N.L.R.B. v. Borg Warner Corp.
| Decision Date | 28 October 1981 |
| Docket Number | No. 80-1046,80-1046 |
| Citation | 663 F.2d 666 |
| Parties | 108 L.R.R.M. (BNA) 2862, 92 Lab.Cas. P 13,114 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BORG WARNER CORPORATION; Baker Industries, Inc.; Wells Fargo Armored Service Corporation; Pony Express Courier Corporation, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., William Bernstein, Raymond A. Jacobson, Director N.L.R.B., Memphis, Tenn., for petitioner.
Robert L. Thompson, Elarbee, Clark & Paul, Atlanta, Ga., for respondent.
Before KEITH and MARTIN, Circuit Judges, and DUNCAN, * District Judge.
This case is before the court on application of the National Labor Relations Board for enforcement of the Board's order issued against Borg Warner Corporation and its subsidiaries Baker Industries, Wells Fargo Service Corporation, and Pony Express Courier Corporation on September 27, 1979 and reported at 245 N.L.R.B. No. 73.
The issues presented are: 1) whether the named corporations constitute a single employer for purposes of the National Labor Relations Act (29 U.S.C. § 151 et seq.) and whether Pony Express is the alter ego of Wells Fargo; 2) whether respondent violated section 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Union concerning the effects of its decision to transfer courier work from Wells Fargo to Pony Express; 3) whether respondent violated section 8(a)(3) and (1) of the Act by laying off five employees and constructively discharging another as a consequence of the transfer of courier work; and 4) whether respondent must recognize the Union as the bargaining agent for Pony Express.
With regard to the first issue, the Administrative Law Judge considered the following historical and technical interrelationship between Wells Fargo and Pony Express: Pony Express was incorporated in 1975 for the purpose of assuming much of Wells Fargo's courier service. That business involves the transfer of non-intrinsically valuable articles under low security circumstances. Wells Fargo remained a separate entity, offering primarily armored car services. However, both corporations are wholly owned subsidiaries of appellant Baker Industries which in turn is 97 percent owned by appellant Borg Warner. Furthermore, Pony Express and Wells Fargo share a number of top executive officers including the president, vice-president, secretary, and treasurer. Also, the vice-president for personnel, Mr. Hughes, renders labor advice for both corporations. Finally, the two corporations share common offices, post office boxes, and lockboxes. As an example of the close relationship between these two corporations, the Administrative Law Judge reviewed the details of the takeover by Pony Express of the Nashville and Knoxville courier operations. In this instance Wells Fargo vans were simply repainted and "sold" to Pony Express via a paper transaction. On these facts the Administrative Law Judge concluded respondents constituted a single employer and that Pony Express was the alter ego of Wells Fargo for purposes of the National Labor Relations Act.
The second issue, the section 8(a)(5) and (1) charge, arose out of Wells Fargo's tardy notice to the Union of its intention to transfer the Nashville and Knoxville courier operations. That decision was reached by the company in January of 1978, but Union officials were not notified until march 30, two days prior to the planned April 1 transfer. On March 31, the Union's counsel wrote the company suggesting certain measures which might be taken to minimize the adverse effects of the transfer on the Wells Fargo employees. The company's reply stated its mistaken belief that it had no obligation...
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