A.D. Conner, Inc., Gas City, Ltd, Heidenreich Trucking Company, McEnery Enterprises, McEnery Truckin

National Labor Relations Board - Board Decisions

Dec 28, 2011

357 N.L.R.B. 1770 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 154
1770
A.D. Conner, Inc., Gas City, Ltd., Heidenreich
Trucking Company, McEnery Enterprises,
McEnery Trucking & Leasing, LLC, and WJM
Leasing, LLC as single employers and/or A.D.
Conner, Inc. and Heidenreich Trucking Com-
pany, as alter egos and Truck Drivers, Oil Driv-
ers, Filling Station and Platform Workers Union
Local No. 142, an affiliate of The International
Brotherhood of Teamsters and Truck Drivers,
Oil Drivers, Filling Station and Platform Work-
ers Union Local No. 705, an affiliate of The In-
ternational Brotherhood of Teamsters. Cases
13–CA–046359 and 13–CA–046360
December 28, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES

On June 24, 2011, Administrative Law Judge Paul
Buxbaum issued the attached decision. The Respondents
filed an exceptions brief and the Acting General Counsel
filed an answering brief.
The Board has considered the decision and the record
in light of the exceptions and briefs1 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

1 The Acting General Counsel, in his answering brief, contends that
the Respondents’ exceptions should be rejected because they do not
comply with Sec. 102.46 of the Board’s Rules and Regulations. In
view of our adoption of the judge’s findings, we find it unnecessary to
pass on the Acting General Counsel’s argument.
2 No party has excepted to the judge’s findings that Ted Lowery was
not a supervisor for the Respondents but was their agent within the
meaning of Sec. 2(13) the Act. Nor are there exceptions to the judge’s
findings that Respondents Conner, Heidenreich, Gas City, WJM Leas-
ing, and McEnery Enterprises together constitute a single employer, but
that McEnery Trucking does not.
The Respondents except solely to the judge’s findings that (1) Hei-
denreich and Conner are alter egos; (2) Conner violated Sec. 8(a)(1) by
threatening to close its facilities and soliciting employees to decertify
the Unions; (3) Conner violated Sec. 8(a)(3) by ceasing operation,
discharging its employees, and transferring its operations to Hei-
denreich; and (4) the single-employer Respondents violated Sec.
8(a)(5) by failing to bargain in good faith with the Unions and by deal-
ing directly with their employees.
The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
orders that the Respondents, A.D. Conner, Inc., Gas City,
Ltd., Heidenreich Trucking Company, McEnery Enter-
prises, and WJM Leasing, LLC, of Frankfort, Illinois,
their officers, agents, successors, and assigns, shall take
the action set forth in the Order.

Brigid Garrity, Esq., for the General Counsel.
L. Steven Platt, Esq., of Chicago, Illinois, for the Respondents.
Ronald M. Willis, Esq., of Chicago, Illinois, for Charging Party,
Local No. 142.
Edward Burke, Esq., of Chicago, Illinois, for Charging Party,
Local No. 705.
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in Chicago, Illinois, on March 8, 9, and 10, 2011. The
Charging Parties filed their initial charges on October 15,
2010,1 and amended charges on January 19, 2011. The Acting
General Counsel2 issued a consolidated complaint on January
31, 2011.3 On February 16, 2011, the General Counsel filed an
amended consolidated complaint.
As the trial commenced, counsel for the General Counsel
sought leave to make two oral amendments to the amended
consolidated complaint. The first alleged that Heidenreich
Trucking Company began operating as a successor to A.D.
Conner, Inc., and that, in so doing, it violated Section 8(a)(5) of
the Act by refusing to recognize the Charging Parties as the
exclusive representatives of its truck driver employees.4 Ap-
plying the Board’s standard set forth in Folsom Ready Mix,
Inc., 338 NLRB 1172 fn. 1 (2003), I granted this request, find-
ing that the amendment merely constituted an alternate legal
theory that was very closely related to the primary thrust of the
complaint. I concluded that there was no material prejudice to
the Respondents since the amendment would involve the same
issues and evidence as were required to litigate the matters
arising from the original complaint.
Counsel for the General Counsel also sought permission to
add an amendment alleging a violation of Section 8(a)(1) con-
sisting of an asserted coercive interrogation of an employee by
counsel in violation of Johnnie’s Poultry Co., 146 NLRB 770
(1964), enf. denied 344 F.2d 617 (8th Cir. 1965). This consti-
tuted an entirely new matter whose only relationship to the

1 All dates are in 2010, unless otherwise indicated.
2 The Acting General Counsel was appointed June 21. For ease of
reference, I will refer to him in this decision as the General Counsel.
3 An erratum to the consolidated complaint was filed February 8,
2011.
4 In making her oral motion, counsel for the General Counsel incor-
porated the existing complaint allegations regarding disguised contin-
uation into her proposed revised language. It appears that the lawyers
for both the Charging Parties and Respondents may have misconstrued
this to mean that she was seeking leave to add an allegation of dis-
guised continuation. See CP Br., at fn. 2, and R. Br., at p. 34. Actual-
ly, this allegation was raised in both the original complaint and the
amended complaint. See GC Exhs. 1(i), at p. 3, and 1(n), at p. 3. The
only new contention contained in the oral motion to amend was the
allegation regarding successorship.
A.D. CONNER, INC. 1771
existing issues was that the allegedly unlawful interview con-
cerned the trial in this case. It was evident that permitting this
amendment would deprive counsel for the Respondents of any
opportunity to prepare a defense to this newly-raised allegation.
As a result, applying Folsom Ready Mix, supra, I denied the
motion to allow this amendment.
Because there are six Respondents in this case, I will abbre-
viate most of their names for ease of reference and clarity. The
lead Respondent, A.D. Conner, Inc., will be referred to as
“Conner.” The alleged alter ego corporation, Heidenreich
Trucking Company, will be referred to as “Heidenreich.” Ad-
ditional entities that are alleged to form a single-integrated
enterprise with Conner and Heidenreich will be referred to as
follows: Gas City, Ltd. will be referred to as “Gas City,”
McEnery Trucking & Leasing, LLC will be called “McEnery
Trucking,” and WJM Leasing, LLC will be designated as
“WJM.” Finally, McEnery Enterprises will not be abbreviated.
The complaint, as amended, alleges that all of the Respond-
ents constitute a single integrated business enterprise. It also
alleges that, as of October 18, Conner ceased its business op-
erations and that, at the same time, Heidenreich assumed those
business operations as a disguised continuance and alter ego of
Conner. Alternatively, it is alleged that, on October 18, Hei-
denreich became a successor employer to Conner.
In addition to characterizing the relationships among the six
Respondents, the General Counsel alleges the commission of
various unfair labor practices. He asserts that supervisors and
agents of Conner uttered unlawful threats to employees and
solicited those employees to decertify their Unions in violation
of Section 8(a)(1) of the Act. He also alleges that Conner
ceased its operations, transferred its work to Heidenreich, and
discriminatorily discharged all of its bargaining unit employees
due to their union affiliation and activities in violation of Sec-
tion 8(a)(3). Finally, the General Counsel contends that the
Respondents committed a variety of bargaining violations with-
in the meaning of Section 8(a)(5), including the withdrawal of
recognition of the Unions as representatives of the employees,
refusal to abide by collective-bargaining agreements with those
Unions, bypassing the Unions by dealing directly with employ-
ees, refusing to bargain about the effects of the decision to shut
down the operations of Conner, and failing to provide infor-
mation sought by Local 705 that was necessary for it to perform
its proper functions as representative of certain employees.
In response to the amended consolidated complaint, counsel
for the Respondents5 filed answers on behalf of Conner, Hei-
denreich, McEnery Trucking, McEnery Enterprises, and WJM.
Those answers denied the material allegations of the amended
complaint. On behalf of Respondent, Gas City, counsel filed a
pleading that stated that it “does not answer” the amended
complaint “as Gas City has filed bankruptcy . . . and this matter
is subject to the automatic stay of the bankruptcy court.”6 (GC

5 At trial, Mr. Platt confirmed that he represents each and every
named Respondent. (Tr. 6.) See also R. Br., at p. 1.
6 The Board has held that it is “well established” that unfair labor
practice proceedings are not subject to the automatic stay. Ivaco Steel
Processing, LLC, 341 NLRB No. 47 fn. 2 (2004) (not reported in Board
volumes) (“Board proceedings fall within the exception to the automat-
ic stay provisions for proceedings by a governmental unit to enforce its
Exh. 1(q), p. 1.) In light of Gas City’s failure to properly an-
swer the complaint,7 counsel for the General Counsel moved
for entry of a default against it. In response, Gas City’s counsel
observed, “It’s in the bankruptcy court lawyer’s hands, so if
you wish to default, you wish to default. I have nothing I can
say about that. I have no control over that.” (Tr. 38.)
While Gas City has provided a notice to the Board that it has
filed for bankruptcy protection, this is not a sufficient excuse
for its failure to submit an answer to the consolidated complaint
that meets the Board’s procedural requirements. See Miami
Rivet of P.R., 307 NLRB 1390 fn. 2 (1992), where the Board
held:

If the Respondent is contending . . . that it did not file an an-
swer to the amended complaint because it believed that it was
exempt from Board proceedings under §362 of the Bankrupt-
cy Code, we find that the Respondent has not established
good cause for its failure to answer the amended complaint.
The Board has rejected a respondent’s attempt to invoke its
bankruptcy petition as a defense to its failure to file an answer.
[Citations omitted.]

The matter is a bit more complicated, however, since the al-
legations against Gas City are directed toward the General
Counsel’s claim that all of the Respondents constitute a single,
integrated business enterprise. In such circumstances, “[t]he
Board has declined to enter a default judgment against a non-
answering respondent . . . where its alleged liability was deriva-
tive and stemmed from its alleged status as a single employer
with (or alter ego of) another respondent who filed a timely
answer.” Metro Demolition Co., 348 NLRB 272 (2006).
In my view, the proper solution to this problem was devised
by the administrative law judge in Liberty Source W, LLC, 344
NLRB 1127, 1131–1132 (2005), rev. denied 478 F.3d 172 (3d
Cir. 2007), cert. denied 522 U.S. 818 (2007). In that case, the
Board adopted the trial judge’s decision that granted a motion
for entry of default due to the respondent’s failure to file an
answer to the complaint, but declined to give it conclusive ef-
fect as to allegations that the defaulting entity was an alter ego
of another respondent who had filed a timely and sufficient
answer. In similar fashion, counsel for the Respondents was
not precluded in any manner from defending all of the Re-
spondents against the allegations of single employer and alter

police or regulatory powers.”) See also Matter of Shippers Interstate
Services , 618 F.2d 9, 13 (7th Cir. 1980) (in unfair labor practice pro-
ceeding alleging disguised continuance, Court holds that “regulatory
proceedings of the National Labor Relations Board are not subject to
the automatic stay provisions of that bankruptcy rule.”)
7 While Gas City’s pleading is denominated as an “Answer to the
Amended Consolidated Complaint,” it specifically states that it is not
an answer. (GC Exh. 1(q), p. 1.) In any event, it is not an adequate
answer to the complaint as it utterly fails to comply with the require-
ments of Sec. 102.20 of the Board’s Rules which provides that an an-
swer must, “specifically admit, deny, or explain each of the facts al-
leged in the complaint” or assert lack of knowledge as to those facts. It
is clear that this document is simply a notice to the Board that Gas City
has filed a bankruptcy proceeding. An answer that simply reports facts
without responding to the specific complaint allegations is fatally de-
fective. See Moo & Oink, Inc., 356 NLRB 1249 (2011), and the cases
cited therein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1772
ego status.8 I will proceed to decide these issues as to all Re-
spondents on their merits.
Regarding the merits, for the reasons that will be discussed
in detail in the body of this decision, I have concluded that five
of the six Respondents do constitute a single, integrated busi-
ness enterprise and are a single employer within the meaning of
the Board’s precedents. I have also concluded that, as of the
date alleged in the amended consolidated complaint, Hei-
denreich became an alter ego of Conner. Additionally, I have
determined that the General Counsel has met his burden of
proving that supervisors and agents of Conner and Heidenreich
engaged in the forms of misconduct alleged in the amended
consolidated complaint constituting violations of Section
8(a)(1), (3), and (5) of the Act.
On the entire record,9 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Charging Parties, and Respondents, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Conner, an Illinois corporation, had been en-
gaged in the business of hauling fuel, while operating from its
facility in Frankfort, Illinois, where it annually performed ser-
vices valued in excess of $50,000 in states other than the State
of Illinois. Conner admits,10 and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent Heidenreich, an Illinois corporation, has also
been engaged in the business of hauling fuel, while operating
from its facility in Frankfort, Illinois, where it annually per-
forms services valued in excess of $50,000 in states other than
the State of Illinois. Heidenreich admits,11 and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The General Counsel does not make specific jurisdictional
allegations regarding the remaining Respondents, Gas City,
McEnery Trucking, WJM, and McEnery Enterprises. These are
not required due to the nature of the allegations against these
entities. See, for example, G.M. Trimming, 279 NLRB 890,
892 (1986), where the Board approved an administrative law

8 Indeed, the lawyers for the opposing parties did not make any ef-
fort to preclude such a defense by counsel for Gas City.
9 The transcript of the trial is generally accurate, but several errors
require correction. At p. 33, l. 6, “that’s enough evidence to satisfy us”
should actually read, “that’s not enough evidence to satisfy us.” At p.
33, ll. 7–8, I observed that, “It’s a Pyrrhic victory if you get too much
in the way of sanctions.” At p. 84, l. 10, “years” should be “ideas.” At
p. 92, l. 19, “say” should be “same.” At p. 515, l. 14, “fist” should be
“fisc.” At p. 800, l. 4, “lean” should be “lead.” Any other transcription
errors are not significant or material.
10 See Conner’s answer to the consolidated complaint, pars. II(a)(b)
and (c). (GC Exh. 1(p), p. 2.) See also counsel’s stipulation that all of
the Respondents fall within the jurisdictional requirements of the stat-
ute. (Tr. 16.)
11 See Heidenreich’s answer to the amended consolidated complaint,
pars. II(d), (e), and (f). (GC Exh. 1(r), p. 2.) See also counsel’s stipula-
tion at tr. 16.
judge’s determination that “[j]urisdiction over one corporation
necessarily attached to an alter ego.” See also Scott Printing
Corp., 237 NLRB 593, 594 (1978), enf. denied on other
grounds 612 F.2d 783 (3d Cir. 1979). In addition, jurisdiction
as to these other entities was stipulated. (Tr. 16.)
Finally, Respondents admit, and I find that the two Charging
Parties are labor organizations within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
1. Background
The central figure involved in this case is William J. McEn-
ery. He is an entrepreneur who, as he described it, “spent all
my life” acquiring the various business enterprises named as
the Respondents. (Tr. 688.) He founded Gas City in 1966 as
an “independent petroleum marketer.” (Tr. 627.) Operations
began at one gas station in Chicago and have since expanded to
include 51 locations containing retail gas stations and conven-
ience store outlets. Included among these locations are 10 large
truck stops. Gas City employs approximately 800 persons.12
Over the years, McEnery acquired the remaining five Re-
spondents. Each of these entities engages in business opera-
tions that interrelate with Gas City in some fashion. Of particu-
lar interest to this case, McEnery purchased Conner in 1979.
Prior to its cessation of operations on October 18, Conner de-
livered the majority of petroleum products to Gas City for retail
sale. In addition, Conner made similar deliveries for other
consumers of petroleum products, including various retail gas
stations, maritime shippers, railroads, and governmental enti-
ties.

12 This number is based on a report to the bankruptcy court filed by
Gas City’s Chief Restructuring Officer. (CP Exh. 2, p. 21.) I have
relied on this document as to this information due to the difficulties
encountered in evaluating McEnery’s own testimony. When asked this
question regarding the number of Gas City’s employees, he responded,
“I don’t know, 1,200. . . . Approximately. I don’t know. I[t] could be
1,200 or 800, you know.” (Tr. 629.) This episode illustrates the para-
doxical nature of McEnery’s presentation and demeanor as a witness in
this trial. Although he readily agreed that he was the sole owner of all
of the entities involved in this case and personally made the major
decision under scrutiny in the trial, he also professed an inability to
answer many basic questions about his enterprises. To cite one striking
example, counsel for the General Counsel asked McEnery, “[w]hat
kind of business is McEnery Trucking and Leasing?” He replied, “I
can’t tell you. I don’t know.” (Tr. 635.) Counsel persisted, asking,
“[w]ho is the Chief [O]fficer of McEnery Enterprises?” He responded,
“I haven’t got a clue. Call the office. I don’t know.” (Tr. 637.) This
testimony stood in stark contrast to a pattern of evidence demonstrating
that McEnery took a hands-on approach to the management of many of
the enterprises’ operations. A telling illustration occurred during the
testimony of Robert Lofrano, a veteran employee. In the course of
describing his duties as a dispatcher for Conner, he indicated that
McEnery would be aware of which customers required deliveries.
When asked how McEnery possessed this information, Lofrano ob-
served that, “[h]e knew everything.” (Tr. 324.) It is difficult to place
reliance on McEnery’s testimony given that it ranged from passionate
intensity and sharp focus to blithe indifference and professed ignorance
of basic information. No explanation for this dramatically inconsistent
presentation has been offered.
A.D. CONNER, INC. 1773
Conner employed truck drivers to make its deliveries. The
drivers operated 18-wheeler tankers between 17 petroleum
distribution facilities and its various customers. These drivers
worked out of two locations. The larger location was Conner’s
headquarters at 160 South LaGrange Road in Frankfort, Illi-
nois.13 During the months prior to Conner’s closing, it em-
ployed 7 dispatchers and 20 drivers at Frankfort and operated
around the clock, making close to 100 deliveries daily. Conner
also ran a smaller facility in Porter, Indiana. This was co-
located with one of Gas City’s truck stops. Approximately 15
drivers worked out of the Porter facility in the months prior to
the cessation of Conner’s operations. They were dispatched by
Frankfort dispatchers and received their delivery orders through
a facsimile machine located in the Gas City retail building.
In May 2005, McEnery purchased a second petroleum
transport company, Heidenreich. McEnery testified that, while
Conner and Heidenreich were both in the business of delivering
petroleum products, they had “different customer bases.” (Tr.
668.) Heidenreich hauled “all over the country,” while Conner
“stayed close to home.” (Tr. 668, 669.) Heidenreich hauled
mostly ethanol products that it delivered to refineries. Conner
primarily hauled gasoline that it delivered to retail outlets and
end users. In another significant difference between the two
firms, Conner used only truck driver employees to make its
deliveries while Heidenreich relied exclusively on owner-
operators who were subcontracted to deliver its product.
While McEnery’s testimony emphasized the differences in
his two petroleum delivery firms, other testimony established a
significant degree of overlap between the two operations. They
both operated out of the headquarters building in Frankfort.
Both organizations parked their tanker trucks in the lot at
Frankfort. Conner dispatcher Robert Lofrano testified that
drivers for both companies obtained the fuel used to run their
trucks from the same fuel tank on the Frankfort property.
The most significant evidence demonstrating longstanding
interrelationship of operations between Conner and Hei-
denreich concerned deliveries of product to Gas City retail
locations. In his testimony, McEnery initially claimed that
these deliveries were made by Conner, with “very, very little”
of Gas City’s fuel being delivered to it by Heidenreich. (Tr.
631.) Much evidence was presented that contradicted this pic-
ture. David Pippin, a longtime Conner driver, testified that he
observed Heidenreich trucks making deliveries to Gas City
locations starting in 2006. Another Conner driver, Darin
Meadows, reported that he had witnessed Heidenreich trucks
delivering gasoline to the Gas City truck stop in Porter on mul-
tiple occasions over the past 5 years.
Dispatcher Lofrano presented a detailed account regarding a
longstanding pattern of shared deliveries to Gas City. He re-
ported that, as a Conner dispatcher, he had daily interaction
with Pete Casper, the individual who made dispatching deci-
sions for Heidenreich. He testified that he would “give him
three or four loads on day shift and three or four on night shift,
every day.” (Tr. 310.) Casper would then assign these runs to

13 For unexplained reasons, this building also bears the address of
21660 LaGrange Road in Frankfort. Despite the two addresses, it is all
the same property.
Heidenreich drivers. Indeed, Lofrano reported that the assign-
ment of work to Heidenreich was a subject of great interest to
McEnery and a source of some tension between the two men.
Lofrano explained that, on Saturdays, McEnery would “always
ask me how many loads I dispatched to Heidenreich. I’d tell
him three or four, he’d say give them five, give them six.” (Tr.
310.) Lofrano indicated that this occurred every Saturday for a
period of “at least two or three years.” (Tr. 347.)
Apart from being corroborated by the observations of Pippin
and Meadows, the reliability of Lofrano’s account was under-
scored when counsel pressed McEnery on the issue, obtaining
his concession that Heidenreich did, indeed, deliver “a couple
loads a day” to Gas City. (Tr. 631.) Lofrano also provided an
additional insight into the degree of overlap in operations be-
tween Conner and Heidenreich. It will be recalled that McEn-
ery contended that Conner specialized in deliveries of gasoline
in the local area around Chicago. Heidenreich specialized in
nationwide ethanol deliveries. As already discussed, despite
this contention, the evidence demonstrated that Heidenreich
regularly performed work of the same type as Conner’s asserted
field of specialization. Beyond this, Lofrano explained that
Conner occasionally performed work identical to that of Hei-
denreich’s claimed field of specialization. Thus, Lofrano testi-
fied that, when Heidenreich “had an overabundance of work,”
Conner drivers would make ethanol deliveries for Heidenreich.
(Tr. 348.) This account was corroborated by Meadows who
indicated that Conner drivers were occasionally dispatched to
make ethanol deliveries when “Heidenreich couldn’t handle the
work.” (Tr. 288.) These assignments were called “overflows.”
(Tr. 288.)
Apart from the two fuel delivery companies, McEnery owns
other enterprises that maintain a connection with Gas City’s
operations. For example, WJM owned the tanker trucks that
were operated by Conner drivers. As counsel for the Respond-
ents explained, “WJM Leasing owns the vehicles, they leased
them to Conner. When Conner was out of business they then,
in turn, leased them to Heidenreich.” (Tr. 801–802.) In addi-
tion, McEnery Enterprises performs various services across the
corporate structures. It provides maintenance mechanics and
administers employee benefit programs such as health insur-
ance policies.
The top of McEnery’s corporate pyramid is occupied by The
William J. McEnery Revocable Trust. This was established in
1993 with McEnery as its president, secretary, and sole trustee.
The Trust is the sole owner of each of the Respondents in this
case.14 In turn, McEnery is the president and secretary of each

14 This includes the one remaining Respondent that I have not yet
mentioned, McEnery Trucking. McEnery testified that the Trust owned
this entity and that he personally served as its president and secretary.
Beyond that, little is revealed in the record. To illustrate, Witness
Lofrano was asked, “[w]hat do you know about McEnery Trucking and
Leasing?” His terse reply was, “[n]ot much.” (Tr. 343.) Furthermore,
it is not clear whether this corporation is identical to another firm
named McEnery Trucking Company. There is documentary evidence
regarding the latter corporation demonstrating that it effectively merged
with Heidenreich at the time that McEnery purchased Heidenreich.
(GC Exhs. 45, 46, and 47.) Significantly, the role, if any, of McEnery
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1774
of those Respondents. All of the companies operate from the
building on LaGrange Road in Frankfort. That building and
almost all of the Gas City retail locations are owned by the
Trust.15 This headquarters building contained the administra-
tive, clerical, and bookkeeping staff for all of the Trust’s sub-
sidiary entities.
The testimony and documentary evidence clearly demon-
strated that these employees were not simply located together,
but intermingled their duties and functions. Perhaps the most
obvious example was provided by Lofrano who reported that,
“[i]f someone would call our phone and ask for A.D. Conner
and we were busy on the phone . . . the receptionist would an-
swer it, Gas City, then she’d transfer it to us.” (Tr. 304.)
Lofrano provided another telling illustration, reporting that if he
was in the building on a Saturday performing his duties as a
Conner dispatcher and a customer at a Gas City carwash called
to report a breakdown in the equipment, he would take the re-
port, contact a maintenance employee of McEnery Enterprises,
and dispatch that mechanic to the Gas City car wash to make
the repairs.
It is apparent from the foregoing discussion of the relation-
ships among the Respondents that McEnery played a key role.
Under direct examination, McEnery was inconsistent and en-
igmatic regarding the extent of his participation in the matters
involved in this case. Nevertheless, on cross examination by
counsel for Local 142, he did acknowledge his key position.
The discussion went as follows:

COUNSEL: [A]s the president, when you were the pres-
ident of A.D. Conner, you made the ultimate decisions,
correct, for the company?
MCENERY: Yeah, at the end of the day, yeah.
COUNSEL: At the end of the day. I mean, the buck
stops with you.
MCENERY: Right.

(Tr. 663.) The evidence established that this was equally true
for each of the Respondents.
The second key figure involved in the management of these
enterprises during the events in controversy in this case was
McEnery’s son-in-law, David Christopher. McEnery was more
forthcoming in describing Christopher’s role. He confirmed
that, prior to Conner’s cessation of operations, Christopher
served as its vice president of operations responsible for “day to
day overall operations of A.D. Conner during 2010.” (Tr. 664–
665.) [Counsel’s words.]
Christopher maintained a similar role for Heidenreich. In
McEnery’s phrase, at the present time Christopher is “running
the whole show” at Heidenreich. (Tr. 667.) His formal title is
identical to his former title at Conner, vice president of opera-
tions. Christopher testified that he has held this position at
Heidenreich “for the last couple of years.” (Tr. 807.) McEnery
also noted that Christopher made the key leasing decisions for
WJM, including the selection of the lessees of WJM’s tanker
trucks and the terms of the leases. Finally, McEnery testified

Trucking in the alleged single-integrated enterprise is not revealed in
the record.
15 A few Gas City locations are leased by the Trust.
that Christopher is the executive vice president of marketing
and finance for Gas City.16
The General Counsel asserts that one other individual, Ted
Lowery, spoke and acted on behalf of Conner during the events
involved in this case. Lowery did not testify at the trial but
numerous witnesses provided accounts as to his position with
Conner and his authority to act on Conner’s behalf. There was
widespread agreement among the witnesses that Lowery was a
dispatcher and that he served as the lead person among Con-
ner’s complement of dispatchers. Beyond that, there was a
genuine and significant dispute as to Lowery’s legal status. I
will resolve that controversy in the legal analysis portion of this
decision.
Turning now to the Charging Parties, the evidence showed
that Local 705 had represented Conner’s truck drivers at the
Frankfort facility since the mid-1980’s. Local 705 and Conner
were parties to a collective-bargaining agreement that was
signed by them on November 29, 2004, and was to “continue in
full force and effect until October 31, 2010” and thereafter
absent notice of contrary intent by either party. (GC Exh. 26, p.
28.) Local 705 employed a contract administrator, Neil Messi-
no, to supervise and monitor its contractual relationship with
Conner.
Truck drivers employed by Conner at its Porter facility were
organized by Local 142 during 2004. The Company extended
voluntary recognition to the Union in that year. Local 142 and
Conner were also parties to a collective-bargaining agreement
that was entered into on December 1, 2004, and was to continue
in effect until October 31, 2010, in the same manner as the
agreement between Conner and Local 705.17 Administration of
this agreement for Local 142 was in the hands of its business
agent, Lesley Lis. In March 2010, Lis and Christopher con-
cluded an addendum to the parties’ contract that resolved dis-
putes regarding the amount of payments made by Conner to the
Union’s pension fund.

16 Throughout much of the trial, the Respondents took the position
that Christopher was not a statutory supervisor and agent of the compa-
nies. Ultimately, counsel for the Respondents did stipulate that Chris-
topher was both a statutory supervisor and agent of each of the Re-
spondents with the sole exception of Gas City. (See Tr. 665–666.) His
stipulation as to the majority of the Respondents was entirely consistent
with the overwhelming evidence regarding Christopher’s central role in
the management of their affairs. Counsel did not present any rationale
for his contention that Christopher lacked this status at Gas City despite
occupying the position of its executive vice presidency for marketing
and finance. Christopher, himself, admitted that he was a supervisor
for Gas City. See GC Exh. 1(m), p. 4. I need not resolve the matter.
Gas City’s sole liability in this case arises from its relationship with
Conner and Heidenreich. The amended consolidated complaint does
not allege any unlawful conduct by Christopher while acting on behalf
of Gas City.
17 Indeed, the two collective-bargaining agreements appear to be
substantially identical.
A.D. CONNER, INC. 1775
2. Events in controversy
As is often true in labor litigation, the events alleged to con-
stitute unfair labor practices in this case took place against a
background of financial distress. It was evident that manage-
ment of the Respondents viewed labor costs and contractual
obligations toward the Unions as a major factor contributing to
that distress. Longtime Conner employee, Lofrano, testified
that as long ago as October 2009, McEnery told him that “the
Union was killing him.” (Tr. 314.) Lofrano indicated that
McEnery returned to this theme in four or five conversations on
different occasions.
Conner’s financial difficulties were made manifest to the
Unions in early 2010. In February, McEnery decided to cease
making contractually required contributions to Local 705’s
health and welfare fund on behalf of the bargaining unit mem-
bers.18 When asked why the Employer ceased making these
contributions, McEnery’s succinct response was that, “We had
no money. We were broke.” (Tr. 593.)
Christopher testified that, at this time, he began a series of
discussions with officials of the Unions in an effort to obtain
concessions designed to improve Conner’s fiscal situation.
These efforts included a series of meetings with Business Agent
Tony Sarwas of Local 705 and telephone contact with Local
142’s agent, Lis. Christopher explained that he did not hold
meetings with Lis because, “I felt that whatever was accom-
plished with 705, we would accomplish the same thing with
142.” (Tr. 808.) He based this conclusion on the fact that the
collective-bargaining agreements with the two locals were
“mirror images of each other.” (Tr. 808.) Witnesses on behalf
of the Unions confirmed that Christopher raised the topic of
Conner’s negative financial situation with them in an effort to
obtain concessions. As Lis described it, Christopher told him
that the Employer was “on hard times.” (Tr. 489.)
Discussions between Christopher and Local 705 continued in
March with a meeting at the union hall attended by several
union officials, including someone “on the legal side.” (Tr.
809.) Christopher explained that, “we needed significant con-
cessions because there [were] issues, not only with A.D. Con-
ner, but with Gas City and Mr. McEnery’s entities and, we
needed, we needed significant concessions in order to continue
to operate.” (Tr. 809–810.)
Christopher reported that, in June, the Respondents’ financial
problems were greatly exacerbated when Bank of America
withdrew Gas City’s line of credit. This forced Gas City to pay
cash for the gasoline it needed to purchase for resale to its retail
customers. Discussions with the Union continued that summer,
culminating in an audit of Conner’s books by the Union. That
audit confirmed some of management’s claims of financial
problems.
At this point in early August, Christopher sent Local 705 a
proposed pay chart, asserting that, even with these proposed
concessions, compensation was “still way better than the mar-
ket.” (GC Exh. 30, p. 1.) Subsequently, union officials met to
formulate their response. They decided that negotiations re-

18 McEnery testified that Conner also ceased making payments to
Local 142’s health and welfare fund, but he was not able to recall the
date when this occurred.
garding concessions would require advance authorization from
the membership.
While these rather desultory discussions about concessions
for Conner were underway, both Unions also served notice of
their intent to terminate the collective-bargaining agreements
on their scheduled expiration dates in October. Lis reported
that, after providing written notice of termination, he made
numerous phone calls to Christopher, leaving messages that, “I
would like to talk to him about setting up times and dates to
meet for contract negotiations.” (Tr. 472.) Lis reported that the
two men played phone tag but never actually spoke to each
other. As a result, the parties did not engage in any contract
negotiations.
Although Christopher held another meeting with Local 705
officials in August, the parties had not arrived at any agree-
ments. By September, the unresolved nature of the discussions
led to tension between Christopher and McEnery. As Christo-
pher described it,

I was telling him [McEnery] over the past several months that
I felt we were making progress with the Union, we were go-
ing to come to some sort of understanding with concessions.
He said you’ve been telling me that since last February, it’s
September. Where are the concessions?

(Tr. 862.) McEnery asked Christopher if the Union had com-
municated with the drivers and was told that Christopher did
not know. As a result, McEnery decided that he would meet
with drivers to discuss the issue directly.
On September 20, Christopher sent two communications that
illustrate the Employer’s dual approach to resolving the issue of
labor costs. The first was a notice to a select group of 10 Con-
ner drivers informing them that McEnery would meet with
them on the next day. The notice did not provide the drivers
with any sort of agenda for this meeting. On the same day,
Christopher sent an email to Lis asking, “[w]hen would you
like to meet to discuss the contract renewal?” (GC Exh. 22, p.
1.)
On September 21, McEnery and Christopher held the sched-
uled meeting with drivers in McEnery’s office. Two of those
drivers, Pippin and Gregory Knorr, provided dramatic testimo-
ny regarding what was said by McEnery at the meeting. Knorr
testified that McEnery entered the room and began by telling
the employees, “[G]uys, I’ve got some bad news, I f—ed up,
we’re broke.” (Tr. 83.) He then asserted that, “there will be no
f—ing union at A.D. Conner. There will be no f—ing union,
no more.” (Tr. 83–84.) Knorr reported that McEnery elaborat-
ed by telling the drivers that, “if the company wanted to contin-
ue on[,] that we would have to decertify. . . .” (Tr. 84.) Knorr
indicated that, throughout the meeting, McEnery, “kept refer-
ring that the Union broke our company.” (Tr. 121.)
After McEnery made his announcements regarding the
Company’s financial troubles and expressed his opinion as to
the impossibility of continuing the relationship with the Union,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1776
Christopher passed out a document that contained a new pay
scale for drivers. This reflected a decrease in hourly wage from
$25.15 to $21, representing an approximately 17 percent pay
cut. (See GC Exh. 3.) Christopher told the assembled drivers
that “this is what the concessions would have to be for our
company to move forward.” (Tr. 123.) McEnery confirmed
this and concluded by instructing the drivers that, “we had sev-
en days to come up with a solution to the problem and [he]
would like a representative to come back and try ideas to keep
A.D. Conner afloat.” (Tr. 84.)
Driver Pippin’s testimony matched that of Knorr as to every
significant detail regarding the meeting. He indicated that
McEnery began the discussion by informing the drivers that,

[H]e didn’t have any good news for us and that he was fuck-
ing broke and he wasn’t paying the Union anymore fucking
money. And if we wanted to keep working that we would
have to decertify from the Union and go to work for him for
less money.

(Tr. 167.) After this preamble, the drivers were presented with
the written proposal for wage reductions. It was explained that
this represented “what we would have to work for if we were
going to stay there once we got rid of the Union.” (Tr. 167–
168.) Pippin testified that McEnery told them that, if they re-
fused to eliminate the Union, “[h]e was going to shut the
doors.” (Tr. 168.) Thus, he instructed the group of drivers
attending the meeting to “talk to everybody and decertify and
let the Union know that we didn’t want to be unionized any-
more.” (Tr. 169.)
Understandably, Christopher provided a less colorful account
of McEnery’s conduct and statements at this meeting. Never-
theless, in its essentials, Christopher’s version served to con-
firm and corroborate the descriptions provided by the drivers.
He reported that McEnery told the select group of drivers that
“he needed concessions.” (Tr. 822.) When the drivers asked
why this was necessary, he told them that “the company was
broke.” (Tr. 823.) Christopher indicated that he distributed a
proposal for specific concessions and informed the drivers that
the subject of the concessions had been discussed with their
Union. The drivers replied that they were not aware of these
discussions, whereupon Christopher reiterated that, “something
needed to be done and something needed to be done quick.”
(Tr. 824.) Finally, Christopher testified that the meeting con-
cluded with McEnery demanding that the group of drivers “get
back to me and find out what we can do to get this resolved.”
(Tr. 864.)
To the extent that the three accounts regarding the content of
this meeting differ, I credit the versions offered by the two
drivers.19 Their testimony was consistent with each other,

19 At trial, three current employees of Heidenreich, Pippin, Knorr,
and Darren Meadows, provided testimony adverse to the interests of the
Respondents. In evaluating their accounts I have taken into considera-
tion the Board’s analytical principle that “testimony of current employ-
ees which contradicts statements of their supervisors is likely to be
particularly reliable because these witnesses are testifying adversely to
their pecuniary interests.” PPG Aerospace Industries, 355 NLRB 103,
104 (2010). [Footnote omitted.] Application of such a conclusion here
while Christopher’s more circumspect version served to con-
firm the key points made by the other witnesses, albeit without
the dramatic flourishes. Beyond this, the drivers’ description of
the content of McEnery’s message is substantiated by the
events that followed. His predictions regarding the Company’s
future behavior came to pass in precisely the way he outlined at
the meeting.
Two days after meeting with the selected group of drivers,
Christopher took steps to continue the process of working out-
side the framework of collective bargaining while, at the same
time, communicating his agreement to meet with Local 705.
He issued a memorandum to all drivers at Frankfort and Porter
in which he informed them that management had met with a
“group of select senior drivers” because “[w]e felt that meeting
with several drivers would be more productive vs. getting in
front of our entire group of Frankfort and Porter drivers.” (GC
Exh. 5, p. 1.) He advised that management had stressed “the
importance of getting concessions passed through due to the
financial condition of AD Conner.” (GC Exh. 5, p. 1.) He then
outlined the nature of the Company’s proposal including a
wage reduction, switching of benefit plans from the Union to
the Company’s insurer and 401(k) plan, and imposition of a co-
pay for health insurance. He solicited “ideas on what to do to
make things work” from the drivers. (GC Exh. 5, p. 1.) Cou-
pled with this request for concessions, he warned that, “[o]ne
thing is for certain, we cannot continue to operate at our current
cost structure. We need to work together to fix this.” (GC Exh.
5, p. 1.) He concluded by informing the drivers that, “[w]e
want to be able to come to an amicable solution and move forth
with the organization.” (GC Exh. 5, p. 2.)
On the same day he wrote this memo, Christopher also ex-
changed emails with Messino. Messino began the communica-
tion by proposing dates for bargaining about the terms of a new
contract. He advised that, “Local 705 will also present our
initial proposal.” (GC Exh. 28.) Christopher responded by
accepting the date of October 18, adding that he would like to
include Local 142. Implicitly confirming the ongoing relation-
ship with both Unions, Christopher told Messino that, “I do not
know if we will have the same agreements [with the two un-
ions] moving forth, that is something we can initially discuss.”
(GC Exh. 28.)
Having already held a meeting with a select group of drivers
at Frankfort, Christopher now proceeded to meet with drivers at
Porter. The meeting was held in the trailer at the Porter truck
stop on September 28. Twelve drivers attended, including two
who provided testimony about this event.20 James McClelland
reported that Christopher told the drivers that “the company
was losing money and that we needed to take a pay cut and
pension, cut in our pension.” (Tr. 223.) He warned that if this
did not occur, “the company would have to close.” (Tr. 223.)
He also attributed Conner’s financial problems to “our pay rate
and for, the amount for our pension and health and welfare.”
(Tr. 224.) He also expressed frustration that “the Union wasn’t

reinforces the other indicators demonstrating the reliability of these
witnesses.
20 Christopher did not testify regarding this meeting. I credit the de-
tailed and generally consistent accounts of the two drivers.
A.D. CONNER, INC. 1777
returning his phone calls.” (Tr. 224.) Tellingly, Christopher
also made a suggestion that proved to be a prediction of man-
agement’s future intentions, telling the assembled drivers that
“we could go to be owner operators or to be, disband the Un-
ion.” (Tr. 225.)
Driver Meadows largely confirmed McClelland’s account,
including Christopher’s demand for “a reduction in pay, or
something, benefits to help the company survive.” (Tr. 265.)
He reported that a driver asked Christopher if one option would
be “to go non-union.” (Tr. 266.) Christopher replied that, “yes,
that could be one option.” (Tr. 266.) Christopher also distrib-
uted a document outlining the changes in driver compensation.
(See GC Exh. 10.) Finally, he warned that if these proposals
were not accepted, “[t]he company would probably, or would
close.” (Tr. 268.)
As the month of October began, matters reached a crisis. In
a reflection of Conner’s deepening financial problems, on Oc-
tober 6, Christopher emailed Lowery advising that the Union’s
health fund was terminating all employees as of November 1
due to the Employer’s failure to make required contributions.
He added that he was working on the problem with the Union
and that the parties were “close to reaching an agreement.”
(GC Exh. 17.) He asked Lowery to “please circulate this e-mail
to all the drivers” and promised to keep everyone informed of
developments. (GC Exh. 17.)
Three days later, officials of Local 705 finally took action to
implement their decision to inform bargaining unit members of
the outcome of the Union’s audit of Conner’s finances and seek
authorization to negotiate with management regarding conces-
sions. The meeting was conducted at a VFW Hall and a large
number of drivers attended. Messino testified that he informed
those drivers that, “we had completed an audit” and had dis-
cussed proposals with Christopher on September 19. (Tr. 552.)
He reported that he told the drivers that he was “recom-
mend[ing]” wage concessions “based on the audit that we per-
formed [which] showed some loss in the company.” (Tr. 553.)
Messino testified that, on October 11, he informed Christo-
pher that he had met with the drivers and that the drivers “gave
me authorization to the concessions he offered.” (Tr. 904.)
While Christopher initially denied that Messino provided him
with this information on October 11, he later conceded that the
two men spoke by telephone sometime between October 9 and
18. During their conversation, he affirmed that Messino told
him that union officials had spoken with the drivers and, “[t]he
drivers were in agreement with concessions. We needed to
negotiate concessions.” (Tr. 865.) I credit Messino’s account,
particularly since it is fundamentally corroborated by Christo-
pher’s own testimony.
Unfortunately, at the very moment when the Union’s leader-
ship finally took steps to recognize the Company’s financial
problems and implement a response to them, McEnery made an
abrupt and unilateral decision to pursue his own alternative
course of action.21 Christopher testified that on either October

21 Messino testified that Christopher told him that “Bill McEnery
made the decision out of the blue on October 12 or 13.” (Tr. 557.) I
credit this account as it jibes with the sequence of events and is con-
11 or 12 he met with McEnery. McEnery informed him that he
was shutting down Conner. When asked if McEnery explained
his rationale for this decision, Christopher reported that the
Company was closed because it “was out of money. . . . The
Company wouldn’t have met payroll. If we went any longer,
the company wouldn’t have met payroll.” (Tr. 867.) Signifi-
cantly, Christopher also testified that, after McEnery’s an-
nouncement to him that Conner was closing, the two men dis-
cussed how many of the drivers they would need to hire at Hei-
denreich. McEnery confirmed that the two managers made
plans to add former bargaining unit drivers as employees at
Heidenreich. As he put it, “Dave [Christopher] gave me a list
of how many drivers he thought we might need . . . for main-
taining our units all over where we were at.” (Tr. 677.) He
noted that, “we hired as many drivers as we could for the work
we had.” (Tr. 676.)
McEnery’s decision was communicated to all of the Conner
drivers by letter dated October 12. In that letter, McEnery told
the drivers that, “[a]s a result of certain business circumstances,
A.D. Conner is now forced to shutdown all of its operations on
October 18, 2010, and to terminate all of its employees on that
date.” (GC Exh. 6.) He added that the shutdown would be
“permanent.” (GC Exh. 6.)
After making this announcement, management lost no time
in implementing its decision to hire former Conner drivers at
Heidenreich. Pippin testified that, on October 12, he received a
telephone call from Lowery. Lowery advised him, “that there
would be applications online for Heidenreich if I wanted to fill
one of those out, that I could fill one of those out and drop it
off.” (Tr. 173.)
Management’s plans were fully and clearly revealed on the
next day, October 13. On that busy day, Christopher emailed
Conner’s dispatchers. The subject line of the email was “Hei-
denreich Trucking.” (GC Exh. 18.) In the email, Christopher
told the dispatchers that applications for positions at Hei-
denreich were available “on the web.” (GC Exh. 18.)
Later that day, Christopher emailed Lowery, providing him
with a candid explanation of management’s intentions. He
asked Lowery to “verbally convey[ ]” to the drivers that he
“would like all of them to fill out an application for Hei-
denreich.” (GC Exh. 13.) He explained that, “I need to see
how the work is going to shift from AD Conner to Hei-
denreich.” (GC Exh. 13.) He outlined the wages and benefits
that were going to be offered to drivers who were to be em-
ployed at Heidenreich and informed Lowery that “[w]e are still
determining the number of drivers that we would need to ser-
vice Gas City and any other customers through Heidenreich.”
(GC Exh. 13.) Finally, Christopher explained to Lowery that
he was requesting that Lowery discuss these matters with the
drivers because, “I could not put the above into a formal letter
due to union issues.”22 (GC Exh. 13.)

sistent with the sense of exasperation and irritation articulated by
McEnery in his own testimony at trial.
22 It has been my experience that the record rarely affords “smoking
gun” evidence, particularly regarding the intent and motivation of par-
ties to lawsuits. This email represents a striking exception to that gen-
eral experience and constitutes clear and compelling evidence as to, not
only what the Respondents did, but why they did it. Christopher’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1778
In addition to drafting this correspondence regarding Con-
ner’s shutdown and Heidenreich’s hiring plans, Christopher
also engaged in discussions about these matters. Knorr testified
that he went to Conner’s offices to pick up his paycheck and
met with Christopher. Christopher told him that “we were shut-
ting down.” (Tr. 90.) He added that Knorr could submit an
application to Heidenreich by going online or by obtaining a
paper application from the dispatchers. By the same token,
Pippin also reported to Conner’s offices to submit his own ap-
plication for employment by Heidenreich. It will be recalled
that Lowery had informed him about the application process on
the preceding day. While at Conner, he encountered Christo-
pher, who told him that “he wasn’t sure who he was hiring yet
and he would let me know.” (Tr. 175.) At the same time,
Christopher handed him a written description of the wages that
Heidenreich was going to pay its drivers.
Dispatcher Lofrano testified that Christopher also met with
the dispatchers on this date. He told them that due to the Com-
pany’s financial situation it would be “shutting down all opera-
tions” as of October 17. (Tr. 319.) He invited all of the dis-
patchers to complete applications for employment at Hei-
denreich and return them to him. Lofrano reported that he
completed his own application that day and gave it to Christo-
pher.
On the same day, Christopher also engaged in various com-
munications with union officials. These began with an early
morning email from Messino in which he told Christopher that
he had “just been informed” of the decision to “cease opera-
tions at A.D. Conner” and that the scheduled negotiating ses-
sion on October 18 was being cancelled by the Company. (GC
Exh. 29, p. 2.) He asked Christopher to propose another date
for a meeting, promising that he would clear his own calendar
to “expedite” the process. (GC Exh. 29, p. 2.) Christopher
replied, promising to contact Messino later in the week to pro-
pose a “new date.” (GC Exh. 29, p. 1.) Messino responded
with some suggested dates and asked, “Is this confirmation that
you are ceasing operations as A.D. Conner, Inc.?” (GC Exh.
29, p. 1.) Christopher ended the exchange of emails by promis-
ing to let Messino know about a meeting date later in the week.
He added, “[y]ou can use this as confirmation but I will be
sending a formal letter today via UPS to Tony Sarwas indicat-
ing that we will be ceasing operations.” (GC Exh. 29, p. 1.)
Also on this day, Lis wrote a letter to Christopher on behalf
of Local 142. In it, he advised Christopher that he was giving
“official notice of our desire to enter into negotiations relative
to the decision and effects of the closure of your terminal locat-
ed at . . . Porter, IN.” (GC Exh. 23.)
In the remaining days before Conner’s permanent shutdown,
matters continued to evolve. In particular, on October 14, a
meeting regarding the closure was held at Porter. Christopher

choice of language is quite similar to that of another indiscreet letter
writer in Operating Engineers Local 150, AFL–CIO v. Centor Contrac-
tors, Inc., 831 F.2d 1309, 1313 (7th Cir. 1987), where a company offi-
cial wrote to customers explaining that there would be a corporate
name change “[b]ecause of union labor problems.” The Court charac-
terized this choice of wording as “[p]articularly damning” evidence of
unlawful motivation. 831 F.2d at 1314.
testified that he sent Lowery to Porter to conduct the meeting
“to deal with the drivers . . . and let them know what’s happen-
ing.” (Tr. 880–881.) The meeting was attended by the majori-
ty of the Porter drivers and also by their Union Representative
Lis.23 McClelland, Meadows, and Lis provided consistent and
credible testimony regarding events at the meeting. Lowery
told the drivers that Conner “would be closing its doors as of
October 18th.” (Tr. 229–230.) He also told them that they
“could fill out applications as company drivers for Hei-
denreich.” (Tr. 230.) Lowery also distributed written materi-
als, including the pay scale for Heidenreich’s new employee
drivers.
Also on this date, Messino telephoned Lowery to ask him for
information about the shutdown of Conner. Lowery outlined
management’s plans, advising Messino that “they were going to
retain as many customers as they could and service them
through Heidenreich, and it looks like he’s going to need, that
Ted was going to hire roughly four or five drivers right now
into Heidenreich from A.D. Conner.” (Tr. 554.) Finally, Knorr
reported that he dropped off his application for employment
with the dispatchers at Heidenreich. In so doing, he encoun-
tered Christopher in his office and was told that, “they would
let me know if I was rehired or not on the 15th.” (Tr. 91.)
On the next day, as promised, Knorr was contacted by Chris-
topher and told that he was being “rehired” and was to report
for work on October 18. (Tr. 92.) By contrast, Lofrano was
called into Christopher’s office and informed that he would not
be hired by Heidenreich. He then spoke with McEnery who
told him that, “the Union’s been killing me, it’s been costing
me a million dollars a year for the past 15 years, and I just can’t
put up with it anymore.”24 (Tr. 324.)
On October 16, Christopher telephoned Pippin and offered
him employment at Heidenreich. Two days later, both Pippin
and Knorr reported for work as employees of Heidenreich.
Knorr testified that he was given a dispatch sheet on the same
form as he had been receiving from Conner. The only change
was that the form had the Heidenreich name in place of the
Conner name on it. The assignment contained on the form was
the same assigned route he had been driving for Conner. He
was directed to use the same truck he had been using at Conner.
Once again, the only difference was that the Conner logo had
been replaced by a Heidenreich sticker on the door. In fact,
Knorr testified that he inspected the leasing papers contained in
the vehicle and they still showed a lease from WJM to Conner.
He reported this discrepancy to the person responsible for such
paperwork. On the following day he was given new paperwork
showing the truck as being leased from WJM to an entity de-
scribed as, “HEIDENREICH TRUCKING CO/A D
CONNER.” (GC Exh. 7.) [Capitalization and punctuation in
the original.]

23 Lis testified that he was not notified of the meeting by manage-
ment. He was informed about it by one of his bargaining unit mem-
bers.
24 I credit Lofrano’s account of McEnery’s explanation for closing
Conner. It is generally consistent with McEnery’s explanations on the
witness stand. Furthermore, in that testimony, McEnery did not deny
this account.
A.D. CONNER, INC. 1779
Pippin also testified regarding his first day of work at Hei-
denreich. He reported to the usual Frankfort location and
punched the same time clock he had been using as a Conner
driver. He was issued the same truck he had been driving for
Conner. It had the same unit number on it, but now had Hei-
denreich lettering on the doors. Tellingly, he also testified that
he was not asked to fill out any new tax forms, I-9 form, or
other paperwork, apart from his application for employment.
On this date, Meadows chose to fax a Heidenreich applica-
tion to Lowery. He followed this with a phone call to Lowery
that afternoon. Lowery told him that, “I was good to go for
Tuesday, the 19th.” (Tr. 274.) On that date, Meadows did
report for work at the Porter facility. Once again, it is signifi-
cant to note that Meadows testified that he simply showed up
for work and began working. Nobody met him at Porter and he
did not undergo any formalities related to his new employ-
ment.25 He simply used the truck key that had been issued to
him by Conner and began driving. The vehicle he used was not
his usual truck, but he recognized it as one that had belonged to
Conner’s fleet. It now bore a new Heidenreich logo.
With Conner no longer engaged in operations, management
took another major step. On October 26, Gas City filed a bank-
ruptcy petition. Two days later, Christopher met with officials
from both Unions. Messino testified that he took the opportuni-
ty to ask Christopher, “what’s going on with A.D. Conner?”26
(Tr. 557.) Christopher explained that:

[A] lot of financial things weighed into it, weighed into the
shutdown, that A.D. Conner is gone, that Bill McEnery made
the decision out of the blue on October 12 or 13, that he
couldn’t handle it anymore and just needed to shut the place
down.

(Tr. 557.) Christopher also reported the Gas City bankruptcy
filing and told the union representatives that deliveries to Gas
City were now going to be made by Heidenreich.
Messino took this occasion to hand Christopher a written list
of questions. This set of documents began with a cover letter
explaining that the information was being sought due to con-
cern that the employer was using an alter ego, single-employer
arrangement, or subcontracting scheme as a means to avoid its
contractual obligations toward the Unions. The questions
called for the production of all correspondence relating to the
shutdown of Conner, lists of customers and vendors and copies
of communications with them, lists of all drivers and other
employees, information regarding the hiring by Heidenreich of
former Conner drivers, truck leases and delivery schedules, and
names of all stockholders, directors, and officers of the corpora-
tions. Responses were requested by November 12. (See GC
Exh. 33.) As Messino testified, the information being sought
was required “to know where Local 705 was going to go if it

25 Meadows advised that he was never asked to fill out a new W-4
tax reporting form or I-9 form to show eligibility to work in the United
States. He did complete new insurance forms. Of course, this would
have been necessitated by the discontinuation of Conner’s participation
in the Unions’ insurance plans and the enrollment of the newly hired
Heidenreich driver employees in that firm’s insurance plans.
26 At trial, it was stipulated that during this meeting, Messino was
acting on behalf of both Unions. See Tr. 890–891.
was truly a shutdown, and bargain the cessation of operation,
the effects, or go after the alter-ego single employer entity of
Heidenreich.” (Tr. 567.)
Lis reported that Christopher provided brief verbal responses
to the first three questions, but then told the assembled union
representatives that “he needed to get back to us on some of the
questions, on all of the questions, really.” (Tr. 504.) At this
point, Christopher terminated the meeting, indicating that he
had a conflicting commitment. The parties scheduled another
meeting for November 1.
Messino reported that the Unions have not received any ad-
ditional information in response to their request. Furthermore,
Christopher subsequently telephoned Messino to cancel the
November 1 meeting. Messino then requested a conference
with Christopher and McEnery “to get into Heidenreich succes-
sor negotiations.” (Tr. 567.) This request was denied and the
parties have not engaged in any additional discussions, meet-
ings, or negotiations.
On January 19, 2011, both Unions filed the initial unfair la-
bor practice charges in this case.27 The Regional Director is-
sued the original complaint on January 31, 2011.
As of the time of the trial, Conner remained closed and has
not employed any bargaining unit members since October 18.
Former Conner drivers who are now working for Heidenreich
described that Company’s current and ongoing operations.
Knorr testified that a total of 16 former Conner drivers now
work as drivers for Heidenreich, 11 out of Frankfort and 5 at
Porter.28 He also reported that Heidenreich employs the same 3
dispatchers that he used to work with at Conner, including
Lowery. In addition, Heidenreich employs various nonbargain-
ing unit personnel that used to work for Conner, including of-
fice staff and the safety director.29 He also described continuity
in the work processes, including the use of the same procedures
regarding paperwork.
Several drivers testified about the significant differences in
terms and conditions of employment between their work at
Conner and their current positions at Heidenreich.30 Knorr
reported that his wages have declined from $25.15 per hour at
Conner to $22.75 per hour at Heidenreich. At Conner, he did

27 Months earlier, Local 142 had filed grievances with Conner, alleg-
ing violation of the parties’ collective-bargaining agreement related to
the recognition clause, seniority, transfer, and subcontracting of busi-
ness. (See GC Exh. 24.) Lis testified that he never received any re-
sponse from the Company.
28 The parties reached a stipulation that demonstrated the accuracy of
Knorr’s count. Thus, the stipulated list of former Conner drivers who
now work for Heidenreich out of Frankfort consists of: Lames Lippie,
James Vermett, Leonard Fox, David Howard, Thomas Geary, Greg
Vincent, Clyde Coyle, Vincent Moldeven, David Pippin, David Thom-
as, and Gregory Knorr. The former Conner drivers working for Hei-
denreich out of Porter are: Christopher Grochowski, Jimmy Strong,
Darren Meadows, Gerald Meyers, and Jarret Roe. (See Tr. 712–714.)
29 Christopher confirmed the transfer of nonbargaining unit person-
nel to Heidenreich after the closure of Conner, including the person
who did the billing and the accountant.
30 Counsel for the Respondents verified that the terms and conditions
of employment between the two fuel hauling firms are different. As he
put it, “there’s no question there’s a difference. . . . We’re not disput-
ing that.” (Tr. 293.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1780
not have to make any separate contribution for his participation
in the Union’s health insurance. At Heidenreich, he pays $114
biweekly for participation in the Employer’s health insurance
plan for individual coverage. Similarly, he used to have dental
coverage through the Union without any additional cost. He
now pays $55 biweekly for such coverage through Heidenreich.
As a bargaining unit employee of Conner, he participated in the
Union’s pension plan. Heidenreich does not offer him any
form of pension or 401(k) retirement plan. His paid vacation
time is reduced from 4 weeks annually at Conner to 2 weeks at
Heidenreich. At Conner, he received paid holidays and person-
al days. These do not exist at Heidenreich. All of this was
confirmed through the similar detailed accounts of Pippin and
Meadows.
While the compensation and benefits offered by Conner and
Heidenreich differ markedly, the nature of the work processes
remains largely the same for the driver employees. Knorr noted
that, while Heidenreich never hired driver employees before the
closure of Conner, it now does so. All of those driver employ-
ees happen to be former Conner bargaining unit members.
Similarly, the trucks those Heidenreich driver employees oper-
ate happen to be trucks formerly used to deliver fuel for Con-
ner. To illustrate this point, McClelland testified that he paid a
visit to the Porter location after Conner’s closure and observed
the Conner trucks in the parking lot bearing Heidenreich signs
on them. When asked how he knew these were the same
trucks, he replied, “[f]rom the pinstripes on the hoods, pin-
stripes on the side of the trailers, and the truck numbers on the
side of the trucks.” (Tr. 238–239.) Meadows described the
continuity in his work processes. While his delivery customers
have changed, he continues to obtain the product from the same
terminals, uses the same vehicles, and is dispatched by the
same dispatcher, Lowery. The extent of the similarity in work
processes was confirmed in the testimony of Meadows. He
currently delivers to Gas City, Steel City, and Marathon sta-
tions. The person that he views as his supervisor continues to
be Lowery.
3. Legal Analysis
A. The Status of Ted Lowery
Ted Lowery was a significant participant in the personnel
matters involved in the shutdown of Conner and the hiring of
former Conner drivers by Heidenreich. He conducted a meet-
ing on October 14 at which he informed the Porter drivers that
Conner “would be closing its doors as of October 18th.” (Tr.
229–230.) He also told the Porter drivers that they “could fill
out applications as company drivers for Heidenreich.” (Tr.
230.) In addition, Lowery informed Frankfort drivers that they
could seek employment at Heidenreich. He also outlined the
changes in corporate structure to Messino.
The General Counsel contends that Lowery’s statements and
actions are binding on the Respondents because he was both a
supervisor and an agent within the meaning of Section 2(11)
and (13) of the Act. (GC Exh. 1(n), p. 3.) The Respondents
contend that Lowery did not possess the attributes of superviso-
ry or agency status. Their counsel characterized his role as that
of a “low-level foreman, a working foreman.” (Tr. 800.)
Turning first to the matter of supervisory status, it is neces-
sary to assess this issue using the Board’s recently enunciated
refinements of its standards as contained in the Oakwood trilo-
gy of cases. These are found at: Oakwood Healthcare, Inc.,
348 NLRB 686 (2006), Croft Metals, Inc., 346 NLRB 717
(2006), and Golden Crest Healthcare Center, 348 NLRB 727
(2006). It is also important to note that the party asserting that
an individual is a statutory supervisor bears the burden of proof
as to this issue. NLRB v. Kentucky River Community Care,
Inc., 525 U.S. 706, 711 (2001). In this case, that burden rests
with the General Counsel. Finally, it should be observed that
job titles are not dispositive. As the Board has held, “[t]he
status of a supervisor under the Act is determined by an indi-
vidual’s duties, not by his title or job classification.” T. K.
Harvin & Sons, Inc., 316 NLRB 510, 430 (1995).
In attempting to meet her burden of proof, counsel for the
General Counsel relies on one specific aspect of the analytical
formulation. Thus, she asserts that Lowery “issued discipline
through the use of independent judgment sufficient to imbue
him with the status of supervisor.”31 (GC Br., at p. 33.) In
reaching this conclusion she relies on the testimony of Driver
Wayne Flora regarding two specific incidents. In the more
recent of these, there is no doubt that Flora was subjected to
serious disciplinary action. Thus, he testified that, in Septem-
ber 2009, he was involved in a safety infraction at a gas station.
As a result, he was required to attend a meeting at which he
was issued an unpaid suspension. The difficulty with counsel’s
reliance on this episode is that Flora clearly testified that Low-
ery did not attend the meeting. (Tr. 441.) Flora reported that
the supervisor who conducted that disciplinary meeting and
imposed the suspension was Christopher. (Tr. 442.)
The second incident relied on by counsel took place 2 years
earlier, in September 2007. There is no dispute that the person
involved was Lowery. Flora’s account of the incident was
somewhat murky. At first, he appeared to contend that Lowery
suspended him for 3 weeks without pay. Ultimately, he clari-
fied this in a manner that demonstrated that Lowery’s action
was not of a disciplinary nature, but rather was merely a routine
application of the Employer’s attendance rules related to work-
place injuries. The matter arose after Flora had suffered a
work-related injury and was receiving medical treatment for it.
His physician issued him a return-to-work note containing a
restriction that he not work more than 5 days per week. When
he reported this to Lowery, he was told that the Employer oper-
ated around the clock and required employees to be able to

31 She also cites to a variety of so-called “secondary indicia” of su-
pervisory status, including Lowery’s salaried status, possession of his
own office, and participation in company meetings. As the Board has
long held, “[i]n the absence of primary indicia as enumerated in Sec.
2(11), these secondary indicia are insufficient to establish supervisory
status.” S.D.I. Operating Partners, L.P., 321 NLRB 111, 111fn. 2
(1996), and the cases cited there. Beyond this, as to one particular
indicia, Lowery’s ability to approve time off requests, the Board has
observed that if the putative supervisor’s “role in processing time-off
requests was limited to assessing staffing adequacy,” it constituted “a
routine task that did not involve independent judgment.” Pacific Coast
M.S. Industries Co., 355 NLRB 1436, 1436 fn. 13 (2010). Such was
the case with Lowery.
A.D. CONNER, INC. 1781
work at least 6 days per week. Flora testified that, as a conse-
quence, Lowery told him, “if I couldn’t [work six days a week],
I had to go to the doctor to get the note reversed before I could
come back to work.” (Tr. 437.) It took Flora 3 weeks to obtain
an appointment with the physician. Once he did so, his re-
striction was lifted and he returned to work.
Examination of this episode does not demonstrate that it in-
volved either the imposition of discipline or the exercise of
independent judgment as required by the Act. Lowery’s ac-
tions were not based on his appraisal of Flora’s conduct or be-
havior. They were merely an application of the Employer’s
scheduling policies in response to Flora’s doctor’s note. This is
illustrated by the fact that, once Flora obtained a revised note
from the doctor, he returned to work without further ado. Noth-
ing in Flora’s testimony indicates that Lowery was exercising
any independent judgment in directing him to obtain clearance
from his physician. In Oakwood, the Board cited its own prec-
edents as establishing that, “[t]he exercise of some supervisory
authority in a merely routine, clerical, perfunctory, or sporadic
manner does not confer supervisory status.”32 348 NLRB at
693, citing Bowne of Houston, 280 NLRB 1222, 1223 (1986).
Although the General Counsel has limited his argument to
Lowery’s disciplinary authority, I have considered the overall
record and concluded that no other basis exists to find supervi-
sory status. When questioned as to Lowery’s ability to exercise
independent judgment, McEnery retorted that, “[h]e can’t even
order lunch.” (Tr. 699.) Christopher testified that Lowery
would have to obtain his approval before taking such simple
actions as authorizing a driver to take a day off. This was cor-
roborated by Driver Meadows who testified that, when he ap-
plied for work at Heidenreich, Lowery told him that, “he had to
check with Dave [Christopher] before, to see if I was going to
be hired.” (Tr. 299.) Finally, Lis reported that, in the past, he
had resolved problems at the workplace directly with Lowery.
However, he also testified that, approximately a year and a half
ago, they were unable to resolve an issue and he spoke to Chris-
topher about it. At that time, Christopher told him, “any other
problems, just bring them back to him.” (Tr. 522–523.) This
was consistent with McEnery’s and Christopher’s testimony
that Lowery did not possess any authority to negotiate with the
Unions. To the extent that Lowery did engage in such negotia-
tions, the evidence reveals that it was without such authoriza-
tion and that, upon learning of it, Christopher advised Lis to

32 It is interesting to note that the Board’s reference to “sporadic” ex-
ercise of supervisory authority as being insufficient under the statute
was emphasized in Shaw, Inc., 350 NLRB 354 (2007), where the Board
declined to find supervisory status in circumstances where the putative
supervisor did participate in the decision to suspend two employees for
a disciplinary violation but there was no other evidence of his exercise
of disciplinary authority. It held that, “this isolated incident—the only
instance on this record in which any foreman exercised such authori-
ty—is insufficient to establish that the foremen were statutory supervi-
sors.” 350 NLRB at 356. [Footnote omitted.] Even if one were to
characterize Lowery’s action regarding Flora’s doctor’s note as disci-
plinary in nature, it was clearly an isolated episode. No additional
example of Lowery’s alleged disciplinary authority was described in
the record.
negotiate with him instead. Lis confirmed that, after this inci-
dent, he did bring all issues to Christopher for resolution.
For all of these reasons, I conclude that the General Counsel
has failed to meet his burden of proving that Lowery possessed
supervisory authority within the meaning of the Act. This con-
clusion, however, does not end the inquiry. Lowery’s state-
ments and actions may, nevertheless, be considered as authori-
tative acts of the Employer if he was serving as an agent of the
Employer. In making such determinations, the Board applies
Common Law principles which it recently summarized:

Apparent authority results from a manifestation by the princi-
pal to a third party that creates a reasonable basis for the latter
to believe the principal has authorized the alleged agent to
perform the acts in question. Either the principal must intend
to cause the third person to believe the agent is authorized to
act for him, or the principal should realize that his conduct is
likely to create such a belief. [Citations and internal punctua-
tion omitted.]

Mastec North America, Inc., 356 NLRB 809, 809–810 (2011).
A particularly useful criterion for assessment of an individu-
al’s authority to act as an agent on behalf of an employer is
whether the alleged agent has been employed as a conduit of
information to employees. The Board has stressed the proba-
tive value of this concept on many occasions while using a
variety of descriptive formulations.33 See, for examples, B-P
Custom Building Products, 251 NLRB 1337, 1338 (1980)
(agent “relayed information from management to employees
and had been placed by management in a strategic position
where employees could reasonably believe he spoke on its be-
half”); Einhorn Enterprises, 279 NLRB 576 (1986) (agent “re-
layed confidential information obtained from management to
rank-and-file employees”); Southern Bag Corp., 315 NLRB
725 (1994) (agent was “an authoritative communicator of in-
formation on behalf of management”); Victor’s Café 52, 321
NLRB 504, fn. 1 (1996) (agent was “the usual conduit for
communicating management’s views and directives to employ-
ees, from the time of their hiring through their daily accom-
plishment of their tasks”); and Zimmerman Plumbing & Heat-
ing Co., 325 NLRB 106 (1997), enfd. in pertinent part 188 F.3d
508 (6th Cir. 1999) (agents “acted as the conduits for relaying
and enforcing the Respondent’s decisions, directions, policies,
and views”).
Compelling evidence consisting of Christopher’s testimony
and supporting documentation demonstrates that Lowery was
used as precisely this sort of conduit of information between
management and the employee drivers. Thus, while Christo-
pher emphasized that Lowery was not authorized to hire, fire,
discipline, or negotiate with the Unions, he did fulfill a unique
function as an intermediary between management and the work
force. This was illustrated in the following exchange:

33 This is not to say that a finding of use of an employee as a conduit
by management is a prerequisite for agency status. In Albertson’s, Inc.,
344 NLRB 1172 (2005), the Board stressed that, “[t]here is no require-
ment in the Board’s test for agency status that an alleged employee
agent must be a conduit for management in order to be found the em-
ployer’s agent.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1782
JUDGE: Was there anybody in between . . . a regular
dispatcher and you in terms of, for instance, the expression
was used, the lead man?
CHRISTOPHER: I would communicate with Ted Low-
ery.
COUNSEL: Okay and then, Ted Lowery would talk to
the dispatchers?
CHRISTOPHER: Right.

(Tr. 851–852.) Later in his testimony, Christopher elaborated,
explaining that,

I need a lead guy in there to talk to. I can’t have all dispatch-
ers coming in saying, this is what’s going on, this is what’s
happening because it would just be mass confusion. . . . So, I
needed one guy to talk to in order to make sure everything
was running properly.

(Tr. 854–855.)
Christopher’s use of Lowery as a conduit of information be-
tween management and the drivers was also well-documented
in the Respondents’ written records. Thus, on October 6,
Christopher sent an email to Lowery asking the dispatchers to
“please circulate this email to all drivers” to inform them that
the health insurer was terminating the employees. (GC Exh.
17.) A week later, Christopher emailed Lowery a detailed ac-
count of the plan to “shift from AD Conner to Heidenreich,”
including the terms and conditions of employment at Hei-
denreich and a request that Conner drivers submit applications.
(GC Exh. 13.) He asked that Lowery “verbally convey” this
information to the Conner drivers. (GC Exh. 13.)
The most striking illustration of Respondents’ use of Lowery
as a conduit of key information to the bargaining unit members
consisted of the uncontroverted testimony that Lowery was sent
to Porter to meet with the drivers located at that facility on
October 14. Christopher confirmed that he selected Lowery for
this assignment in order to “deal with the drivers . . . and let
them know what’s happening” regarding the closure of Conner
and the transfer of operations to Heidenreich. (Tr. 880–881.)
As specifically directed by Christopher, at that meeting Lowery
told the Porter drivers that Conner was shutting down and that
they could seek work at Heidenreich.
The evidence clearly establishes that Lowery was vested
with actual authority to speak on behalf of management regard-
ing both the shut down of Conner and the transfer of personnel
to Heidenreich. In addition, by using Lowery as its customary
conduit of information to bargaining unit members, manage-
ment created an entirely reasonable perception among those
employees that Lowery was an authoritative spokesman for
management. As a result, Lowery was an agent of the Employ-
er within the meaning of Section 2(13) of the Act. His state-
ments regarding all of the matters at issue in this trial are ad-
missible as authorized admissions of a party to the case within
the meaning of Fed. R. of Evid. 801(d).
B. Allegedly Unlawful Threats and Solicitations
The General Counsel alleges that, during meetings with driv-
ers in both of the Conner operating locations in September,
McEnery and Christopher threatened bargaining unit members
with the closure of the Company due to their union membership
and activities. He also contends that, during these meetings,
those management officials solicited the bargaining unit mem-
bers to decertify the Unions as their exclusive representatives.
These actions are alleged to constitute violations of Section
8(a)(1) of the Act.
Relatively recently, the Board provided the following useful
summary of its analytical standard for assessment of employ-
ers’ statements that are alleged to constitute unlawful threats:

An employer violates Section 8(a)(1) by acts and statements
reasonably tending to interfere with, restrain, or coerce em-
ployees in the exercise of their Section 7 rights. The Board
employs a totality of circumstances standard to distinguish be-
tween employer statements that violate Section 8(a)(1) by ex-
plicitly or implicitly threatening employees with loss of bene-
fits or other negative consequences because of their union ac-
tivity, and employer statements protected by Section 8(c).
[Citations and certain internal punctuation omitted.]

Empire State Weeklies, 354 NLRB 815, 817 (2009). The Board
has also observed that, “[t]he test of whether a statement is
unlawful is whether the words could reasonably be construed as
coercive, whether or not that is the only reasonable construc-
tion.” Double D Construction Group, 339 NLRB 303 (2003).
[Footnote omitted.] Finally, “in considering whether commu-
nications from an employer to its employees violate the Act, the
Board applies an objective standard of whether the remark
tends to interfere with the free exercise of employee rights.
The Board does not consider either the motivation behind the
remark or its actual effect.” Scripps Memorial Hospital Encini-
tas, 347 NLRB 52 (2006). [Citation and internal quotation
marks omitted.]
In addition to making threats, it is contended that the Em-
ployer’s officials solicited union members to decertify their
Unions. Once again, the Board has provided a concise sum-
mary of its standards for adjudication of such issues:

An employer may not initiate a decertification petition, solicit
signatures for the petition or lend more than minimal support
and approval to the securing of signatures and the filing of the
petition. It is not determinative that an employer does not ex-
pressly advise employees to get rid of the union. Indeed, such
direct appeals are not essential to establish than an employer
solicited decertification. [Citations and internal punctuation
omitted.]

Corrections Corporation of America, 347 NLRB 632, 633
(2006). The Board has also noted in the context of an allega-
tion that an employer solicited a decertification petition, that
“an employer violates Section 8(a)(1) when it threatens that
benefits will not be available if the employees are represented
by a union.” Unifirst Corp., 346 NLRB 591, 593 (2006). [Ci-
tation omitted.]
Turning now to the content of the Employers’ statements, the
first meeting was conducted by McEnery on September 21 at
the Company’s Frankfort headquarters. Attendees included a
group of 10 Conner drivers selected by management, as well as,
Christopher. I have already noted my finding that the testimo-
ny of two of the drivers who attended the meeting was credible
and was supported to a significant degree by Christopher’s own
A.D. CONNER, INC. 1783
account. Thus, I credit Pippin’s report that McEnery told the
assembled bargaining unit members that, “he wasn’t paying the
Union anymore f—ing money. And if we wanted to keep
working that we would have to decertify from the Union and go
to work for him for less money.” (Tr. 167.) He added that the
drivers were given a written proposal for wage reductions and
were told that this document reflected “what we would have to
work for if we were going to stay there once we got rid of the
Union.” (Tr. 167–168.) McEnery concluded his presentation
by warning that, if the drivers refused to eliminate the Union,
“[h]e was going to shut the doors.” (Tr. 168.) In order to avert
this fate, he advised the group of drivers to “talk to everybody
and decertify and let the Union know that we didn’t want to be
unionized anymore.”34 (Tr. 169.)
It does not require any extended discussion to conclude that
McEnery’s statements at this meeting constituted direct and
obvious threats to shutdown Conner and terminate its work
force if the employees decided to maintain their membership in
the Union. It is equally clear that McEnery made an overt and
explicit solicitation to those employees to initiate the process of
decertifying their bargaining representative. Both the threats
and the solicitations constituted violations of Section 8(a)(1) of
the Act.
A week later, Christopher conducted a similar meeting with
12 of the drivers working out of the Porter location. As was the
case regarding a comparison of the trial testimony of the two
top officials, Christopher made a more subtle and nuanced
presentation to the Porter drivers than had McEnery to their
colleagues at Frankfort. He both avoided profanity and spoke
somewhat indirectly. Drivers McClelland and Meadows pro-
vided credible accounts of what he told the drivers. He advised
them that the Company was losing money and that they were
required to take both a pay cut and a reduction in benefits. He
warned that if this did not occur, “the company would have to
close.” (Tr. 223.) More pointedly, he informed the drivers that
Conner’s financial problems were caused by “our pay rate and
for, the amount for our pension and health and welfare.” (Tr.
224.) This was a clear reference to the terms and conditions of
their employment established in the collective-bargaining
agreement between Conner and the Union. McClelland noted
that Christopher offered two suggestions to the drivers, that
“we could go to be owner operators or to be, disband the Un-
ion.” (Tr. 225.) Meadows testified that, in response to a driv-
er’s inquiry, Christopher confirmed that “one option” would be
to eliminate the Union. (Tr. 266.) Meadows also reported that
Christopher distributed proposed changes in drivers’ compensa-
tion and underscored the seriousness of the matter by warning
that if these changes were not accepted, “[t]he company would
probably, or would close.” (Tr. 268.)
While I have noted that Christopher’s conduct at this meet-
ing was more restrained and circumspect than McEnery’s at the
earlier meeting, consideration of the totality of circumstances
surrounding the event persuades me that his statements must be

34 It will be recalled that Driver Knorr’s account entirely corroborat-
ed Pippin’s version. As Knorr put it, McEnery told them that, “[i]f the
company wanted to continue on that we would have to decertify to
continue as employees.” (Tr. 84.)
reasonably construed as threatening closure of the Company
and loss of employment due to the drivers’ continued participa-
tion in the Union and solicitation of the drivers to discontinue
such participation. Thus, Christopher’s language “created the
impression in the minds of employees that there was an inevi-
table linkage between unionization and job loss.” Homer D.
Bronson Co., 349 NLRB 512, 513 (2007), enf. 273 Fed. Appx.
32 (2d Cir. 2008). [Internal punctuation omitted.] As a result,
Christopher’s statements at this meeting constituted unlawful
coercion of employees directed at their exercise of their Section
7 rights. The statements violated Section 8(a)(1) in the manner
alleged by the General Counsel.
C. Allegedly Discriminatory Discharges and
Transfers of Work
The General Counsel alleges that Conner engaged in unlaw-
ful discrimination against bargaining unit members by dis-
charging them from employment and transferring work that
they had been performing to Heidenreich. He further contends
that the motivation for these actions was the membership of the
bargaining unit members in the Unions. Such conduct would
constitute a violation of Section 8(a)(3) of the Act.
Because the resolution of this question turns on the Employ-
er’s motivation, I must assess the evidence using the methodol-
ogy mandated in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393, 399–403 (1983). In
order to meet his initial burden under Wright Line, the General
Counsel must show that the Respondent’s employees engaged
in protected union activities and that the Respondent’s officials
were aware of their participation in those activities. He must
also demonstrate that the employees suffered an adverse em-
ployment action and that there was a motivational link between
the adverse action and the protected activity. If the General
Counsel makes this required showing, “such proof warrants at
least an inference that the employee’s protected conduct was a
motivating factor in the adverse employment action and creates
a rebuttable presumption that a violation of the Act has oc-
curred. Under Wright Line the burden then shifts to the em-
ployer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.” American
Gardens Mgmt. Co., 338 NLRB 644, 645 (2002). [Internal
citation and footnote omitted.]
At the first stage of the analysis, it is evident that the Conner
drivers had engaged in the protected activity of obtaining union
representation, including the negotiation of collective-
bargaining agreements that established the key terms and con-
ditions of their employment. It is equally evident that man-
agement knew of this protected activity. Similarly, there can be
no dispute that all of the bargaining unit drivers at both Conner
facilities suffered adverse employment actions consisting of
either their complete termination from employment or their
transfer to Heidenreich where they were not accorded represen-
tation and where their terms and conditions of employment
were less favorable than those that were contractually required
at Conner.
Persuasive evidence establishes that there was a direct and
powerful motivational nexus between these adverse actions and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1784
the Employer’s animus against the two Unions. As long ago as
a year prior to the adverse actions, McEnery had complained to
Lofrano that “the Union was killing him.” (Tr. 314.) He re-
peated this complaint on several occasions during the following
year. At a meeting with the drivers on September 21, McEnery
made his animus against the Unions crystal clear, asserting that,
“there will be no f—ing union at A.D. Conner. There will be
no f—ing union, no more.” (Tr. 83–84.) Just days before the
termination of Conner’s operations, McEnery again told Lofra-
no that, “the Union’s been killing me, it’s been costing me a
million dollars a year for the past 15 years, and I just can’t put
up with it anymore.” (Tr. 324.)
McEnery’s repeated statements regarding his attitude toward
the Unions leave no doubt that he bore animus against them and
their members.35 When considered in relationship to the deci-
sion to terminate Conner’s operations and transfer those opera-
tions to Heidenreich, it is clear that there is a strong motiva-
tional link. It cannot seriously be contended that McEnery’s
unlawful antiunion animus was not a substantial motivating
factor in the ensuing decision to terminate Conner’s existence
and move its work to Heidenreich.36
Before proceeding with the remainder of the Wright Line
analysis, it is worthwhile to note that the adverse action under
consideration here is not the closure of Conner, but rather the
transfer of its operations to Heidenreich and Heidenreich’s
subsequent decisions to refuse to recognize the Unions and to
offer employment to former Conner drivers on terms and condi-
tions significantly worse than those required by the collective-
bargaining agreements between Conner and the Unions. Had
McEnery merely decided to shut down Conner and get entirely
out of the business of hauling fuel to retail gas stations, his
decision would have been privileged under the Act, even if
motivated entirely by antiunion animus. As the Supreme Court
has held, such a decision to close a business, “may be motivat-
ed more by spite against the union than by business reasons, but
it is not the type of discrimination which is prohibited by the

35 In the typical Wright Line case, the General Counsel attempts to
show the employer’s retaliation against the protected activity of indi-
vidual employees. Such individualized proof is unnecessary here.
Where an employer takes adverse action against an entire body of em-
ployees due to their protected activity, it “manifests its animus toward
all of them.” Ingramo Enterprise, Inc., 351 NLRB 1337, 1339 (2007),
rev. denied 310 Fed.Appx. 452 (2d Cir. 2009). See also W.E. Carlson
Corp., 346 NLRB 431, 433 (2006) (knowledge of individual employ-
ee’s protected activity is “immaterial” where employer bears animus
against protected activity by an entire group of employees).
36 Beyond this, I have also considered McEnery and Christopher’s
unlawful threats to eliminate the work at Conner and solicitations to-
ward the drivers to decertify their Unions as additional evidence of
animus. As the Board has observed, “[t]hreats to eliminate the employ-
ees’ source of livelihood have a devastating and lingering effect on
employees. An inference may be drawn from the animus behind such
threats, which the discharge[s] would gratify, that the animus was the
true reason for the discharge[s].” Vico Products Co., 336 NLRB 583,
583 fn. 16 (2001), enfd. 333 F.3d 198 (DC Cir. 2003). See also St.
Margaret Mercy Healthcare Centers, 350 NLRB 203, 204 (2007),
enfd. 519 F.3d 373 (7th Cir. 2008) (“antiunion animus is established
here by the Respondent’s [other] unfair labor practices”).
Act.”37 Textile Workers v. Darlington Mfg. Co., 380 U.S. 263,
272 (1965).
Since the General Counsel has proven that the bargaining
unit employees of Conner engaged in protected union activities
and that they suffered adverse actions against them motivated
in substantial part by their Employer’s animus against those
activities, the burden now shifts to that Employer to prove that
the same actions would have been taken regardless of those
protected activities. In that regard, the Employer asserts that
the reason for the shut down of Conner was that, in Christo-
pher’s words, “[t]he Company was out of money. . . . The
Company wouldn’t have met payroll.” (Tr. 867.)
What is particularly striking about the Respondents’ defense
is that, despite the clear evidence that McEnery was strongly
motivated by his dissatisfaction with the terms of his collective-
bargaining agreements with the Unions and their refusal to
make what he viewed as timely modifications in those terms,
the Employer has failed to present any corroboration of its al-
ternate hypothesis that Conner was forced to close due entirely
to its financial collapse. It is particularly noteworthy that the
Respondents did not present a single shred of documentation to
support the claims of financial collapse. Indeed, they did not
seek to admit a single document into evidence in this case.
On several occasions, the Board and its judges have warned
that employers asserting economic defenses cannot do so by
“uncorroborated oral testimony.” Davey Roofing, Inc., 341
NLRB 222, 223 (2004), citing Reeves Rubber, Inc., 252 NLRB
134, 143 (1980). See also Valley Slurry Seal Co., 343 NLRB
233, 250 (2004). Indeed, the failure to produce corroborating
documentation or testimony from neutral sources such as the
Employer’s accountants, bankers, or creditors leads me to draw
an adverse inference regarding the veracity of the claims of
financial collapse. As another judge has put it in similar cir-
cumstances, “Respondent’s failure to produce such documents
and witnesses leads to an inference that such evidence would be
harmful to its case.”38 Cooke’s Crating, 289 NLRB 1100, 1100
fn. 8 (1988). [Citations omitted.] The vague, conclusory and
entirely unsupported assertions of the Employer’s partisan offi-
cials do not meet its burden of demonstrating that the bargain-
ing unit members would have been terminated and/or trans-
ferred to Heidenreich regardless of their membership in the
Unions and coverage by the Union’s collective-bargaining

37 I also note that if Heidenreich had acquired the former Conner de-
livery routes and customers in an arm’s-length transaction, the situation
would be different from that presented here. Later in this decision, I
will discuss my conclusion that the transfer of work between Conner
and Heidenreich was not a bona fide transaction between two inde-
pendent entities, but rather a disguised continuance of Conner’s opera-
tion through the use of Heidenreich as an alter ego.
38 This is not to say that I have concluded that Conner was free from
financial problems. The Union’s audit revealed “some loss in the com-
pany.” (Tr. 553.) While I do not doubt that there was some financial
pressure, this is a far cry from the quantum of proof that would support
a conclusion that the Company’s financial situation was so dire that it
would have closed its doors even in the absence of the powerful anti-
union animus harbored by McEnery. The fact that McEnery chose to
remain in the business of fuel hauling to local gas stations after closing
Conner demonstrates that he perceived this activity as desirable and
profitable for him to continue to perform.
A.D. CONNER, INC. 1785
agreements. To the contrary, the persuasive evidence consist-
ing of the statements made by McEnery and the concrete steps
he undertook to rid himself of the Unions while continuing to
operate in the local fuel delivery business firmly support a find-
ing that he engaged in unlawful discrimination against his bar-
gaining unit employees in violation of Section 8(a)(3) of the
Act. His determined effort to continue to participate in the
local fuel hauling business as an nonunion employer persua-
sively demonstrates that the real reason for his actions was not
some overall financial or market problem in the business of
local fuel hauling or any wish to divest himself of such an en-
terprise, but rather his strong desire to eliminate Conner’s orga-
nized work force, its representatives, and their contracts from
his local fuel hauling operations.
D. The Alleged Alter Ego Relationship Between
Conner and Heidenreich
The General Counsel alleges that, as of the time when Con-
ner shut down its operations, Heidenreich became its alter ego
and revised its own business plan in order to become a dis-
guised continuance of Conner. The Board has described the
applicable legal principles for an analysis of this contention as
follows:

When the General Counsel alleges that an entity is the alter
ego of a respondent, subject to the latter’s legal and contractu-
al obligations, the General Counsel has the burden of estab-
lishing that status. The determination of alter-ego status is a
question of fact for the Board, resolved by an examination of
all of the attendant circumstances.

The Board considers several factors when determining
whether alter-ego status has been shown. Specifically, the
Board considers whether two entities have substantially iden-
tical ownership, management and supervisors, business pur-
pose, operation, customers, and equipment. The Board also
looks to whether the purpose behind the creation of the al-
leged alter ego was legitimate or whether, instead, its purpose
was to evade responsibilities under the Act.39 No single one
among these factors is determinative, and not all of the indicia
need be present for the Board to make a finding of alter-ego
status. [Internal punctuation and numerous citations omitted.]

US Reinforcing, Inc., 350 NLRB 404, 404 (2007).
The Supreme Court has endorsed the Board’s use of the alter
ego doctrine to secure compliance with the requirements of the
Act. In Howard Johnson Co. v. Detroit Local Joint Executive
Board, Hotel & Restaurant Employees, 417 U.S. 249, 261 fn. 5
(1974), it observed that where a corporation is merely a dis-
guised continuance of another employer, “the courts have had

39 The Board has stressed that the absence of proof of unlawful mo-
tive is not dispositive since, “it would be anomalous to allow an em-
ployer to walk away from a collective-bargaining agreement merely by
changing its name but not the substance of its operations, even if the
change in form is neither carried out for a nefarious purpose nor ac-
complished through deception. As the First Circuit has observed, ‘if a
company merely changed its corporate form for legitimate tax or corpo-
rate reasons, it is hard to see why the new entity should be able to dis-
regard an existing collective bargaining agreement.’” Fallon-Williams,
Inc., 336 NLRB 602, 602–603 (2001). [Citation omitted.]
little difficulty holding that the successor is in reality the same
employer and is subject to all the legal and contractual obliga-
tions of the predecessor.”
Turning now to the evidence in this case, I begin by noting
that there is no dispute that Conner and Heidenreich have iden-
tical ownership. At all relevant times, the two corporations
were entirely owned by The William J. McEnery Revocable
Trust. Furthermore, the principal officer of both the trust and
the two companies was McEnery. The Board has characterized
such an identity of ownership as “an important factor.” US
Reinforcing, Inc., supra at 404. That factor is fully present in
this case.
As to management and supervision, the situation is the same.
The ultimate management of both firms rests in the hands of
their sole owner, McEnery. While this is undisputed, counsel
for the Respondents does argue that the supervision of the truck
drivers employed by each company is in different hands. Thus,
he asserts that, “Christopher may be a similar manager for both
Heidenreich and A.D. Conner, but at Heidenreich, [Pete] Cas-
per has the majority of the labor relations responsibility, since
the majority of drivers are owner-operators, and he is tasked
with overseeing the owner-operator drivers.” (R. Br. at p. 30.)
In this regard, counsel attempts to draw too fine a distinction.
It is true that, prior to the shut down of Conner, Casper super-
vised all of the owner-operators at Heidenreich, while Christo-
pher supervised all of the driver employees at Conner. During
that period, Heidenreich did not use any driver employees,
while Conner had no owner-operators. However, the evidence
is uncontroverted that, after the shut down, Heidenreich began
to utilize driver employees and Christopher was put in charge
of this new category of Heidenreich workers. Thus, for the key
purposes under consideration, it is entirely accurate to conclude
that the two companies shared the identical supervisor of truck
driver employees, Christopher.40
As to business purpose, a similar situation exists. Thus,
counsel for the Respondents argues that, “[w]hile both entities
may be in the business of hauling, the former hauls ethanol to
refineries and the latter hauled petroleum to gas stations.” (R.
Br. at pp. 30–31.) This claim is unavailing both because it was
never an entirely accurate description of the business purposes
of the two firms and, more importantly, because the business
objectives of Heidenreich changed after Conner’s shut down.
As I have described, while the two companies were both in
operation, they engaged in a significant interchange of opera-
tions such that Heidenreich routinely hauled petroleum to retail
gas stations, while Conner occasionally hauled ethanol to refin-
eries. Once Conner ceased to operate, it is undisputed that
Heidenreich increased its deliveries of petroleum to retail gas
stations, effectively assuming Conner’s former responsibilities
in this area to the extent permitted by Conner’s former custom-

40 The pattern continues at the next level of management. Lowery
was the lead dispatcher at Conner and is now employed in that role at
Heidenreich.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1786
ers.41 Thus, during the relevant period, Heidenreich and Con-
ner were operated for the same business purposes.42
The next group of factors may be considered together as they
consist of related concepts regarding the operations, equipment,
and customer base for the two firms. Prior to Conner’s shut
down, there was some significant similarity in these matters
between the two companies. They did share operations, partic-
ularly the hauling of fuel to customers who operated retail gas
stations. More importantly, after the shutdown, Heidenreich
assumed many more of Conner’s former operations, employed
a complement of Conner’s former drivers who continued to
serve under their former supervisor, and continued making
many of Conner’s former deliveries using equipment owned by
WJM and previously leased to Conner. To the fullest extent
permitted by the customers, Heidenreich took over Conner’s
delivery routes, including deliveries to Conner’s largest and
most important customer, Gas City.
All of this was vividly illustrated by the testimony of former
Conner drivers who were hired by Heidenreich. They reported
that there was little in the way of hiring formalities and a strik-
ing similarity in job duties. Their equipment and work process-
es were largely indistinguishable from what had existed in their
work at Conner. As Meadows explained, on his first day with
Heidenreich, he simply showed up at his usual location. No-
body met him there. Instead, he was told to operate a truck
with “an old Conner trailer.” (Tr. 275.) To accomplish this, he
used the ignition key that had been supplied to him as a Conner
employee. He started up the truck and drove off. Thus began
his so-called “new” job at Heidenreich. To the extent there was
any doubt about the identity of the equipment, it was dispelled
by the documentary evidence, including a lease agreement for a
truck executed between WJM and a lessee named as,
“HEIDENREICH TRUCKING CO/A D CONNER.” (GC Exh.
7.) [Capitalization and punctuation in the original.]
Finally, I have examined the issue of any potential motiva-
tion to avoid legal obligations created under the terms of the
Act. Often, this unlawful motivation is manifested by the crea-
tion of a new entity designed to supplant the original employer
as a means to avoid that employer’s obligations under a collec-
tive-bargaining agreement with a union.43 That is not the situa-
tion here. Instead, beginning with the purchase of Heidenreich

41 This was explained by Lowery, who told Messino that the plan
was to “retain as many customers as they could and service them
through Heidenreich.” (Tr. 554.)
42 In this connection, it is important to emphasize that the finding as
to identity of business purposes is not based simply on the obvious fact
that both firms haul fuel. I have taken into account the Board’s concern
that the required analysis should steer clear of “overly simplistic” com-
parisons of business purposes. NYP Acquisition Corp., 332 NLRB
1041, 1044 (2000), affd. 261 F.3d 291 (2d Cir. 2001). Here, it is ap-
parent that the key business purpose after the Conner shut down was to
have one of McEnery’s remaining entities continue the operating pat-
tern of vertical integration by providing the fuel hauling services to Gas
City.
43 There is no requirement, however, that an alter ego must be a new-
ly created entity as opposed to a preexisting firm. See, for example, the
Board’s adoption of the trial judge’s discussion of this matter in Cross-
roads Electric, 343 NLRB 1502, 1505–1506 (2004), enfd. 178 Fed.
Appx. 528 (6th Cir. 2006).
in 2005, McEnery’s trust operated two trucking companies, one
with a unionized work force and one with a work force com-
posed of owner-operators. Such an arrangement is described as
a “double-breasted” operation and, presuming that the compa-
nies are structured and operated separately, it can be lawful
under the Act. Walter N. Yoder & Sons, 270 NLRB 652, 652
fn. 2 (1984). Neither the Unions nor the General Counsel have
contended that the double-breasted operation of Conner and
Heidenreich was unlawful during the period prior to Conner’s
shutdown.
While there is no claim that McEnery’s original business
structure and method of operation for the two companies was
unlawful, the General Counsel vigorously asserts that the plan
developed by him in October was directly motivated by a desire
to avoid lawful obligations to the Unions. That plan consisted
of the shut down of Conner, the hiring of former Conner drivers
by Heidenreich, and the assumption by Heidenreich of Con-
ner’s delivery services to retail customers to the extent permit-
ted by those customers. The evidence strongly demonstrates
the validity of this contention.
The record is replete with credible testimony regarding
McEnery’s hostility to the Unions and his desire to divest him-
self of obligations to them. This direct evidence of unlawful
motivation is compellingly corroborated by powerful circum-
stantial evidence. Turning first to the direct evidence, there
was much credible testimony regarding McEnery’s own state-
ments as to his relationship with the Unions. These comments
offer probative insight into his state of mind. For example,
McEnery repeatedly expressed his ire that the Unions were
“killing him.” (Tr. 314.) In his meeting with the Conner driv-
ers in September, he told them in no uncertain terms that, “there
will be no f—ing union at A.D. Conner.” (Tr. 83–84.) At the
same meeting, he made his future intentions perfectly clear,
telling the drivers that, “if we wanted to keep working that we
would have to decertify the Union and go to work for him for
less money.” (Tr. 167.)
McEnery’s expressions of antiunion motivation were echoed
by his second-in-command, Christopher. At his own meeting
with drivers at Porter, Christopher told them that, “it would
help if we, well, I’m sorry, that we could go to be owner opera-
tors or to be, to disband the Union.” (Tr. 225.) By what is
certainly not a coincidence, it was precisely this plan of action
that management initiated in the following weeks. Further-
more, Christopher provided written confirmation that the anti-
union sentiments of management were at the heart of the deci-
sions to shut down Conner and restructure Heidenreich’s opera-
tions. Thus, in an extensive discussion of these matters in an
email to Lowery, Christopher explained that the plan would be
to hire former Conner drivers at Heidenreich, but “I could not
put the above into a formal letter due to union issues, but this
can be verbally conveyed to [the drivers].” (GC Exh. 13.)
Christopher’s choice of wording demonstrates that he clearly
perceived that a written explanation of management’s course of
conduct would constitute proof of unlawful intent as to “union
issues.” (GC Exh. 13.)
Beyond the direct evidence of intent provided in the state-
ments of McEnery and Christopher, the entire set of circum-
stances involved in the key events of this case shed a powerful
A.D. CONNER, INC. 1787
light on management’s intent and motivation. At the same
moment Conner ceased all operations, Heidenreich hired its
first and only complement of driver employees. Those em-
ployees consisted entirely of former Conner drivers who were
hired to service former Conner retail customers. All former
Conner customers who chose to consent to this new arrange-
ment made a seamless transition from Conner to Heidenreich as
the source of their petroleum deliveries.44 The Board and the
appellate courts have often stressed the value of evidence of
timing as affording insight into motivation. Many years ago,
the Second Circuit observed that the timing of events can make
the intent underlying those events “stunningly obvious.” NLRB
v. Rubin, 424 F.2d 748, 750 (2d Cir. 1970). That is the situa-
tion here.
To be clear, the compelling evidence in this case demon-
strates that unlawful antiunion animus was a predominating
motive for the shutdown of Conner and transfer of operations to
Heidenreich. This does not mean that it was the sole motive. I
do credit the Respondents’ contention that other motives also
formed a part of the decision-making matrix. These motives
certainly included the financial difficulties arising from Gas
City’s loss of its line of credit and the desire to continue to
benefit from the vertical integration of operations among the
Trust’s various entities designed to serve the needs of the pre-
dominant enterprise, Gas City. Furthermore, I credit McEn-
ery’s passionate testimony that he hired the former Conner
drivers at Heidenreich to the fullest possible extent in order to
enable them to continue earning a living after the demise of
Conner.45
The fact that there were additional legitimate motives for
management’s actions does not lessen the significance of the
strong antiunion component underlying those acts. For exam-
ple, in Metalsmith Recycling Co., 329 NLRB 124 (1999), the
Board found that a newly created enterprise was an unlawful
alter ego in circumstances where it was created both to permit
the common owner to operate “free” of the union and to relieve
the owner of liability for hazardous waste violations. The
Board noted that the presence of animus against the union was
sufficient to establish the violation of the Act, “even when there
were legitimate business reasons for the creation of a new cor-
porate entity.” 329 NLRB at 124–125. [Citations omitted.]
Indeed, in D.L. Baker, Inc., 351 NLRB 515, 520 (2007), the
Board found an unlawful alter-ego in circumstances where the
employer’s “primary intent” may well have been to evade a tax
obligation since “a reasonably foreseeable benefit was also to
escape NLRB liability.”
To summarize, I readily conclude that, as of the date that
Conner ceased its business operations, Heidenreich became its

44 The Board finds that the lack of “any hiatus in operations” be-
tween alleged alter ego companies is probative evidence of unlawful
motivation. MIS, Inc., 289 NLRB 491 (1988).
45 In my 25 years of judicial experience, I have often seen that peo-
ple make major life and business decisions out of a mosaic of motiva-
tions ranging from the base and selfish to the noble and altruistic. It
does not surprise me that McEnery’s thought process included the
strong intent to break his contractual and legal commitments to the
Unions, while striving to continue to offer some form of employment to
a number of his long tenured drivers.
unlawful alter ego and disguised continuation. This conclusion
follows from the evidence demonstrating that the two compa-
nies shared identical ownership, management, and supervision
of driver employees; were guided by the same business purpos-
es; shared the same equipment, operating methods, and cus-
tomers; and that their management had a predominating motive
to use Heidenreich as a means to avoid Conner’s contractual
and legal obligations to the Unions. In consequence of its sta-
tus as Conner’s disguised continuance, as of October 18, Hei-
denreich assumed those legal and contractual obligations to-
ward the Unions.46
E. The Alleged Single Employer Relationship
Among the Respondents
Apart from the General Counsel’s well-founded claim that
Conner and Heidenreich became alter-ego corporations, he also
asserts that the 6 Respondents represent a single employer for
purposes of liability under the Act. As the Board has noted,
“’alter ego’ and ‘single employer’ are related, but separate,
concepts.” Johnstown Corp., 322 NLRB 818 (1997). As with
alter ego, the Supreme Court has endorsed the Board’s analyti-
cal approach to the single employer issue. As Justice Douglas
explained, “we think the Board is entitled to show that . . . sepa-
rate corporations are not what they appear to be, that in truth
they are but divisions or departments of a ‘single enterprise.’”
NLRB v. Deena Artware, Inc., 361 U.S. 398, 402 (1960). The
Court has also summarized the Board’s methodology in this
area as follows:

In determining the relevant employer, the Board considers
several nominally separate business entities to be a single em-
ployer where they comprise an integrated enterprise. The
controlling criteria, set out and elaborated in Board decisions,
are interrelation of operations, common management, central-
ized control of labor relations and common ownership. [Cita-
tions omitted.]

Radio & Television Broadcast Technicians Local Union 1264
v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 257 (1965).
Turning first to the questions of common ownership and
management among the 6 Respondents, the starting point must
be with the Trust that owns each of them. There is no dispute
that each entity is owned entirely by that Trust and that the
Trust, in turn, belongs to McEnery. As to common manage-
ment, once again, the first and foremost reality is the overall
control of the companies by McEnery. Although his own tes-
timony was sometimes puzzling and equivocal, the overall
conclusion to be drawn from it was that he exercised the ulti-
mate dominion and control over each enterprise. The entire
record also reflects that, while his degree of day-to-day control
of routine matters may have varied, he retained and exercised
the power to make all of the key decisions related to these

46 For a case with a notably similar fact pattern and result, see RCR
Sportswear, Inc., 312 NLRB 513 (1993), enfd. 37 F.3d 1488 (3d Cir.
1994) (violation of the Act found where employer convened meeting of
employees and told them the company was shutting down, but they
could come to work for a new company at the same wages, but without
any benefits). See also Canteen Corp. v. NLRB, 103 F.3d 1355, 1365
(7th Cir. 1997), citing RCR Sportswear with approval.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1788
companies. Whether it was alterations to the scope of an enti-
ty’s operations, setting terms and conditions of employment for
employees, purchasing real estate to be used for business pur-
poses, tax planning, filing for bankruptcy protection, or even
total dissolution of one of the companies, it was McEnery who
decided on the proper course of action.
As to interrelationship of operations among the various enti-
ties, I have already outlined the longstanding pattern that exist-
ed between Conner and Heidenreich. During Conner’s active
existence, it stepped in to provide services on behalf of Hei-
denreich whenever the demands of the workload required such
assistance. By the same token, McEnery closely supervised the
distribution of work from Conner to Heidenreich on a weekly
basis. He was keenly interested in assuring that Heidenreich
received a steady flow of such assignments from the Conner
dispatchers.
Beyond the sharing of responsibilities between the two
trucking companies, the record reflects a consistent pattern of
integration of operations with the other entities. One notewor-
thy example was WJM’s streamlined method of leasing trucks
to the two transport firms. It will be recalled that upon Con-
ner’s closure, its fleet of tankers was instantly provided to Hei-
denreich. Indeed, the shift was so swift that the paperwork
lagged behind. Furthermore, no evidence was presented to
show that WJM engaged in any negotiation with Conner re-
garding the sudden termination of its truck leases. Similarly,
there was no evidence indicating that WJM engaged in any
negotiation with Heidenreich regarding even the most basic
terms and conditions that would govern the leases for its newly
acquired fleet of trucks. The pattern is reminiscent of that pre-
sented in NLRB v. Borg Warner Corp., 663 F.2d 666, 668 (6th
Cir. 1981), cert. denied 457 U.S. 1105 (1982). In that case, the
Court affirmed the Board’s finding of single employer status
between two courier companies where the evidence showed
that, “Wells Fargo vans were simply repainted and ‘sold’ to
Pony Express via a paper transaction.”47
Beyond the clear integration of WJM, Conner, and Hei-
denreich, the evidence demonstrated the same pattern with
regard to McEnery Enterprises. Thus, McEnery Enterprises
provided the necessary support services for the integrated oper-
ations of the other companies. These included the common
headquarters building, health insurance and benefit plans, and
maintenance services. Credible testimony established that the
integration of these supportive services was so thorough that
employees of the various companies commonly answered each
other’s telephone calls and responded to complaints and prob-
lems without regard to any boundaries or distinctions. Thus,
for example, Conner employee, Lofrano, related that he would
take calls for Gas City and handle operational problems pre-
sented by the callers. When those callers reported equipment
failures at Gas City stations, Lofrano would dispatch mainte-

47 See also Bolivar-Tees, Inc., 349 NLRB 720, 721 (2007), enfd. 551
F.3d 722 (8th Cir. 2008), citing Georjan, Inc., 281 NLRB 952, 954
(1986) (“interrelationship shown where one company purchased trucks
to be used by other company, owner negotiated truck leases with self
on behalf of his other company and could cancel them at will”).
nance personnel on behalf of McEnery Enterprises to fix the
breakdowns.
An even more vivid illustration of the informality and lack of
separate structure among these firms was provided in a brief
email authored by Christopher on October 13. It was addressed
to “Dispatch ADConner.” (GC Exh. 18.) It informed the Con-
ner dispatchers that job applications for Heidenreich could be
found on the internet. It was signed:

Dave Christopher
Gas City, Ltd.

(GC Exh. 18.) Finally, it advised the recipients that they could
reach Christopher at his email address of
Dave.Christopher@mceneryenterprises.com. (GC Exh. 18.)
This short missive encapsulates the common management and
operational integration among Conner, Heidenreich, Gas City,
and McEnery Enterprises. Equally, it illustrates the absence of
corporate formalities or boundaries among these entities.
The example just cited sheds light on the relationship of Gas
City to the other Respondents in this case. Another routine
piece of corporate paperwork casts similar light on the subject.
Thus, employees were issued note pads that contained the twin
logos of Gas City and Conner. Those pads also reflected the
same address, telephone number, and facsimile number in
Frankfort for the two companies. (See GC Exh. 16.)
The ultimate reality in assessing the interrelationship of Gas
City with the other Respondents is that those other entities
owed the primary rationale for their existence on the servicing
of Gas City’s needs. This was particularly evident in consider-
ing the motivation for the key decision involved in this litiga-
tion. It is apparent that, while the decision to close Conner may
have resulted from some mix of financial and labor relations
concerns, the companion determination to create a new em-
ployee-operated fuel hauling component at Heidenreich was
largely designed to service the fuel needs of Gas City. The
overall situation was similar to that presented in Naperville
Ready Mix, Inc. v. NLRB, 242 F.3d 744, 752 (7th Cir. 2001). In
that case, the Seventh Circuit concluded that the Board was
entitled to find single-employer status where “there was evi-
dence of operational integration among the companies, and the
fact that T & W and WEC served primarily, if not exclusively,
the hauling and maintenance needs of NRM.” In this case, as
of October, Conner, Heidenreich, WJM, and McEnery Enter-
prises existed primarily to serve these, as well as several other,
functions for Gas City.
Finally, with regard to Gas City, the record is less complete
than would ordinarily be anticipated. This stems from the
manner in which Respondents have conducted this litigation
and the way in which they chose to present their defense at
trial. Turning first to their defense at trial, I was struck by the
fact that these Respondents did not produce a single page of
documentary evidence. Instead, they chose to rely entirely on
self-serving testimony from management officials. While I
recognize that the General Counsel bore the burden of proof on
the issue of single-employer status, the fact remains that, ordi-
narily, respondents facing such an allegation are uniquely well-
situated to present paperwork from their files that would tend to
support the observance of proper corporate formalities and the
A.D. CONNER, INC. 1789
existence of arm’s-length relationships among separate entities.
The utter absence of such documentation in this case is striking.
Long ago, the Supreme Court noted the significance of the
sort of defense presentation that occurred in this case. It held,
“[t]he production of weak evidence when strong is available
can lead only to the conclusion that the strong would have been
adverse.” Interstate Circuit v. U.S., 306 U.S. 208, 226 (1939).
The Board has repeatedly applied this logic in its cases, citing a
well-known legal authority for the proposition that, “where
relevant evidence which would properly be part of a case is
within the control of the party whose interest it would naturally
be to produce it, and he fails to do so, without satisfactory ex-
planation, the [trier of fact] may draw an inference that such
evidence would have been unfavorable to him.” Martin Luther
King Sr., Nursing Center, 231 NLRB 15, 15 fn. 1 (1977). This
inference has been applied specifically in cases where a party
has relied on oral testimony despite the existence of documen-
tary evidence on the matter at issue. See Reeves Rubber, Inc.,
252 NLRB 134, 143 (1980). In my view, it is properly applied
here as to the issues involving single-employer status.
It is certainly possible that a defense presentation could de-
cline to include documentary evidence without raising an ad-
verse inference. For example, if the defense has provided the
body of documents to the prosecution, its failure to place those
materials into the record may not suggest any deficiency in the
strength of its case. It is in this regard, however, that the con-
duct of the defense in this case is particularly troubling. The
General Counsel issued a subpoena to the Respondents seeking
a variety of company documents. The Respondents were also
instructed to provide such materials that were “in the posses-
sion of attorneys . . . directly or indirectly employed” by the
Respondents. (GC Exh. 37, p. 2.) Additionally, the Respond-
ents were advised that they could produce “true copies” of any
documents whose originals were “unavailable.” (GC Exh. 37,
p. 2.)
In his written response to this subpoena, counsel for the Re-
spondents reported that certain documents being sought were
not being provided because they were in the possession of other
lawyers who represented Gas City in other matters, including
the bankruptcy proceedings. (See GC Exh. 38.) At trial, coun-
sel for the General Counsel raised this issue, reporting that the
Respondents had failed to produce materials related to issues in
this case, including those involved in the single-employer anal-
ysis. Counsel for the Respondents again confirmed that these
items were not being produced because they were in the pos-
session of other counsel and “we can’t get anything out of them
because that’s part of the bankruptcy proceeding.”48 (Tr. 23–
24.)
On hearing the Respondents’ representations, I observed that
this turned reality on its head. Clients issue directives to their
lawyers. Lawyers do not withhold important paperwork be-

48 To the extent that counsel’s explanation for the failure to provide
these documents is due to some necessity that they remain in the pos-
session of other counsel or the Bankruptcy Court, this borders on the
fatuous. While I am old enough to recall a time when paperwork could
not easily be reproduced, in the era of the duplicating machine, facsimi-
le machine, scanner, and computer, this claim may be dismissed out-of-
hand.
longing to their clients against the instructions of those clients.
Frankly, I am not surprised that counsel for the General Coun-
sel has not been able to cite specific Board precedents for the
obvious proposition that subpoenaed documents in the hands of
a party’s attorneys must be produced.49 In the analogous situa-
tion where a union requests information from an employer, the
Board clearly requires that such information be sought from
outside sources such as sister corporations, parent companies,
and even subcontractors. See my discussion in Earthgrains
Co., 349 NLRB 389, 397–399 (2007), enfd. in pertinent part
514 F.3d 422, 429 (5th Cir. 2008), and the Fifth Circuit’s ob-
servation in that case that, “an employer’s duty to supply rele-
vant information also ‘extends to situations where the infor-
mation is not in the employer’s possession, but where the in-
formation can likely be obtained from a third party with whom
the employer has a business relationship.’”).
At trial, I found that the Respondents failed to comply with
the subpoena issued by the General Counsel in this case to the
extent that they have not produced records that are currently in
the possession or control of the attorneys who represent them in
other proceedings. In consequence, the General Counsel de-
manded an appropriate sanction for such noncompliance.
I took the demand for imposition of sanctions under advise-
ment and have now concluded that the appropriate sanction for
the unjustified failure to produce these materials is the drawing
of an adverse inference from that failure. This is consistent
with a long line of Board authority as to an appropriate re-
sponse to a party’s failure to comply with a subpoena. In
Galesburg Construction, 267 NLRB 551, 552 (1983), the
Board approved the trial judge’s observation that he, “infer[red]
from Respondent’s failure to produce documents in its control
and which were vital to prove its defense that the records did
not support Respondent’s position.” See also Cooke’s Landing,
289 NLRB 1100, 1100 fn. 8 (1988) (failure to produce docu-
ments led to inference that “such evidence would be harmful to
its case”); Granite Construction Co., 330 NLRB 205, 208
(1999) (error to credit testimony where party failed to provide
document on the same topic); Made 4 Film, Inc., 337 NLRB
1152, 1159 (2002) (failure to produce corroborating document
“significantly impacts” on the credibility of testimony); and
Teddi of California, 338 NLRB 1032 (2003) (rejection of tes-
timony where party failed to produce documentation to support
that account).50
Based on the substantial existing evidence and the inference
to be drawn from the Respondents’ failure to produce evidence
in their possession at trial or provide that evidence to the Gen-
eral Counsel pursuant to a subpoena, I find that Conner, Hei-
denreich, McEnery Enterprises, WJM, and Gas City are thor-
oughly interrelated operations to such a degree that this factor
may properly be considered as strongly probative of a single-
employer relationship for purposes of liability under the Act.

49 There is no contention that these documents are subject to any
privilege. No petition to revoke the subpoena was ever filed.
50 The Board has also endorsed more severe sanctions for similar
misconduct. In Smithfield Packing Co., 344 NLRB 1, 10 (2004), enfd.
447 F.3d 821 (DC Cir. 2006), it approved the striking of testimony
where the respondent failed to produce films and videos depicting the
subject of the testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1790
As to the remaining analytical factor, control of labor rela-
tions, I have already described the role of McEnery and Chris-
topher with respect to Conner and Heidenreich.51 Between
them, they managed those relations and made all the personnel
decisions regarding the employees of the two firms.52 In addi-
tion, McEnery Enterprises, another corporation owned and
controlled by McEnery, managed the benefit programs for all
employees of Conner, Heidenreich, and Gas City.53 Finally, the
evidence clearly established that McEnery exercised the ulti-
mate decision-making authority as to all issues of labor rela-
tions and employment for the entire group of entities held by
his Trust. These circumstances are striking similar to the situa-
tion presented in Asher Candy, Inc., 348 NLRB 993 (2006),
enfd. 258 Fed. Appx. 334 (DC Cir. 2007). In that case the D.C.
Circuit upheld the Board’s finding of single-employer status
where the ultimate decision-making authority for the entities
was exercised by the same top management and one of the
related entities provided all of the benefit services for the
group. The Board specifically found that these facts “proved
the existence of centralized control of labor relations.” 348
NLRB 993 at fn. 1.
For these reasons, I conclude that Conner, Heidenreich, Gas
City, WJM, and McEnery Enterprises constitute a single em-
ployer within the meaning of the Act and the Board’s prece-
dents. This conclusion results from my findings that these or-
ganizations share a complete identity of ownership and top
management, manifest a highly integrated interrelationship of
operations, and possess centralized decision-making regarding
labor relations. Beyond this, I would note that the Board has
engaged in some debate as to the precise manner of characteriz-
ing the role of an additional concept, the lack of arm’s-length
relationship among the entities being examined. Compare the
interesting discussions in Lebanite Corp., 346 NLRB 748
(2006), and Paint America Services, 353 NLRB 973 (2009).
However one chooses to pigeonhole the precise manner in
which one should apply the concept, one key conclusion
emerges from this record, the virtually complete absence of
evidence that the Trust held its individual component entities in
arm’s-length relationships with itself or with each other.
The lack of arm’s-length relationships is vividly illustrated
by the events that form the heart of this controversy. When
McEnery decided to shut down Conner, the employees were

51 I note that the quantum of evidence regarding control of labor rela-
tions at the other entities is less compelling. To the degree that this
results from the Respondents’ failure to comply with the General Coun-
sel’s subpoena, I draw an adverse inference against the Respondents for
the same reasons discussed earlier in this decision.
52 Indeed, while counsel for the Respondents attempts to highlight
Casper’s history of supervision of Heidenreich’s owner-operator sub-
contractors, even in this regard McEnery conceded that, since October,
it has been Christopher who decided the policies as to how they were
compensated. (See Tr. 594.)
53 It should be noted that there is no evidence regarding labor rela-
tions matters at WJM. This is not surprising or significant as there do
not appear to be employees of this organization. As the Board has
observed, “where some companies have no employees, [the] factor of
centralized control of labor relations becomes less important.” Bolivar-
Tees, Inc., supra at 722, citing Three Sisters Sportswear Co., 312
NLRB 853, 863 (1993).
moved to Heidenreich without any negotiation between these
entities or even basic employment formalities. Similarly, the
trucks were transformed by WJM from Conner’s fleet into Hei-
denreich’s newly created fleet. There was no controversy re-
garding the abrupt termination of Conner’s leases, nor was
there any evidence of negotiation regarding the terms of Hei-
denreich’s new leases. By the same token, Gas City acquiesced
in the plan to switch responsibility for its crucial petroleum
delivery services to Heidenreich without any vetting process or
further ado.54 Similarly, McEnery Enterprises agreed to as-
sume responsibility for the management of benefit services for
the newly created set of driver employees of Heidenreich with-
out any evidence of negotiation, discussion, or demand for
compensation for undertaking this new commitment for Hei-
denreich. Everything was done so simply and seamlessly that it
can only be described using Justice Douglas’ wording: these
Respondents are not “separate corporations . . . in truth they are
but divisions or departments of a single enterprise.” NLRB v.
Deena Artware, Inc., supra. [Internal punctuation omitted.]
I have not yet addressed the status of the remaining entity,
McEnery Trucking. I have already observed that the record is
largely barren of evidence regarding this organization. When
questioned about it, witnesses generally professed ignorance. It
is clear, however, that McEnery Trucking played little, if any,
role in the events that provoked this litigation.55 While I am
mindful that the Respondents’ noncompliance with the General
Counsel’s subpoena may have contributed to the creation of
such a sparse record as to this entity, there is simply insufficient
evidence to premise a finding of liability solely on such non-
compliance. I conclude that the General Counsel has failed to
meet his burden of demonstrating that McEnery Trucking
forms a part of the single employer involved in this case. I will
recommend that the amended consolidated complaint be dis-
missed as to this organization.
Finally, in what struck me as a bit of an afterthought, the
General Counsel amended the complaint to add a third alternate
theory of liability as to Respondent Heidenreich. Counsel for
the General Counsel contends that Heidenreich may be viewed
as a successor to Conner with concomitant labor relations obli-
gations under the Act. Having found that Heidenreich is an
alter ego of Conner and a component of the overall single em-
ployer involved in these events, I deem it inappropriate to at-
tempt to further characterize it as a successor to Conner. As
counsel for the General Counsel notes, the test of successorship
incorporates the concept that there are two employers involved
in a transaction. (See GC Br., at p. 12.) Here there are neither

54 The lack of any vetting of Heidenreich by Gas City is particularly
striking since Christopher testified that, “[t]ypically, the customer gets
their safety people involved, their operations people involved to evalu-
ate the viability of the company that they’re going to engage with in
hauling fuel to their stations, operations records, safety record, business
record, things of that nature.” (Tr. 893.)
55 In her brief, counsel for the General Counsel asserts that, “McEn-
ery Trucking and Leasing was an entity dedicated to repairing gas
pumps at Gas City gas stations.” (GC Br. at p. 20.) This merely under-
scores the lack of any relationship between McEnery Trucking and the
events and circumstances involving fuel hauling operations that consti-
tute the issues in this case.
A.D. CONNER, INC. 1791
two employers nor any transaction. Conner and Heidenreich
are the same thing. Put another way, the General Counsel has
gone to great and successful lengths to prove that Heidenreich
became the disguised continuance of Conner’s fuel hauling
operation. Furthermore, the record is devoid of any indication
that Conner and Heidenreich engaged in any transaction of the
type involved in the successorship doctrine. There was no sale,
transfer of stock, merger, acquisition or any other sort of con-
tractual arrangement involved in the assumption of Conner’s
fuel hauling operation by Heidenreich. Indeed, the absence of
such an event simply reflects the lack of arm’s-length relation-
ship among units of the same single-employer entity. Under
these circumstances, I decline to find a successorship relation-
ship.56
F. The Alleged Bargaining Violations
The General Counsel contends that the Respondents engaged
in a variety of practices that violate its collective-bargaining
obligations arising under Section 8(a)(5) of the Act. These
consist of direct dealing with bargaining unit members, refusal
to recognize the Unions as the representatives of Respondents’
employees, refusal to abide by the terms and conditions of Re-
spondents’ collective-bargaining agreements with those Un-
ions, refusal to bargain with the Unions regarding the effects of
the decision to shut down Conner, and refusal to provide Local
705 with information necessary for it to perform its function as
the representative of unit employees. I will address each of
these allegations in order.
Prior to the shutdown of Conner, management convened
meetings with groups of drivers at both Frankfort and Porter.
The General Counsel asserts that management’s conduct during
these meetings consisted of unlawful direct dealing with em-
ployees. The Seventh Circuit has explained the rationale be-
hind this sort of violation of the bargaining obligation:

Implicit in the obligation to bargain in good faith is the princi-
ple that the employer is not to go behind the union’s back and
negotiate with individual workers, nor otherwise to under-
mine the union’s status as exclusive bargaining representative.
This prohibition forecloses individual negotiations with unit
employees, in most cases even if collective bargaining negoti-
ations have reached an impasse. Furthermore, the duty to re-
frain from undermining the union’s status as exclusive bar-
gaining agent precludes promises of benefits or threats of
sanctions to union members that have the effect of reducing
the employees’ support for their union. [Internal punctuation
and citations omitted.]

Naperville Ready Mix, Inc. v. NLRB, 242 F.3d 744, 757 (7th
Cir. 2001).
The Board has recently described its analytical methodology
for assessing such an alleged violation as follows:

56 The Board has found a successorship analysis to be “unnecessary”
in similar circumstances involving alter ego corporations. George C.
Shearer Exhibitors Delivery Service, 262 NLRB 622, 622 fn. 3 (1982),
enfd. 714 F.2d 124 (3d Cir. 1983), and McAllister Bros., 278 NLRB
601, 601 fn. 4 (1986), enfd. 819 F.2d 439 (4th Cir. 1987).
The established criteria for finding that an employer has en-
gaged in unlawful direct dealing are (1) that the employer was
communicating directly with union-represented employees;
(2) the discussion was for the purpose of establishing or
changing wages, hours, and terms and conditions of employ-
ment or undercutting the Union’s role in bargaining; and (3)
such communication was made to the exclusion of the Union.
[Internal punctuation and citations omitted.]

El Paso Electric Co., 355 NLRB 558, 559 (2010).
Turning to the events under scrutiny, it is undisputed that
McEnery and Christopher conducted a meeting with Conner
drivers in Frankfort on September 21. Tellingly, not all drivers
were invited by management to attend this gathering. As Chris-
topher explained in a memo to the work force written 2 days
after the meeting, “[w]e felt that meeting with several drivers
would be more productive vs. getting in front of our entire
group of Frankfort and Porter drivers.” (GC Exh. 5, p. 1.) Of
key importance, management did not notify Local 705 of the
meeting and did not solicit its participation or consent for the
meeting.
Having convened what Christopher characterized as a “group
of select senior drivers,” management proceeded to discuss
specific modifications to the terms and conditions of employ-
ment established for the drivers in the collective-bargaining
agreement between Conner and Local 705. (GC Exh. 5, p. 1.)
These included reductions in pay and benefits. In addition to
proposing modifications to working conditions, management
threatened the employees with loss of employment in the event
they persisted in maintaining union representation. As Driver
Knorr put it, McEnery warned that, “we would have to decerti-
fy [the Union] to continue as employees.” (Tr. 84.) Finally,
McEnery told the group of drivers that they had a deadline of 7
days in which “to come up with a solution to the problem and
[he] would like a representative to come back and try ideas to
keep A.D. Conner afloat.” (Tr. 84.)
One week after the Frankfort meeting, Christopher convened
a similar meeting of drivers at Porter. Twelve drivers attended.
Once again, no notice was provided to their representative,
Local 142. As with the Frankfort meeting, employees were
informed that there would have to be modifications in the terms
and conditions of their employment, including reduction of
wages and benefits. In addition, Christopher threatened loss of
employment and solicited the drivers to “disband the Union.”
(Tr. 225.)
Applying the Board’s criteria to these events, it is obvious
that management engaged in unlawful direct dealing during
both meetings. Thus, management communicated directly to
union represented employees in order to seek agreement to
reductions in contractually mandated wages and benefits. Be-
yond this, management sought to undercut the Unions by
threatening loss of employment and by soliciting decertifica-
tion. Lastly, management failed to provide notice of the meet-
ings to the Unions and failed to seek their participation or con-
sent. This conduct contains all of the hallmarks of unlawful
direct dealing in violation of Section 8(a)(5).
The next set of alleged bargaining violations center on the
decision to shut down Conner and transfer its fuel hauling op-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1792
erations to Heidenreich as of October 18. The most crucial of
these allegations is that, upon accomplishing this shutdown and
transfer of operations, the Respondents repudiated their rela-
tionships with the Unions and their obligations under the col-
lective-bargaining agreements entered into with those Unions.
As to the withdrawal of recognition from the Unions, man-
agement never made a precise declaration to this effect. Never-
theless, it is clear from its course of conduct that it has repudi-
ated the relationships based on its belief that the shut down of
Conner terminated the obligation to recognize the Unions.
Thus, Respondents refused to process grievances filed by the
Unions and refused to continue to meet with union officials.
This decision to sever the relationship with the Unions was
made more apparent during a telephone conversation between
Christopher and Messino, the contract administrator for Local
705. At that time, Messino asked, “if I could meet with Wil-
liam McEnery . . . Dave [Christopher], to get into Heidenreich
successor negotiations. . . . His response was no, we couldn’t
meet.” (Tr. 567.)
It is also undisputed that, upon shutting down Conner, the
terms and conditions of the collective-bargaining agreements
with the Unions have not been honored by the Respondents in
numerous key respects, including the wage rate and payment of
benefits to drivers employed at Heidenreich. It is also obvious
that the Respondents have refused to recognize either Union as
representing any of these employees. Because I have conclud-
ed that Heidenreich was both an alter ego of Conner and a
component of the single-employer relationship that included
Conner, these actions constituted unlawful repudiation of its
bargaining relationships and contractual agreements in viola-
tion of Section 8(a)(5). See R. Sabee Co., 351 NLRB 1350,
1357 (2007), and Midwest Precision Heating & Cooling, 341
NLRB 435, 440 (2005), affd. 408 F.3d 450 (8th Cir. 2005).
The next alleged violation also stems from the decision to
shut down Conner’s operation. The contention is that the Re-
spondents failed to bargain about the effects of the decision to
shut down Conner and transfer its operations to Heidenreich.57
On learning of management’s decision regarding Conner, the
Unions made an effort to engage in such bargaining over the
effects of that action on its bargaining unit members. Thus, as
early as October 12, Lis sent a letter to Christopher advising
him that it constituted “official notice of our desire to enter into
negotiations relative to the decision and effects of the closure of
your terminal located at . . . Porter, IN.” (GC Exh. 23.) At no
time did management of Conner agree to engage in such nego-
tiations.
To some considerable degree, the failure to engage in effects
bargaining is subsumed in the Respondents’ other unlawful
conduct, including its use of Heidenreich as a disguised contin-

57 At the beginning of the trial, I took pains to obtain clarification
that the General Counsel’s theory as to this alleged violation of Section
8(a)(5) was the failure to bargain about effects, not about the shut down
decision itself. See Tr. 42–43, including counsel’s confirmation that,
“[i]t’s the effects, yes.” (Tr. 43.) As a result, I have not considered the
Charging Parties’ arguments as to any failure to bargain about the deci-
sion itself. See, for example, CP Br. at p. 2. Nor have I adopted coun-
sel for the General Counsel’s proposed notice language regarding a
failure to bargain about the decision. See GC Br. at p. 44.
uance of Conner. Nevertheless, this alleged violation retains
some individual significance, particularly as it affected those
Conner drivers who were not offered employment at Hei-
denreich. Thus, as counsel for the General Counsel observes,
among the key topics of effects bargaining would have been
“who would be selected to transfer from A.D. Conner to Hei-
denreich, what those workers’ wages would be, or whether
there would be any carryover of seniority at Heidenreich.” (GC
Br. at p. 30.)
The Board has recently approved a judge’s statement that,
“[i]t is well established that a Union is entitled to notice that an
employer is closing its facility and that it is entitled to negotiate
about the effects of the decision on the employees.” Kadouri
International Foods, 356 NLRB 1201, 1202 (2011). [Citations
omitted.] Respondents’ failure to meet this obligation consti-
tutes a violation of Section 8(a)(5).58
The final alleged bargaining violation is the contention that
the Respondents failed to provide relevant and necessary in-
formation regarding the shut down of Conner and transfer of its
operations to Heidenreich as requested by Local 705. This
refers to a letter and questionnaire submitted to Christopher by
Messino during a meeting on October 28. Messino’s cover
letter explained that the information being sought was related to
the Union’s concern that Conner “may have alter ego relation-
ship or a joint employer relationship or a single employer rela-
tionship . . . with Heidenreich.” (GC Exh. 33, p. 1.) The at-
tached questionnaire requested information relating to the shut
down of Conner, the hiring of Conner drivers by Heidenreich,
and documentation regarding the ownership, management,
customers, equipment, and employees of the two firms.
The testimony reflected that Christopher made a half-hearted
attempt to answer some of the questions during the meeting.
After making partial responses to the first three questions, he
told the union representatives that, “he needed to get back to us
on some of the questions, on all of the questions, really.” (Tr.
504.) It is undisputed that the Respondents have never again
contacted the Union to provide the requested information.
The Board has established a somewhat controversial frame-
work for resolution of disputes regarding requests for infor-
mation related to the investigation of union concerns about alter
ego and single-employer situations.59 As it explained in Can-
nelton Industries, 339 NLRB 996, 997 (2003),

When a union requests information relating to an alleged sin-
gle-employer or alter-ego relationship, the union bears the
burden of establishing the relevance of the requested infor-

58 The fact that Conner’s operations were merely transferred to an-
other component of the single employer does not relieve management
of this obligation. Indeed, even if one were to conclude that Hei-
denreich was a legitimate successor to Conner, the duty to engage in
effects bargaining would remain the same. As the Board put it, “the
existence of a successorship situation does not relieve an employer of
its obligation to engage in effects bargaining.” TNT Logistics North
America, 346 NLRB 1301, 1303 (2006), enfd. 246 Fed. Appx. 220 (4th
Cir. 2007).
59 I refer to this as controversial for the reasons described in Member
Hayes’ recent note regarding information requests that are not pre-
sumptively relevant in Embarq Corp., 356 NLRB 982, 982 fn. 1
(2011).
A.D. CONNER, INC. 1793
mation. A union cannot meet its burden based on a mere sus-
picion that an alter-ego or single-employer relationship exists;
it must have an objective factual basis for believing that the
relationship exists. Under current Board law, however, the
union is not obligated to disclose those facts to the employer
at the time of the information request. Rather, it is sufficient
that the General Counsel demonstrate at the hearing that the
union had, at the relevant time, a reasonable belief. Ultimate-
ly, it is the Board’s role, not the employer’s, to act as the arbi-
ter of whether the union’s evidence supports a reasonable be-
lief. [Citations omitted.]

Among the factors that would support such a reasonable belief
are use of the same facilities by the allegedly related firms and
transfer of work among such firms. C.E.K. Industrial Mechan-
ical Contractors, 295 NLRB 635, 637 (1989), enf. denied on
other grounds 921 F.2d 350 (1st Cir. 1990).
Examining the state of the Union’s knowledge as revealed
during the trial proceedings, it is apparent that its officials had
an entirely reasonable and well-founded belief that Conner and
Heidenreich were engaged in a course of conduct designed to
unlawfully evade their obligations toward the Union by use of
the subterfuge of disguised continuation. The Union knew that
Conner had ceased operations and that Heidenreich had as-
sumed many of those operations using the same facilities and
equipment previously employed by Conner. More importantly,
Heidenreich had just hired its first complement of driver em-
ployees, all of whom had just been terminated from Conner’s
employ. In addition, the Union knew that the key officials at
Conner, McEnery, Christopher, and to some extent, Lowery,
were all now engaged with Heidenreich. The Union had ample
evidence to support its demand for information on the issues of
alter ego and single employer.
I note that Messino’s cover letter to Christopher did not de-
scribe this evidence. I recognize that some authorities would
characterize this as a fatal defect in most circumstances.60 I do
not think it can be viewed in this light in the particular case
before me. To do so would ignore the critical context including
the parties’ extant collective-bargaining agreement. In that
agreement, the parties made the following stipulation:

For purposes of this Section it shall be presumed that a diver-
sion of work in violation of this Agreement occurs when work
presently and regularly performed by, or hereafter assigned to,
Employees of the signatory Employer has been lost and, with-
in sixty (60) days of the loss of the work, the lost work is be-
ing performed in the same manner (including transportation
by owner-operators and independent contractors) by an entity
owned and/or controlled by the signatory Employer, its par-
ent, or a subsidiary. The burden of overcoming such pre-
sumption in the grievance procedure shall be upon the signa-
tory Employer.

(CBA, art. 40(b), GC Exh. 26, p. 26.)

60 For instance, the Board has taken note of the Third Circuit’s posi-
tion that, at the time of its request, a union must provide an adequate
rationale to the employer for seeking information that is not presump-
tively relevant. Cannelton Industries, supra, citing Hertz Corp. v.
NLRB, 105 F.3d 868 (3d Cir. 1997).
Once Messino explained that the Union was concerned that
Heidenreich was in an alter ego or single-employer relationship
with Conner, management was clearly on notice as to the rea-
sonable basis for the request for information about the two
firms. Its contractual agreement regarding this subject plainly
and explicitly outlines the circumstances that would justify the
Union in seeking such information. Given that management
had assigned work performed by Conner drivers to Heidenreich
immediately after October 18 and that Heidenreich was owned
by Conner’s parent Trust, it was obvious why the Union sought
the information regarding these matters.
The Board has recently reiterated its policy that a party re-
questing information that is not presumptively relevant must
provide an explanation in support of the request except where
“the relevance of the information should have been apparent to
the Respondent under the circumstances.” Public Service Co.
of New Mexico, 356 NLRB 1275, 1279 (2011), citing Disney-
land Park, 350 NLRB 1256, 1258 (2007). In light of the par-
ties’ contractual agreement regarding improper diversion of
bargaining unit work, Christopher clearly understood why Lo-
cal 705 wanted this material. Indeed, Respondents have never
claimed otherwise. The failure to provide the information con-
stituted a violation of Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. At all material times, Ted Lowery has not been a supervi-
sor of the Respondents within the meaning of Section 2(11) of
the Act. He has, however, at all material times been an agent of
the Respondents within the meaning of Section 2(13) of the
Act.
2. Since October 18, 2010, Heidenreich has operated as a
disguised continuation of Conner. At all material times thereaf-
ter, Heidenreich and Conner have been alter-egos of each other
within the meaning of the Act and are jointly and severally
liable for the unfair labor practices found in this case.
3. At all material times, Conner, Heidenreich, Gas City,
WJM, and McEnery Enterprises have operated as a single-
integrated business enterprise and single employer within the
meaning of the Act and are jointly and severally liable for the
unfair labor practices found in this case.
4. The General Counsel has failed to establish that McEnery
Trucking has participated in the single-integrated business en-
terprise and single-employer relationship described in Par. 3
above.
5. Respondent Conner unlawfully threatened to close its fa-
cilities because of the participation of bargaining unit employ-
ees in union activities and unlawfully solicited those employees
to decertify their collective-bargaining representatives in viola-
tion of Section 8(a)(1) of the Act.
6. Respondent Conner unlawfully interfered with, coerced,
and discriminated against its bargaining unit employees due to
their union affiliation by ceasing its business operation, dis-
charging its bargaining unit employees, and transferring its
operations to Heidenreich because of those employees’ union
affiliation in violation of Section 8(a)(3) and (1) of the Act.
7. Respondents, Conner, Heidenreich, Gas City, WJM, and
McEnery Enterprises have breached their duty to bargain in
good faith with the representatives of their employees by deal-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1794
ing directly with their employees concerning the terms and
conditions of their employment; refusing to bargain about the
effects of the decision to shut down the operations of Conner;
refusing to recognize the Unions as the exclusive representa-
tives of their bargaining unit employees; repudiating their con-
tractual obligations under their collective-bargaining agree-
ments with the Unions; and refusing to provide information to
Local 705 that was necessary for it to perform its function as
representative of the unit’s employees. These actions were in
violation of Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take various affirmative actions designed to
effectuate the policies of the Act. In particular, the Respond-
ents61 shall be ordered to cease and desist from coercing, intim-
idating, or discriminating against their bargaining unit employ-
ees in the manner established in this case. They shall also be
ordered to recognize and bargain in good faith with the repre-
sentatives of their employees; provide relevant information
requested by those representatives; abide by their contractual
agreements with those representatives; and refrain from dealing
directly with their employees regarding terms and conditions of
employment to the exclusion of those representatives. I shall
also order the posting of a notice in the usual manner, including
electronically to the extent mandated in J. Picini Flooring, 356
NLRB 11 (2010).
Respondents, having discriminatorily discharged certain of
their bargaining unit employees, must offer them reinstatement
and make them whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from date of discharge to
date of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010).
Respondents, having unlawfully altered the terms and condi-
tions of employment for its remaining bargaining units’ em-
ployees, must make those employees whole for any loss of
earnings or other benefits, computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as computed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). In addi-
tion, Respondents shall be ordered to make whole employees
for any expenses resulting from the failure to make contribu-
tions to the trust funds provided for in the collective-bargaining
agreements, plus interest, and to reimburse those trust funds for
those contributions they have failed to make on behalf of bar-
gaining unit employees. Such payments shall be computed in
the manner described in Kraft Heating & Plumbing, 252 NLRB
891, 891 fn. 2 (1980), and Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979).

61 As previously explained, I have concluded that McEnery Trucking
has not been shown to have any liability for unlawful acts committed
by the other Respondents. Therefore, no remedial provisions of the
order in this case apply to that entity.
Respondents will also be ordered to provide the information
requested by Local 705 in its questionnaire which is identified
in the record as General Counsel Exhibit 33.
Finally, I note that the General Counsel has requested a so-
called Transmarine remedy. See Transmarine Navigation
Corp., 170 NLRB 389 (1968). Such a remedy is ordinarily
imposed when an employer has unlawfully failed to bargain
over the effects of a decision to shut down an operation. It
provides a formula for calculation of liquidated damages in
order to make an effort to redress the refusal to bargain in a
manner that “is not entirely devoid of economic consequences
for the Respondent.” 170 NLRB at 390. In my view, such an
order is not necessary here. Having concluded that the Re-
spondents are a single employer that discriminatorily dis-
charged certain of its employees and unlawfully reduced pay
and benefits to other employees, I have ordered the customary
make-whole remedies. Those remedies provide complete relief
under the Act. There is no cause to impose an additional reme-
dy, particularly one that involves liquidated damages that are,
by their nature, somewhat arbitrary. Actual damages are the
appropriate relief for the employees involved in this case.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended62
ORDER
The Respondents, A.D. Conner, Inc., Gas City, Ltd., Hei-
denreich Trucking Company, McEnery Enterprises, and WJM
Leasing, LLC, of Frankfort, Illinois, and their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening their bargaining units’ members with closure
of operations, transfers of employees, terminations, or other
adverse actions due to their union affiliations or activities.
(b) Soliciting bargaining units’ members to decertify their
collective-bargaining representatives.
(c) Interfering with, coercing, restraining, or discriminating
against their bargaining units’ members by ceasing any of their
business operations, discharging bargaining units’ members, or
transferring operations because of their union affiliations or
their participation in union activities.
(d) Bypassing the representatives of the bargaining units’
employees by dealing directly with members of the bargaining
units regarding their terms and conditions of employment.
(e) Refusing to bargain with the representatives of their bar-
gaining units regarding the effects of the decision to shut down
the operations of A.D. Conner, Inc.
(f) Refusing to recognize and bargain with the Unions as the
exclusive representatives of employees in the bargaining units.
(g) Repudiating and failing to abide by their contractual ob-
ligations toward the bargaining unit employees and their repre-
sentatives contained in collective-bargaining agreements en-
tered into with the representatives of their bargaining unit em-
ployees.

62 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec, 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
A.D. CONNER, INC. 1795
(h) Transferring work among their operations or shutting
down any of their operations for the purpose of avoiding con-
tractual and legal obligations to their employees and those em-
ployees’ bargaining representatives.
(i) Refusing to provide relevant information to Local 705
that it requests in order to fulfill its responsibilities toward its
bargaining unit members.
(j) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
all bargaining unit members discharged due to the shut down of
Conner’s operations full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges enjoyed.
(b) Within 14 days from the date of the Board’s Order, make
whole all bargaining unit members discharged due to the shut
down of Conner’s operations for any loss of earnings and other
benefits suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges of
all bargaining unit members discharged due to the shut down of
Conner’s operations, and within 3 days thereafter, notify these
employees in writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Comply with all the terms and conditions of collective-
bargaining agreements entered into by the Respondents with
Local 142 and Local 705.
(e) Make whole their unit employees by paying to them the
amounts due by reason of the Respondents’ failure, since Octo-
ber 18, 2010, to comply with the collective-bargaining agree-
ments between them and Local 142 and Local 705 respectively,
as provided in the remedy section of the decision.
(f) Make whole Local 142 and Local 705 and their associat-
ed benefit funds by making the payments mandated by their
respective collective-bargaining agreements with those Unions,
as provided in the remedy section of the decision.
(g) On request, bargain with Local 142 as the exclusive rep-
resentative of employees in the following appropriate unit con-
cerning terms and conditions of employment and, if any under-
standing is reached, embody the understanding in a signed
agreement:

All Drivers employed at Respondents’ locations within the ju-
risdiction of Teamsters Local 142 who make deliveries of pe-
troleum products, caustics, chemicals and all related products
of any nature and description however packaged or contained
to or from any Bulk Plant, Refinery Pipe Line Terminal, Bulk
Storage Terminal or Facility, Water Terminal and customer.

(h) On request, bargain with Local 705 as the exclusive rep-
resentative of employees in the following appropriate unit con-
cerning terms and conditions of employment and, if any under-
standing is reached, embody the understanding in a signed
agreement:

All Drivers employed at Respondents’ locations within the ju-
risdiction of Teamsters Local 705 who make deliveries of pe-
troleum products, caustics, chemicals and all related products
of any nature and description however packaged or contained
to or from any Bulk Plant, Refinery Pipe Line Terminal, Bulk
Storage Terminal or Facility, Water Terminal and customer.

(i) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records, and all other records, in-
cluding an electronic copy of such records if stored in electron-
ic form, necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Provide to Local 705 the information it requested in its
letter and questionnaire dated October 28, 2010.
(k) Within 14 days after service by the Region, post at its fa-
cilities in Frankfort, Illinois, and Porter, Indiana, copies of the
attached notice marked “Appendix.”63 Copies of the notice, on
forms provided by the Regional Director for Region 13, after
being signed by the Respondents’ authorized representative,
shall be posted by the Respondents and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondents
customarily communicate with employees by such means.
Reasonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondents have gone out of business or closed
the facilities involved in these proceedings, the Respondents
shall duplicate and mail, at their own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondents at any time since September 21,
2010.
(l) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
IT IS FURTHER ORDERED that the amended consolidated com-
plaint is dismissed in so far as it refers to McEnery Trucking &
Leasing, LLC.

63 If this Order is enforced by a judgment of a United States court of
appeals, the words on the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1796
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT threaten our bargaining unit employees with
closure of operations, transfer, discharge, or other adverse ac-
tions due to their union affiliations or activities.
WE WILL NOT solicit our bargaining unit employees to decer-
tify their collective- bargaining representatives.
WE WILL NOT discriminate against our bargaining unit mem-
bers because of their union affiliations or activities by closing
operations and transferring employees, discharging employees,
or taking other adverse actions against them.
WE WILL NOT refuse or fail to recognize or, on request, refuse
or fail to bargain with Truck Drivers, Oil Drivers, Filling Sta-
tion and Platform Workers Union Local No. 142, Affiliate of
the International Brotherhood of Teamsters as the exclusive
bargaining representative of our employees in the following
appropriate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement:

All Drivers employed at Respondents’ locations within the ju-
risdiction of Teamster Local 142 who make deliveries of pe-
troleum products, caustics, chemicals and all related products
of any nature and description however packaged or contained
to or from any Bulk Plant, Refinery Pipe Line Terminal, Bulk
Storage Terminal or Facility and customer.

WE WILL NOT refuse or fail to recognize or, on request, refuse
or fail to bargain with Truck Drivers, Oil Drivers, Filling Sta-
tion and Platform Workers Union Local No. 705, Affiliate of
the International Brotherhood of Teamsters as the exclusive
bargaining representative of our employees in the following
appropriate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement:

All Drivers employed at Respondents’ locations within the ju-
risdiction of Teamster Local 705 who make deliveries of pe-
troleum products, caustics, chemicals and all related products
of any nature and description however packaged or contained
to or from any Bulk Plant, Refinery Pipe Line Terminal, Bulk
Storage Terminal or Facility and customer.

WE WILL NOT refuse or fail to provide information requested
by Local 705, where such information is necessary for, and
relevant to, Local 705’s performance of its duties as the collec-
tive-bargaining representative of our employees in the unit
defined directly above.
WE WILL NOT repudiate or fail to honor our collective-
bargaining agreements with Truck Drivers, Oil Drivers, Filling
Station and Platform Workers Union Local No. 142, Affiliate
of the International Brotherhood of Teamsters and Truck Driv-
ers, Oil Drivers, Filling Station and Platform Workers Union
Local No. 705, Affiliate of the International Brotherhood of
Teamsters.
WE WILL NOT, on request, refuse or fail to bargain with the
representatives of our bargaining unit employees regarding the
effects of any decision to close a facility, operation, or compo-
nent entity.
WE WILL NOT bypass the representatives of our bargaining
unit employees by dealing directly with those employees re-
garding the terms and conditions of their employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our bargaining unit employees in the exercise
of the rights guaranteed them by Federal labor law.
WE WILL within 14 days from the date of the Board’s Order,
offer to all of our bargaining unit employees who were termi-
nated due to the discriminatory decision to close the operations
of A.D. Conner, Inc., full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make our bargaining unit employees who were
terminated due to the discriminatory decision to close the oper-
ations of A.D. Conner, Inc., whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them, less any net interim earnings, plus interest.
WE WILL within 14 days of the Board’s Order, remove from
our files any reference to the unlawful discharges of our bar-
gaining unit employees who were terminated due to the dis-
criminatory decision to close the operations of A.D. Conner,
Inc., and within 3 days thereafter notify these employees in
writing that this has been done and that the discharges will not
be used against them in any way.
WE WILL make all affected bargaining unit employees whole
for any loss of earnings and other benefits resulting from our
discriminatory decision to transfer their employment from A.D.
Conner, Inc., to Heidenreich Trucking Company and from our
failure to abide by the collective-bargaining agreements be-
tween A.D. Conner, Inc., and Locals 142 and 705, respectively,
plus interest.
WE WILL make whole Truck Drivers, Oil Drivers, Filling Sta-
tion and Platform Workers Union Local No. 142, Affiliate of
the International Brotherhood of Teamsters and Truck Drivers,
Oil Drivers, Filling Station and Platform Workers Union Local
No. 705, Affiliate of the International Brotherhood of Team-
sters and their associated benefit funds for our failure to make
payments to them as mandated in our respective collective-
bargaining agreements with them.
WE WILL, on request, bargain with Locals 142 and 705, re-
spectively, as the exclusive bargaining representatives of our
A.D. CONNER, INC. 1797
employees in the units set forth above concerning the terms and
conditions of their employment, including the effects of any
decisions to close a facility, operation, or component entity and,
if an understanding is reached, embody the understanding in a
signed agreement.
WE WILL provide to Truck Drivers, Oil Drivers, Filling Sta-
tion and Platform Workers Union Local No. 705, Affiliate of
the International Brotherhood of Teamsters, the information it
requested in its letter and questionnaire dated October 28, 2010.

A.D. CONNER, INC., GAS CITY LTD., HEIDENREICH
TRUCKING COMPANY; MCENERY ENTERPRISES, AND
WJM LEASING, LLC