Dilling Mechanical, Inc.

National Labor Relations Board - Board Decisions

Apr 4, 2003

338 N.L.R.B. 902 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902
Dilling Mechanical, Inc. and Indiana State Pipe
Trades Association and United Association of
Plumbers and Pipefitters, AFL–CIO, and
Plumbers and Steamfitters Local Union 440,
United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of
the United States and Canada. Cases 25–CA–
28171–2 and 25–CA–28185–1
April 4, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On December 23, 2002, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated 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.1
ORDER
The complaint is dismissed.

Raifael Williams, Esq., for the General Counsel.
Ronald J. Hein Jr. and Jeremy C. Moritz, Esqs. (Franczek Sul-
livan, P.C.), of Chicago, Illinois, for the Respondent.
John Prikosovich, of South Bend, Indiana, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Indianapolis, Indiana, on October 17–18, 2002. The
charge in Case 25–CA–28185–1 was filed on May 14, 2002;
the charge in Case 25–CA–28171–2 was filed on June 5, 2002,
and the consolidated complaint was issued on August 30, 2002.
The General Counsel alleges that the Respondent, Dilling
Mechanical, Inc., violated Section 8(a)(3) and (1) by discharg-
ing James Michael Colvin on May 10, 2002. He also alleges
that Respondent violated Section 8(a)(1) by prohibiting em-
ployees from leaving union literature in break areas; threaten-
ing employees with unspecified reprisals if they engaged in
union activities, and prohibiting employees from talking about

1 There are no exceptions to the judge’s findings that Respondent did
not violate the Act as alleged in the complaint. Respondent has ex-
cepted to the judge’s decision insofar as it concludes that Respondent
was the “sole employer” of alleged discriminatee James Colvin, and
insofar as the judge’s decision finds that Respondent was a joint em-
ployer of Colvin. We find it unnecessary to pass on the findings of the
judge to which Respondent has excepted because they are not material
to the disposition of this case.
the Union during breaktimes and prohibiting employees from
discussing the Union on company property.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a pipefitting contractor with its main office in
Logansport, Indiana. In 2002, it provided services in excess of
$50,000 to firms within the State of Indiana, which are directly
engaged in interstate commerce. Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union, Indi-
ana State Pipe Trades Association, United Association of
Plumbers and Pipefitters Local Union No. 440, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In March 2002, the Respondent, Dilling Mechanical, Inc.
(DMI), began installing piping in an addition to an existing
facility, which was under construction at Central Soya, Inc.’s
soybean processing facility in Morristown, Indiana. Respondent
was a subcontractor to Dilling Mechanical Contractors (DMC),
a closely related company, which in prior cases has been found
to be a joint employer with Respondent.
On the Central Soya project, Respondent utilized some of its
own employees and supplemented this work force with em-
ployees provided by temporary staffing agencies (agency em-
ployees), through Dilling Mechanical Contractors. On the job-
site, all employees were assigned work and supervised by Re-
spondent’s two onsite supervisors, Superintendent Mark Parme-
ter and Foreman Bill Davis. Generally, agency employees had
contact with their nominal employees only once a week when a
representative brought their paychecks to the worksite. The
staffing agencies did not perform any onsite supervision of
employees they provided to Respondent.
In some instances, agency employees were directed to con-
tact the staffing agency, rather than Respondent, if they were
going to miss work. However, on occasion, these employees
contacted Respondent directly. If an agency employee desired
permission to leave work early, he sought permission from
Mark Parmeter.
Agency employees filled out timesheets and submitted them
to Mark Parmeter for verification. Parmeter would then send
the timesheets to the various staffing agencies. Either Dilling
Mechanical Contractors or the staffing agencies, or both, de-
termined the agency employees’ wage rates.
On April 25, 2002, Cecil Crawford, who had been working
at the Central Soya jobsite through U.S. Labor Force, and Rick
McCorkle, who had been working for Respondent through the
Tradesman staffing agency, presented Parmeter with a letter
from union organizer John Prikosovitch, identifying themselves
as volunteer union organizers.
Beginning on April 25, Crawford and McCorkle set union
literature on tables in the employee breakroom. I find that the
General Counsel has not established that Parmeter prohibited or
interfered with Crawford and McCorkle’s dissemination of
338 NLRB No. 136
DILLING MECHANICAL 903
union literature in the breakroom, as alleged in complaint para-
graph 5(a). The variance between Crawford’s testimony on
direct examination and his affidavit executed on May 16, 2002,
leads me to find his testimony completely unreliable. The in-
consistency between Crawford’s testimony and McCorkle’s
testimony as to what they saw Parmeter do with the union lit-
erature leads me to find McCorkle’s testimony no more credi-
ble than Parmeter’s testimony that he merely removed one
piece of union literature that was in front of his chair in the
breakroom.1
I also dismiss that allegation in complaint paragraph 5(b) that
on about April 26, 2002, Mark Parmeter threatened employees
with unspecified reprisals if they engaged in union activity. The
only evidence bearing on this allegation is the following testi-
mony of Rick McCorkle:

JUDGE AMCHAN: So, what you are saying is you saw
Mr. Williamson talk to Mr. Parmeter and then you saw
Mr. Parmeter go get the material and throw it in the trash.
A. Yes, I mean I did not actually hear him—
Q. And you infer that Mr. Williamson told—
A. Yes, sir.
Q. Mr. Parmeter about the fact that you guys had put
out the union literature.
A. Yes
Q. (By Mr. Williams): What, if anything else, hap-
pened to the best of your recollection?
A. Well, he told him if he called me that they would
wear it on their fucking foreheads.
Q. Say that again.
A. He said if he called with any of the particulars or
these literature, they would wear it on their fucking fore-
heads.
Q. Who said that?
A. Parmeter.
Q. Was he saying that? Was he directing that state-
ment towards any particular person?
A. Well, there were seven or eight of us right there
and I was at the porta-john and it was mostly Dilling em-
ployees. (Tr. 219–220.)

First of all, it is not clear that McCorkle is testifying as to
what he heard Parmeter say or what he heard Scott Williamson,
a nonsupervisory employee, say. Moreover, the testimony is
somewhat nonsensical and I deem McCorkle to be an insuffi-
ciently credible witness on whom to rely on in concluding that
Respondent violated the Act as alleged.
On April 30, Foreman Bill Davis observed Cecil Crawford
distributing union literature in the fabrication shop, a few min-
utes after employees had returned from the break trailer upon
conclusion of the morning break. Davis told Crawford that he
was not to distribute literature during worktime. In this regard, I

1 I also decline to credit McCorkle’s testimony due to his insistence
that James Michael Colvin attended the union meeting of May 2. Given
the fact that the record strongly suggests Colvin was not at that meet-
ing, I conclude that McCorkle’s testimony was calculated to support the
Charging Party’s allegations, even when he either did not recall the
facts to which he was testifying, or knew or suspected that his testi-
mony was inaccurate.
credit Davis’ testimony over that of Crawford’s. Indeed, Rick
McCorkle’s testimony on cross-examination (at Tr. 249), ap-
pears to corroborate Davis’ testimony rather than Crawford’s.
McCorkle testified that Davis talked to Crawford about distrib-
uting stickers around breaktime and that McCorkle understood
that distributing union literature should not be occurring during
worktime.2 I infer that McCorkle’s understanding is what he
gleaned from Davis’ remarks. I therefore dismiss the allegation
set forth in complaint paragraph 5(c).
Complaint paragraph 5(d) asserts, on the basis on testimony
by James Michael Colvin, that Respondent, by Foreman Bill
Davis, told employees during their lunchbreak on May 6, that
they could not discuss the Union on company property. I de-
cline to credit this testimony, which is not even corroborated by
witnesses Crawford and McCorkle, who were allegedly present
at the time. In general, I find Colvin to be a completely unreli-
able witness for the reasons set forth in footnote 3 below.
Therefore, I dismiss this item of the complaint.
James Michael Colvin
A few days prior to April 30, 2002, James Michael (Mike)
Colvin responded to an advertisement placed in a newspaper by
All Trades Staffing. Colvin called Victor Szczechowski, the
president of All Trades, who interviewed Colvin and reviewed
his resume. Then Szczechowski sent Colvin to the DMC/DMI
office in Logansport, Indiana, to take a drug test and a test ad-
ministered by DMC and/or DMI determine his competency as a
pipefitter.
Colvin reported to the Central Soya site to work for Respon-
dent on Tuesday, April 30. On the third day, he was scheduled
to work, Thursday, May 2, Colvin did not report to the jobsite.
He called Szczechowski at All Trades to inform All Trades of
his absence. Colvin did not report to work the next day, Friday,
May 3, either. He spoke to Szczechowski at All Trades again,
although, I cannot determine who initiated the call. Colvin
worked for Respondent at the Central Soya jobsite on Saturday,
May 4.
Colvin worked Monday, May 6, and Tuesday, May 7. On
May 7, Foreman Bill Davis admonished Colvin for standing
around too much.3 The next day, Wednesday, May 8, Colvin
did not show up for work or call either All Trades or Respon-
dent. On the afternoon of May 8, Mark Parmeter called
2 McCorkle also answered affirmatively the question “[W]as it your
understanding that engaging in union activity and distributing materials
was to be restricted to break periods and lunch periods or pre or post
shift.” If Respondent restricted conversation about the Union during
working time, while allowing conversation about other nonwork-related
topics, it would have violated Sec. 8(a)(1), Norton Audubon Hospital,
338 NLRB 320 (2002).
3 The fact that Colvin denied being criticized for his productivity on
direct examination and then recanted when confronted with his affida-
vit, is one of several reasons I deem Colvin to be an unreliable witness.
I rely also on his testimony regarding his attendance at the May 2 union
meeting, which I find to be inaccurate, and the inconsistency between
his testimony on direct examination and on cross-examination regard-
ing his efforts to contact Respondent on May 8. Finally, I rely on his
uncorroborated testimony about Bill Davis’ alleged May 6 admonition
to himself, Crawford, and McCorkle, about discussing the Union on
company property. I believe this testimony to be fabricated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904
Szczechowski at All Trades and told him that Respondent did
not want Colvin to work at Central Soya after Friday, May 10.4
Colvin worked at that jobsite Thursday, May 9, and Friday,
May 10. Shortly before the end of the workday on Friday, Bill
Davis informed Colvin that Respondent did not want him to
return to the jobsite, even for the next day, when Dilling would
be working. This was the first time anyone had told Colvin that
his employment at Central Soya was being terminated. On
Wednesday evening, May 8, Colvin attended his first union
meeting at a bar and grill in Greensburg, Indiana. On the basis
on Crawford’s affidavit and Colvin’s inability to identify the
location of other union meetings (the Lee’s Inn Motel in
Greensburg), I find that he did not attend the union meeting
conducted on May 2. I also find that the General Counsel has
not established that Respondent was aware that Colvin engaged
in any union or other protected activity prior to the afternoon of
May 8, when it notified All Trades that it did not want Colvin’s
services after May 10.
In crediting Respondent’s testimony as to the reasons it re-
quested Colvin’s removal from the jobsite, I also rely in part on
the fact that on about April 22, Parmeter removed two agency
employees from the jobsite who had shown up late 3 days in a
row. In doing so, he effectively fired them. There is no evi-
dence that these two employees engaged in protected activity.
Thus, Parmeter’s conduct with regard to Colvin appears to be
consistent with his general practice in dealing with employees
who repeatedly fail to show up at his jobsites when they are
supposed to.
Analysis
Respondent was, so far as this record shows, the sole em-
ployer of James Michael Colvin, when Colvin worked on the
Central Soya jobsite from April 30 to May 10, 2002.
In its answer to the complaint, Respondent denied that it ever
employed James Michael Colvin. It then filed a motion for a
bill of particular with the Board, which was denied. However,
two members of the Board read the complaint “as alleging that
the Respondent is the sole employer of the alleged discrimina-
tee, excluding all other theories of employment.”
The General Counsel has alleged that Respondent was
Colvin’s employer at Central Soya. It has not alleged that it was
a joint employer along with All Trades Staffing and/or Dilling
Mechanical Contractors. In this regard, the evidence over-
whelmingly establishes that Respondent was an employer of

4 Parmeter and Szczechowski testified about this conversation in a
consistent manner. Both also had contemporaneous, or nearly contem-
poraneous, notes regarding this telephone call. There is no evidence
that contradicts Respondent’s assertion that it notified All Trades on
May 8, that it did not want Colvin on the Central Soya jobsite after
May 10.
Colvin in that it meaningfully affected matters relating to his
employment relationship such as hiring, firing, discipline, su-
pervision, and direction, La Gloria Oil & Gas Co., 337 NLRB
1120 (2002). Colvin had to pass a Dilling pipefitting exam in
order to be employed at the Central Soya site, as well as a
Dilling-administered drug test. Respondent and only Respon-
dent assigned tasks to Colvin and supervised him to insure that
he performed them properly. For example, Respondent as-
signed Colvin the task of suspending pipe, a task he believed
inappropriate for a pipefitter with his experience. No persons
unassociated with Respondent gave Colvin any direction or
provided any supervision for him on the worksite. Finally, Re-
spondent exercised its unfettered discretion to terminate
Colvin’s employment on the Central Soya project.
The General Counsel made no effort to establish that either
All Trades Staffing or Dilling Mechanical Contractors were
also employers of Colvin and the record is insufficient to sup-
port a finding that such is the case. All Trades merely screened
applicants for its clients and provided payroll services for them.
Moreover, regardless of whether or not Respondent was
Colvin’s employer, it is properly held liable for its own deliber-
ate actions that affect an individual’s employment status with
another employer, Flay-O-Rich, Inc., 309 NLRB 262, 265–266
(1992); Capitol EMI Music, 311 NLRB 997, 1000 fn. 22
(1993).
The General Counsel failed to establish any of the violations
alleged in the complaint.
I have dismissed all the alleged violations due to the General
Counsel’s failure to make a prima facie case in regard to any of
them. With regard to the alleged 8(a)(3) and (1) violation, it is
incumbent on the General Counsel to prove, as an element of
his case, that James Michael Colvin engaged in protected activ-
ity prior to time that Respondent requested his removal from
the jobsite and that Respondent was, by that time, aware of
such activity. The General Counsel has failed to establish these
essential elements of its case either through direct or circum-
stantial evidence.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The complaint is dismissed.

5 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-
poses.