vehicles. If he saw a Drivers, Inc. employee coming in
through another gate, he orally reminded the employee to use the
Sycamore Street gate.
40 Drivers, Inc. is invoiced directly by Mumma Realty Associates,
Inc., for $300 each month.
41 Welsh retired from civilian employment with the U.S. Air Force
in 1969, after nearly 30 years of service. After retiring he worked
for Robert Mumma on special projects, mostly involving workmen’s
compensation, for 7 months, then accepted employment by the State
of Pennsylvania. For a 10-month period in approximately 1970,
Welsh worked for the Pennsylvania Department of Commerce while
Robert Mumma was the Secretary of Commerce. After Mumma left
his position, Welsh continued working for the Pennsylvania Depart-
ment of Commerce until he retired from State government in April
1969. For the next 5 to 6 years he a*COM008*gain worked for Rob-
ert Mumma as a consultant on workman’s compensation cases.
Welsh testified that he initially was not interested when Harry G.
Lake Jr. approached him February 1987 about a position with Driv-
ers, Inc., but subsequently decided he would accept the position on
three conditions which Lake accepted: (1) He would receive no in-
terference in managing Drivers, Inc. (if his services were not accept-
able to the owners, he would quit); (2) his workday would be 4
hours per day; and (3) he would receive 5 to 8 weeks’ vacation dur-
ing fall and winter months. Welsh stated that he works from ap-
proximately 5 a.m. until 9 or 9:30 a.m., handling the assignment of
drivers based on requests which he receives from the Pennsy Supply
dispatchers, and working on administrative matters concerning the
operation of Drivers, Inc.
42 Welsh testified that Drivers, Inc. maintains its own financial
books and records.
43 Welsh testified that most of the time he uses attorneys provided
by the Company’s insurance carrier, but that on one occasion he
used an outside attorney to handle a case.
44 Drivers, Inc. employs two other nondriver employees, an office
manager and a man who assists Welsh in office work and sometimes
fills in for Welsh in the latter’s absence.
with the assistance of legal counsel, handled labor relations
matters with Local Union 776 on behalf of Drivers, Inc.
Before Charles Welsh was hired as general manager of
Drivers, Inc. and the Company’s office was relocated from
the offices of Pennsy Supply to the trailer where the Compa-
ny’s office is now located, employees of Drivers, Inc. who
were leased to Pennsy Supply, received work assignments di-
rectly from Pennsy Supply’s dispatchers, clocked in and out
on timeclocks located at the Pennsy Supply dispatchers of-
fice, and received their paychecks at the dispatchers office.
The usual procedure followed by the Pennsy Supply dis-
patchers was to post lists in the afternoon with the names of
the Pennsy Supply drivers, and the Drivers, Inc. drivers
scheduled to work the next day, and the numbers on the
trucks they were to drive.36 There were separate lists for
Pennsy Supply drivers and Drivers, Inc. drivers, but assign-
ments were by seniority calculated using both lists. Seniority
was an important factor in assignment of trucks, because the
more senior drivers drove the newer and larger trucks, and
received higher pay for driving the bigger trucks. On the
mornings they were scheduled to work, Drivers, Inc. drivers
who drove cement mixer trucks reported to their trucks after
clocking in, and then reported in by radios installed in the
trucks to the dispatcher for their first delivery assignment,
and, after completing that assignment, for further assign-
ments, until they were told by the dispatcher to return and
wash their trucks.
When Charles Welsh took over management of Drivers,
Inc. in July 1987, the Company still did not have an office
of its own, and was operating from the offices of Pennsy
Supply. The company’s personnel and payroll functions were
handled in-house by Pennsy Supply, and the company was
still managed by Bruce Lovett.
Lake told Welsh that he wanted to separate Drivers, Inc.
from Pennsy Supply, and move Drivers, Inc. to a parcel of
land, which Pennsy Supply and Drivers, Inc. jointly leased,
located at the south end of Pennsy Supply’s Paxton Street fa-
cility, near Sycamore Street. Pennsy Supply and Drivers, Inc.
jointly leased the parcel of land in 1987 from the Kim Com-
pany, now called Mumma Realty Associates,37 a Mumma
company which owns the land used by Pennsy Supply for its
Paxton Street facility.38 Drivers, Inc. uses part of the land
which it jointly leases with Pennsy Supply as the site for a
trailer which Welsh leased for use as its office, and another
part as a parking lot for the personal vehicles of Drivers, Inc.
employees. The most direct access to the trailer and parking
lot is through the Sycamore Street gate, which is the gate
designated for use by Drivers, Inc. employees.39 Pennsy Sup-
ply uses the rest of the land covered by the joint lease for
its own purposes. By oral mutual agreement between the les-
sees, the $500 monthly lease payment to Mumma Realty As-
sociates is split between Drivers, Inc. which pays $300 a
month, and Pennsy Supply, which pays $200 a month.40
Water, sewage, trash, and electrical service for Drivers, Inc.’s
trailer are supplied at no further charge by Pennsy Supply.
Drivers, Inc. pays it own telephone bills.
The relationship between Drivers, Inc. and Pennsy Supply
changed markedly after Drivers, Inc. hired Charles Welsh as
general manager and moved its office to the trailer. The three
owners of Drivers, Inc. establish corporate policy, but since
hiring Welsh as general manager, otherwise do not take an
active role in managing the Company’s day-to-day oper-
ations. Welsh testified that one condition of his employment
was that he would receive authority to run Drivers, Inc. with-
out interference,41 a condition to which Company President
Lake agreed. Welsh’s responsibilities as general manager of
Drivers, Inc. include recruiting new employees; hiring and
firing of employees; disciplining employees, keeping employ-
ees’ time records; keeping the Company’s financial
records,42 including payroll records and accounts receivable
and payable records; handling unemployment compensation
and workman’s compensation matters for Drivers, Inc.43 han-
dling grievances and arbitrations and other labor relations
problems involving Drivers, Inc. and its collective-bargaining
agreement with Local Union 776; and, negotiating collective-
bargaining agreements with Local Union 776. The wages of
drivers are set by the collective-bargaining agreement, but all
other wages, except his own, are set by Welsh.44 When
1159TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
45 Welsh calls the office manager daily when he is away on vaca-
tion.
46 Not included in the move and change in procedure at that time
were Drivers, Inc. low-bed drivers, who drove tractors and trailers
owned by Robert M. Mumma, Inc.
47 One driver complained to Lisa Mumma-Morgan in 1987 or 1988
that after the move to the trailer, Drivers, Inc. drivers did not receive
driving assignments until after the Pennsy Supply drivers received
theirs. For the rest of that winter, there was ‘‘cross-blending’’ of the
Drivers, Inc. and Pennsy Supply lists for work assignments. The
practice was not continued after that.
48 The effective date was June 25, 1990.
49 Three Drivers, Inc. employees observed wearing their Pennsy
Supply jackets are Herb Morrow, Norman Romberger, and John
Wright.
50 Jay K. Umbrell, a Drivers, Inc. low-bed driver operating a Rob-
ert M. Mumma, Inc. truck received a citation under such cir-
cumstances by the Pennsylvania State Police in 1986. After Umbrell
complained to Lake and Rice that Pennsy Supply’s dispatcher had
told him to take care of the fine, Umbrell was represented by an at-
torney who resolved the matter. Umbrell said he did not receive a
bill from the attorney. Umbrell stated that in 1986 drivers were told
to contact Donald Eshleman if they had problems with permits to
move overweight loads.
Welsh is away, his office manager acts in his place.45 Since
September 1991, Welsh has signed checks for Drivers, Inc.
After Drivers, Inc.’s, office was moved to the trailer in
1987, the timeclock for mixer drivers and dump truck drivers
was moved to the trailer, and the driver assignment lists are
posted there for Drivers, Inc. drivers.46 The Drivers, Inc.
drivers clock in and out, and receive their work assignments
and paychecks at the trailer. The names of the Pennsy Sup-
ply drivers with driving assignments for the day are not post-
ed at Drivers, Inc.’s, trailer.47
Drivers, Inc. low-bed drivers, who drove Robert M.
Mumma, Inc. tractors and trailers which are used to move
heavy equipment, continued clocking or signing in and out
and receiving driving assignments at the Pennsy Supply dis-
patchers office until June 1990,48 when they were instructed
to clock in at the Drivers, Inc. trailer, and to use use the Syc-
amore Street entrance to enter and leave and the Drivers, Inc.
parking lot to park their personal vehicles. Prior to that these
Drivers, Inc. employees parked their personal vehicles behind
the Pennsy Supply warehouse. According to Welsh, he took
that action because he did not know when they were report-
ing to work or leaving, and he did not feel he had control
over them. From then on, the Drivers, Inc. low-bed drivers
clocked in and out, and received work assignments and their
paychecks at the Drivers, Inc. trailer. After the strike ended
in 1991, Robert M. Mumma, Inc., did not resume leasing
low-bed drivers from Drivers, Inc.
Under the procedure followed by Pennsy Supply and Driv-
ers, Inc., at approximately 2 to 3 p.m. each day, the Pennsy
Supply dump truck and concrete mixer dispatchers, or Dis-
patcher Supervisor William Umbrell would call Welsh by
telephone and tell him how many Drivers, Inc. drivers will
be needed for the next day, and the starting times, based on
the number of orders to be delivered. Welsh schedules the
number of Drivers, Inc. drivers needed, based on seniority,
and posts a list of the names and starting times at the trailer
for the drivers to see when they clocked out in the afternoon.
Welsh calls those drivers who clock out before the list is
posted at approximately 5 a.m. the next day to give them
their assignments. About 5:45 a.m. the next day, the dis-
patchers tell Welsh which trucks the drivers will be using
and where they will be going on their initial assignments.
Welsh posts this information for the drivers to see when they
clock in. Pennsy Supply’s trucks are equipped with two-way
radios, and the drivers receive their subsequent assignments
throughout the day from the dispatchers by radio.
It is Pennsy Supply’s practice to assign drivers to the same
truck each day so that the drivers are familiar with the vehi-
cle and take care of it. Pennsy Supply’s executive vice presi-
dent, Donald Eshleman, said generally 85 percent or more of
the time the drivers, including Drivers, Inc. drivers who drive
regularly for Pennsy Supply, are assigned to the same truck
each day. The remaining 15 percent of the time a particular
truck might be undergoing maintenance and is not available
for use, or a particular type of truck is not needed on a par-
ticular day.
Through 1989, Pennsy Supply customarily invited its own
employee-drivers and Drivers, Inc. drivers who regularly
drove for Pennsy Supply to a Christmas party each year. At
the 1988 and 1989 parties, Pennsy Supply gave out baseball
caps, with the words ‘‘Pennsy Supply’’ appearing on the
front of the caps, to everyone who attended the parties. There
was food served at the Christmas parties and door prizes
were raffled off, with all who attended eligible to receive
them. The entire cost of the 1988 and 1989 Christmas parties
was paid by Pennsy Supply.
At Christmas time in 1989, Pennsy Supply distributed gift
turkeys to its employees and to the drivers it leased from
Drivers, Inc. The cost of the turkeys was paid by Pennsy
Supply.
Monetary awards, the highest of which is the driver of the
year award, are given out by Pennsy Supply for safety of op-
eration, maintenance, and cleanliness of Pennsy Supply
trucks. In 1988 and 1989, everyone who drove Pennsy Sup-
ply trucks were eligible for the awards, including drivers
from Drivers, Inc. In 1990 and 1991, however, the policy
changed, and drivers from Drivers, Inc. were not considered
for the awards. Pennsy Supply’s executive vice president said
that there were approximately 14 such awards made at the
1989 Christmas party, and Drivers, Inc. drivers received 5 to
7 of them. In 1988, Peter E. Sheely, a dump truck driver em-
ployed by Drivers, Inc. for over 18 years, received Pennsy
Supply’s driver of the year award and a cash prize of $500.
Pennsy Supply recognizes long service by employees by
awarding a jacket, with Pennsy Supply’s name on the back
and the employee’s name and length of service on the front,
to employees with 20 years of service. Drivers, Inc. employ-
ees who reached 20 years of service with Drivers, Inc. also
received jackets from Pennsy Supply.49
It is Pennsy Supply’s policy to pay traffic fines, such as
for driving an overweight vehicle or driving an oversize ve-
hicle on an unauthorized route, imposed on drivers of its ve-
hicles, if the driver was following instructions given to him
by management or a supervisor.50 If a driver is cited and
fined for doing something which was his fault, he is deemed
to be personally responsible for paying the fine.
One management tool relied on by Pennsy Supply to help
reduce the number of vehicular accidents involving its trucks
is the accident review board. The Pennsy Supply accident re-
view board is made up of both Pennsy Supply and Drivers,
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 Welsh testified that he follows the recommendations of the acci-
dent review board approximately 85 percent of the time. One case
in which did not follow the board’s recommendation involved Driv-
ers, Inc. employee Henry Gregory and an accident in which he was
involved on March 29, 1989. The accident review board rec-
ommended a 3-day suspension. Welsh said he thought the punish-
ment was too light, and increased the suspension to 5 days. He testi-
fied that there were two cases, those of Davis and Lassiter, in which
the board recommended suspensions, but he disagreed and imposed
no suspensions. In another case, he changed the board finding that
an accident was chargeable against the Drivers, Inc. driver to a find-
ing that it was not chargeable.
52 Welsh also wrote a letter to Barbara Mumma inquiring if Driv-
ers, Inc. employees could get employee discounts at Pennsy Supply’s
retail store. Barbara Mumma replied that Drivers, Inc. employees
would receive the discount.
53 Daniel Witmer, who was hired by Drivers, Inc. in 1987, was the
union steward until the 1990 strike. He testified that when he re-
ceived complaints from employees, he brought them to Charles
Welsh. He said he had a good relationship with Welsh, and many
complaints were resolved without filing a grievance.
Inc. employees, as well as representatives of Pennsy
Supply’s management. The nonvoting chairman of the board
is Pennsy Supply’s safety director. The accident review
board reviews the circumstances surrounding vehicular acci-
dents, involving both Pennsy Supply’s own employees, and
Drivers, Inc. drivers while operating Pennsy Supply vehicles,
and recommends disciplinary measures, including suspension
or dismissal, in cases in which it deems the drivers of the
Pennsy Supply vehicle to have been at fault. If the driver
was a Pennsy Supply employee, the board’s recommendation
goes to Pennsy Supply’s executive vice president, Donald
Eshleman, for action. Since Welsh took over as general man-
ager of Drivers, Inc. in 1987, if the driver was an employee
of Drivers, Inc. the board’s recommendation goes to him for
appropriate action. The board’s recommendations are not
binding on Welsh; however, it appears that in the majority
of cases Welsh accepted the board’s disciplinary rec-
ommendations. In several cases Welsh rejected the rec-
ommendations of the board and imposed more severe or less
severe punishment or no punishment at all on Drivers, Inc.
drivers found to have been at fault by the board.51
Welsh testified that no one from Pennsy Supply has dis-
ciplinary authority over Drivers, Inc. employees. Since Welsh
took over control of Drivers, Inc. as general manager in July
1987, however, there have been several instances in which
management personnel of Pennsy Supply attempted to assert
disciplinary authority over Drivers, Inc. employees. It ap-
pears from the evidence of record that Welsh rebuffed each
attempt.
One such incident involved a letter from Barbara Mumma,
the president of Pennsy Supply, dated April 3, 1989, in
which she stated that she agreed with the accident review
board’s recommendation of a 3-day suspension for a Drivers,
Inc. employee named Ralph Yohn, but that a 5-day suspen-
sion, not a 3-day suspension as recommended by the board,
was appropriate for Henry Gregory, another Drivers, Inc. em-
ployee. Welsh said that he had already decided to give Greg-
ory a 5-day suspension before receiving the letter from Bar-
bara Mumma, and Gregory had agreed to accept it. He said
he did not reply to Barbara Mumma’s letter or orally inform
her what action he had taken.52
In August 1990, Welsh received a memorandum from
Pennsy Supply’s executive vice president, Donald Eshleman,
barring a Drivers, Inc. employee from Pennsy Supply prop-
erty because the individual had solicited Pennsy Supply em-
ployees to sign a petition for an election at Pennsy Supply.
Welsh told Eshleman he could not comply with the request
because of the collective-bargaining agreement with Local
Union 776, and Eshleman rescinded the memorandum.
Welsh said that on occasion, Pennsy Supply dispatchers
verbally reprimanded Drivers, Inc. drivers, and Welsh told
them they did not have that authority. One Pennsy Supply
employee involved in such incidents was Red Umbrell,
Pennsy Supply’s dispatcher supervisor. Welsh said that since
he talked to Umbrell, he receives reports from Umbrell when
the latter has complaints about Drivers, Inc. drivers. Welsh
said he thinks the practice of Pennsy Supply dispatchers
reprimanding Drivers, Inc. employees stopped because he has
not received further complaints from his employees.
(d) Labor relations. Drivers, Inc. has had collective-bar-
gaining agreements with Teamsters Local Union 776 since
the 1970s. Since he became Drivers, Inc.’s general manager
in 1987, Welsh has handled all aspects of the Company’s
labor relations with Local Union 776, including grievances
and arbitrations and negotiating collective-bargaining agree-
ments.53 The 1981 and 1984 collective-bargaining agree-
ments were negotiated, in part, by Harry G. Lake, as rep-
resentative of Robert M. Mumma, who was then the owner
of Drivers, Inc. Charles Welsh, assisted by labor attorneys
hired by Drivers, Inc. represented Drivers, Inc. in the 1987
and 1990 negotiations. Lake, testifying as president of Driv-
ers, Inc. said that he and the Company’s co-owners estab-
lished the policy and guidelines for labor relations, and
Welsh carried them out. He said Welsh was given the re-
sponsibility of negotiating the last two collective-bargaining
agreements with Local Union 776, and that he consulted with
Lake and the co-owners generally about bargaining and how
the talks were going.
The labor attorneys for both Drivers, Inc. and Pennsy Sup-
ply are members of the Baltimore, Maryland law firm of
Shawe and Rosenthal. During the 1987 collective-bargaining
negotiations, the Shawe and Rosenthal attorney who rep-
resented Drivers, Inc. and advised Charles Welsh, was Arthur
M. Brewer, Esq., who now represents Pennsy Supply, the
Charging Party in this case. The Shawe and Rosenthal attor-
ney who represented Drivers, Inc. and advised Charles Welsh
during the 1990–1991 collective-bargaining negotiations was
Steve Shawe, Esq. The decision to change individual attor-
neys, but not the law firm, was made by Harry G. Lake Jr.,
the president of Drivers, Inc. The law firm bills the two com-
panies separately for legal fees.
Barbara Mumma, president and chief executive officer of
Pennsy Supply, testified since she has been president of
Pennsy Supply, its labor attorneys have been Steve and Earle
Shawe, of the firm of Shawe and Rosenthal. She said she
was probably aware that in 1990 and 1991 Steve Shawe was
handling collective bargaining for Drivers, Inc. She said she
did not think he was handling cases for Pennsy Supply at the
same time. She acknowledged that she probably had con-
versations with Steve Shawe in 1990 and 1991 during which
she asked how the Drivers, Inc. negotiations were going, but
she said she did not recall his answers.
Welsh said that he left most of the actual negotiations
leading to the agreement which was signed in September
1161TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
54 Eshleman said that several drivers from Drivers, Inc. applied for
jobs with Pennsy Supply during the strike. Six drivers with prior ex-
perience with Drivers, Inc. were hired by Pennsy Supply. They went
through the same 90-day trial period which all new employees of
Pennsy Supply undergo, and they did not receive credit for their
time with Drivers, Inc. for seniority purposes.
1987 to Attorney Brewer, because he was new in the job of
general manager. But Welsh said, although most of the actual
negotiating was carried out by the attorney, he had the final
approval authority for Drivers, Inc. When the 1987 collec-
tive-bargaining agreement expired in 1990, Welsh received
full authority from the Company’s owners to negotiate and
sign a new contract, which, in fact, he signed for Drivers,
Inc. on April 14, 1991. Although Welsh did not receive spe-
cific instructions from Company President Lake concerning
the Company’s bargaining positions, they had conversations
concerning what the Company’s position on various issues
would be, and Lake expressed the view to Welsh that the
contract should be in line with the inflation figure. Welsh
recommended, and Lake agreed, that one company position
should be that Drivers, Inc. would become self-funded for
health insurance, rather than continue participation in the
Teamsters health program.
While collective-bargaining negotiations were taking place
between August and November 1990, Welsh met with Com-
pany President Lake or spoke to him after each negotiating
session to report on how the negotiations were progressing.
He acknowledged that he set up two meetings which were
attended by Donald Eshleman, Barbara Mumma, Lisa
Mumma Morgan, and Harry G. Lake Jr., during which Attor-
ney Steve Shawe and he discussed the status of the negotia-
tions. Welsh explained that it was good business to keep his
biggest customer aware of what was happening, because it
was likely that the new agreement would increase Pennsy
Supply’s costs to use Drivers, Inc. drivers. He said that he
had no further meetings with the group after the employees
of Drivers, Inc. began the work stoppage in November 1990,
but that he continued briefing Lake two or three times a
week on the labor dispute, and from time to time Eshleman
asked him if he had any drivers who would cross the picket
lines and come to work. Welsh also said that he did not dis-
cuss the Union’s December 1990 offer to come back to work
with anyone other than Attorney Shawe because the Union
wanted an extension of the old contract and he was not will-
ing to give it. He acknowledged that Attorney Shawe may
have told Eshleman or Lake about the offer. Lake testified
that he recalled something about an offer by Local Union
776 to return to work, but could not recall the details. Welsh
said a contract was reached in April 1991 when the Union
accepted the Company’s offer.
Donald Eshleman testified that he had four or five con-
versations with Welsh about contract negotiations prior to
November 7, 1990. He said that he knew the existing con-
tract had expired on August 31, 1990, and that Welsh was
conducting negotiations with Local 776 over a new agree-
ment. Eshleman said he was concerned whether Drivers, Inc.
would continue to be able to supply the drivers needed by
Pennsy Supply, so he occasionally requested briefings on the
progress of negotiations from Welsh. Welsh told him that
lack of agreement on wages and health and pension benefits
was holding up a new contract. Eshleman denied that he
gave Welsh any directions or instructions concerning nego-
tiations with the Teamsters.
Eshleman had no warning that there was going to be a
strike, but he was aware that the Drivers, Inc. drivers were
working without a contract, and because of that he developed
a contingency plan so that if anything occurred Pennsy Sup-
ply could continue to service its customers. The plan which
he developed was based on a 1987 contingency plan given
to him by Harry G. Lake Jr. in August 1990. Eshleman knew
that Lake was president and one of the owners of Drivers,
Inc., as well as a vice president of Pennsy Supply. After the
strike started, Lake was one of Eshleman’s strike team mem-
bers. Eshleman stated that he and Vice President of Oper-
ations Ward Rice looked at the qualifications of Pennsy Sup-
ply quarry employees to find qualified drivers to drive ce-
ment mixers.54 He said that he did not talk to Lake or Ron-
ald Nye, who were also vice presidents of Pennsy Supply
about finding qualified drivers because no one in their areas
of responsibility would be qualified to drive.
Lake stated that after the work stoppage began he had con-
versations with Donald Eshleman and Welsh concerning how
the work stoppage affected Pennsy Supply. One subject
which Lake said he discussed with Eshleman was problems
for Pennsy Supply created by the presence of pickets trying
to stop Pennsy Supply’s trucks from leaving and entering the
Paxton Street facility.
Welsh was authorized to sign the 1991 agreement by a
resolution passed by the board of directors of Drivers, Inc.
on December 10, 1990. While he said he did not submit the
agreement to the board of directors of Drivers, Inc. before
signing it, he said that he told Company President Lake that
an agreement had been reached, and they discussed the terms
and conditions contained in the contract which he proposed
to sign.
VI.
I have set out in some detail in section V of this opinion
the evidence which supports my findings on the issues of
whether Pennsy Supply and Drivers, Inc. are joint employers,
single employers, or alter egos, and whether Pennsy Supply
performed struck work and should be deemed to be an ally
of Drivers, Inc. and to have waived its neutrality. Following
is a summary of that evidence as it relates to the specific
issues.
(a) Joint Employer. The standard for determining whether
two or more employers are ‘‘joint employers’’ is well estab-
lished: ‘‘Where two or more employers exert significant con-
trol over the same employees—where from the evidence it
can be shown that they share or co-determine those matters
governing essential terms and conditions of employment—
they constitute ‘joint employers’ within the meaning of the
NLRA.’’ NLRB v. Browning-Ferris Industries, 691 F.2d
1117, 1124 (3d Cir. 1982); Ryder System, 280 NLRB 1024
(1986). ‘‘No finding of a lack of arm’s length transaction or
unity of control or ownership is required, as in ‘single em-
ployer’ cases.’’ NLRB v. Browning-Ferris Industries, supra,
691 F.2d at 1122. As stated by the Board, ‘‘to establish such
status there must be a showing that the employer meaning-
fully affects matters relating to the employment relationship
such as hiring, firing, discipline, supervision, and direction.
TLI Inc., 271 NLRB 798 (1983); Chesapeake Foods, 287
NLRB 405, 407 (1987).
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
55 Drivers, Inc. pays Pennsy Supply for computer time and blank
checks, and Pennsy Supply processes Drivers, Inc.’s payroll and
prints the paychecks. Pennsy Supply’s fee for this service is $1 per
check. There is nothing in the record to indicate that the fee is not
a fair market charge for the service.
Evidence of minimal and routine supervision of employ-
ees, limited dispute resolution authority, and the routine na-
ture of work assignments has been held insufficient to estab-
lish a ‘‘joint employer’’ relationship. Laerco Transportation,
269 NLRB 324, 326 (1984), in which the Board found ‘‘the
evidence to be insufficient to establish that Respondent
shared or codetermined those matters governing the essential
terms and conditions of employment of the drivers at issue,’’
the Board adopted the judge’s finding that the respondent
was not a joint employer of the employees. U.S. Steel Corp.,
270 NLRB 1318 (1984).
On the other hand, evidence of substantial control over
hiring, promotion, and the base wage rates, hours, and work-
ing conditions of employees, coupled with evidence of close
and substantial supervision of employees, and constant pres-
ence of supervisors with a detailed awareness and control of
employees’ daily activities, has been held by the Board to be
sufficient to establish a ‘‘joint employer’’ relationship. Quan-
tum Resources Corp., 305 NLRB 759 (1991). The Board
found a ‘‘joint employer’’ relationship in another recent case,
Continental Winding Co., 305 NLRB 122, 123 (1991), where
even though one employer alone hired employees supplied to
another and set and paid their wages, the record supported
the judge’s findings that the other employer to which the em-
ployees were supplied exercised sole authority to assign,
schedule, and supervise the workplace conditions, and the
performance of work by the employees. There, the Board
said, the supervision was more than ‘‘routine’’ and was not
‘‘insignificant.’’
The parties stipulated that until Robert M. Mumma sold
his interest in Drivers, Inc. in 1985, Pennsy Supply and Driv-
ers, Inc. were joint employers. The evidence clearly estab-
lishes, however, that except for a change in ownership of
Drivers, Inc., the relationship between Drivers, Inc. and
Pennsy Supply after the sale continued as before until Driv-
ers, Inc. hired Charles Welsh as its general manager in July
1987, and moved its office out of Pennsy Supply’s office to
the trailer where its office is now located.
During the interim period of time between the sale in 1985
and the move to the trailer and hiring of Charles Welsh in
1987, Bruce Lovett, an employee of Pennsy Supply, acting
with the approval of Pennsy Supply Owner Robert M.
Mumma and the new owners of Drivers, Inc. managed Driv-
ers, Inc.’s day-to-day operations from the offices of Pennsy
Supply and exercised the power to hire and fire employees,
discipline employees, and conducted its labor relations with
Local Union 776. Lovett’s salary was paid entirely by
Pennsy Supply, as were the salaries of Pennsy Supply office
clerical employees who from time to time performed clerical
work for Drivers, Inc.
Further, Drivers, Inc.’s employees were completely inte-
grated into Pennsy Supply’s operations. Drivers, Inc. drivers
and Pennsy Supply drivers had common supervision, and
were merged for seniority purposes in the assignment of
work. Drivers, Inc. drivers were scheduled for work and re-
ceived work assignments from Pennsy Supply’s dispatchers.
The Drivers, Inc. drivers clocked in and out at the Pennsy
Supply dispatchers office, and received their paychecks there.
Pennsy Supply kept time and attendance records for Drivers,
Inc. employees, and prepared their paychecks. Only the pay
scales differed. Pay rates for Drivers, Inc. employees were
established by the collective-bargaining agreement with
Teamsters Local Union 776, while Pennsy Supply employees
were not covered by a collective-bargaining agreement.
The evidence is sufficient to establish that Pennsy Supply
and Drivers, Inc. continued to be joint employers of the driv-
ers whom Drivers, Inc. leased to Pennsy Supply from the
1985 sale until July 1987, when Drivers, Inc. hired Charles
Welsh as its general manager and moved its office to a sepa-
rate location. There was a change in legal ownership, but
Pennsy Supply continued to control ‘‘those matters govern-
ing the essential terms and conditions of employment’’ of
Drivers, Inc. employees, including hiring, firing, discipline,
supervision, and direction.
Since Charles Welsh assumed the position of general man-
ager, Drivers, Inc. has had its own office and maintains its
own financial records and bank accounts, and distributes pay-
checks drawn on its bank account to its employees for work
while they are leased to Pennsy Supply.55 Welsh keeps time
and attendance records for its employees leased to Pennsy
Supply, and those records are used to determine the pay and
benefits to which the employees are entitled under the wage
and benefits rates set out in Drivers, Inc.’s collective-bar-
gaining agreement with Teamsters Local Union 776. Drivers,
Inc. deducts withholding taxes, FICA taxes, and other appro-
priate state and Federal taxes, from the employees’ gross
pay, and pays unemployment compensation and workmen’s
compensation premiums for its employees. Drivers, Inc. also
makes pension contributions and health benefits payments,
and other benefits payments for its employees, as required
under its collective-bargaining agreement with Teamsters
Local Union 776.
Drivers, Inc. is compensated for leasing its drivers to
Pennsy Supply under the oral arrangement, which provides
that Pennsy Supply will reimburse Drivers, Inc. for all of its
labor costs related to the drivers leased to Pennsy Supply, in-
cluding overtime and benefits which pass through, plus 1
percent, and, in addition, Pennsy Supply will pay Drivers,
Inc. a $700-per-month minimum service fee.
Charles Welsh controls the hiring, firing, and discipline of
Drivers, Inc. employees, including those leased to Pennsy
Supply. On those occasions when Pennsy Supply employees
or officials attempted to exercise disciplinary control over
particular Drivers, Inc. employees, Welsh successfully
rebuffed the attempts. Drivers, Inc. employees participate on
Pennsy Supply’s accident review board, which investigates
vehicular accidents involving Pennsy Supply trucks, regard-
less of whether the person driving the vehicle at the time was
a Pennsy Supply or Drivers, Inc. employee. However, the
findings of fault and disciplinary measures recommended by
the accident review board are not binding upon Welsh and
Drivers, Inc. Welsh makes the determination whether to dis-
cipline Drivers, Inc. employees for accidents in which they
are involved while leased to Pennsy Supply and driving
Pennsy Supply trucks. In approximately 15 percent of the in-
cidents referred by the accident review board, Welsh con-
ducted his own investigation of an accident, and at times has
rejected the findings and recommendations of the Board, and
1163TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
56 Pennsy Supply makes it a practice to assign the same truck to
a driver each day, regardless of whether the driver is an employee
of Pennsy Supply or is leased from Drivers, Inc. Its purpose is one
of promoting increased driver accountability for cleanliness and daily
maintenance purposes. I do not find this apparently sound good busi-
ness practice to amount to control of an essential term and condition
of employment.
reversed the Board’s finding of fault or imposed a more or
less severe disciplinary measure, or none at all.
Since he assumed the position of general manager in July
1987, Welsh has controlled labor relations between Drivers,
Inc. and Teamsters Local Union 776. The board of directors
of Drivers, Inc. establishes labor policy for the Company,
and Welch carries the policy out. With the assistance of
counsel hired and paid for by Drivers, Inc., Welsh negotiated
both the 1987 and 1991 collective-bargaining agreements,
which determine the terms and conditions of employment,
rates of pay, and benefits of Drivers, Inc. employees, includ-
ing those who are leased to Pennsy Supply. While he has
kept Pennsy Supply’s owners and officers informed concern-
ing negotiations with Teamsters Local Union 776, no one
from Pennsy Supply has exercised any control over the posi-
tions taken by Welsh in negotiations concerning the terms
and conditions of employment of Drivers, Inc. employees
who are members of the bargaining unit, or in his handling
of grievances and arbitrations arising under the collective-
bargaining agreements. Pennsy Supply does not exercise con-
trol over Drivers, Inc.’s labor relations to any extent that
would support a finding that it is a joint employer.
Welsh, not Pennsy Supply’s dispatchers, schedules Driv-
ers, Inc. drivers for work driving Pennsy Supply trucks. The
Pennsy Supply dispatchers communicate requests to Welsh
each afternoon for numbers and types of drivers (e.g., con-
crete mixer or dump truck drivers, or drivers of other kinds
of trucks), and specify the time they will be needed the next
day. Welsh determines which Drivers, Inc. drivers will be
sent to drive Pennsy Supply trucks, based on seniority, and
notifies the drivers when to report and which Pennsy Supply
truck they will be driving, based on information he receives
from the Pennsy Supply dispatchers after he gives them the
names of the Drivers, Inc. drivers he will be sending.56
Pennsy Supply does not have the right to select or reject the
drivers sent by Welsh. There is nothing in the record indicat-
ing that Pennsy Supply must approve of drivers sent by
Drivers, Inc. before they will be allowed to drive Pennsy
Supply vehicles. The limited control exercised by Pennsy
Supply in designating how many and what kind of drivers
it needs from Drivers, Inc. on a day-to-day basis is a deter-
mination which only it can make, based on its own business.
That limited control does not constitute sufficient control to
support a joint-employer finding.
The drivers of Pennsy Supply’s trucks do not wear a uni-
form. Some Drivers, Inc. drivers on occasion wear hats with
Pennsy Supply’s name on the front while driving Pennsy
Supply trucks. on occasion some of them wear hats with
Drivers, Inc.’s name on the front. Drivers, Inc. drivers who
have received Pennsy Supply 20-year service awards of jack-
ets, with Pennsy Supply’s name on the back, on occasion
wear the jackets while driving Pennsy Supply trucks. Gen-
erally, however, it is impossible to tell which of the two
companies the driver of a Pennsy Supply truck works for
without knowing the driver personally.
Drivers, Inc. drivers clock in at the Drivers, Inc. trailer and
report to their assigned vehicles parked in Pennsy Supply’s
Paxton Street facility. When they are ready for their first de-
livery assignments, the drivers report in to the Pennsy Supply
dispatcher over the two-way radio installed in Pennsy
Supply’s trucks, and the dispatchers assign the drivers their
initial load and destination. After the drivers deliver their
first loads of the day, they report in to the dispatcher by the
two-way radios, and receive new assignments.The drivers re-
turn to Pennsy Supply’s facility for the day when they are
notified by the dispatcher that there will be no further assign-
ments, and, after cleaning and parking their trucks, go back
to the Drivers, Inc. trailer, and clock out.
The supervision and direction exercised by Pennsy Supply
over Drivers, Inc. drivers while they are on the job driving
Pennsy Supply trucks is limited and routine. It is insufficient
to affect the terms and conditions of their employment to
such a degree that Pennsy Supply may be considered a joint
employer. The supervision exercised by Pennsy Supply basi-
cally involves assigning drivers’ loads and destinations. In
some instances, involving overweight or oversize loads
which require permits, the drivers are required to follow
specified routes to their destinations. The drivers are in-
structed to contact Pennsy Supply’s executive vice president,
Donald Eshleman, if they have problems with permits.
The drivers are responsible for driving violations involving
the size or weights of their loads, unless the violation re-
sulted from their compliance with instructions given by
Pennsy Supply supervisory personnel. In cases in which the
violation was the result of the driver following instructions
from Pennsy Supply supervisory personnel, Pennsy Supply
has paid for the drivers’ legal expenses and for any fines as-
sessed against them.
Pennsy Supply’s dispatchers and supervisory personnel do
not have authority to discipline Drivers, Inc. employees.
When complaints concerning the actions of Drivers, Inc. em-
ployees arise, they are referred to Charles Welsh, who deter-
mines whether disciplinary action is appropriate. Nothing in
these actions is sufficient to give Pennsy Supply the power
to determine the essential terms and conditions of employ-
ment of Drivers, Inc. employees.
The totality of the evidence establishes that after Charles
Welsh was hired as the general manager of Drivers, Inc. in
July 1987, the relationship between it and Pennsy Supply un-
derwent a fundamental change. Welsh was hired, at least in
part, for the purpose of separating the two companies. By
November 1991, he had largely achieved that goal. Pennsy
Supply no longer exercises control over the hiring, firing,
and discipline of Drivers, Inc. employees leased to it, and
while it exercises some supervision and direction on a day-
to-day basis over leased drivers from Drivers, Inc., it is lim-
ited and routine supervision, and in the absence of hiring, fir-
ing, and disciplinary authority does not constitute sufficient
control to support a joint-employer finding.
The factual situation here differs sharply firm that in
W. W. Grainger, Inc., 286 NLRB 94, 95–96 (1987), a case
also involving leased drivers in which the Board found that
one company which leased its driver-employees to another
company which used the drivers were joint employers. In
that case, unlike the instant case, W. W. Grainger, Inc.,
which leased drivers from Rentar Driver Services, Inc., exer-
cised complete and exclusive control over the daily activities
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
57 (1) Functional integration of operations; (2) centralized control
of labor relations; (3) common management; and (4) common own-
ership.
58 The Board took note of the General Counsel’s argument that
while all single employers are not alter egos, by definition all alter
egos meet the criteria for single employer status.
59 Drivers, Inc. would have to pay a higher premium for work-
men’s compensation insurance if it obtained the coverage on its own.
Obtaining the coverage as an additional insured on Pennsy Supply’s
policy not only results in lower premiums to Drivers, Inc., but also
represents a savings to Pennsy Supply, since Drivers, Inc. bills
Pennsy Supply for workmen’s compensation coverage for the drivers
it leases to Pennsy Supply. Put another way, Pennsy Supply saves
itself money by obtaining less expensive coverage for Drivers, Inc.
of the drivers it leased from Rentar, and beyond that, effec-
tively recommended discipline, evaluated work performance,
determined vacation time, retained the right to refuse to em-
ploy any driver referred by Rentar, and exercised indirect
control over the drivers’ compensation. In the instant case,
Pennsy Supply exercises no authority of this or a similar na-
ture over the essential terms and conditions of employment
of Drivers, Inc. employees.
On this evidence, I find that Pennsy Supply was not a
joint employer of Drivers, Inc. employees it leases to drive
its trucks at the time that Respondent allegedly violated the
Act from on or about November 8, 1990. The evidence here
does not show, as is required for joint employer status, that
Pennsy Supply shared or codetermined those matter govern-
ing essential conditions of employment of Drivers, Inc. em-
ployees. Neither does the evidence show that Pennsy Supply
meaningfully affected matters relating to the hiring, firing,
discipline, supervision, and direction of Drivers, Inc. employ-
ees who were leased to Pennsy Supply. Without such a
showing, Pennsy Supply cannot be found to have ‘‘shared or
co-determined those matter governing essential terms and
conditions of employment’’ of the Drivers, Inc. employees it
leased to a sufficient extent to support a joint employer find-
ing.
(b) Single Employer and Alter Ego. Joint employers and
single employers are distinctly different concepts. ‘‘A single
employer relationship exists where two nominally separate
entities are actually part of a single integrated enterprise so
that, for all purposes, there is in fact only a ‘single em-
ployer.’’’ NLRB v. Browning-Ferris Industries, 691 F.2d at
1122. In that case, the court of appeals went on to say that
single employer status is characterized by ‘‘an absence of an
arm’s length relationship found among unintegrated compa-
nies.’’ 691 F.2d at 1122.
Joint-employer status, by contrast, does not depend on the
four factor standard,57 rather a finding that companies are
‘‘joint employers’’ assumes two or more ‘‘independent legal
entities that have historically chose to handle jointly . . . im-
portant aspects of their employer-employee relationship.’’
NLRB v. Browning-Ferris Industries, 291 F.2d at 1122.
In the recent case of Gartner-Harf Co., 308 NLRB 531,
532 (1992), the Board listed the criteria for determining
whether two employers are a single employer for purposes
of the Act:
A determination of whether two or more employers
constitute a single employer depends upon the analysis
of four criteria: (1) interrelation of operations; (2) com-
mon management; (3) centralized control of labor rela-
tions; and (4) common ownership or financial control.
of these criteria, the Board has stressed the first three
are ‘‘more critical than common ownership’’ and has
placed ‘‘particular emphasis on whether control of labor
relations is centralized.’’ [Hydrolines Inc., 305 NLRB
416, 417 (1991).]
Applying these criteria to this case, I find that Pennsy
Supply and Drivers, Inc. are not a single employer for pur-
poses of the Act. I further find, in line with Gartner-Harf
Co., supra at fn. 2, that since they are not a single employer,
a fortiori they are not alter egos, because alter egos also meet
the definition of a single employer.58
(1) The relationship between Pennsy Supply and Drivers,
Inc. may aptly be described as symbiotic, but the symbiosis
does not extend so far that they merge into a single-inte-
grated enterprise. No doubt the relationship is advantageous
to both companies, or it would not exist, and it is probably
necessary to Drivers, Inc.’s survival, but not to that of
Pennsy Supply.
Through Pennsy Supply, Drivers, Inc. obtains insurance
coverage which it needs in its business, in some instances at
no cost, such as vehicle liability insurance as an additional
insured on Pennsy Supply’s policy, or at a lower rate than
it would otherwise have to pay, as in the case of workmen’s
compensation coverage which it obtains as an additional in-
sured under Pennsy Supply’s policy,59 or at some cost to
Pennsy Supply, as is presumed to be the case for commercial
general liability insurance, which Pennsy Supply obtains for
Drivers, Inc. as an additional insured under its policy. Fur-
ther, Drivers, Inc. is able to purchase certain supplies, such
as blank checks and timecards, through Pennsy Supply’s sup-
plier, and is able to take advantage of the volume discount
Pennsy Supply receives.
Another economic advantage realized by Drivers, Inc.
from its relationship with Pennsy Supply flows from its joint
lease arrangement with Pennsy Supply for a parcel of land
within the Paxton Street facility that it uses for its office-
trailer site and employee parking lot. Drivers, Inc. pays a
rental of $300 per month to the lessor for the land, compared
to $200 per month paid by Pennsy Supply, but for that extra
$50 per month (split into equal shares the rental amount
would be $250 per month, each), Drivers, Inc. receives all
utilities for its trailer, except telephone service, from Pennsy
Supply at no charge. Although no dollar amount for the
value of the utility services furnished through Pennsy Supply
can be found in the record, it would appear to be a bit of
an understatement to say that the four services, electricity,
water, sewage, and trash collection, could be obtained by
Drivers, Inc. independently for no more than $50 per month.
The benefits that Drivers, Inc. receives through its rela-
tionship with Pennsy Supply, even if the benefits are pro-
vided at some cost to Pennsy Supply, do not necessarily
show an ‘‘absence of an arm’s length relationship’’ necessary
for a determination that they are single employers. All these
benefits represent costs of doing business which Drivers, Inc.
would otherwise have to pay. Drivers, Inc. in turn must re-
coup its costs of doing business from its customers in order
to be profitable and stay in business. Since Pennsy Supply
is Drivers, Inc.’s principal customer, these costs would have
to be passed on to Pennsy Supply, directly or indirectly, in
1165TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
60 The exact geographical limits of the area serviced by Pennsy
Supply is not established in the record. Further, Pennsy Supply is
only one of a number of different business enterprises wholly owned
by Nine, Ninety-Nine, Inc., which, in turn, is owned and operated
by the Mumma family.
whole or in substantial part, if Pennsy Supply expects that
Drivers, Inc. will remain in business and be in a position to
supply the extra truckdrivers it needs to deliver its products.
The advantages to Pennsy Supply flowing from its rela-
tionship with Drivers, Inc. are not clearly delineated in the
record, but it is a reasonable inference that since Pennsy
Supply chooses to continue the relationship, rather than ter-
minate it, as is its unilateral right, it, too, must find the rela-
tionship to be to its economic advantage. Several things sup-
porting this conclusion are evident. First, at least until the
November 1990 strike by Teamsters Local Union 776 against
Drivers, Inc. that company has been a steady, dependable
supplier of leased drivers when Pennsy Supply needed them.
Second, there is evidence that Pennsy Supply’s need for
more drivers fluctuates with the season of the year and the
number of orders it has to fill on any particular day. It makes
economic sense that it is less costly for Pennsy Supply to
lease only the exact number of extra drivers it needs on any
given day, rather than to employ a sufficient number of full-
time drivers to meet its needs on the busiest days, but leav-
ing it with more drivers than it needs to accomplish the
available work on slow days and in slow seasons.
Drivers, Inc.’s only business is leasing truckdrivers to
other businesses. It has no assets, other than the intangible
asset represented by having experienced truckdrivers avail-
able for leasing. If it has no customers to which to lease its
drivers, it will not be able to retain its drivers for long, be-
cause they are paid only when they work. Without truck-
drivers ready to be leased, it has no service which it can sell.
While the owners of Drivers, Inc., after purchasing the
company in 1985, may have intended to expand its business
by attracting new customers to supplement its business with
Pennsy Supply, their efforts appear to have been largely un-
successful. There was testimony that in recent years, before
the November 1990 strike, 98 to 99 percent of Drivers, Inc.’s
business continued to be with Pennsy Supply.
It is evident, therefore, that if Drivers, Inc. loses Pennsy
Supply as a customer it will almost literally have no market
for its service, and without such a market it will not be able
to survive as a viable commercial enterprise. In short, Driv-
ers, Inc. is virtually totally dependent upon Pennsy Supply
for business, and if Pennsy Supply does not continue leasing
truckdrivers from it, Drivers, Inc. will quickly go out of busi-
ness.
Pennsy Supply, by contrast, is a large, successful enter-
prise which offers a variety of building materials and prod-
ucts, and other services, for sale to the construction industry
in the Harrisburg-Hershey, Pennsylvania area.60 Delivery of
the products which it sells is incidental to its main business
purpose, although no doubt it is important to its ability to at-
tract customers for its products that it have the capability to
offer delivery. It does not, however, employ a sufficient
number of truckdrivers to meet its delivery needs every day.
Instead, it employs only some of the truckdrivers it needs,
and meets its fluctuating need for more drivers by leasing
them. While the principal source from which Pennsy Supply
leases drivers has been for a number of years Drivers, Inc.
it also leases trucks with drivers from other sources on occa-
sion.
But, while Drivers, Inc. is the principal supplier of extra
drivers needed by Pennsy Supply, it has no contract with
Pennsy Supply binding Pennsy Supply to lease truckdrivers
from it. The only arrangement that exists between the two
companies is an informal understanding that as long as Driv-
ers, Inc. has drivers available for lease, Pennsy Supply may,
but is not required to, lease drivers when it determines that
it needs them. In the absence of a contract binding Pennsy
Supply to obtain the leased drivers it needs from Drivers,
Inc. Pennsy Supply may terminate its relationship with Driv-
ers, Inc. at will and without notice. It is a reasonable conclu-
sion that over the years since the sale of Drivers, Inc. to its
present owners in 1985, Pennsy Supply has found it to be
to its economic advantage to lease drivers from Drivers, Inc.
rather than lease them from some other source or hire the
total number its needs as its own employees. But, the fact
remains that these are alternatives to leasing truckdrivers
from Drivers, Inc. which are open to Pennsy Supply, should
it choose to use them.
The November 1990 strike by Teamsters Local Union 776
against Drivers, Inc. with only minor exceptions, cut off
Pennsy Supply from leasing extra truckdrivers from Drivers,
Inc. Pennsy Supply, however, was able to continue operating
its business without Drivers, Inc. by hiring some additional
drivers, diverting other employees with truckdriving experi-
ence to driving duties, and leasing trucks with drivers from
other sources. The contrast demonstrated here is that Pennsy
Supply can continue in business without Drivers, Inc. but
Drivers, Inc. cannot continue in business without Pennsy
Supply.
The evidence clearly shows that the relationship between
Pennsy Supply and Drivers, Inc. is not one of equals. Indis-
putably, the dominant partner in the relationship, by far, is
Pennsy Supply. Because of its dominance, it is simply un-
necessary as a cost control measure for Pennsy Supply to
burden itself with the myriad of details which would be in-
volved in exercising any actual control over the operations
of Drivers, Inc. Instead, and much simpler for Pennsy Sup-
ply, it can rely on market forces to hold down Drivers, Inc.’s
costs. Since Pennsy Supply is not contractually bound to
continue using Drivers, Inc. as a source for leased truck-
drivers, its continued use of leased truckdrivers from Drivers,
Inc. is contingent on it being cheaper to use Drivers, Inc.
than it would be to use any of the other alternatives available
to it. This knowledge cannot have been lost on the owners
of Drivers, Inc., and its general manager, Charles Welsh. As
the vice president of finance and administration for Pennsy
Supply during the times relevant to this case, Harry G. Lake
Jr., who also is the owner of the company most involved in
its operation, has been in a position to project how much it
would cost Pennsy Supply to obtain the extra truckdrivers it
needs from some source other than Drivers, Inc. and this
knowledge amounts to a powerful incentive to hold down
Drivers, Inc.’s costs, or risk losing its business with Pennsy
Supply.
(2) Applying the Board’s four criteria to the relationship
between Pennsy Supply and Drivers, Inc., I find that they are
not parts of a single-integrated enterprise, which is necessary
to a determination that they are, in fact, a single employer.
Beginning with the factor on which the Board places ‘‘par-
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61 The process was completed by the summer of 1990, when
Welsh took over assigning work to Drivers, Inc. truckdrivers who
drove low-bed trailers for Pennsy Supply’s wholly owned subsidiary,
Robert M. Mumma, Inc. Until Welsh took over direct supervision
and accounting for this small group of drivers, they clocked in and
out at the Pennsy Supply dispatchers’ office, received their work as-
signments directly from the dispatchers, and were supervised by the
dispatchers. Welsh directed them to clock in and out at Drivers,
Inc.’s trailer, issued their paychecks to them at the trailer, took over
disciplinary authority over them, and assigned work to them.
ticular emphasis,’’ centralized control of labor relations, I
find that Pennsy Supply does not control Drivers, Inc.’s labor
relations, and thus there is no centralized control of labor re-
lations.
The record shows that Charles Welsh, the general manager
of Drivers, Inc. since 1987, manages all aspects of the Com-
pany’s labor relations with Teamsters Local Union 776, with-
in policy guidelines established by the Company’s owners,
and without any oversight by Pennsy Supply officials.
Welsh, with the assistance of counsel retained by Drivers,
Inc. operating under broad policy guidelines given to him by
the Company’s owners, negotiated and signed the 1987 and
1991 collective-bargaining agreements between Drivers, Inc.
and Teamsters Local Union 776. There is no evidence that
Pennsy Supply has been involved in any way in the handling
of grievances or complaints arising under the collective-bar-
gaining agreements since Charles Welsh took over as general
manager of Drivers, Inc. in 1987, and there is no evidence
that Pennsy Supply established or controlled Drivers, Inc.’s
labor policy.
While Welsh appears to have kept Pennsy Supply officials,
as well as the owners of Drivers, Inc., advised of the
progress of negotiations, particularly during the negotiations
preceding the November 1990 strike, there is no reliable evi-
dence that Pennsy Supply played any role in the determina-
tion of terms and conditions of employment of Drivers, Inc.
employees. I do not find that the periodic briefings given to
Pennsy Supply officials, and the use by Drivers, Inc. of attor-
neys from the same law firm used by Pennsy Supply to rep-
resent in labor matters, standing alone, show that Pennsy
Supply exercised centralized control over Drivers, Inc.’s
labor relations.
Two other related criteria are considered by the Board to
be more critical than common ownership, the last and least
significant of the criteria. They are common management and
interrelation of operations. The evidence of record shows that
neither apply to the relationship between Pennsy Supply and
Drivers, Inc. The evidence clearly shows that Pennsy Supply
exercised management control of Drivers, Inc. prior to 1987,
when Charles Welsh was hired as general manager of Driv-
ers, Inc. But, that relationship ended with the hiring of
Welsh, who was hired by the owners of Drivers, Inc. for the
express purpose of separating the two companies. Since he
was hired, Drivers, Inc. moved from Pennsy Supply’s office
to its own office in a rented trailer located on a parcel of
land which it jointly leases with Pennsy Supply. Welsh, op-
erating from the trailer, exercises the authority to manage all
aspects of Drivers, Inc.’s day-to-day operations, subject only
to policies set by the owners of the Company, without super-
vision by or reporting responsibility to Pennsy Supply. With-
in the framework of company polices established by its own-
ers, Welsh is solely responsible for hiring, firing, and dis-
cipline of Drivers, Inc. employees; assigning work to the
Company’s employees,61 keeping their time and attendance
records, maintaining the Company’s financial records; billing
and collecting for leasing of drivers; handling workmen’s
compensation and unemployment compensation matters for
the Company; and managing the Company’s labor relations.
Pennsy Supply officials and supervisors have no authority to
discipline Drivers, Inc. employees, determine which Drivers,
Inc. employees will be assigned to work for Pennsy Supply,
or reject any driver assigned by Drivers, Inc.
While some incidental vestiges of the old relationship re-
mained after Welsh took over management of Drivers, Inc.,
they are minor and whether considered individually or cumu-
latively, are insufficient to establish managerial control by
Pennsy Supply. Falling into this category of minor incidental
benefits received by Drivers, Inc. employees are discounts on
purchases at Pennsy Supply’s retail store, invitations to at-
tend Christmas parties paid for by Pennsy Supply, and
awards from Pennsy Supply for length of service, safe driv-
ing, and good truck maintenance practices. Other minor ben-
efits include free turkeys at Christmas and hats distributed to
all who attended the Christmas parties.
One management tool used by Pennsy Supply to reduce
vehicular accidents involving its trucks, including those driv-
en by Drivers, Inc. truckdrivers, is the accident review board,
which investigates accidents, makes findings of fault, and
recommends disciplinary action. While Drivers, Inc. partici-
pates in this process and furnishes representatives to sit on
the board, the board’s findings and recommendations of dis-
ciplinary action are not binding on Drivers, Inc. and, in fact,
Welsh has not accepted the findings and recommendations of
the board in approximately 15 percent of the cases involving
Drivers, Inc. employees. Participation in the accident review
board process on this limited basis does not give Pennsy
Supply managerial control over Drivers, Inc.
Considered in the aggregate, Pennsy Supply exercises no
more than minimal and routine supervision of Drivers, Inc.
truckdrivers, while they are on the job driving for Pennsy
Supply. Drivers, Inc. selects the drivers to fill Pennsy
Supply’s numerical request, while Pennsy Supply dispatchers
routinely assign loads and destinations. Performance of that
routine, but necessary, supervisory function is neither un-
usual nor a significant diminution of Drivers, Inc.’s control
over the terms and conditions of employment of its employ-
ees. Obviously only Pennsy Supply knows who its customers
are on any given day and can tell the drivers where and
when to deliver products. Evidence of such limited and rou-
tine supervision and direction by Pennsy Supply, without hir-
ing, firing, and disciplinary authority, is insufficient to show
that Pennsy Supply shares in management control of Drivers,
Inc.’s, employees.
Turning to the third factor, I find insufficient evidence to
establish that the operations of Pennsy Supply and Drivers,
Inc. are interrelated. The testimony shows that in most re-
spects the operations of the two companies are separate.
They maintain separate offices, payrolls, bank accounts, and
financial records. There is some overlapping of financial op-
erations involved in Pennsy Supply using its computer sys-
tem to issue Drivers, Inc.’s payroll checks; however, Drivers,
Inc. pays Pennsy Supply for the service, and there is no evi-
dence that the transactions take place on other than an arm’s-
1167TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
62 Small subsidies from Pennsy Supply, such as some cost to it for
liability insurance coverage for Drivers, Inc. as an additional insured,
and other small costs, including the cost of Christmas parties, small
value gifts, and awards for length of service to Pennsy Supply, safe
driving, and good truck maintenance practices, even considered in
the aggregate, represent only a nominal cost to Pennsy Supply, and
are insufficient to show managerial or financial control over Drivers,
Inc. by Pennsy Supply.
length basis. Each company separately handles hiring, firing,
and discipline of its own employees, and they have separate
and distinct labor relationships. The employees of Drivers,
Inc. are represented by a union for collective-bargaining pur-
poses, while the employees of Pennsy Supply are not. Nei-
ther company has any control over the terms and conditions
of employment of the other’s employees.
The business purposes of the two companies are also sepa-
rate and distinct. As noted above, Pennsy Supply is in the
business of selling construction products, while Drivers, Inc.
is in the business of leasing truckdrivers. Pennsy Supply has
a need for truckdrivers, because it offers delivery of its prod-
ucts to its customers, and while it employs some truck-
drivers, the number it employs is insufficient to handle its
truck traffic on busy days. The business operations of the
two companies overlap only when Pennsy Supply needs
more truckdrivers than it employs, and leases the extra driv-
ers it needs from Drivers, Inc. (Pennsy Supply also leases
trucks and drivers from other companies on occasion to meet
its needs.) Put another way, Drivers, Inc. does not sell con-
struction products, and Pennsy Supply does not lease out
truckdrivers. The nature of the loads hauled by Drivers, Inc.
truckdrivers while leased out is irrelevant to Drivers, Inc.’s
business. Pennsy Supply’s use of trucks and drivers to de-
liver the products it sells is incidental to its main business
objective, which is to sell construction products.
I find that in this case, that the independent operations of
the two companies outweigh in importance the limited inter-
relationship resulting from the use by Pennsy Supply of
leased drivers to supplement its own staff of drivers. There
is insufficient interrelation of operations to support a finding
that the two companies are a single employer.
The last of the four criteria to be considered is common
ownership or financial control. The evidence shows that
since 1985, the two companies have not shared common
ownership. I find no credible evidence that there is common
ownership, to any degree, of the two companies. Neither do
they share common financial control. As noted above, the
two companies maintain separate bank accounts, payrolls,
and financial records. Drivers, Inc. leases truckdrivers to
Pennsy Supply, and bills Pennsy Supply for the service.
Pennsy Supply pays the invoices from Drivers, Inc. by
check, and Drivers, Inc. deposits the checks it receives in its
own bank account. Drivers, Inc. then transfers funds from
that bank account to its payroll bank account to meet its pay-
roll.
The compensation arrangement between Pennsy Supply
and Drivers, Inc. calls for Pennsy Supply to reimburse Driv-
ers, Inc. for all of its labor costs pertaining to the drivers
leased to Pennsy Supply, including gross wages, FICA tax,
sales tax, variable fees, Federal employment insurance, work-
men’s compensation insurance, pension contributions, and
health insurance benefits. All these are labor costs, of one
form or another, which Drivers, Inc., must bear for its em-
ployees, and the rate it charges for leasing drivers must take
them into account, directly, by charging for each component
of its labor costs separately, or indirectly, by charging a
gross rate high enough to cover all labor-related expenses.
Obviously, Drivers, Inc. must recoup its labor costs from its
customers in order to be profitable. Drivers, Inc., like any
other business enterprise, is in business to make money, not
to lose it.
It is not evidence of financial control that Pennsy Supply
pays for the labor costs, both direct and indirect, borne by
Drivers, Inc. for its employee leased to Pennsy Supply. Driv-
ers, Inc. is in the business of leasing drivers, and presumably
its ultimate objective is to earn a profit on its business oper-
ations. Its profit margin is the amount by which its income
exceeds its expenses. It is reasonable to expect, therefore,
that it will charge its customer for all of its labor costs, di-
rect and indirect, which it incurs in paying the wages and
benefits of the employees it leases out.
Neither is it evidence of financial control that Pennsy Sup-
ply obtains insurance coverage for Drivers, Inc. at rates
lower than Drivers, Inc. could obtain on its own, or even that
it subsidizes some of Drivers, Inc.’s business insurance. The
cost to Drivers, Inc. for necessary and required business in-
surance is an operating expenses and a cost of doing business
for Drivers, Inc. which it must be pay out of its operating
income. It is, therefore, a cost of doing business which it
must ultimately charge to its customers, directly or indirectly.
Because Pennsy Supply can reasonably expect that Drivers,
Inc.’s costs of doing business will ultimately be charged back
to it in some form under the two companies’ compensation
arrangement, it represents an ultimate savings to Pennsy Sup-
ply if it is able to reduce Drivers, Inc.’s insurance costs.62
Basically Pennsy Supply and Drivers, Inc. maintain an
arm’s-length relationship in which the two companies have
separate day-to-day management, separate control over their
labor relations, separate ownership, separate financial control,
and no interrelationship of operations. Pennsy Supply com-
pensates Drivers, Inc. for leasing its drivers, just as any com-
pany which obtains goods or services from another company
must do. Most of the compensation is direct, in the form of
ascertainable costs. A small portion of the total compensation
is indirect, in the form of small subsidies given to Drivers,
Inc. at some cost to Pennsy Supply. Examples of these pos-
sibly include the cost of liability insurance and the cost in
excess of $50 per month for utilities and services supplied
by Pennsy Supply to Drivers, Inc.’s trailer. Some services or
benefits which Pennsy Supply provides to Drivers, Inc. are
furnished at no cost to Pennsy Supply. An example of this
is insurance coverage provided to Drivers, Inc. at no addi-
tional charge to Pennsy Supply as an additional insured
under other Pennsy Supply insurance policies. Considering
both direct and indirect compensation flowing from Pennsy
Supply to Drivers, Inc., I find that the total compensation
package is reasonably related to the value of service per-
formed for Pennsy Supply by Drivers, Inc., and is consistent
with an arm’s-length relationship.
I find that there is insufficient evidence that Pennsy Sup-
ply and Drivers, Inc. have ‘‘such identity and community of
interests as [to negate] the claim that [one] is a neutral em-
ployer.’’ Mine Workers (Boich Mining Co.), supra, 301
NLRB at 875. Respondent’s affirmative defense that Drivers,
Inc. and Pennsy Supply are single employers or alter egos
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fails. Therefore, Respondent Union’s picketing of Pennsy
Supply at the Paxton Street entrances to its facility on Paxton
Street, and at the three construction sites, referred to above,
violated Section 8(b)(4)(B) of the Act.
(c) Struck Work and Allies. Having found that Pennsy
Supply and Drivers, Inc. are not joint employers, single em-
ployers, or alter egos, there remains Respondent Union’s af-
firmative defense that its picketing was legal under the struck
work and ally doctrines. I find that neither of these doctrines
is applicable in this case.
In Steelworkers, 127 NLRB 823, 825 (1960), the Board
said the following about ‘‘struck’’ work and ‘‘ally:’’
When we think of ‘‘struck’’ work, we have in mind
work which the struck employer would under normal
circumstances perform himself, but because of the
strike, transfers such work to an ‘‘ally.’’
The Board went on to say in the same case that an em-
ployer does not forfeit its neutral status by continuing ‘‘busi-
ness dealings with the struck employer, in the same manner
and to the same extent as it had before the strike.’’ Id. at
826.
Under the ally doctrine, an employer may lose its neutral
status when it allies itself with a struck employer by per-
forming ‘‘struck’’ work, or work which would have been
performed by the employees of the struck employer except
for the strike. Teamsters Local 743 (Macmillan Science Co.),
231 NLRB 1332, 1333 (1977). In Board law, the ally ‘‘doc-
trine has developed into two branches, one involving cases
where an employer’s neutrality was allegedly compromised
by his performance of ‘struck work,’ and another involving
cases where neutrality was contested on the ground that the
boycotted employer and the primary employer were a single
employer or enterprise.’’ Teamsters Local 560, supra, 248
NLRB at 1213. In the instant case, I have found that Drivers,
Inc. and Pennsy Supply are not a single employer or enter-
prise; therefore, the question that remains is whether Pennsy
Supply comprised its neutrality by performing struck work.
I find that Pennsy Supply did not perform ‘‘struck’’ work,
as an ally of Drivers, Inc., the struck employer. The work
which Drivers, Inc. employees performed for Pennsy Supply
under lease was not work which Drivers, Inc. had a contrac-
tual right to continue to perform and which necessarily
would have been performed by Drivers, Inc. employees ex-
cept for their strike against Drivers, Inc. Whether Drivers,
Inc. supplied any drivers to Pennsy Supply was entirely with-
in Pennsy Supply’s discretion and at its specific request.
‘‘A ‘contract’ has been defined as a promise or a set of
promises for the breach of which the law gives a remedy, or
the performance of which the law in some way recognizes
as a duty.’’ 17A Am. Jur. 24. For there to be a contract,
‘‘there must be the mutual assent of two or more persons
competent to contract, founded on a sufficient and legal con-
sideration, to perform some legal act or to omit to do some-
thing.’’ 17A Am. Jur. 42. ‘‘It is frequently stated as a broad
general rule that there must be mutuality of obligation in
order to form a contract or in order to render it enforceable.’’
17A Am. Jur. 43.
Promises may be express, implied, or constructive, but ‘‘a
promise to perform as long as the promisor desires is not a
real promise and is not binding.’’ 17A Am. Jur. 27. A con-
tract in which there is a promise on one side only is referred
to as unilateral contract, but by nature it is more of an offer
to contract. Where there are promises on the part of both
parties, the contract is considered to be a bilateral contract.
However, whether a contract is unilateral or bilateral must be
determined on inferences from the conduct of the parties as
well as from their words. ‘‘Both express contracts and im-
plied contracts exist only where there is mutual assent be-
tween the parties . . . [and] the law makes no distinction be-
tween agreements made by words and those made by con-
duct.’’ 17A Am. Jur. 38–39.
Where one makes a promise conditioned upon the
doing of an act by another, and the latter does the act,
the contract is not void for want of mutuality, and the
promisor is liable though the promise did not at the
time of the promise engage to do the act, for upon per-
formance of the condition by the promisee, the contract
becomes clothed with a valid consideration which ren-
ders the promise obligatory. [17A Am. Jur. 47.]
There appears to have been no mutuality of obligation be-
tween Pennsy Supply and Drivers, Inc. such as is needed for
a bilateral contract. In this case, there was a promise by one
side only. Pennsy Supply made an express, but unilateral,
promise to pay certain compensation to Drivers, Inc. if it
supplied drivers to Pennsy Supply at the latter’s request.
When Drivers, Inc. at the request of Pennsy Supply, fur-
nished drivers to Pennsy Supply, it became entitled to per-
formance by Pennsy Supply of its unilateral compensation
promise.
Drivers, Inc., however, is under no contractual obligation
to Pennsy Supply to supply drivers when Pennsy Supply re-
quests them. There is no agreement between Pennsy Supply
and Drivers, Inc. obligating Drivers, Inc. to supply a specific
amount of service (i.e., how many leased drivers Drivers,
Inc. is to supply) or, for that matter, any amount of service
at all. Customarily, Drivers, Inc. supplies the number of
leased drivers on a daily basis that Pennsy Supply requests.
Over the years, that number apparently has ranged from a
few drivers to 70 to 75. But, while Pennsy Supply is bound
by its unilateral promise concerning the level of compensa-
tion it will pay to Drivers, Inc. for the drivers supplied to
it at its request, it did not promise Drivers, Inc. that it would
lease drivers from Drivers, Inc. and Drivers, Inc. undertook
no obligation to supply drivers to Pennsy Supply. Pennsy
Supply does not have any legal recourse against Drivers, Inc.
if the latter declines to supply drivers to Pennsy Supply, and
Drivers, Inc.’s only recourse against Pennsy Supply if it does
lease drivers to Pennsy Supply at the latter’s request is that
it is entitled to the level of compensation Pennsy Supply uni-
laterally promised to pay.
That the new owners of Drivers, Inc. were fully aware that
Pennsy Supply had no contractual obligation to lease drivers
from Drivers, Inc. and Drivers, Inc. had no contractual obli-
gation to supply them, is made abundantly clear by the testi-
mony of Harry G. Lake Jr., the president of Drivers, Inc.
which was confirmed by the testimony of Barbara Mumma,
the president of Pennsy Supply. After Barbara Mumma took
over as the president of Pennsy Supply following her hus-
band’s death, Lake asked her for a contract for Drivers, Inc.
to provide leased driver services to Pennsy Supply, but she
1169TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
declined his request for a contract, stating that she preferred
to continue under the old arrangement. The record shows that
no bilateral contract existed between the two companies at
any time prior to that, so Lake’s request for a contract rep-
resented a new direction in the relationship between Drivers,
Inc. and Pennsy Supply.
Since driving Pennsy Supply trucks was not work which
Drivers, Inc., the struck employer, had a contractual right or
obligation to perform, it was not work which meets the defi-
nition of ‘‘struck’’ work, that is, work which would have
been performed by the employees of the struck employer ex-
cept for the strike. Since it was not ‘‘struck’’ work, Pennsy
Supply did not become an ally of Drivers, Inc. by using its
own employees to perform the work during the strike or con-
tracting out the work to other sources of leased drivers
and/or vehicles.
(d) Summary. Pennsy Supply clearly is the dominant part-
ner in its relationship with Drivers, Inc. Considering that the
owners of Drivers, Inc. were themselves employees of
Pennsy Supply, Inc., and that virtually all of Drivers, Inc.’s
business is with Pennsy Supply, there is an obvious possibil-
ity that Pennsy Supply could, if it chooses, exercise deter-
minative control and influence over nominally independently
owned Drivers, Inc.’s operations, including the hiring, firing,
and discipline of its employees, and over its labor relations
and the essential terms and conditions of employment of its
employees, as was the situation prior to mid-1987. However,
under Board law the determination of whether Pennsy Sup-
ply and Drivers, Inc. are joint or single employers or are
alter egos is not based on what Pennsy Supply might be ca-
pable of doing, but on what it did do at the relevant point
in time, which, in this case, is the time of the November
1990 strike against Drivers, Inc. by its employees and the
Respondent Union.
For whatever reasons and motives, since mid-1987, when
Drivers, Inc. moved to its own office and hired Charles
Welsh as its general manager, Pennsy Supply has followed
a hands-off policy towards Drivers, Inc. Considering all of
the evidence, and the inferences which can be drawn from
it, I find that since mid-1987, Pennsy Supply has not exer-
cised day-to-day control over Drivers, Inc.’s operations, nor
has it exerted control over the hiring, firing, or discipline of
Drivers, Inc. employees, or the assignment of work to them,
or over the essential terms and conditions of their employ-
ment, or over Drivers, Inc.’s labor relations and financial af-
fairs. And, I further find that Pennsy Supply did not become
an ally of Drivers, Inc. by performing struck work during the
strike which started in November 1990.
In the absence of credible evidence showing that in No-
vember 1990 Pennsy Supply and Drivers, Inc. were joint or
single employers or alter egos or that Pennsy Supply became
an ally of Drivers, Inc. by performing struck work during the
strike, I find that Pennsy Supply was a neutral employer.
Therefore, the Respondent Union violated Section 8(b)(4)(i)
and (ii)(B) of the Act by picketing the three Paxton Street
entrances to neutral Pennsy Supply’s Paxton Street facility in
Harrisburg, Pennsylvania, and three construction sites in the
Harrisburg-Hershey area where Pennsy Supply delivered con-
crete to other neutral employers. There is convincing evi-
dence that the unlawful purpose of the picketing was to in-
duce and encourage employees of Pennsy Supply, Inc., not
to perform work for Pennsy Supply, Inc., or at its facility,
and force other neutral employers to cease dealing with
Pennsy Supply, Inc.
CONCLUSIONS OF LAW
1. Drivers, Inc. and Pennsy Supply, Inc. are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Respondent, Chauffeurs, Teamsters and Helpers
Local Union No. 776, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. At the time employees of Drivers, Inc. and the Re-
spondent Union began a strike against Drivers, Inc. in No-
vember 1990, and afterwards, Drivers, Inc. and Pennsy Sup-
ply, Inc., were not alter egos or joint employers, or single
employers of the employees of Drivers, Inc. who were leased
to Pennsy Supply on a day-to-day basis for the purpose of
driving Pennsy Supply trucks.
4. Pennsy Supply, Inc. did not compromise its neutrality
and become an ally of Drivers, Inc. during the strike, which
was begun by the Respondent Union and the employees of
Drivers, Inc. against that employer in November 1990, by
performing struck work which, but for the strike, would have
been performed by the employees of struck employer Driv-
ers, Inc.
5. Respondent Union, at various times in November and
December 1990, engaged in unfair labor practices in viola-
tion of Section 8(b)(4)(i) and (ii)(B) of the Act by picketing
the three entrances on Paxton Street to Pennsy Supply’s
Paxton Street facility in Harrisburg, Pennsylvania, for the
purpose of enmeshing Pennsy Supply, Inc., with whom it had
no labor dispute, in the strike by the employees of Drivers,
Inc. and the Respondent Union against Drivers, Inc. and for
the purpose of inducing and encouraging employees of
Pennsy Supply, Inc., and other employers, not to perform
work for Pennsy Supply, Inc., or at that facility.
6. On or about November 8 and 9, 1990, Respondent
Union engaged in unfair labor practices in violation of Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act by picketing the Sand
Beach Road entrance to the Hershey Foods Corporate Center
construction project in Hershey, Pennsylvania, for the pur-
pose of enmeshing Pennsy Supply, Inc. and Rice &
Weidman Company, which were neutral secondary employ-
ers with whom it had no labor dispute, in its strike against
Drivers, Inc. and for the purpose of inducing and encourag-
ing employees of Pennsy Supply, Inc. and Rice & Weidman
not to perform work at the site, and to force Rice &
Weidman and other secondary employers to cease dealing
with Pennsy Supply, Inc.
7. On or about November 12, 1990, and on other divers
dates in November 1990, Respondent Union engaged in un-
fair labor practices in violation of Section 8(b)(4)(i) and
(ii)(B) of the Act by picketing the entrance to the Hershey
Medical Center construction site in Hershey, Pennsylvania,
for the purpose of enmeshing Pennsy Supply, Inc., H. B. Al-
exander, and Reliance Drilling Co., which were neutral sec-
ondary employers with whom it had no labor dispute, in its
strike against Drivers, Inc., and for the purpose of inducing
employees of Pennsy Supply, H. B. Alexander, and Reliance
Drilling Co. not to perform work at the site, and to force
H. B. Alexander and Reliance Drilling Co. and other neutral
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
63 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.
64 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
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.’’
secondary employers to cease dealing with Pennsy Supply,
Inc.
8. On or about November 9, 13, and 16, 1990, Respondent
Union engaged in unfair labor practices in violation of Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act by picketing the the
Crooked Hill Road and Elmerton Avenue entrances to the
U.S. Postal Service construction site in Harrisburg, Pennsyl-
vania, for the purpose of enmeshing Pennsy Supply, Inc., and
Baker Concrete Co., which were neutral secondary employ-
ers with whom it had no labor dispute, in its strike against
Drivers, Inc. and for the purpose of inducing employees of
Pennsy Supply, Inc., and Baker Concrete Co. not to perform
work at the site, and to force Baker Concrete Co. and other
neutral secondary employers to cease dealing with Pennsy
Supply, Inc.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent Teamsters Local Union No.
776 violated Section 8(b)(4)(i) and (ii)(B) of the Act, I rec-
ommend that Respondent be ordered to cease and desist, and
to take certain affirmative action designed to effectuate the
purposes of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended63
ORDER
The Respondent, Chauffeurs, Teamsters and Helpers Local
Union No. 776, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Inducing or encouraging any individual employed by
Pennsy Supply, Inc., or any other persons engaged in com-
merce, or in an industry affecting commerce, to engage in a
strike or a refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle any
goods, articles, materials, or commodities or to perform any
services for Pennsy Supply, Inc., where an object thereof is
to force or require the employees of Pennsy Supply not to
perform work for Pennsy Supply, Inc.
(b) Inducing or encouraging any individual employed by
Rice & Weidman Company, H. B. Alexander, Reliance Drill-
ing Co., and Baker Concrete Co., or any other persons en-
gaged in commerce, or in an industry affecting commerce, to
engage in a strike or a refusal in the course of their employ-
ment to use, process, or otherwise handle any goods, articles,
materials, or commodities manufactured, sold, delivered, or
otherwise handled by Pennsy Supply, Inc., where an object
thereof is to force or require the above-named Employers, or
any other person engaged in commerce or in an industry af-
fecting commerce, to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of, or cease
doing business with, Pennsy Supply, Inc.
(c) In any manner threatening coercing or restraining
H. B. Alexander, Reliance Drilling Co., and Baker Concrete
Co., or any other person engaged in commerce or in an in-
dustry affecting commerce, where an object thereof is to
force or require the above- named Employers, or any other
persons engaged in commerce, to cease using, selling, han-
dling, transporting, or otherwise dealing in the products of,
or cease doing business with, Pennsy Supply, Inc.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its business offices and meeting halls copies of
the attached notice marked ‘‘Appendix.’’64 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to the
members 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.
(b) Furnish the Regional Director for Region 4 with signed
copies of the aforesaid notice for posting by Pennsy Supply,
Inc., H. B. Alexander, Reliance Drilling Co., and Baker
Concrete Co., should they be willing, at all places where no-
tices to their employees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT, nor will our officers, business representa-
tives, business agents, or anyone acting for us, induce or en-
courage any individual employed by Pennsy Supply, Inc. to
engage in a strike or refusal in the course of employment to
perform any services, or work, for Pennsy Supply, Inc.
WE WILL NOT, nor will our officers, business representa-
tives, business agents, or anyone acting for us, induce or en-
courage any individual employed by Rice & Weidman Com-
pany, H. B. Alexander, Reliance Drilling Co., or Baker Con-
crete Co., or any other person engaged in commerce or in
an industry affecting commerce, to engage in a strike or re-
fusal in the course of employment to use, process, transport,
or otherwise handle, or work on any goods, articles, mate-
rials, or commodities, or to perform any services, where an
object thereof is to force or require the above-named Em-
ployers, or any other person engaged in commerce or in an
industry affecting commerce, to cease using, selling, han-
1171TEAMSTERS LOCAL 776 (PENNSY SUPPLY)
dling, transporting, or otherwise dealing in the products of,
or cease doing business with, Pennsy Supply, Inc.
WE WILL NOT threaten, coerce, or restrain Rice &
Weidman Company, H. B. Alexander, Reliance Drilling Co.,
or Baker Concrete Co., or any other persons engaged in com-
merce or in an industry affecting commerce, where an object
thereof is to force or require the above-named employers, or
any other persons engaged in commerce, to cease using, sell-
ing, handling, transporting, or otherwise dealing in the prod-
ucts of, or cease doing business with, Pennsy Supply, Inc.
CHAUFFEURS, TEAMSTERS AND HELPERS
LOCAL UNION NO. 776