DIAMOND TRUCKING, INC.

National Labor Relations Board - Administrative Judge Opinions

Nov 24, 2015

25-CA-144424 (N.L.R.B. Nov. 24, 2015)

JD–65–15
Peru, IN

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DIAMOND TRUCKING, INC.
Case 25–CA–144424
and
TEAMSTERS JOINT COUNCIL NO. 69,
a/w INTERATIONAL BROTHERHOOD OF TEAMSTERS
Raifael Williams, Esq.,
for the General Counsel.
James H. Hanson and Alaina C. Hobbs, Esqs. (Scopelitis, Garvin, Light,
Hanson & Feary, P.C.),
for the Respondent.
Geoffrey Lohman, Esq. (Fillenwarth, Dennerline, Groth & Towe),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was tried in Indianapolis,
Indiana, on August 25, 2015. The Union filed the charge on January 15, 2015, and the General
Counsel issued the complaint on May 29, 2015.
The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act) when it refused to furnish certain information requested
by the Union. The Respondent filed an answer, denying all material allegations.
After the trial, the General Counsel and the Respondent filed briefs, which I have read
and considered. Based on the entire record in this case, including my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent operated its business out of 2653 South 400 West, Peru, Indiana, at the
relevant time period. In the 12 months before May 29, 2015, the Respondent purchased and
received at that facility goods valued in excess of $50,000 from other enterprises located within
the State of Indiana, each of which had received these goods directly from points outside the
JD–65–15
2
State of Indiana. Accordingly, I find, and Respondent admits, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent also admits, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.5
II. ALLEGED UNFAIR LABOR PRACTICES
Background
10
The Respondent, Diamond Trucking, Inc., hauls stone and asphalt for highway
construction projects for the State of Indiana. (Tr. 12.) Teresa Pendleton is the owner and
president of the Company. (GC Exh. 1(c).) There are no other Board members. (Tr. 11.)
Pendleton and Ted Peters, field supervisor and dispatcher, worked at the office at 2653 South
400 West, in Peru, Indiana. The Company employed approximately 50 truckdrivers.15
Pendleton’s brother is Mike Bowyer. He operates Kokomo Gravel, a nonunionized
trucking company that hauls stone and gravel, and that has an office at the same location as
Diamond Trucking.1 (Tr. 24, 26.) Bowyer is not an officer of Diamond Trucking, but he did
participate in contract negotiations between Diamond Trucking and the Union, along with 20
Pendleton, Peters, and the Respondent’s attorney. (Tr. 17.) Pendleton had requested his presence
to advise her, since she had never negotiated a contract before. (Tr. 25–26.)
Diamond Trucking used Kokomo as a subcontractor on certain jobs in the past.
Normally, in situations where Diamond Trucking had insufficient trucks to fulfill a contract, it 25
would subcontract with a unionized company, and it had a list of 15–20 such companies for that
purpose. However, when none were available, it did subcontract with Kokomo. (Tr. 34–35.)
The Respondent’s employees are unionized. The Respondent is a signatory to the
Highway, Heavy, Railroad and Underground Utility Contracting Agreement between the 30
Highway, Heavy and Utility Division of the Indiana Contracting Association, Inc., and the
Union. The most recent collective-bargaining agreement was effective April 1, 2008 through
March 31, 2014. (GC Exh. 2.) Danny Barton is the president and James Wilkinson is the vice
president of Union Local 69.
35
Negotiations for a new contract began in May 2014. The parties were unsuccessful in
reaching an agreement. The Respondent presented its best and final offer to the Union.
Membership voted it down and authorized a strike on August 20, 2014. Picketing at the
Respondent’s office then began. The parties resumed negotiations thereafter, and in September
the Respondent made another best and final offer. That offer was likewise rejected by the Union 40
in October so the strike continued.

1 Other companies are also located at that address, including a recycling business and an excavating
company. (Tr. 32.)
JD–65–15
3
The Respondent’s Actions After the Strike
Diamond Trucking kept most of its 50 trucks at the 2653 South 400 West location. Some
were parked at other locations, at plants where they were performing work, or drivers might take 5
the trucks home overnight. (Tr. 36.) The Union set up picket lines at each of the business
locations where the trucks were parked, including the jobsites. (Tr. 63, 68–69, 77.) After the
strike started, all trucks were returned to the office location, and the Respondent conducted no
further business.2 On or about August 25, within a week of the beginning of the strike, the
Respondent closed the office and moved the trucks to leased space on Grissom Air Force Base,10
in a fenced-in lot owned by the County located on Hoosier Boulevard. On August 25, the
Respondent’s attorney notified Wilkinson by email that the Peru office had been closed and the
trucks moved to Kokomo.3 (GC Exh. 3.) He further stated that, for those reasons, picketing was
no longer permitted at that location as it would be unlawful secondary picketing. The Union
then picketed in front of the Hoosier Boulevard lot.15
In November, the Respondent determined it could no longer afford to rent that lot or keep
the trucks. The Diamond Trucking Company signage was removed from the doors of 44 of
those trucks. Those trucks were then returned to 2653 South 400 West and turned back over to
the leasing company, DT Trucking. (Tr. 38, 39.) The other six trucks were moved to another lot 20
on Grissom, at 1801 Thunderbolt Avenue; a week later, those six trucks were moved
approximately 50 feet, to 1701 Thunderbolt. The Union picketed each of these locations, when
the trucks were parked there.
On November 7, the union attorney sent Respondent’s attorney an email stating that they 25
had noticed that some of the trucks were returned to the Peru office, and since the Respondent
had returned to its old office, the Union intended to resume picketing that location. (GC Exh. 4.)
The Respondent’s attorney replied on November 10, acknowledging that some trucks had
been returned to that location. He stated that the Respondent does not own those trucks, that the 30
signage had been removed so the trucks could be leased to someone else or sold, and that the
Respondent had not used the trucks in 2 months. He reiterated that picketing was therefore not
permitted at that location. (GC Exh. 5.)
Union President Barton wrote Pendleton on November 13, requesting the Respondent’s 35
new business address. (GC Exh. 6.)
The Respondent’s attorney responded on November 20. He stated that trucks were parked
at 1701 Thunderbolt Avenue in Peru. (R. Exh. 1)

2 The strike is ongoing, as the parties have not engaged in any further negotiations since September
2014.
3 He did not indicate the specific location or street address.
JD–65–15
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Union Request for Information
That same day, Union Vice President Wilkinson wrote Pendleton, requesting further
information, in order to “determine the scope of the Company’s business operations and its
various locations.”5
1. Identify the owners of Diamond Trucking including any individual or entity which
has a minority ownership share from January 1, 2014 to present.
2. Identify the entity/individual which owns the trucks which have been used by
Diamond Trucking, Inc. in its operations from January 1, 2014 to present.
3. For the trucks referenced in Request No. 2, provide the following information for 10
each truck:
a. Model and year of each truck
b. Owner of each truck
c. Vehicle identification number of each truck
d. Indiana license plate number for each truck15
4. For the trucks referenced in Request No. 2, provide the following information for
each truck:
a. The entity/individual in whose name the trucks are registered with the Indiana
Bureau of Motor Vehicles from January 1, 2014, to present
b. The entity/individual who purchased and/or obtained license plates used for 20
the trucks from January 1, 2014 to present.
5. Provide a copy of all contracts, memoranda of understanding, purchase agreements or
other documents which reflect the leasing of trucks by Diamond Trucking, Inc.
6. Provide the names, business addresses and business phone numbers of all Diamond
Trucking’s directors, stockholders, owners, corporate officers and management 25
personnel.
7. Provide the names, business addresses and phone numbers of all directors,
stockholders, owners, corporate officers and management personnel of any
individuals/entities which have leased vehicles to Diamond Trucking, Inc. from
January 1, 2014 to present.30
8. Identify each location (street address, city and state) where Diamond Trucking has
conducted business and/or where the trucks used in its operations were and/or
dispatched from January 1, 2014 to present.
[GC Exh. 7.]
35
The Respondent’s attorney emailed Wilkinson on December 3, responding to Request
No. 8. He stated that “until on or about August 22, 2014, Diamond Trucking conducted business
and dispatched its trucks from an office located at 2653 S 400 W Peru, Indiana. After the strike
began, Diamond Trucking has not conducted business or dispatched its trucks from any location,
and the trucks have been parked at Grissom Air Force Base, 1701 Thunderbolt Ave, Peru, 40
Indiana 46970.” He indicated that the Respondent refused to provide the other requested
information, because the Union had not established its relevance. (GC Exh. 8.)
The Union’s attorney then emailed the Respondent’s attorney on December 29, stating
that the Union was “entitled to know the physical locations where Diamond Trucking is doing 45
business including the storage of vehicles used in its operations.” He said that, since the
Respondent asserted that the trucks located at the old office location are not owned by
JD–65–15
5
Respondent, and that Diamond’s trucks are at Grissom, the information was necessary in order to
confirm the accuracy of the Respondent’s assertions as to the ownership and leasing of the
trucks. He further stated that
the Union has reason to suspect that the (sic) Diamond Trucking is part of a group of
entities under common control. The Board has ruled that unions are entitled to 5
information regarding such possible alter ego/double breasted relationships. (citation
omitted) To the extent that Diamond Trucking does not own certain vehicles, the Union
believes that related third parties are the owners of these trucks through various leasing
entities. These third parties have ownership and management roles with Diamond
Trucking. The Union’s November 20 request has thus sought relevant information 10
regarding these business relationships between Diamond Trucking and third parties.
[GC Exh. 9.]
The Respondent’s attorney replied on January 9, 2015, reiterating his position that the
Respondent would not provide the information requested in Requests No. 1–7 since it was not 15
relevant. He stated that
the trucks Diamond Trucking used were parked at 2653 S 400 W, Peru IN until
approximately August 22, 2014. At that point, the trucks were moved to Grissom Air
Reserve Base as I notified James Wilkinson in my letter of December 3, 2014. In mid-
November, Diamond Trucking determined it could no longer afford to pay the lease on 20
some of the trucks. It therefore returned the trucks to the lessors at 2653 S 400 W, Peru,
IN. The trucks Diamond Trucking continued to lease were then moved to 1701
Thunderbolt Avenue, Peru, IN as Ms. Pendleton informed Danny Barton in her letter of
November 20, 2014.
The union is not entitled to the other information requested about Diamond Trucking’s 25
business relationships. Although you quote a decision requiring the union to request
information that would be of use “in carrying out its statutory duties and responsibilities,”
you do not identify which statutory duty or responsibility the requested information will
help the union fulfill. (citation omitted) You only allege that Diamond Trucking “is part
of a group of entities under common control,” but there is no control group concept in 30
federal labor law.
To the extent you instead meant to request this information because of any alleged alter
ego relationship, you still have not demonstrated “a reasonable objective basis for
believing that” such a relationship exists nor have you demonstrated why that would be
relevant in this particular case. . . .35
[GC Exh. 10.]
III. LEGAL STANDARDS AND ANALYSIS
The General Counsel contends that the information requested is relevant and necessary. 40
He asserts that each request is necessary in order for the Union to determine where it could
lawfully picket the Respondent. Specifically, he argues that Requests No. 1, 2, 4, 6, and 7 are
relevant and necessary for the Union to determine whether an alter-ego relationship exists;
Request No. 3 is relevant and necessary for the Union to determine and confirm appropriate
picketing locations; and Request No. 5 is relevant and necessary for the Union to confirm that 45
the Respondent was in fact leasing its trucks as represented in Respondent’s attorney’s
November 10 email.
JD–65–15
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The Respondent agrees that the Union is entitled to the information in Request No. 8,
regarding the location of Diamond Trucking, for purposes of determining the appropriate
location for picketing, and it provided that information. It contends, however, that the remaining
requests are irrelevant to determining where to picket, and that there is no reasonable basis for an 5
alter-ego theory.
Pursuant to Section 8(a)(5) of the Act, it is an unfair labor practice for an employer to
refuse to bargain collectively with the representative of its employees. The duty to bargain
includes the duty to provide information that is necessary for the union to perform its functions 10
as representative of the bargaining unit. Information pertaining to mandatory subjects of
bargaining is presumptively relevant to the union’s role. Southern California Gas Co., 344
NLRB 231 (2005); NLRB v. Item Co., 220 F.2d 956 (5th Cir.), cert. denied 350 U.S. 836 (1955).
Where, as here, a union requests information that does not involve the bargaining unit, 15
there is no presumption of relevance. Rather, the union must establish the relevance and
necessity of the information. Trim Corp., 349 NLRB 608 (2007) (information request concerning
the existence of an alleged alter-ego operation is not presumptively relevant). Further, the union
must have a reasonable objective factual basis for the information requested. Piggly Wiggly
Midwest LLC, 357 NLRB 2344 (2012). A union cannot meet its burden based on a mere 20
suspicion that an alter-ego or single employer relationship exists; it must have an objective,
factual basis for believing that the relationship exists. Cannelton Industries, 339 NLRB 996
(2003); see M. Scher & Son, Inc., 286 NLRB 688, 691 (1987), citing Bohemia Inc., 272 NLRB
1128 (1984). On the other hand, if a union has a reasonable objective basis for its belief that
several companies constitute a single employer, or a company is an alter-ego, it has met its 25
burden of showing relevance. Blue Diamond Co., 295 NLRB 1007 (1989); Shoppers Food
Warehouse, 315 NLRB 258 (1994); Contract Flooring Systems, Inc., 344 NLRB 925 (2005).
A union generally has the right to picket at the site of the dispute or where the employer
is engaged in normal business operations. See Operating Engineers Local 150 (Harsco Corp.)30
313 NLRB 659 (1994), affd 47 F.3d 218 (1995). Therefore, in the instant case, the Union is
entitled to information that would assist it in determining such locations. That is precisely the
information requested in Request No. 8 - each location (street address, city, and state) where
Diamond Trucking has conducted business and/or where the trucks used in its operations were
and/or dispatched from January 1, 2014 to present. The Respondent provided that information35
and Request No. 8 is not at issue herein.
In addition to the assertions in the correspondence between the parties, we have
Wilkinson’s testimony as to the reasons for his information requests. (Tr. 55–59.) He said he
wanted the information in Request No. 1 to determine who actually owned Diamond Trucking. 40
Request No. 2 was to learn who owned the trucks, because the Union had the right to picket the
old office if Diamond Trucking still owned them. The same basis was given for Request No. 3,
to determine ownership of each truck. Request No. 4 was intended to find out who the trucks
were registered to, which would also explain who owned them. Request No. 5 would show
whether they were, in fact, leased. Request No. 6 was to learn where Diamond Trucking was 45
conducting its day-to-day business. The Union sought this, since the lots at Grissom where the
trucks were parked had no offices, no telephones, no staff. Request No. 7 was to determine the
JD–65–15
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identity of the purported lessor. Request No. 8 was to determine where Diamond Trucking was
operating from, since they weren’t dispatching any trucks, and the old office was empty.
Ultimately, his stated reasons for the requests are simply a restatement of the requests
themselves.
5
The General Counsel has failed to meet his burden as to the seven requests at issue. The
Union knew that the Respondent was not conducting any business. The Respondent engaged in
no business activity once the strike began. Since it had no drivers, it could not operate and it
vacated its office. No explanation was given for what business operations the Union thought
could possibly be going on under the circumstances. That left the location of the trucks as the 10
only possible picketing option, which the Union seems to have considered unsatisfactory.
Nonetheless, there are trucks in the Respondent’s possession at Grissom Air Force Base; the
Union was notified of their location and it picketed there. The Diamond Trucking signage was
removed from some other trucks that were moved back to the old office location when the leases
were terminated. The Union claims to have been suspicious, apparently suspecting that 15
Pendleton’s brother had some ownership stake in Diamond Trucking or owned the trucks used
by Diamond Trucking, and hoped to justify picketing at 2653 South 400 West if it could
establish a connection between Diamond Trucking and Bowyer and/or Kokomo. However, the
Union provided no objective or reasonable or factual basis for such suspicion; it was merely
speculation, at best. In fact, at the hearing, Wilkinson testified that he had no proof that 20
Respondent’s counsel’s statements were true, attempting to shift the burden to the Respondent
rather than demonstrate the Union’s objective factual basis for its belief. Even if Bowyer or
Kokomo owns those trucks, rather than DT Trucking, that does not provide support for the
Union’s position. There is not one iota of support for an alter-ego theory. The trucks were not
used by the Respondent after August 2014, when the strike began. Kokomo did not perform any 25
work previously performed by the Respondent; the Union conceded that all such work was
performed by Union companies. The mere fact that the two companies had offices at the same
location, that Pendleton and Bowyer are siblings, and that Bowyer attended contract negotiations
with Pendleton is wholly insufficient to meet its burden. The General Counsel has not shown that
the information requested would support an alter-ego theory, even if there were a reasonable 30
basis for such belief, nor that it would in any way assist the Union in determining appropriate
additional locations to picket.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended435

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–65–15
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ORDER
The complaint is dismissed.
Dated, Washington, D.C., November 24, 20155

_______________________________
Susan A. Flynn10
Administrative Law Judge