Trout Air Freight And Trout Express

National Labor Relations Board - Board Decisions

Feb 29, 1988

287 N.L.R.B. 1299 (N.L.R.B. 1988)

TROUT AIR FREIGHT
Clarence Trout , an Individual , d/b/a Trout Air
Freight and Trout Express and Teamsters Local
Union No. 325, AFL-CIO.' Case 33-CA-7148
29 February 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSON AND BABSON
On 8 May 1986 Administrative Law Judge Mary
Ellen R. Benard issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel filed an answering brief in
opposition to the Respondent's exceptions and a
brief in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions, to modify the remedy,3 and to adopt
the recommended Order.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Clarence
Trout, an Individual, d/b/a Trout Air Freight and
Trout Express, Rockford, Illinois, their officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
' On I November 1987 the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly , the caption has been amended to
reflect that change.
2 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products , 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
a In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U .S.C. § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
4 We agree with the judge that a visitatorial clause is appropriate here
in view of the evidence indicating a likelihood that the Respondents will
attempt to evade compliance with our Order . See Cherokee Marine Ter-
minal, 287 NLRB 1080 ( 1988).
John C. Gywnn, Esq., for the General Counsel.
Clarence Trout, pro se, of Rockford, Illinois, for the Re-
spondents.
Patrick Cacciapaglia, President and Business Agent, of
Rockford, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
1299
MARY ELLEN R. BENARD, Administrative Law Judge.
The original charge in this proceeding was filed on 30
January 1985, and amended on 5 February and 4 March
1985, by Teamsters Local Union No. 325 (the Union)
against Clarence Trout, an individual, doing business as
Trout Air Freight and as Trout Express (the Respond-
ents). On 7 March 1985 the complaint issued alleging, in
substance, that the Respondents violated Section, 8(a)(1)
and (5) of the National Labor Relations Act by repudiat-
ing Trout Air Freight's collective-bargaining agreement
with the Union and by withdrawing recognition from
the Union as the collective-bargaining representative of
their employees, and that the Respondents violated Sec-
tion 8(a)(1) and (3) of the Act by discharging three em-
ployees because of their affiliation with the Union. On I
May 1985, the complaint was amended to allege that a
fourth employee was also unlawfully discharged. The
Respondents filed an answer and amended answer in
which they denied the commission of any unfair labor
practices.
A hearing was held before me on 12 and 13 November
1985, in Rockford, Illinois. Following the hearing the
General Counsel and the Respondents filed briefs, which
have been considered.'
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
The complaint alleges that Clarence Trout, an individ-
ual, did business as Trout Air Freight, an individual pro-
prietorship engaged in transporting freight within Illinois
by truck, until about 31 December 1984, and that during
the year ending on that date Trout Air Freight derived
revenues in excess of $50,000 from commercial and in-
dustrial customers within Illinois who met the Board's
direct inflow and outflow standards for. the assertion of
jurisdiction. The complaint also alleges, inter alia, that
Trout Express is an Illinois corporation with an office
and place of business at the Rockford, Illinois airport,
where it has been engaged in the business of transporting
freight within Illinois by truck since about January 1985.
Further, the complaint alleges that by projecting reve-
nues derived by Trout Express in the operation of its
business since January 1985 for the whole of that year, it
is anticipated that Trout Express will derive revenues in
excess of $50,000 from commercial and industrial cus-
' Briefs were due on 13 December 1985, and the General Counsel's
brief was timely received. Subsequently, Clarence Trout, after having
read the General Counsel's brief, requested leave to file a brief. In a con-
ference call with Trout and the General Counsel on 20 December, I ad-
vised them that I would consider any brief the Respondents filed on or
before 26 December, providing it was also received by the General
Counsel as to that date, and that the General Counsel would have until 9
January 1986 to file a reply brief. The Respondents subsequently filed a
brief, and the counsel for the General Counsel advised me by letter he
would not file a reply.
287 NLRB No. 141
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tomers within Illinois who themselves meet the Board's
direct inflow and outflow standards for exercise of juris-
diction, and because a substantial portion of the freight
handled by Trout Air Freight and Trout Express is sent
or received by their clients in connection with interstate
air shipments, both businesses constitute essential links in
interstate commerce. The answer and amended answer
admit the jurisdictional allegations regarding Trout Ex-
press However, both the answer and amended answer
specify that they apply only to Trout Express, and no re-
sponse to these allegations was made by either Clarence
Trout or Trout Air Freight. I therefore find that these
allegations must be deemed to be admitted under Section
102 20 of the Board's Rules and Regulations and further
find that Clarence Trout, Trout Air Freight, and Trout
Express are all employers engaged in commerce within
the meaning of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction here
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
Ili. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For about 15 to 20 years, Clarence Trout, doing busi-
ness under the name of Trout Air Freight, operated a
freight hauling service out of an office at the airport in
Rockford, Illinois. Trout Air Freight serviced customers
in the Rockford area and the Chicago suburbs, with
much of its business being the transport of freight be-
tween Rockford and O'Hare International Airports.
For several years prior to the end of 1984 Trout had
recognized the Union as the collective-bargaining repre-
sentative of all Trout Air Freight's employees except
salesmen and supervisors, and had been party to various
collective-bargaining agreements with the Union. As of
early December 1984 Trout Air Freight employed five
unit employees: drivers Dewey Gunter, Terrence
Ressler, and O. D. Clark, mechanic Joseph McNabb,
and clerical employee Rhonda Barber. The only other
individuals employed by Trout Air Freight were David
Bowers, a salesman, and Trout.
The collective-bargaining agreement in effect from 1
March 1982 through 31 March 1985 provided, inter alia,
that as of 1 March 1982, the minimum wage rate for
drivers would be $12.74 per hour, that the rate would be
increased to $13 21 per hour effective 1 April 1982, and
that employees covered by the contract would also re-
ceive the cost-of-living raises specified in the then cur-
rent National Master Freight Agreement.2 However, it is
undisputed that Trout Air Freight suffered a decline in
business and that in early 1983 Trout and the Union exe-
cuted an addendum to the contract that specified, inter
alia, that the wage rate would be $11 per hour as of I
3 Although the contract in evidence, the National Master Freight
Agreement, as supplemented by the Central States Area Local Cartage
Supplemental Agreement, does not specify that it covers either mechan-
ics or clerical employees, Trout credibly testified that the agreement was
applied to all unit employees, including McNabb and Barber
February 1983, and would be raised to $12 per hour ef-
fective 1 May 1983. It is also undisputed that Trout did
not fully comply with this addendum, but raised the
wage rate only to $11.50 per hour on 1 May
In March 1983 Trout Air Freight filed a petition under
Chapter 11 of the Bankruptcy Code, but continued to
operate until about 30 December 1984. According to
Trout, he filed under Chapter 7 of the Bankruptcy Code
sometime during the last 2 weeks of December 1984, but
no documentary evidence of this filing was adduced,
B The Closing of Trout Air Freight
0 D. Clark testified that, on 20 December 1984, there
was a discussion among himself, Trout, McNabb, and
Barber According to Clark, Trout talked about the fi-
nancial problems Trout Air Freight was experiencing,
and Clark responded that he did not feel that he should
take another cut in pay and that before he would do so
he would retire. According to Clark, neither Barber nor
McNabb made any reply to this comment, but Trout
seemed to be very upset and left the office.3
It is undisputed that, about 30 December 1984, Trout
closed Trout Air Freight, and that he did so without no-
tifying the Union or offering to bargain about either the
decision to close or its effects. Barber credibly testified4
that on 29 December Trout telephoned her and told her
that he was closing Trout Air Freight and that in conse-
quence she no longer had a job Barber further testified
that Trout said that he figured that she suspected what
was going on and knew that the closing was coming.
Barber and the drivers5 also received letters dated 31
December from Trout, advising them that he was closing
Trout Air Freight as of the close of business 28 Decem-
ber and that they would therefore be laid off as of that
time.
C. The Opening of Trout Express
On 3 or 4 January 1985,6 Trout opened Trout Express
Unlike Trout Air Freight, Trout Express is a corpora-
tion, with Trout as the sole shareholder, but it has no of-
ficers or directors. Trout Express operates out of the
building at the Greater Rockford Airport formerly used
by Trout Air Freight's mechanic and Trout Air Freight's
files, including personnel files, were moved into that
building Trout Express operates the same trucks former-
ly used by Trout Air Freight, has the same telephone
and telephone number, and took over a desk and office
equipment from Trout Air Freight. David Bowers, the
salesman who worked for Trout Air Freight, has contin-
ued to work for Trout Express
Some time in January Trout sent a flyer to customers
that stated, in pertinent part, that "Trout Air Freight has
changed its name to Trout Express," and it is undisputed
3 Trout did not testify about this conversation, although in his brief he
contradicted Clark's testimony, but McNabb and Barber substantially
corroborated Clark's account All three witnesses seemed to testify can-
didly and to exhibit good recollection, and I therefore credit them
4 Barber impressed me as a forthright witness who seemed to accurate-
ly recall events I therefor credit her
6 McNabb had resigned his employment prior to this date
6 All dates hereinafter are 1985 unless otherwise indicated
TROUT AIR FREIGHT 1301
that Trout Express kept at least some of the Trout Air
Freight customers However, Trout contends that the
four drivers who work for Trout Express are part-time
employees and that their duties are not the same as those
of the former Trout Air Freight drivers In support of
this contention, Bowers testified that, unlike Trout Air
Freight, Trout Express has no steady customers and
makes no daily pickups, but instead only makes special
runs to O'Hare Airport to meet specific flights
D The Filing of Grievances and the Instant Charge
In January Barber and the laid-off drivers filed griev-
ances over the closing of Trout Air Freight and the
opening of Trout Express, the failure to abide by the
1984 addendum to the collective-bargaining agreement,
and Trout's failure to pay vacation or holiday pay pursu-
ant to the contract. Patrick Cacciapaglia, the Union's
president and business agent, credibly testified7 that
about 28 January he telephoned Trout to talk about the
grievances and asked Trout if the latter would attend a
joint grievance committee meeting to be held in Spring-
field, Illinois According to Cacciapaglia, Trout replied
that he was not going to the meeting, that Trout Air
Freight had "gone under" and he no longer had any-
thing to do with the firm, and that he was "away from
the Union" and did not want to hear anything more
about it. Cacciapaglia asked if Trout was operating as
Trout Express and Trout said that he was As noted
above, the original charge in this proceeding was filed
on 30 January, and a complaint issued 7 March.
E The 100) Proceeding
On 16 April, the Regional Director for Region 33 of
the Board filed a petition for an injunction pursuant to
Section 10(1) of the Act in the United States District
Court for the Northern District of Illinois, Western Divi-
sion A hearing on that petition was scheduled for 24
April, but on 22 April counsel for the General Counsel,
Trout, and Cacciapaglia entered into a settlement agree-
ment in the 100) proceeding That settlement agreement
provided that Trout Express would recognize and bar-
gain with the Union, that it would make offers, in writ-
ing and to be mailed on 23 April, to Barber, Ressler,
Gunter, and Clark of positions substantially equivalent to
their former positions with Trout Air Freight, that those
positions would be at the same rates of pay and with the
same benefits as were provided to Trout Express em-
ployees at that time, that the employees would have 7
days to respond to the offers, that the Regional Office
would file a request to withdraw the petition for an in-
junction; that if the employees declined the offer of rein-
statement to Trout Express their action would be consid-
ered a refusal to accept interim employment, and that by
entering into the settlement the Respondents did not
admit to any violation of the Act and neither Respond-
ents nor the Union waived or prejudiced any position
they might take in the Board proceeding Pursuant to
that settlement the Regional Office requested to with-
draw the 10(1) petition, and that request was granted by
the court on 23 April.
Barber credibly testified that she received by certified
mail a letter dated 26 April and signed by Trout on
behalf of Trout Express The letter stated, in pertinent
part, that she was being offered her job at a wage rate of
$8 per hour "with no benefits " It appears that similar
letters were sent to the other former Trout Air Freight
employees. Barber further credibly testified that follow-
ing her receipt of that letter she attended a meeting at
the union hall with Cacciapaglia, Glenn Zipp, the Re-
gional Director for Region 33 of the Board, John
Gwynn, counsel for the General Counsel in this proceed-
ing, Clark, Ressler, Gunter, and Trout According to
Barber, as a result of that meeting it was agreed that the
employees would go to work for Trout Express on 13
May, that date was selected because Trout said that he
wanted to give the current Trout Express employees a
week's notice of their terminations
It is undisputed that despite this agreement none of the
former Trout Air Freight employees returned to work
on 13 May Prior to that date Trout sent a letter with the
following text, dated 8 May and on Trout Freight letter-
heads to Gwynn, Zipp, Cacciapaglia, and the employ-
ees:
I am leaving you know that I have close [sic] Trout
Express I am having money problems and I dont
[sic] want to have the same problems as before [sic]
I close on 5/3/85.
Despite the statement made in this letter, Trout testified
and it is undisputed that Trout Express continued to op-
erate
Cacciapaglia credibly testified that about the first week
of May he went to the Rockford Airport and saw a
truck pull into the Trout Express driveway According
to Cacciapaglia, he then saw Trout and someone else
load a truck, after which Trout went back into the build-
ing When the truck left, Cacciapaglia followed it Trout,
in turn, got in his car and followed Cacciapaglia, and
eventually caught up with him and told him to pull over
Cacciapaglia did so, and Trout told him that he would
"not stand for" Cacciapaglia harassing his employees.
Cacciapaglia testified that he replied that he was not har-
assing Trout's employees but was looking after the
Union's members, and Trout responded that he did not
care about the Union's members, and that he did not
have the Union and was not going to "bring back" the
former Trout Air Freight employees
On 10 May Gwynn wrote to Trout, referring to a con-
versation they had had the previous day and enclosing a
proposed settlement agreement and notice to be posted
The letter noted that "[a]s I mentioned before, the unfair
labor practice complaint remains pending in our office
despite the closing of Trout Express, Inc Although it
appears that Trout Express, Inc. can neither offer jobs
nor backpay to the alleged discriminatees, the National
Labor Relations Board must seek acknowledgement of
7 Cacciapaglia generally appeared to be a truthful witness, and I there-
fore credit him
8 According to Trout, the letter was on Trout Air Freight stationery
because that was all he had
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Employer 's obligations to remedy the alleged unfair
labor practices ." The letter further noted that "[t ]he sign-
ing of the Settlement Agreement will merely acknowl-
edge the Employer 's obligations to remedy the alleged
unfair labor practices if there are jobs and backpay in the
future . By signing the Settlement Agreement , you will
avoid further litigation and the case will eventually be
closed " The proposed settlement agreement enclosed
with the letter specified the amounts of backpay due to
Barber, Clark , Gunter, and Ressler
Trout testified that he was at the point of writing let-
ters to the former Trout Air Freight employees offering
them reinstatement when he received the 10 May letter
from Gwynn , that he could not afford the amounts of
backpay specified, and that in consequence , "as far as I
was concerned , the whole thing was dropped "
On 5 June, Gwynn filed a motion with the Federal
district court to reinstate the petition for an injunction
under Section 10(1), alleging, inter alia, that despite the
statements in the 3 May letter Trout Express was con-
tinuing to operate and was continuing to refuse to recog-
nize the Union or to reinstate the former Trout Air
Freight employees . The court granted the motion to re-
instate the petition on 12 June and set a hearing date of 3
July According to the court 's findings of fact and con-
clusions of law, a hearing was held 3 July. It appears
that at that hearing the judge decided to conduct a set-
tlement conference , which was held 11 July Apparently
that conference was not productive , and another hearing
was conducted 29 July On 30 July the judge entered an
"Order Granting Temporary Injunction " and specifically
directing Trout Express to "offer employment immedi-
ately to Dewey Gunter , Terrence Ressler, O. D Clark,
and Rhonda Barber to jobs similar to those they former-
ly performed for Trout Air Freight pending the final dis-
position of the matters involved herein before the Board,
displacing persons previously hired by Respondent, if
necessary"; and to recognize , bargain with , and negotiate
a collective -bargaining agreement with the Union.
F. The Offers of Reinstatement
Barber credibly testified that she did not hear from
Trout until a month and a half after the injunction pro-
ceeding, when she received a letter from Trout, dated 16
September and with the following text
We have been instructed by Judge Stanley J.
Roszkowski from the United States District Court
for the Northern District of Illinois Western Divi-
sion to offer you employment with Trout Express.
At the present time our employment requires one
office person at six hours a day as needed , at a rate
of eight dollars per hour.
If you are interested please contact us within
seven days . If we do not here [sic] from you within
seven days , we will take it that you are not interest-
ed
Barber replied by letter dated 17 September , stating, in
pertinent part:
I would like to accept your offer of employment for
six hours per day @8 00 per hour . There was, how-
ever , no date and time stated as to when I should
report in . I will have to know what the starting
time will be , though , before I can fully accept your
offer of employment.
Trout responded by letter dated 19 September The
text of this letter was the same as that of 16 September,
except that the words "as needed " were underlined and
after the phrase "eight dollars per day," Trout added the
sentence , "`Note' (This is as needed with no starting time
or starting date)" (Emphasis in original )
Barber, in turn , replied in a letter dated 25 September,
stating that she was "willing to accept your offer of em-
ployment," and that "I do not understand , though, why
you do not have a starting time or starting date when I
know for a fact , that you and one of your employees are
doing the work daily that I used to do ." Barber credibly
testified that she had heard nothing further from Trout
since sending this letter.
Clark credibly testified that he received a letter from
Trout dated 9 August and similar to the 16 September
letter received by Barber , except that the letter to Clark
stated that "At the present time our business requires
two drivers on a callin [sic ] basis of fifteen to thirty
hours per week at a rate of eight dollars per hour."
Clark responded by letter dated 13 August , stating, in
pertinent part.
This is to serve you with notice that I, O. D.
Clark will return to work on Monday morning,
August 19, 1985, at 8.00 a.m.
If you have any questions about the starting time,
please contact my Business Representative , Patrick
Cacciapaglia . . .
Clark testified that on 15 August he went to the Trout
Express office , where Bowers told him that Trout was
not there but would be soon When Trout arrived, ac-
cording to Clark , Clark told him that he would be there
on Monday morning to go to work.
Clark further testified that on Monday , 19 August, he
arrived at the Trout Express office about 10 a m ;
Bowers was there but Trout was not Clark told Bowers
he had come to go to work and Bowers said that they
did not have any work Clark asked where Trout was
and Bowers said he would be back in the near future.
While Clark and Bowers were talking, Clark opened a
garage door and saw someone working.
According to Clark , after a while Trout came in and
Clark asked about his work , Trout replied that he had no
work for Clark and would call Clark when work became
available. Clark said that Trout already had someone
working, to which Trout responded that that was "a dif-
ferent story," that he did not have any work for Clark,
and that he was not going to bring Clark to work at 8
o'clock in the morning and let him sit and look at the
wall. Trout also said that if he had something for Clark
the following day he would call him Clark testified that
he told Trout that maybe they could get back, get some
better equipment , and build up the business, but Trout
TROUT AIR FREIGHT 1303
replied that he was doing $1500 worth of business per
week and that was all he needed
Trout testified that one employee, apparently Clark,
came in and said he would be there ready to go to work
at 8 o'clock the next morning According to Trout, he
told the employee he would be on call to which the
latter replied, "Well, I am not working that way. I want
eight hours a day I want $9 60 an hour and I want my
fringe benefits " Trout testified that he responded that
"we can't give them to you," and that the employee did
not thereafter show up to work
Bowers testified that Clark came to the Trout Express
office in August and said he was ready to go back to
work. According to Bowers, either on that occasion or
when Clark arrived to report for work, "Somehow it
was brought up in the conversation that he was going to
be at work Monday at 8.00. There was some talk about
$9.60 an hour and benefits I don't know how he exactly
meant that We took it as if that is what he wanted."
Clark denied that in either of the conversations to
which he testified he made any reference to either an 8
a.m. starting time or a $9.60-per-hour wage rate and
fringe benefits.
I credit Bowers that there was "some talk" about a
wage rate of $9 60 per hour and about fringe benefits,
and discredit Clark's flat denial of such discussion, for
Clark did not seem as candid when making that denial as
he did in other parts of his testimony. However, I do not
credit Trout's testimony that Clark insisted on a higher
wage and fringe benefits as a condition of returning to
work. I therefore find that Clark did not refuse the Re-
spondents' offer of reinstatement, and that by failing to
put him to work the Respondents failed to comply with
the district court's order
On 7 October Trout wrote the following letter to
Clark-
Dear O.D..
The following is to confirm your position con-
cerning reinstatement to your position as an em-
ployee of Trout Express
On August 9, 1985, you returned to work How-
ever, after being told that you were being reinstated
on an "on call" basis (receiving no guaranteed
hours due to lack of volume) and would be paid
eight dollars ($8 00) per hour (rather than the wages
and benefits provided by the expired contract), you
walked off the job indicating that you would not
work under those terms. We have not heard from
you since that date.
In light of these facts, I consider you to have de-
clined reinstatement as an employee of Trout Ex-
press and, therefore, to have resigned your employ-
ment with us.
The letter indicates that copies were sent to Cacciapaglia
and Gwynn
Cacciapaglia replied to this letter by certified letter
dated 16 October, stating, in pertinent part:
It is the position of this local union that Mr
Clark did not decline employment with Trout Ex-
press, and that he has followed the federal judge's
order regarding his return to work
Mr Clark reported for work as instructed by the
judge on August 9, 1985 On that date you told him
that no work was available and that he would be
called when the work load increased In fact, there
was a non-union employee working on the clock
that day
Local 325 considers, in light of the above, that
Mr. Clark has complied with the judge's instruc-
tions, has not resigned employment with Trout Ex-
press, and is available for work. Further, it is our
position that you have not complied with the feder-
al judge's order regarding Mr. Clark's return to
work.
Cacciapaglia credibly testified that Trout Express was
still operating but that none of the former Air Freight
employees had been reinstated as of the time of the hear-
ing in the instant case, and there is no other record evi-
dence of any offers of reinstatement being made to any
of the employees
G. The Bargaining Following the 100) Order
As noted above, in the 30 July order the Federal dis-
trict court directed Trout Express to "recognize and bar-
gain collectively in good faith with the Union as the ex-
clusive collective-bargaining representative of [Trout Ex-
press'] employees at its Rockford, Illinois facility." Cac-
ciapaglia credibly testified that during the week or two
following issuance of the injunction he attempted unsuc-
cessfully two or three times to contact Trout in person
and by telephone Cacciapaglia finally reached Trout by
telephone about 25 August, and they agreed to meet 2
days later at a local restaurant
According to Cacciapaglia, at that meeting Trout said
that business was "terrible," that he could not afford to
reinstate the former Trout Air Freight employees, and
that all the employees had jobs except Clark, who could
retire.
Trout asked Cacciapaglia why Clark did not retire and
return to Arkansas, and Cacciapaglia reminded Trout of
the district judge's order and asked Trout to take Clark
back; Trout refused.
Cacciapaglia also testified that during the course of
this meeting he asked Trout if he had applied for Inter-
state Commerce Commission authority in 48 States and
Trout replied that he had Cacciapaglia then said that it
seemed to him that Trout "wanted to keep the business
down until this was all over"; Cacciapaglia testified that
at that point he looked at Bowers, "and he kind of
smiled at me." According to Cacciapaglia, Trout said
that he would like to start bargaining at that meeting, but
Cacciapaglia declined, saying that he could not bargain
sitting in a restaurant, but was willing to meet at either
the union hall or a hotel. Cacciapaglia then suggested
that they meet the following Monday, Trout said that he
did not know if he would still be in business then, but
would call Cacciapaglia that Monday.
There was no further communication between Trout
and Cacciapaglia until 3 September, when Trout wrote
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to Cacciapaglia advising him that he had not contacted
Cacciapaglia earlier because he was having difficulty
finding an insurance carrier. The letter suggested meet-
ing Friday, 13 September, and said Trout would call
Cacciapaglia "Wednesday," apparently referring to 11
September However, Trout did not contact Cacciapag-
ha that day and they did not meet 13 September Caccia-
paglia credibly testified that about 17 or 18 September
either he called Trout or vice versa and they arranged to
meet 25 September at the union hall
Prior to the scheduled meeting, Cacciapaglia sent a set
of proposals, dated 20 September, to Trout. These pro-
posals provided, inter alia, that employees would be
guaranteed 8 hours' work per day for a 5-day week, at a
wage rate of $8 per hour and a $2-per-hour pension pay-
ment to be made into each employee's Individual Retire-
ment Account and Blue Cross or equivalent insurance.
Cacciapaglia testified that he thought the 25 Septem-
ber meeting was canceled by Trout due to car trouble,
and that Trout wanted to arrange a meeting for the fol-
lowing day or the next, but that Cacciapaglia was unable
to meet on those days. In any event, Cacciapaglia, Trout,
and Bowers met on 10 October. Prior to that meeting,
about 25 September, Cacciapaglia wrote to Trout re-
questing various financial records and documents show-
ing the amount of Trout Express' business, as well as a
list of the names, addresses, and social security numbers
of the current Trout Express employees.
At the 10 October meeting, according to Cacciapaglia,
they agreed on 8 or 10 of the Union's 20 September pro-
posals. Also according to Cacciapaglia, during the meet-
ing he asked Trout why he did not abide by the injunc-
tion and whether he would reinstate Barber and Clark,
and Trout replied that he could not do that until they
signed a contract. Trout further said that Barber had an-
other job and that Clark should retire. Cacciapaglia told
Trout that he disagreed with the assertions made in
Trout's 7 October letter about Clark, and Trout said that
Clark did not want to work for $8 per hour, that Clark
would not return to work unless he received fringe bene-
fits, and something to the effect that Clark wanted "to
run the show "
Also at the 10 October meeting, according to Caccia-
paglai, Trout handed him a small piece of paper with
three names and addresses on it, saying that those indi-
viduals were Trout Express' employees and that the
other information Cacciapaglia had requested was none
of his business Cacciapaglia asked for the employees'
social security numbers and Trout said that was none of
his business
Cacciapaglia testified that he considered Trout's re-
sponse to his request for information insufficient and that
he consequently wrote another, letter, dated 10 October,
with the same text as his letter of 25 September, except
the later letter asked for the information to be provided
within 7 days of receipt of the letter. It does not appear
that Trout ever provided the requested information,
Trout stated at the hearing before me that his attorney
told him that he did not have to provide the information,
and further stated that he had told Cacciapaglia that he
did not have the Trout Express employees' social securi-
ty numbers and, in any event, did not believe social secu-
rity numbers should be provided by anyone except the
employees themselves.9
The next negotiating session was held 18 October at
the union hall, with Trout and Bowers representing the
Respondents and Cacciapaglia and Clark representing
the Union Cacciapaglia testified that the meeting started
off with Trout saying that he knew that he had previous-
ly agreed to an 8-hour workday but that he could not go
along with that, and Clark replied that he could live
with a 6-hour day as long as he knew that he was doing
the work and Trout and Bowers were not doing it in his
place The parties also agreed to several other items, in-
cluding provisions relating to a grievance procedure,
holidays, part-time employees, and new hires; according
to Cacciapaglia, the meeting resulted in agreement on a
complete contract and, at Trout's request, Cacciapaglia
agreed to have the agreement typed in final form; the
parties then agreed to meet the next week 10
At that same meeting, also according to Cacciapaglia,
he asked Trout to put Clark back to work and said that
Clark was willing to work the next day Trout, however,
merely repeated that he would not take Clark back until
they signed the contract Clark said that he would return
to work even though Trout had not been able to find a
health insurance carrier.
On 25 October Trout and Bowers went to the union
hall to sign the contract, which reflected the agreement
reached 18 October Cacciapaglia testified that, after
Trout and Bowers looked over the copies of the final
agreement, Trout said that he did not have any disagree-
ment with the provisions of the contract but that he
would not sign it unless Cacciapaglia dropped the instant
unfair labor practice charges. Cacciapaglia said that they
had agreed on the terms of the contract and that he
could not drop the charges and Trout said , "You signed
them, you can drop them." Cacciapaglia replied that he
could not and would not, and Trout responded that he
would not have any backpay "hanging over his head."
Cacciapaglia then said that he would have to notify
counsel for the General Counsel Gwynn of this develop-
ment and Trout asked Cacciapaglia to give him until
noon the following Tuesday, which Cacciapaglia agreed
to do
Cacciapaglia further testified that Trout called him at
9 or 10 am on Tuesday, 29 October, and said, "Pat, I
got my man picked our, do you have your man picked
out?" apparently referring to the grievance procedure in
the unexecuted agreement , which provided that at step 1
the Respondents and the Union would each select a rep-
resentative and would agree on a third person to act as
9 Cacciapaglia testified that he did not recall Trout making this com-
ment I find it unnecessary to determine whether the remark was made
io Contrary to Cacciapaglia, Bowers and Trout testified that the par-
ties did not reach a complete agreement However , neither Bowers nor
Trout appeared to be as candid or to recall events as accurately as Cac-
ciapaglia, and I therefore credit the latter Bowers also testified that at
one of the negotiating sessions Cacciapaglia said something to the effect
that a contract had to be executed whether the former Trout Air Freight
employees returned to work Cacciapaglia, however, credibly testified
that he thought the incident to which Bowers alluded arose when Trout
said that Clark probably would not return to work anyway, and that he
"probably" replied that, even if Clark did not return, the purpose of get-
ting a contract signed was to protect the rest of the bargaining unit
TROUT AIR FREIGHT 1305
arbitrator Cacciapaglia explained that that procedure
would not go into effect until the contract was signed
and could not be used to determine whether the agree-
ment would be executed in the first instance Trout said
that he must have misunderstood and they agreed to
meet the afternoon of 1 November
That scheduled meeting was postponed, according to
Cacciapaglia, when either Trout or Bowers called to say
that Trout was having trouble with his car. In conse-
quence, Cacciapaglia agreed to meet Monday, 4 Novem-
ber However, Cacciapaglia credibly testified that Trout
did not meet with him that day and that he had not
heard from Trout since It is undisputed that Trout never
signed the collective-bargaining agreement.
H The Respondents' Economic Situation
It is undisputed that Trout Air Freight's business de-
clined between 1981 and 1984. Thus, Trout testified that
Trout Air Freight had between 12 and 15 bargaining unit
employees in 1980 and 1981, and that that number de-
creased to 6 in 1984 Also, as noted above, the Union
agreed to a wage concession in 1983 However, the
record is not very clear as to the extent of the business'
financial difficulties. Trout Air Freight's unaudited 1983
financial statement shows a net loss for 1983 of $26,987,
a proprietor's draw of $49,065, and a negative propri-
etor's capital at the beginning of the year of $70,705, for
a total negative proprietor's capital at the end of the year
of $147,757. However, the accompanying accountant's
report emphasizes that Trout "elected to omit substan-
tially all of the disclosures and the statement of changes
in financial position required by generally accepted ac-
counting principles," and although the report contains an
itemization of costs and expenses, it includes no explana-
tion of how Trout Air Freight's income was computed
The only financial data for 1984 introduced into evi-
dence was Trout Air Freight's Motor Carrier Annual
Report, submitted to the Illinois Commerce Commission.
That report shows total revenue for calendar year 1984
of $323,649 and total expense of $482,741. Again, howev-
er, there is no indication of how the revenues were com-
puted.
Trout testified that after filing under Chapter 11 of the
Bankruptcy Code he tried to rebuild Trout Air Freight
but that the economic situation in Rockford, which at
one point had the highest unemployment rate in the
United States, and the deregulation of the trucking indus-
try had a serious adverse impact on his business Trout
further testified that at the time Trout Air Freight went
out of business his competitors were paying employees
$8 per hour, while he was paying drivers $35,000 per
year and his clerical employee was earning $30,000 per
year, and that he could not afford those salaries
1. Analysis and Conclusions
1 The parties' contentions; the issues
The complaint alleges, in substance, that Trout Ex-
press is the alter ego of Trout Air Freight, and that the
Respondents violated Section 8(a)(5) of the Act by, with-
out notifying the Union or affording it an opportunity to
bargain, (1) terminating the Trout Air Freight employ-
ees; (2) closing Trout Air Freight, (3) opening Trout Ex-
press, and (4) assigning work previously done by Trout
Air Freight employees to individuals employed by Trout
Express The complaint further alleges that the Respond-
ents violated Section 8(a)(5) by repudiating the collec-
tive-bargaining agreement, refusing to apply it to Trout
Express employees, and withdrawing recognition from
the Union and refusing to process grievances The com-
plaint also alleges that the discharge and refusal to rein-
state Gunter, Ressler, Clark, and Barber additionally vio-
lated Section 8(a)(3) of the Act
The Respondents assert that no violation should be
found because Trout Express and Trout Air Freight are
separate entities rather than a single employer and Trout
Express is not the alter ego of Trout Air Freight, and be-
cause Trout Air Freight was not closed in order to rid
itself of its obligations to the Union and the employees it
represented The Respondents further contend that in
any event they are not obligated to reinstate the former
Trout Air Freight employees because Gunter and
Ressler never responded to the Respondents' original
offers of reinstatement in April and Clark and Barber im-
posed conditions on their acceptance of the offers Final-
ly, the Respondents argue that in the fall of 1985 they
bargained in good faith but that the Union refused to
modify its position, and that they did not discriminate
against the Trout Air Freight employees because Trout
Air Freight was bankrupt.
2 The alter ego issue
As the Court of Appeals for the Eighth Circuit noted
in NLRB v. Campbell-Harris Electric, 719 F.2d 292
(1983), "For federal labor law purposes a finding that
two companies are in fact alter egos is proper if based
upon substantial identity in terms of corporate owner-
ship, management, business purpose, operation, equip-
ment, customers, and supervision." 11 In the instant case,
as discussed above, Clarence Trout was sole owner of
Trout Air Freight, and is also president, chief operating
officer, and owner of all the stock of Trout Express.
Trout Express operates out of one of the buildings for-
merly used by Trout Air Freight, uses the same tele-
phone and telephone number, uses some of the same
office equipment, employs the same salesman, operates
the same trucks, and services many of the same custom-
ers Indeed, the flyer Trout sent to customers in January
accurately represented the situation by stating that
"Trout Air Freight has changed its name to Trout Ex-
press "
The only differences between Trout Air Freight and
Trout Express are their different names, the fact that the
latter is a corporation, and, according to Trout and
Bowers, that unlike Trout Air Freight, Trout Express
has no steady customers, employs only part-time drivers,
and makes only special runs to O'Hare. Given the two
businesses' common ownership, supervision, manage-
ment, facilities, customers, and equipment, I find that a
finding of alter ego status does not require that Trout
Express' operation be identical to that of Trout Air
1' 719F2dat295
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Freight . Consequently , I conclude that Trout Express is
the alter ego of Trout Air Express.
union activity and thus violated Section 8(a)(3) and (1) of
the Act.
3. The 8(a)(3) issues
As discussed earlier, in late December 1984 Clark told
Trout that he would not agree to any further wage con-
cessions, and Trout became visibly upset. A few days
later, Trout closed Trout Air Freight and discharged the
employees In his brief, Trout asserts that he did not
leave the room in anger, and that the closing of Trout
Air Freight was not a consequence of that conversation.
However, as noted above, I have credited Clark's,
McNabb's, and Barber's accounts of the conversation
with Trout Further, Trout's subsequent actions with re-
spect to the Union and the Trout Air Freight employees
certainly indicate that he was adamantly opposed to rein-
stating the employees or dealing with the Union. Thus,
when Cacciapaglia contacted Trout about the grievances
in January, Trout said that he was "away from the
Union" and did not want anything to do with it and,
later, after agreeing in the April settlement to reinstate
the employees at the same rate of pay and with the same
benefits as the Trout Express employees enjoyed, delayed
making the offers of reinstatement and then, when they
were accepted, announced that Trout Express was going
out of business When Cacciapaglia ascertained that
Trout Express was still operating, Trout told him that he
did not have the Union and would not "bring back" the
Trout Air Freight employees.
Trout continued his intransigence after the 10(1) peti-
tion was reinstated: thus, even after the court ordered
him to offer reinstatement to the employees, Trout failed
to contact Barber for a month and a half, and when he
finally wrote to her he refused to supply a starting date.
Trout contacted Clark in August, but again refused to
specify a starting date. Finally, when Clark appeared at
Trout Express' office, Trout refused to give him any
work, even though someone else was working that day.
Trout's dealings with the Union following the issuance
of the 10(1) injunction provide similar evidence of his
hostility to the Union and to those it represented. He did
not even meet with Cacciapaglia until more than 3 weeks
after the Federal district court's order, and did not sit
down to bargain until 10 October, after canceling or fail-
ing to appear for several scheduled meetings. At the 10
October meeting, Trout refused to supply most of the in-
formation the Union had requested, and advised Caccia-
paglia that he would not comply with the Federal
court's reinstatement order until he had a signed con-
tract. However, after reaching agreement on a contract
at the 18 October meeting, Trout refused to sign it a
week later unless Cacciapaglia withdrew the unfair labor
practice charges In light of all this evidence, I find that
Trout harbored substantial animosity against the Union
and that the record as a whole warrants a finding, which
I make, that Trout closed Trout Air Freight because he
thought that doing so would relieve him of any further
obligation to the Union and the employees it represented.
Having so found, I conclude that the discharge of the
Trout Air Freight employees and later the refusal to
employ them at Trout Express were motivated by their
4. The 8(a)(5) violations
As discussed above, I have found that Trout Express is
the alter ego of Trout Air Freight. In light of this find-
ing and my additional finding that Trout closed Trout
Air Freight in order to rid himself of his obligations to
the Union, I conclude that the closing of Trout Air
Freight and reopening as Trout Express violated Section
8(a)(5) and (1) of the Act
It is undisputed that following the closing of Trout Air
Freight, Trout Express refused to apply the collective-
bargaining agreement to its employees and withdrew rec-
ognition from the Union. The record additionally estab-
lishes, as described above, that even after Trout met with
Cacciapaglia and discussed terms and conditions of em-
ployment, Trout had no intention of executing a collec-
tive-bargaining agreement. The question thus becomes
whether Trout Express was obligated to assume all
Trout Air Freight's responsibilities to the Union, includ-
ing those derived from the collective-bargaining agree-
ment Respondents' defenses are based, essentially, on the
business' poor financial condition and Trout Air
Freight's having filed for bankruptcy For the reasons
discussed below, I find both defenses without merit.
As noted above, the record is far from clear as to the
severity of Trout Air Freight's financial problems, and
although Trout testified that he had filed under Chapter
7 of the Bankrutcy Code in December 1984 he provided
no documentation of this assertion and there is no evi-
dence of any action taken in that proceeding. The crite-
rion for whether a party's severe financial difficulties jus-
tify the repudiation of a collective-bargaining agreement
is whether the employer is "faced with dire economic
circumstances in which its very existence as a viable
business entity has ceased or is about to cease." i 2 In the
instant case, the record does not warrant a finding that
Trout Air Freight was in such dire straits and, indeed,
the very fact that immediately after repudiating the con-
tract Trout opened Trout Express belies that contention.
I therefore find that Trout Air Freight's financial condi-
tion did not justify the abrogation of the contract, the
unilateral changes in employees' terms and conditions of
employment, or the withdrawal of recognition from and
refusal to bargain with the Union
The remaining issue is the effect of the filing of the
1983 bankruptcy petition. In NLRB v. Bildisco & Bildisco,
465 US. 513 (1984), the Supreme Court held that a
debtor-in-possession under Chapter 11 of the Bankruptcy
Code does not commit an unfair labor practice by unilat-
erally breaching a collective-bargaining agreement prior
to formal action on that agreement by the Bankruptcy
Court, but that the debtor-in-possession nonetheless re-
mains obligated to bargain with the union representing
its employees 13
12 Wer-Coy Fabrication Co, 268 NLRB 907, 911 (1984)
13 465 U S at 534 The Bankruptcy Amendments and Federal Judge-
ship Act of 1984 substantially modified Bildisco and governs a debtor-in-
possession's rejection of a collective-bargaining agreement However, the
Continued
TROUT AIR FREIGHT
Bildisco thus requires a finding that Trout Air Freight
did not act unlawfully by abrogating its collective-bar-
gaining agreement with the Union. This finding, howev-
er, applies only to Trout Air Freight, and not to its alter
ego Trout Express, for as the General Counsel points
out, Trout Express has not filed for bankruptcy" and is
not entitled to the special protection of the Bildisco hold-
ing. This position is supported by Edward Cooper Paint-
tog, supra, in which a corporation repudiated its contract
with and withdrew recognition from the union represent-
ing its employees Shortly thereafter, the sole stockhold-
er and officer of the corporation established a partner-
ship, which was found to be the alter ego of the corpora-
tion Several months later, the corporation filed a peti-
tion pursuant to Chapter 11 of the Bankruptcy Code.
The judge, in a decision issued prior to Bildisco, conclud-
ed that both the corporation and the partnership were re-
quired to honor the contract. The Board, however, issu-
ing its order after Bildisco, found that the corporation's
obligation to honor the contract extended only to the
date it filed the bankruptcy petition, but that the partner-
ship's liability was not affected.
I find that Edward Cooper is controlling in the instant
case, and therefore conclude that, although Trout Air
Freight was privileged to abrogate the collective-bar-
gaining agreement, that privilege did not extend to Trout
Express, and thus the latter violated Section 8(a)(5) and
()) of the Act-by refusing and failing to honor the con-
tract, including its refusal to process the grievances of
the discharged employees. Inasmuch as Bildisco does not
privilege any otherwise unlawful action by a bankruptcy
petitioner except repudiation of a collective-bargaining
agreement, and as I have found above that the Respond-
ents terminated the Trout Air Freight employees and as-
signed the work previously performed by those employ-
ees to others, both without notifying the Union or af-
fording it an opportunity to bargain, withdrew recogni-
tion from the Union; and thereafter persisted in a refusal
to bargain with the Union, I further find that by all this
conduct the Respondents additionally violated Section
8(a)(5) and (1) of the Act.'5
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
I Clarence Trout, Trout Air Freight, and Trout Ex-
press are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
2. Clarence Trout, Trout Air Freight, and Trout Ex-
press are alter egos and a single employer within the
meaning of the Act.
statue does not apply to cases in which the bankruptcy petition was filed
prior to its enactment and thus does not govern the instant proceeding
Pub L 98-353, § 541, 98 Stat 33, 390-391 (1984) Edward Cooper Paint-
ing, 273 NLRB 1870 (1985)
14 Indeed, there is no evidence that the formation of Trout Express
was approved by the Bankruptcy Court or that the corporation is in any
way within the jurisdiction of any bankruptcy proceeding
is The General Counsel does not contend that Trout's refusal to
supply information or to sign the 18 October collective-bargaining agree-
ment separately violated Sec 8(a)(5), and I have thus considered this
conduct only as evidence of Trout's continuing refusal to deal with the
Union
1307
3. Teamsters Local Union No 325 is a labor organiza-
tion within the meaning of Section 2(5) of the Act
4. All employees of Trout Air Freight (and its alter
ego Trout Express) at its Rockford, Illinois facilities, ex-
cluding salesmen and supervisors as defined in the Act
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act
5 Since prior to 1984 the Union has been the repre-
sentative for purposes of collective bargaining of the em-
ployees in the unit described above
6 By refusing and failing to honor the contract be-
tween Trout Air Freight and the Union and refusing to
process grievances, Trout Express has engaged in unfair
labor practices within the meaning of Sections 8(a)(5)
and (1) and 2(6) and (7) of the Act.
7. By closing Trout Air Freight and opening Trout
Express; discharging the Trout Air Freight employees
and assigning the work previously performed by those
employees to others, both without notifying the Union or
affording it an opportunity to bargain; withdrawing rec-
ognition from the Union, and thereafter refusing to bar-
gain with the Union, the Respondents have engaged in
unfair labor practices within the meaning of Sections
8(a)(5) and (1) and 2(6) and (7) of the Act
8 By discharging employees Dewey Gunter, Terrance
Ressler, 0 D Clark, and Rhonda Barber because of
their activities on behalf of the Union, the Respondents
have engaged in unfair labor practices within the mean-
ing of Sections 8(a)(3) and (1) and 2(6) and (7) of the
Act
THE REMEDY
Having found that the Respondents have engaged in
various unfair labor practices, I shall recommend that
they be ordered to cease and desist therefrom and to take
certain affirmative actions, including posting of the cus-
tomary notice, designed to effectuate the purposes of the
Act.
Having found above that the Respondents unlawfully
terminated employees Rhonda Barber, 0 D. Clark, Ter-
rence Ressler, and Dewey Gunter, I shall recommend
that the Respondents be ordered to offer them immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights and
privileges previously enjoyed
The Respondents contend that they offered reinstate-
ment to all the employees at the end of April pursuant to
the attempted settlement of the 10(1) proceeding, that
Ressler and Gunter never replied, and that, in any event,
none of the employees accepted the offers and, therefore,
none of them is now entitled to reinstatement I disagree.
First, although Trout agreed at the meeting following
the employees' receipt of his letter that the employees
would return to work 13 May, he reneged on that agree-
ment by announcing the closing of Trout Express.
Second, when the Federal court ordered Trout to offer
reinstatement, Trout failed to specify a starting date, in-
sisting that the employees would be allowed to work
only "as needed " Third, as noted above, when Clark
1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
showed up to work Trout refused to allow him to do so.
In these circumstances I find that the Respondents never
made a valid offer of reinstatement to any of the employ-
ees.
I shall further recommend that the Respondents be or-
dered to make them whole for any loss of earnings they
may have suffered as a result of the discrimination
against them by payment to them of the amount they
would normally have earned from the date of their
layoff until the date of the Respondents' offer of rein-
statement , less net interim earnings , in accordance with
F. W. Woolworth Co, 90 NLRB 289 (1950), to which
shall be added interest, to be computed in the matter pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977) I
shall also recommend that the Respondents be ordered to
expunge from their files any reference to the unlawful
terminations and to notify the employees that has been
done
Having found that the Respondents unlawfully refused
to bargain with the Union over the termination and un-
lawfully withdrew recognition from the Union, I shall
recommend that they be ordered to recognize and bar-
gain with the Union on the latter's request and, if an
agreement is reached, to embody its terms in a signed
contract. Further, having found that Trout Express un-
lawfully abrogated the collective-bargaining agreement
in effect between Trout Air Freight and the Union, I
shall recommend that Trout Express be ordered to apply
the terms of that agreement through its expiration date
of 31 March 1985, to reimburse bargaining unit employ-
ees for any wages or benefits they lost as a result of the
abrogation and of Trout Express' failure, without bar-
gaining with the Union, to continue to maintain the con-
tractual terms and conditions of employment after the
contract expired, and to make those payments that
should have been made to the contractual benefit funds.
Any interest applicable to payments to these funds shall
be paid in accordance with the criteria set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979); see
Fox Painting Co., 263 NLRB 437 (1982).
Finally, the General Counsel has requested that the
remedy in this case include a vistatorial clause, which
would authorize the Board, for compliance purposes, to
obtain discovery from the Respondents under the Feder-
al Rules of Civil Procedure under the supervision of the
United States court of appeals enforcing the Board's
Order. I am aware of four cases to date in which the
Board has considered the question of whether such a
clause should be included in its order In three of those
cases, O. L. Willis, Inc., 278 NLRB 203 (1986) (involving
the respondent's refusal to bargain over the effects of a
plant closing ); Nathan's Furniture Store, 278 NLRB 268
(1986) (in which the respondent refused to bargain in
order to test the union's certification in the underlying
representation proceeding); and Port East Transfer, 278
NLRB 890 (1986) (involving violations of Sec. 8(a)(1)
and (3) of the Act), the Board found that in the circum-
stances of the case it was unnecessary to include such a
clause In the fourth case, Hilton Inn North, 279 NLRB
45 (1986), in which the respondent unlawfully refused to
sign an agreed -upon collective-bargaining agreement, the
Board concluded that because of the "possible complex-
ity of computing the make-whole remedy" and all the
facts of the case, a visitatorial clause was appropriate.
In the instant case, the Respondents have already re-
fused to comply with a settlement agreement and a Fed-
eral district court order and, as discussed above, have
failed to document various assertions about their finan-
cial situation. In these circumstances, I think the General
Counsel has demonstrated the likelihood of difficulty in
achieving compliance, and that inclusion of a visitatorial
clause in the remedy is appropriate. I shall therefore in-
clude such a clause in the recommended Order
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed16
ORDER
The Respondents, Clarence Trout, an individual d/b/a
Trout Air Freight and Trout Express, Rockford, Illinois,
their officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engage in union or other pro-
tected concerted activity.
(b) Closing the business and reopening under another
name in order to avoid their obligations to the Union.
(c) Transferring bargaining unit work to employees
not represented by the Union
(d) Refusing to apply the collective-bargaining agree-
ment in effect between Trout Air Freight and the Union
until the expiration of that agreement on 31 March 1985,
and refusing to process grievances, except that Trout Air
Freight shall have no liability under this subparagraph in
light of its filing a petition in bankruptcy in 1983.
(e) Refusing to bargain with or withdrawing recogni-
tion from the Union as the representative of their em-
ployees in the following appropriate bargaining unit:
All employees of Trout Air Freight and/or Trout
Express at its Rockford, Illinois facilities, but ex-
cluding salesmen and supervisors as defined in the
Act.
(f) Charging the terms and conditions of employment
of bargaining unit employees without notifying the
Union or affording it an opportunity to bargain.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Rhonda Barber, O. D. Clark, Terrence
Ressler, and Dewey Gunter immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
IS If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
TROUT AIR FREIGHT
earnings and other benefits suffered as a result of the Re-
spondents ' discrimination against them , in the manner set
forth in remedy the section of this decision
(b) Remove from their files any reference to the dis-
charges of the above -named employees in December
1984, and notify them in writing that this has been done
and that the evidence of these discharges will not be
used as a basis for future personnel actions against them.
(c) On request , recognize and bargain with the Union
as the collective -bargaining representative of the employ-
ees in the appropriate unit described above and, if an
agreement is reached , embody its terms in a signed con-
tract
(d) Give retroactive effect to the collective -bargaining
agreement referred to above, and reimburse its employ-
ees for any increased wages or benefits owed thereunder
or as a result of the Respondents ' failure to maintain the
contractual terms and conditions of employment after the
contract expired and without bargaining with the Union,
as described in the remedy section of this decision,
except that Trout Air Freight shall have no liability
under this subparagraph because of its filing for bank-
ruptcy in 1983
(e) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(f) Post at their Rockford , Illinois places of business
copies of the attached notice marked "Appendix." i 7
Copies of the notice , on forms provided by the Regional
Director for Region 33, after being signed by the Re-
spondents ' authorized representative , shall be posted by
the Respondents immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered,
defaced , or covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply For the purposes of de-
termining or securing compliance with this Order, the
Board, or any of its duly authorized representatives, may
obtain discovery from the Respondents , their officers,
agents, successors , or assigns , or any other person having
knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil Proce-
dure Such discovery shall be conducted under the su-
pervision of the United States court of appeals enforcing
this Order and may be had,on matters reasonably related
to compliance with this Order, as enforced by the court.
" If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read " Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1309
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT discharge or otherwise discriminate
against employees because they engage in union or other
protected concerted activity
WE WILL NOT close our business and reopen under an-
other name in order to avoid our obligations to the
Union.
WE WILL NOT transfer bargaining unit work to em-
ployees not represented by the Union
WE WILL NOT refuse to apply the collective -bargain-
ing agreement in effect between Trout Air Freight and
the Union until the expiration of that agreement on 31
March 1985 and WE WILL NOT refuse to process griev-
ances, except that Trout Air Freight shall have no liabil-
ity under this paragraph in light of its filing a petition in
bankruptcy in 1983.
WE WILL NOT withdraw recognition from or refuse to
bargain with Teamsters Local Union No. 325, as the col-
lective-bargaining representative of the employees in the
following appropriate unit'
All employees of Trout Air Freight and/or Trout
Express at its Rockford , Illinois facilities , but ex-
cluding salesmen and supervisors as defined in the
Act.
WE WILL NOT change the terms and conditions of em-
ployment of bargaining unit employees without notifying
the Union and affording it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act
WE WILL offer Rhonda Barber, O. D Clark, Terrence
Ressler, and Dewey Gunter immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
their discharges , less any net interim earnings , plus inter-
est.
WE WILL notify Rhonda Barber, O. D Clark, Ter-
rence Ressler, and Dewey Gunter that we have removed
from our files any reference to their discharge and that
the discharge will not be used against them in any way.
WE WILL, on request, recognize and bargain with the
Union as the collective -bargaining representative of the
employees in the appropriate unit described above and, if
an agreement is reached , embody its terms in a signed
contract.
WE WILL give retroactive effect to the collective-bar-
gaining agreement referred to above, and reimburse our
employees for any increased wages or benefits owed
1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thereunder or as a result of our failure to maintain the under this paragraph because of its filing for bankruptcy
contractual terms and conditions of employment after the in 1983.
contract expired and without bargaining with the Union,
except that Trout Air Freight shall have no liability CLARENCE TROUT, AN INDIVIDUAL D/B/A
TROUT FREIGHT AND TROUT EXPRESS