Oklahoma City Eastern Express., And Its Alter Ego B & B Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 921 (N.L.R.B. 1986)

OKLAHOMA CITY EASTERN EXPRESS 921
Oklahoma City Eastern Express , Inc., and its alter
ego, B & B Lines, Inc. and Teamsters Local
Union No. 523, Tulsa General Drivers, Ware-
housemen & Helpers, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
16-CA-10822
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 25 May 1984 Administrative Law Judge
Peter E. Donnelly issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, and the Respondents filed an answering
brief in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
In adopting the judge's finding that Oklahoma City Eastern Express,
Inc is not an alter ego of B & B Lines , Inc, Members Johansen and
Babson disavow any implication in his decision that a showing of unlaw-
ful motivation is essential to a finding of alter ego status Rather, the
presence or absence of unlawful motivation is merely one factor that the
Board considers in weighing the circumstances of any particular case.
See Gilroy Heating & Air Conditioning, 280 NLRB 1075 (1986) Chairman
Dotson agrees that Oklahoma City Eastern Express, Inc is not an alter
ego of B & B Lines, Inc. for the reasons set forth by the judge
Norman Eckhardt, Esq., for the General Counsel.
Wade B. Cowan, Esq., Malcolm L. McCune, Esq., and
Robert H. Cowan, Esq. (Gracey, Maddin, Cowan &
Bird), of Nashville, Tennessee, for the Respondent.
Thomas F. Birmingham, Esq. (Ungerman, Connor &
Little), of Tulsa, Oklahoma, for the Charging Party.
Chauffeurs, Warehousemen and Helpers of America
(Charging Party or Union) on January 10, 1983. An
amended charge was filed on February 18, 1983. The
complaint issued on February 24, 1983, containing allega-
tions that Oklahoma City Eastern Express, Inc. (OCEE)
is an alter ego of B & B Lines, Inc.' (B & B) and that
both (collectively Respondent) violated Section 8(a)(1),
(3), and (5) of the Act by refusing to bargain with the
Unions,2 by the unilateral termination of unit employees,
by the unilateral termination of the trucking operations
of B & B, and by the unilateral termination of the Na-
tional Master Freight Agreement between B & B and the
Unions. B & B and OCEE filed separate timely answers
in which the allegations were denied. In addition, B & B
raised an affirmative defense relying on Section 10(b) of
the Act. Pursuant to notice, a hearing was held before
me on May 24-26 and on July 5-7, 1983. Briefs have
been timely filed by the General Counsel, the Charging
Party, and the Respondent which have been duly consid-
ered.
FINDINGS OF FACT
I. EMPLOYERS' BUSINESSES
All the allegations of the complaint, including jurisdic-
tion, are based on the premise that B & B and OCEE are
alter egos, a single legal entity. Jurisdiction is not alleged
to them separately; nonetheless, B & B and OCEE filed
separate answers wherein jurisdictional facts were admit-
ted by B & B and denied by OCEE. At the hearing, B &
B conceded the Board's jurisdiction. Accordingly, I con-
clude that B & B is an employer within the meaning of
Section 2(6) and (7) of the Act.
Jurisdiction over OCEE is alleged as indivisible from
that of B & B because the complaint alleges the two
companies are alter egos and a single employer. For this
reason, jurisdiction over OCEE is dependent on a find-
ing that B & B and OCEE are alter egos or a single em-
ployer. Because of the result reached herein on the
merits, i.e., that B & B and OCEE are not alter egos nor
a single employer, jurisdiction over OCEE does not
exist.
II. LABOR ORGANIZATION
The complaint alleges and the answer of OCEE admits
that the Union and Teamsters Local Union No. 886,
Oklahoma City General Drivers, Warehousemen and
Helpers are labor organizations within the meaning of
Section 2(5) of the Act. I find, therefore, that these
Unions are and have been at all relevant times labor or-
ganizations within the meaning of Section 2(5) of the
Act.3
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charge was filed by Teamsters Local Union No. 523,
Tulsa General Drivers, Warehousemen and Helpers, af-
filiated with International Brotherhood of Teamsters,
281 NLRB No. 125
' The name of B & B was amended at the hearing to reflect the proper
name
2 Local Union No 886 of the Teamsters, although not a party, also
represented some of the employees of B & B
3 Although B & B denies that the above unions are labor organizations,
the record establishes that these organizations represented employees in
negotiations concerning wages and terms and conditions of employment,
and were signatories to collective-bargaining contracts signed by B & B
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts4
B & B has been in operation at least since 1970 as a
short-haul, regular route, common carrier. In the early
seventies J. H. Jenkins (Jenkins) owned 224 of B & B's
225 shares of stock. His late wife owned the remaining
share. Some time after that, Jenkins and his wife trans-
ferred 10.5 percent of the outstanding B & B stock to
their son, Jerry Jenkins (Jerry) and 9.3 percent of the
stock to their daughter, Carol Priddy (Carol), as gifts.
Jenkins owned the remaining 80.2 percent.
Jenkins served as chairman of the board for B & B at
all relevant times to the present. Until July 28, Jerry was
president and general manager, Carol was vice president,
and her husband, Hugh Priddy (Hugh), was secretary-
treasurer. Jerry and Hugh have worked in the trucking
industry 47 years and 16 years, respectively. Although
the board of directors met on occasion, all significant
company decisions were made by Jenkins. Primarily,
Jerry worked on the dock overseeing day-to-day oper-
ations. The employee complement included 35 drivers, 4
terminal managers, and approximately 20 other nonunit
employees.
B & B operated its trucking operation out of eight ter-
minals, the main terminal, and general office located in
Tulsa. The other terminals were located in Bartlesville;
Claremore; Coffeyville, Kansas; Miami; Nowata, Oklaho-
ma City; and Okmulgee, with cartage agents in Cushing
and Stillwater. As of July, Jenkins owned, in his personal
capacity, all the terminals except the ones at Bartlesville,
Cushing, and Stillwater. Jerry personally owns the
Bartlesville terminal.
The trucking operation was under the authority of the
Oklahoma State Corporation Commission (OSCC) and
the Interstate Commerce Commission (ICC). Both au-
thorities were regular route, in which B & B served spe-
cific points along specified lines only in Oklahoma and
Kansas. The interstate authority consisted of predomi-
nantly interlining, in which two or more truck lines are
needed to transport a particular load because of the limit-
ed authority of each.
To service its authorized routes, B & B used 190
pieces of equipment including trucks, tractors, and trail-
ers. In the fall of 1981, B & B ordered 10 new pieces of
rolling stock in contemplation of an application for addi-
tional ICC authority including the State of Texas. How-
ever, in January or February, Jenkins attempted unsuc-
cessfully to cancel the order because business had fallen
off to the point that the new equipment would be unnec-
essary to handle the anticipated new territory.
* Much of the testimony in this case was uncontradicted In resolving
what conflicts in testimony there were , I have taken into consideration
the apparent interests of the witnesses , the inherent probabilities, the
probabilities in light of other events , corroboration or lack of it , and con-
sistencies or inconsistencies within the testimony of each witness and be-
tween the testimony of each and that of other witnesses with similar ap-
parent interests In evaluating the testimony of each witness I rely specifi-
cally on their demeanor and have made my findings accordingly , includ-
ing the above-noted credibility considerations My failure to detail each
of those considerations in every instance is not to be deemed a failure to
have fully considered them Bishop & Malco, Inc, 159 NLRB 1161 (1966)
In March, negotiations were conducted with the
Union and representatives of Local No. 886 as the na-
tional contract expiration date approached. Generally,
the national contract was adopted by B & B and the
Unions with a supplemental agreement tailored to their
specific situation. Jenkins and Jerry represented B & B at
these meetings; Coleman Davis, the union president and
assistant business agent of the Union, represented the
Union and Tommy Watts, the assistant business agent of
Local 886 represented that Local. Jenkins was seeking
concessions on the contract because of the poor financial
condition of B & B over the preceding months and had
told Coleman Davis as early as January or February that
B & B may have to close.5 Deregulation of the motor
carrier industry and generally poor economic conditions
were diminishing B & B's profits. When Jenkins told this
to Davis and asked for union concessions, neither Davis
nor the other union representatives questioned B & B's
status nor asked to inspect B & B's records. Instead, they
agreed to several concessions, including a delay in the
implementation of certain scheduled pay increases.6
After the final negotiations in March and before July,
the last month of B & B's trucking operations, numerous
grievances were filed against B & B on matters ranging
from the discharge of a driver whose license had been
suspended to claims for 2 hours of sick pay not included
when 10-hour-a-day workers received only 8 hours of
pay for their sick days. The filing of these grievances
was a great annoyance to Jenkins, himself the subject of
a grievance for his use of abusive language . Jenkins ad-
mitted telling Davis that the grievances affected B & B's
closing, testifying that operations might have continued
"[i]f [the Union] hadn't been so ridiculous about their
harassment in their grievances and tying up our time
trying to fight the flies off our back instead of out there
trying to keep out [sic] business."
In July, Jenkins finally concluded that he wanted out
of the trucking business. He testified that his decision
was made "primarily on account of the deregulation of
the 1980 Motor Carrier Act, the decline in business, the
decline in the attitude of the help, and my health." Jen-
kins has had heart problems for some time. Although
Jenkins made the final decision himself, he had discussed
the possibility of closing with his son Jerry as well as at
the director's meetings. When Jenkins decided on July 26
to close on July 30, Jerry and Hugh Priddy were in-
formed only after the decision had been made.?
On the evening of July 26, after learning that B & B's
trucking operations would close, Jerry called Hugh to
ask what Hugh planned to do after B & B closed. They
agreed to meet in Oklahoma City on Wednesday, July
28. They discussed the possibility of buying Jenkins' in-
terest in B & B and decided to meet with Tommy Watts,
the business agent of Local 886 to see if the Union
Both Jenkins and Davis testified that Jenkins had informed Davis of
B & B's poor financial condition B & B lost money all but 2 of the 9
months from November 1981 to July 1982, in amounts from $10,028 to
$73,827
6 Davis, Jenkins, and Jerry all agreed in characterizing the contract as
one in which the Union had in fact granted concessions to the Company
' This was the uncontradicted testimony of Jenkins, Jerry, and Hugh
OKLAHOMA CITY EASTERN EXPRESS 923
would grant any concessions to the potential new
owners of B & B.
On July 27, Jenkins mailed and distributed to all his
employees the notice of the close of trucking operations
on July 30 and consequent termination of employees.
The exact same notice was mailed to the involved
Unions at the same time.
At the meeting, on Wednesday, July 28, Jerry and
Hugh told Tommy Watts9 of their plans to buy out Jen-
kins' interest . Watts was not optimistic about the possibil-
ity of concessions but agreed to check it out. After-
wards, Martin Wyatt, an attorney who had represented
B & B and incorporated OCEE, met with Hugh and
Jerry and then conveyed their plans to Jenkins . Jenkins'
first reaction was that Jerry and Hugh would never be
able to make B & B profitable, but he was interested in
discussing the sale if the Union agreed to further conces-
sions . In order to buy out Jenkins' interest in B & B,
Jerry and Hugh were going to have to have at least $2
million of financing from a bank or loan institution.
After Watts expressed his doubts concerning the possi-
bility of future concessions , Jerry and Hugh began dis-
cussing the possibility of seeking their own authority
from the Oklahoma State Corporation Commission for
the shell corporation of OCEE. OCEE had been formed
in June 1981 by Jerry and Carol who had just sold a
small trucking business that they owned and decided to
incorporate another . After OCEE was created , no fur-
ther steps were taken to obtain operating authority. Ac-
cording to Jerry, the original plan was to start a small
trucking concern, obtain authority , and sell the concern.
When it became apparent , however, that B & B Lines
was experiencing difficulty, Jerry and his sister decided
to redirect their attention toward "saving" B & B.
In anticipation of a negative response from Watts,
Jerry and Hugh resigned formally, in writing, as officers
of B & B Lines on July 28. Hugh testified that they did
this to avoid any conflicts between B & B and OCEE
because they were going to operate OCEE on their own.
On Thursday morning , Jerry told Hugh that Watts' re-
sponse was indeed negative . They began the search for
shippers' support for the temporary authority application
for OCEE and the application , prepared by Attorney
Wyatt, was filed on July 30. Jerry and Carol each con-
tributed $15,000 of their own funds to finance OCEE's
operations and each owns 50 percent.
When Wyatt filled out the application for temporary
authority, he photocopied a description of B & B's au-
thority to save time in the application process.9 Because
of the closure of B & B 's trucking operations , chances of
getting authority comparable to B & B 's were good.
Before OCEE filed on July 30, however, two other
trucking companies had already received parts of B &
B's authority , having filed soon after hearing reports of
' Watts denied that Jerry and Hugh told him of their plan to buy out
Jenkins . His version of the meeting substantiated that of Jerry and Hugh
in all other respects , however , and I find that Jerry's and Hugh's asser-
tions that Watts knew them to be acting for themselves and not for B &
B more credible than Watts ' denial.
a Time was of the essence because the Oklahoma State Corporation
Commission generally would not be in session in August and if OCEE's
application was not on file by the end of July there was a possibility that
OCEE would be unable to get any authority until September.
B & B's closure and in fact attaching copies of B & B's
notice to its employees . As a result OCEE's application
was denied in large part although a portion of authority
overlapping that of B & B was granted on August 2,
after a hearing and some informal negotiations with the
other trucking companies holding former B & B author-
ity.1 ° Also, a third company whose application was ini-
tially protested by B & B was granted overlapping au-
thority with B & B when B & B withdrew its protest.
Permanent authority had not yet been granted to OCEE
as of this hearing date.
Although Jerry and Hugh attempted to get identical
authority to that of B & B, they were unable to do so
and received only a small portion of authority overlap-
ping B & B's. After receiving the temporary authority on
August 2, OCEE began its trucking operations with
equipment rented from B & B. In February 1983, OCEE
was granted authority by the Interstate Commerce Com-
mission to operate as an irregular route carrier through-
out five States-Oklahoma , Missouri, Kansas, Arkansas,
and Texas-three States more than B & B's interstate au-
thorization.
While some 55 percent of OCEE's revenue is account-
ed for by interstate and freight carrying , approximately
34 percent derives from local cartage and "piggyback"
work. Local cartage consists of OCEE's handling local
deliveries and pickups for another company that does not
have the necessary intrastate authority. Piggyback work
involves delivery of trailers to rail carriers . In addition,
OCEE receives some 10 percent of its revenue from
warehousing . Generally , B & B had never been involved
in piggybacking , local cartage, or warehousing. Of the
top 50 customers of both B & B and OCEE , only 14 of
B & B's former customers now use OCEE.
After B & B closed its trucking operations on July 30,
Jenkins began trying to sell the 190 units of equipment
owned by B & B. Between July 1982 and June 1983, B &
B sold at least 38 pieces of equipment. The remainder
have not been sold , according to Jenkins , because the
market is low and he wanted to avoid auctioning the lot
in order to maximize the returns.
Since B & B's closure , Jenkins has not only sold roll-
ing stock but he has also sold several of the terminals he
had owned personally and had been leasing to B & B. Of
the seven owned by Jenkins , two have been sold, two
are sitting empty , one is leased to Churchill Trucking,
one is leased to Bowman Transportation , and the last,
the Tulsa terminal , is leased among B & B, Bowman, and
OCEE. OCEE is leasing four doors and some general
office space at the price of $75 a door. The door price
includes the office rental . Fourteen doors are leased to
Bowman at the price of $ 1500 a month , a little over $100
a month per door, also including office space . The termi-
nal leased to Churchill is six doors and office space for
$75 a door. Jenkins, when asked about the discrepancy
between what OCEE and Bowman paid per door, re-
sponded that OCEE had a different arrangement because
OCEE had shown trucks to prospective buyers when
10 Although it appears that the Oklahoma Corporation Commission ef-
fectively divided up the B & B authority not in use, this did not revoke
that authority.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jenkins was out of town and had not charged B & B for
the service.
In addition to the rent paid for door and office space,
OCEE paid B & B for the utilities used at the Tulsa ter-
minal . The utility bill was split three ways among B & B,
OCEE, and Bowman. B & B also billed OCEE for ex-
penses incurred on OCEE's behalf, including the tele-
phone bill,11 gasoline and diesel fuel, office supplies,
turnpike tickets, workmen's compensation insurance,
payroll for OCEE employees paid by B & B lines , social
security on employees, health care plan payments, and
bureau tariffs and dues.12
Beginning on August 3, OCEE leased 13 units of
equipment from B & B, including 5 trailers , 4 tractors,
and 4 bobtails. Subsequent leases varied in amount of
equipment depending on the need of OCEE. OCEE first
paid its outstanding equipment lease to B & B in the
form of a $9100 check made out to Jenkins for the
months of August, September, October, and November.
Jenkins testified that, partly as a result of the check being
made out incorrectly, he lost it in his desk drawer and
the check was not cashed until Jenkins found it in May
1983.13
In addition to the equipment leased to OCEE, B & B
leased part of its unsold rolling stock to other companies.
Five trailers were leased to a chain department store at
$100 per month per trailer and two trailers to another
company at the same rate . In September, B & B leased
24 units of equipment to Custom Highway Interstate
Freight Express at $100 per unit per month for 24
months with the option to buy. B & B also has several
other long-term leases and leases on a day-to-day or
monthly basis. Occasionally, when a new piece of equip-
ment was being rented the rate would be $200 per
month.14
Before B & B closed its trucking operations, there
were approximately 36 unit employees and approximate-
ly 28 others, including Jenkins, Jerry, Hugh, and Carol.
Jerry and Hugh officially resigned their positions as di-
i i OCEE uses the same telephone number as does B & B Jerry testi-
fied that OCEE plans to use an extra line abandoned by a cartage compa-
ny which will be listed in the next edition of the telephone book as
OCEE.
12 Bureau tariffs are the permissible charges for carrying different
freights to different locations Jerry testified that OCEE had not yet re-
ceived a number which gave it the services of the Tariff Commission and
was using B & B's until it had its own number
18 Charging Party argues that no payments were made prior to the
start of litigation in this case but, based on the record, that is inaccurate
First of all, there is no evidence that the check was not made out on No-
vember 16 and the check's number (1464) tends to corroborate this
Second, Jenkins' testimony that the check was lost is both uncontradicted
and plausible , because the check was misaddressed and Jenkins testified
repeatedly without contradiction that he was not the person who handled
the paperwork or accounting. Furthermore, OCEE's equipment rental ex-
pense shows on its profit and loss statement for 1982 as $11,475 By Janu-
ary 26, 1983, OCEE had written checks totaling $11 ,800 to Jenkins or B
& B and it was uncontradicted that OCEE rented all its equipment from
B&B
14 Jerry Jenkins testified that the leases required B & B to maintain the
equipment, but the leases actually required the lessees to maintain the
equipment It appears from the record that OCEE did in fact perform the
routine maintenance such as oil changes and tire maintenance and OCEE
was billed by B & B for parts which B & B supplied.
rectors and officers of B & B on July 28.15 When OCEE
started operations on August 2, the only employees were
Jerry, Hugh, Carol, and three drivers. Over the next sev-
eral months, OCEE began hiring employees and by No-
vember 30, OCEE had 12 employees in addition to Jerry
and Hugh. Of those 12, 8 had been employed by B & B;
of the 8, 4 had been unit employees and 4 had been non-
union employees.
Although Hugh had resigned as an officer of B & B,
he continued to work for B & B on freight claims and
safety and insurance matters until December. Of the four
other employees left with B & B as of August 1, Frank
King, a mechanic, retired in October or November,
Carol works 4 days a week part time , the comptroller
works 4 hours a day, and one other employee is still
there. One other mechanic, Will Morgan, worked for ap-
proximately a week after B & B's trucking operation
closed. He now works as a driver for OCEE, hired on
September 10.
Even though some employees overlap, including a sec-
retary and the bookkeeper-comptroller, the overlapping
employees do not exercise operational authority in either
company. The only possible exception to this is Ronnie
Breshears who had been a terminal manager for B & B
at the Bartlesville terminal and is a driver for OCEE per-
forming additional duties as a terminal manager in that
terminal for OCEE.1 s
Several truckdrivers testified that Jenkins, after B &
B's closure, told drivers for OCEE where to collect their
orders, directed them to OCEE's office, and helped them
count their loads while on the OCEE dock. The General
Counsel and the Charging Party argue that Jenkins' di-
rections on the dock were tantamount to his being a
dock supervisor for OCEE. I find, however, that while
Jenkins did on occasion direct drivers not in his employ,
he did so as a natural consequence of being somewhere
and knowing something that someone else wanted to
know.'' An inference that he represented OCEE man-
agement in that regard is unwarranted.
B. Discussion and Conclusions
The threshold issue in this case is whether B & B and
OCEE are alter egos. The General Counsel has taken the
position that they are and that, as a result, the failure of
Respondent to recognize or bargain with the Union is a
violation of Section 8(a)(5), although both B & B and
OCEE argue that OCEE is a separate enterprise from B
& B and Respondent owes no duty to the Union. For the
reasons discussed below, I agree with Respondents.
is There is no information on the record whether Carol Priddy also
resigned at that time or ever She did not testify and it appears from the
record that she is continuing to do some office work for B & B She was
not listed on the list of OCEE employees admitted as G C Exh 56, al-
though Jerry testified that she does work for OCEE
is Breshears did not testify Jerry testified that Breshears did do some
work appropriate to a terminal manager, although he did not elaborate
on Breshears' duties at Bartlesville beyond agreeing that any supervision
OCEE had in Bartlesville was from Breshears and an unnamed female
employee
17 Coleman Davis testified that he felt Jenkins would be unable to re-
frain from getting involved even at a terminal other than his own
OKLAHOMA CITY EASTERN EXPRESS 925
An alter ego relationship is found to exist by the
Board when the enterprises in question have "`substan-
tially identical ' management, business purpose, operation,
equipment , customers and supervision as well as owner-
ship." Crawford Door Sales Co., 226 NLRB 1144 (1976).
Moreover , the Supreme Court has characterized the alter
ego situation as one in which the second employer is a
"disguised continuance" of the first with "a mere techni-
cal change in the structure or identity of the employing
entity, frequently to avoid the effect of the labor laws,
without any substantial change in its ownership or man-
agement." Howard Johnson Co. v. Detroit Joint Board, 417
U.S. 249, 259 fn. 5 (1974). In the instant case, both the
improper motivation and the substantial identity between
B & B and OCEE are lacking.
First of all , Jenkins legitimately decided to cease
trucking operations on the basis of B & B's real and po-
tential losses , his poor health , and his irritation at the em-
ployee grievances . Although I find that the union griev-
ances played a part in Jenkins' decision to close , there is
no indication that Jerry and Hugh developed OCEE to
avoid B & B's union contract . Both men needed a job
after the closure of B & B 's trucking operation , both had
been involved in the trucking industry, and the shell of
OCEE already existed. Therefore, the intention to create
a "disguised continuance" of B & B does not appear to
be the motivation for Jenkins ' actions nor for those of
Jerry and Hugh.
Secondly , a comparison of B & B 's ownership, oper-
ations, management, supervision, equipment, and custom-
ers with those of OCEE reveal significant differences. Of
particular importance is the fact that although Jenkins
owned 80 .2 percent of B & B , he owns none of OCEE,
and Jerry and Carol together owned only 19 . 8 percent of
B & B, but owned all of OCEE. Furthermore, neither
OCEE nor Jenkins' children are indebted to Jenkins or B
& B for any financial contribution to OCEE and Jenkins
exercises no control of nor derives any benefits from the
operation of OCEE. Conversely, neither Jerry nor Carol
exercises control over the operation of B & B . Although
family relationship itself has sometimes been the basis for
finding substantially identical ownership (see, e .g., Craw-
ford Doors, supra), the situation here most closely echoes
that in Victor Valley Heating & Air Conditioning, 267
NLRB (1983), in which a son with some experience in
the business began a company and was found not to be
an alter ego because his purpose was to go into business
for himself and "make a profit in the field that [his fa-
ther's company] was abandoning." See also Pinter Bros.,
263 NLRB 723 (1982). In the instant case , the overlap-
ping ownership of 19 .8 percent is too insignificant to
render the corporate ownership "substantially identical."
Morton's I.G.A. Foodliner, 240 NLRB 1246 (1979), affd.
on this point 663 F.2d 223 (D.C. Cir. 1980).
Although B & B before July 30 and OCEE since then
have both been involved in the business of trucking, their
operations are sufficiently different within the field to
avoid characterization as substantially identical.18 First
18 Of course, since July 30, B & B has been involved in an equipment
leasing operation which in no way resembles OCEE's current operations.
of all, B & B was a regular route carrier with very limit-
ed interstate authority . OCEE, on the other hand, is an
irregular route carrier at least 40 percent of whose busi-
ness is done under a broad five -state interstate authority.
In addition, OCEE's endeavors includes warehousing,
acting as a cartage agent, and piggybacking , none of
which were handled by B & B.19 It appears also that the
only common methods of operation between B & B and
OCEE are those elements that would be common be-
tween any two trucking concerns, i.e., the use of a dis-
patcher, the carrying of freight, etc.
Not only is the ownership and operation of OCEE dif-
ferent from that of B & B , but the management also dif-
fers . In particular , the record establishes that Jenkins was
indisputably in charge of B & B even though Jerry and
Hugh both had management positions within B & B in
addition to their positions as officers. Jenkins decided the
course of the business, decided himself the date of clo-
sure, and had the major responsibility in the labor negoti-
ations . In OCEE, however , Jenkins had no managerial
authority and no financial interest or control.20
Furthermore, the fact that several bills from OCEE
were not paid promptly is not sufficient to entitle Jenkins
to any financial control of OCEE nor is it evidence that
such control exists . In Shellmaker, Inc., 265 NLRB 749
(1982), it was found that a $50,000 loan to the second
company after that company had invested only $900 in
the first company was not enough to establish the second
company as a alter ego of the first. See also Pinter Bros.,
supra at 740. Rather , Jerry Jenkins managed OCEE with
Hugh Priddy.
In addition to different decision -makers at the top of
the two companies , the lower-level supervision is also
markedly different . OCEE has one employee/supervisor
who had worked for B & B and all other supervisory
duties are performed by OCEE's officers. In Pinter Bros.,
supra, alter ego status was not found where the upper
management was substantially identical but the first com-
pany had a staff headquarters of 60 office employees and
supervisory staff at each of 17 terminals and the second
company had only 10 clerical employees and was super-
vised solely by its officers . Id. at 458.
19 The General Counsel and the Charging Party argue that OCEE's
attempt to obtain B & B's authority should be weighed against them in
any analysis of the two businesses . I find , however, that not only was the
attempt a rational action on the part of any new and separate entity but
also that OCEE 's failure to obtain the authority supports an inference of
a lack of identity of the two companies. If OCEE had been created as an
alter ego to B & B, surely some earlier steps would have been taken to
ensure OCEE's assumption of the B & B Ines authority In other words,
OCEE's failure to obtain identical authority to B & B points directly to
the absence of effort by B & B to develop OCEE as well as emphasizing
again Jenkins' total control of B & B and the relative lack of control of
Jerry and Hugh.
20 The General Counsel and the Charging Party argue that the testi-
mony of several drivers to the effect that Jenkins gave directions to driv-
ers on the dock of OCEE is sufficient to show that Jenkins was actually
a supervisor of OCEE . But, as discussed, the sporadic nature of the direc-
tions that Jenkins gave and the fact that there is absolutely no evidence
that Jenkins received any pay or financial benefits from OCEE lead me
to find that Jenkins had no authority to act for OCEE and any appear-
ance to the contrary was created as much by the unawareness of the
drivers who testified as it was by Jenkins' imperious manner on the dock.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An examination of employees hired by OCEE also
weighs against a finding of alter ego . A majority of
OCEE's employees , 8 out of 12, came from B & B, but
exactly half of those were union members . Of the four
nonunion employees , three had been supervisors and thus
not part of the unit. The fourth was a mechanic and also
not part of the unit. No evidence was presented concern-
ing any of the eight's preference regarding the Union .21
In spite of the differences in the two businesses, OCEE
did use the same facilities and equipment as did B & B,
although on a much smaller scale . It does not appear,
however, that any undue advantage falls to OCEE by
this arrangement . First of all, OCEE pays basically the
same rent as do B & B 's other tenants . The small discrep-
ancy between OCEE's rent and Bowman's is not signifi-
cant and appears justified by services OCEE performed
for B & B . In fact, even if Jenkins, through B & B, gave
OCEE breaks on prices , it would not necessarily estab-
lish that the relationship between OCEE and B & B was
of alter egos. See Pinter Bros., supra at 740 fn. 54, and
Victor Valley, supra. OCEE also paid B & B for every
conceivable use of B & B services, including occasional
use of B & B employees , and paid for all utilities, sup-
plies, and fuel purchased from B & B. No evidence was
presented that the amounts paid were anything but fair
and reasonable charges for the supplies and services ren-
dered. Finally, OCEE paid exactly what other lessees
paid for the rental of B & B rolling stock.
The last factor to be considered in evaluating whether
OCEE is B & B's alter ego is the identity of customers.
As noted, only 14 of the top 50 customers of each com-
pany were the same . This is much too small a number to
be dispositive of the alter ego question.
Because of the differences in B & B 's and OCEE's
ownership, operations , management , facilities , equipment,
and customers, I find that B & B and OCEE are not
alter egos.22
21 Indeed , no violations relating to an unlawful refusal to hire were
alleged in this case . The General Counsel has no explanation for the hire
of four unit employees who made up one-third of OCEE work force if
the purpose of OCEE was to eliminate the Union.
22 The General Counsel alleges in her brief that Respondents may be a
single employer even if not alter egos . To be a single employer, Respond-
ents must have common ownership and financial control , common man-
agement, interrelations of operations , and centralized control of labor re-
lations, in addition to an absence of an arm 's-length relationship . Radio &
Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile,
380 U.S. 255, 256 (1965); Operating Engineers Local 627 v. NLRB, 518
F 2d 1040, 1045-1046 (D.C. Cir. 1975), affd. on this issue sub nom. South
Pacific Construction Co. Y. Operating Engineers Local 627, 425 U.S. 800
(1976). The above findings make it clear that Respondents do not fall
within the category of single employer anymore than that of alter egos
There is no common financial control , no common management , no inter-
relationship of operations , no centralized control of labor relations. Final-
The only remaining issue to be decided is that of B &
B's affirmative 10(b) defense to the allegations of viola-
tions of Sections 8(a)(1), (3), and (5) by refusing to bar-
gain with the Unions and by unilaterally terminating its
unit employees on July 30.23 The initial charge in this
case was filed on January 10, 1983. It was served only
on OCEE and alleged only OCEE's failure to bargain
with the Union and its discriminatory employment poli-
cies since August 2, 1982. On February 18, 1983, an
amended charge was filed against OCEE and B & B as
alter egos alleging B & B's violations by its unilateral ter-
mination of the employees, on July 30. This allegation
was not contained in the original charge. The complaint
was issued on February 24, 1983. Section 10(b) of the
Act provides that "no complaint shall issue based upon
any unfair labor practice occurring more than 6 months
prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom
such charges are made ." Because B & B's termination of
unit employees did not appear as a charge until February
18, almost 3 weeks beyond the 10(b) period, the com-
plaint against B & B must be dismissed.
CONCLUSIONS OF LAW
1. Respondent (OCEE and B & B) is not an alter ego
or a single employer and has not engaged in any conduct
violative of the Act.
2. B & B, in its individual capacity, has not engaged in
any conduct violative of the Act because any possible al-
legations relative to B & B are barred by Section 10(b)
of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed24
ORDER
The complaint is dismissed in its entirety.
ly, the business dealings between OCEE and B & B , most notably the
leasing of facilities and equipment, take place as in an arm 's-length rela-
tionship.
03 The complaint alleges only that Respondent, i.e., B & B and OCEE
as alter egos and a single legal entity, committed the violations contained
therein. It follows that the complaint cannot be viewed as alleging viola-
tions concerning B & B alone , thus, violations not having been alleged
are not subject to disposition herein . However , since jurisdiction over B
& B separately is conceded, even though not alleged , and the matter was
fully litigated at the hearing , I deem it proper to consider B & B's 10(b)
argument.
24 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 pur-
posem.