DIAMOND TRUCKING, INC.,

Docket Number25-CA-144424

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Diamond Trucking, Inc. and Teamsters Joint Council No. 69 a/w International Brotherhood of Teamsters. Case 25–CA–144424

April 25, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On November 24, 2015, Administrative Law Judge Susan A. Flynn issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a response.

The National Labor Relations 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 only to the extent consistent with this Decision and Order.

The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide information requested by Teamsters Joint Council No. 69 (the Union) during a strike. The judge found that the Union had not established the relevance of the requested information, which concerned asserted alter-ego relationships of the Respondent and whether certain third-party entities owned the Respondent’s trucks. For the reasons stated below, we find, contrary to the judge and our dissenting colleague, that the General Counsel met his burden of showing the relevance of the requested information: (1) the Union had an objective, factual basis for believing that an alter-ego relationship existed among the Respondent and other entities, and (2) the requested information would have assisted the Union in determining appropriate locations for picketing the Respondent’s trucks during the strike. The Union was therefore entitled to the requested information.

I.

The Respondent hauls stone and asphalt for highway construction projects with its fleet of 50 trucks. It employs approximately 50 drivers, who are represented by the Union. The Respondent is wholly owned by Teresa Pendleton, who is also the sole board member. Pendleton’s brother, Mike Bowyer, operates Kokomo Gravel, a nonunionized trucking company that performs trucking operations similar to those of the Respondent. Bowyer also acted as an agent of the Respondent during its contract negotiations with the Union. The Respondent occasionally subcontracted work it could not perform on its own to Kokomo Gravel. The Respondent and Kokomo

Gravel maintained their primary offices in the same building in Peru, Indiana, at which location the Respondent kept most of its trucks.

In August 2014, the Union commenced a strike against the Respondent amidst unsuccessful negotiations for a successor collective-bargaining agreement, and began picketing at the Respondent’s Peru location. In response, the Respondent advised the Union that it had vacated its Peru office and moved its trucks to an unspecified location in Kokomo, Indiana. The Respondent asserted that because it was no longer located at the Peru facility, any continued picketing there would constitute unlawful secondary conduct. After the Union ascertained the location of the trucks in Kokomo, it began picketing at their Kokomo location. When the Union subsequently observed that the Respondent had returned approximately 44 of its trucks to the Peru facility it notified the Respondent that the Union would resume picketing there. In response, the Respondent acknowledged that the trucks had been returned to that location but stated that it did not own the trucks, and that the signage was removed so that the trucks could be leased or sold; the Respondent reiterated that picketing at Peru would be unlawful.1

The Union thereafter requested that the Respondent furnish it with information in response to eight questions regarding the ownership of the Respondent, the ownership of the Respondent’s trucks, and the locations where the Respondent had conducted work in the previous approximately 11 months.2 The Respondent furnished the

1 The six remaining trucks were moved by the Respondent to space it leased at Grissom Air Force Base, located between Peru and Kokomo. The Union picketed at that location without protest by the Respondent.

2 The request stated that its purpose was to “determine the scope of the Company’s business operations and its various locations.” It asked for the following information:

  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 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 truck.

  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 the trucks from January 1, 2014 to present.

    2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    Union only with information responding to the eighth question, concerning the location(s) where it conducted business, and disputed the relevance of the other requests. The Respondent further asserted that it had returned the 44 trucks—which remained parked at the Peru headquarters of the Respondent and Kokomo Gravel—to the lessor of the trucks, whom the Respondent did not identify.3 In response, the Union clarified its request by stating that it sought to “confirm the accuracy” of the Respondent’s “representations” concerning the ownership of the trucks, and that it believed an alter-ego relationship existed between the Respondent and a “group of entities under common control.” The Respondent refused to furnish the remaining information.

    II.

    An employer has an obligation to furnish a union, on request, with information that is relevant and necessary to performing its role as the exclusive bargaining representative of unit employees. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967). Information related to terms and conditions of employment of bargaining unit employees is presumptively relevant. See Southern California Gas Co., 344 NLRB 231, 235 (2005). When the requested information does not involve the bargaining unit, the Union bears the burden of establishing the relevancy of the information. However, “[t]his burden is not an exceptionally heavy one.” See Trim Corp. of America, 349 NLRB 608, 613 (2007). “[W]here . . . a union requests information pertaining to a suspected alter-ego relationship, it must establish the relevance of the requested information and have an objective, factual basis for believing that the relationship exists.” Piggly Wiggly Midwest, 357 NLRB 2344, 2344 (2012). An alter-ego relationship can be established if there are “substantially identical ownership, business purpose, operations, management, supervision, premises, equipment, and custom

  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 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.

  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.

    3 At the hearing, the Respondent identified the lessor as “DT Trucking.”

    ers.” Island Architectural Woodwork, Inc., 364 NLRB No. 73, slip op. at 4 (2016); Crawford Door Sales Co., 226 NLRB 1144, 1144 (1976). Not all factors are required to be present. See Fugazy Continental Corp., 265 NLRB 1301, 1301 (1982). The facts establishing such a belief that an alter-ego relationship exists need not be communicated to the employer at the time of the request; it is sufficient that the “‘General Counsel demonstrate at the hearing that the union had, at the relevant time, a reasonable belief.’” Piggly Wiggly Midwest, above, at 2344 (quoting Cannelton Industries, 339 NLRB 996, 997 (2003)). The “reasonable belief” standard does not require the union to show “that the requested information would [have] established the existence of an alter ego operation.” Trim Corp. of America, above at 613 (citing Pence Construction Corp., 281 NLRB 322, 324–325 (1986); Bentley-Jost Electric Corp., 283 NLRB 564, 567–568 (1987); Reiss Viking, 312 NLRB 622, 625–626 (1993)). Moreover, “[t]he Board uses a broad, discoverytype standard in determining relevance in information requests, including those for which a special demonstration of relevance is needed, and potential or probable relevance is sufficient to give rise to an employer’s obligation to provide information.” Shoppers Food Warehouse, 315 NLRB 258, 259 (1994)). We find that the General Counsel has shown the relevance of the information requested.

    We find that the General Counsel established that the Union had a reasonable, objective basis for believing that an alter-ego relationship existed between the Respondent, Diamond Trucking, and a third party or parties, Kokomo Gravel or the...

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