Dillon Co.

National Labor Relations Board - Board Decisions

Apr 23, 1984

269 N.L.R.B. 1137 (N.L.R.B. 1984)

DILLON CO.
The Dillon Company and William P. Kelley. Case
9-CA-1I 8570
23 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 13 May 1983 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and Respondent filed an answering brief.
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 ip light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusionsl and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Member Dennis finds it unnecessary to adopt the judge's conclusion
that Kelley and Fleisch did not suffer from any discrimination because
she agrees with the judge that the General Counsel failed to prove by a
preponderance of the evidence that the Respondent possessed sufficient
control over the work of the two individuals to qualify as their employer.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. Pursu-
ant to an unfair labor practice charge filed by William P.
Kelley, an individual, against the Dillon Company,
herein called Respondent, and a complaint issued by the
Regional Director for Region 9, and an answer filed by
Respondent, a hearing was held before me in Cincinnati,
Ohio, on February 28, 1983, wherein unfair labor prac-
tice issues were litigated. Briefs were filed by both par-
ties on or about March 24, 1983. The issue in this case is
whether Respondent was the employer of William
Kelley and Leroy Fleisch who were, as alleged in the
complaint, on loan to it from Lara Construction Compa-
ny; and whether Respondent discharged those employees
because of the concerted activity of refusing overtime
work assignments in reliance on a collective-bargaining
agreement.
On the entire record in this case, which includes un-
contradicted testimony, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, an Ohio cor-
poration, has been engaged in the manufacture of modu-
lar housing units at its Akron, Ohio facility and in con-
structing a condominium complex in Cincinnati, Ohio.
During the past 12 months, a representative period, Re-
spondent, in the course and conduct of its operations, de-
scribed above, purchased and received at its Akron,
Ohio facility products, goods, and materials valued in
excess of $50,000 directly from points outside the State
of Ohio.
It admitted, and I find, that Respondent is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that Local No. 372 of the
International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO, herein called the
Union, is now, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In the summer of 1982 both Respondent and Lara
Construction Company (herein Lara) were involved in
the construction of a federally funded (HUD) high-rise
dwelling complex for the elderly in Cincinnati, Ohio, re-
ferred to herein as the HUD job. Respondent and Lara
contracted to perform certain concrete work. Respond-
ent installed the steel reinforcement and Lara poured
cement onto the steel reinforcement and therefter "fin-
ished" the cement. Respondent employed members of
the Union, known as rod workers, to install, fix, and con-
nect steel rods and mesh for that steel reinforcement. Re-
spondent also contracted for certain "pre-cast" concrete
installation on the HUD job. The HUD job therefore in-
volved rod work and erection of pre-cast slabs, both of
which are performed by members of different locals.
Sites with mixed work normally employ "composite
crews" with members of different local unions on such
crew. Dillon used a composite crew at the HUD job for
the pre-cast installation. The record indicates that Lara
maintained a cement finisher on the HUD site, but no
rod workers and, of course, no rod worker foreman.
Contemporaneously, Lara had other construction work
elsewhere, for which it had employed Kelley and Fleisch
as rod workers, as well as other employees. They were
also members of the Union with whom Respondent and
Lara maintained a contractual relationship and were
bound by the same contract. The proximity of the HUD
site and other Lara sites or sites is not revealed.
On some date in July or about July 4, Lara owner and
chief manager Jack Lawson informed Kelley and Fleisch
that work had slowed down and that he was "loaning"
269 NLRB No. 191
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them to Dillon for rod work at the HUD job.' Lawson
explained, "I want to keep you guys working but I don't
have it, so I'll let you guys work for Dillon so when we
do get some work I can have you back instead of you
guys going down to the [union] Hall and getting another
job." Lawson explained to them further that he wanted
them back because he valued the quality of their work.
He also stated, "I'm going to loan you to Dillon and
you'll be on my payroll."
The first day that Kelley and Fleisch reported to the
HUD jobsite, they met with Lawson and Dillon Job Su-
perintendent Pete Fish. At that time Lawson told Kelley
and Fleisch that he would not pay them for any over-
time and that they should not accept any overtime from
Dillon unless Dillon agreed to pay for it. Fish, however,
agreed to pay for the overtime. At some undisclosed
time on that first day at the HUD job, Kelley and
Fleisch were told by Fish that they were to take orders
from Fish who was to be their supervisor on the HUD
job. Fleisch testified that Fish approached him on the job
and stated, "Now I'll tell you, you might be working for
Lara but when you're on this job you're employed by
me, I'll tell you what to do."
General Counsel witness Joseph Weeks testified that
during the times material herein he was employed by
Dillon as the foreman at the HUD job and that he super-
vised the placing of rods and mesh and that Fleisch and
Kelley worked under his supervision. He testified that
Fleisch and Kelley were very good workers and ex-
plained:
Well, that's what made them exceptional [the ability
to work without being "watched constantly"]. All
you had to do was tell them what to do and a lot of
times you didn't even have to do that. On these
pours, you know, they were like typical. After they
got into the first week, it was just like they had
little memory banks or computers, you know, I
really didn't have to say much to them. They al-
ready knew what to do and they went ahead and
performed their work.
While working at the HUD job, Kelley and Fleisch
received paychecks made out by Lara, to which were at-
tached Lara paystubs. There is no evidence as to how
their pay was processed. Presumably, they received their
checks at the HUD site but that is not clear, nor is it es-
tablished who distributed the checks to them. They did
have occasion to work overtime, but there was no sepa-
rate check made out to them. They received a single
Lara paycheck.
General Counsel witness John Burton, the union stew-
ard on the HUD job and chairman of the union vacation
committee, testified that the fringe benefit fund payments
due under the collective-bargaining agreement for both
Fleisch and Kelley on the Dillon job had not been paid,
although Dillon has made the required payments for the
On direct examination, both witnesses testified that Lawson said that
they were "loaned." On cross-examination, Fleisch denied that Lawson
said they were "loaned." I credit the more certain, consistent, and re-
sponsive witness Kelley. Where there are any other inconsistencies be-
tween them, I credit Kelley.
Dillon employees. Burton tetstified that the Union is
seeking payment from Lara for Fleisch's and Kelley's
time at the HUD job, and considers the payments to be
due from Lara.
Foreman Weeks testified that it was his understanding
that Fleisch and Kelley were "on loan" from another
employer and that Fish had told him, in reference to
Fleisch and Kelley, that he had obtained "two free
men." Fish had continually spoken to Weeks about Dil-
lon's expenditures on the HUD job, but did not other-
wise explain to Weeks the characterization "free," nor
did he explain anything further about the employment
status of Fleisch and Kelley.
No further evidence was adduced as to the existence,
or the substance, of an agreement between Dillon and
Lara as to the employment status of Fleisch and Kelley
on the HUD jobsite, or the manner of their compensa-
tion or any other facet of the employer-employee rela-
tionship.
On July 19, Fleisch and Kelley were requested by Fish
to work an additional one-half hour in order to finish the
completion of preparations for the pouring of cement
scheduled for the next morning. Accordingly, they
worked that extra one-half hour. On July 20, Fish met
with several employees, including Fleisch and Kelley,
and requested that they work overtime that day. Fish
suggested that the employees had malingered during the
overtime period on July 19. Kelley and Fleisch were af-
fronted and denied the charge. Fish appeared to have
become upset and walked away before he received any
response to the overtime request. Thereafter, upon
mutual discussion, Fleisch and Kelley decided not to
work overtime. They founded their decision on their un-
derstanding that overtime is voluntary according to the
collective-bargaining agreement and areawide industry
practice. 2 They decided that, if Fish had such a low
opinion of their work efforts, they would not work over-
time. At the normal end of shift time, Fleisch and Kelley
walked off the job and waved to Fish as they departed.
Before they had left they told Foreman Weeks that they
could not work overtime because they were physically
tired.
On July 21, after they had reported for work, Fleisch
and Kelley were confronted by Fish who angrily de-
manded to know why they had not worked overtime on
July 20. They responded that 8 hours constituted a
normal day's work and that they were not required to
work overtime. Fish retorted: "Well, when I have over-
time available I expect you to work it and if you don't
want to work it I'll get two guys who will." Fish told
them that he did not wish to see them back on the job.
They completed that workday, and Fish have them their
paychecks. It was not a scheduled payday. It is the in-
dustry practice that, when employees receive a paycheck
on a nonpayday, that their services are considered termi-
nated.
The next day, Thursday, July 22, Fleisch and Kelley
returned to another Lara construction site where, with-
2 Credible evidence was adduced to establish that such understanding
is, in fact, correct.
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DILLON CO.
out interruption, they continued to work for Lara until
that job ended on or about August 1. The rod work on
the HUD job lasted for about 11 days after July 21. Job
Steward Burton, who was employed on precast installa-
tion on a composite crew at the HUD site, was laid off
on August 13. Some undescribed construction work con-
tinued at the HUD jobsite to an undertemined date
thereafter.
Conclusions
The General Counsel contends that Fleish and Kelley
were, from early July to July 21, employees of Dillon
who were discriminated against, i.e., discharged because
of their concerted activities, i.e., concertedly refusing
overtime work and concertedly asserting a contractually
protected right. Citing Adams Delivery Service, 237
NLRB 1411 (1978).
Respondent is silent as to the issue of whether or not
Fleisch and Kelley had engaged in protected concerted
activities on July 21. Respondent contends that Kelley
and Fleisch were not its employees and were not shown
to have been discharged, i.e., they were employees of
Lara throughout, and continued to be such on July 22
and thereafter. Respondent argues that Fleisch and
Kelley were loaned to Dillon because Lara's workload at
another jobsite was low, and that such condition termi-
nated on July 22 and they returned to Lara's other jo-
biste.
The General Counsel has alleged that Fleisch and
Kelley were employees of Dillon and that they were dis-
criminated against. Both of these allegations were denied.
The General Counsel therefore had the burden of prov-
ing these allegations.
I conclude that the General Counsel did not sustain
the burden of proof as to these allegations, and it is
therefore unnecessary to resolve the question of whether
the conduct of Fleisch and Kelley on July 21 was pro-
tected under the Act. The General Counsel has not
proven that Dillon was their employer. Certainly, Lara
did not sever the employer-employee relationship when
it loaned the services of its employees to Dillon. It
loaned those services to Dillon because its work at an-
other site was low. Kelley and Fleisch were utilized at
another Lara jobsite on July 22. It is not clear whether
that site was the same one from which they came, but it
is clear that work was available on July 22. Thus it can
reasonably be inferred that the condition of the loan of
services ceased. The evidence indicates that Fleisch and
Kelley were paid by Lara throughout. The Union held
Lara responsible for their fringe benefits. They were in-
structed by Lara not to work overtime unless Dillon ex-
plictly agreed to compensate them for it. The necessary
resulting inference is that Lara had undertaken to contin-
ue paying them for nonovertime work. Their paychecks
were Lara paychecks. There is no evidence that Dillon
had any participation in their payroll processing, nor that
Dillon even distributed their regular paychecks to them.
The General Counsel argues that it must be assumed that
an arrangement existed between Lara and Dillon where-
by Dillon assumed cost of their services because it is "lu-
dicrous to believe that a small construction company
would absorb these substantial wages in order to avoid
laying them off." There is no evidence on which to
premise this assumption. There is no evidence as to the
size of Lara. There is evidence that Fleisch and Kelley
were highly prized workers. Fish, who continually spoke
of his expenditures to Weeks, referred to them, i.e., their
services, as "free." Thus, although it is reasonable that
Lara may have received some kind of quid pro quo, it
cannot be necessarily assumed that the quid pro quo was
dollar-for-dollar reimbursement.
The General Counsel argues that the right of control
over these employees was vested in Dillon and cites
Board precedent to the effect that such factor is control-
ling. Columbus Green Cabs, 214 NLRB 751 (1974);
German School, 260 NLRB 1250 (1982); Castaways Hotel,
250 NLRB 626 (1980); CPG Products Corp., 249 NLRB
1164 (1980); Tri-State Transport, 245 NLRB 1030 (1979).
However, in all cases cited by the General Counsel, the
Board examined in detail all facts of the alleged employ-
er-employee relationship. In this case, the General Coun-
sel adduced evidence only as to the supervision of
Fleisch and Kelley on the HUD job. On the facts in this
record, argument might well be made that Fish and
Weeks were acting as supervisory agents of Lara who
took over some of Dillon's contracted work. In any
event, the control over the activities of the alleged em-
ployees is not as extensive as it might seem, despite the
generalized testimony adduced.
The jobsite to which Fleisch and Kelley were sent was
determined by Lara. Conditions on acceptance of over-
time work were set by Lara. Although ostensibly super-
vised by Weeks and/or Fish, they were merely directed
to the locus of their work, and they exercised their own
self-initiative from that point forward. As Foreman
Weeks testified, they really needed no supervision. There
is no evidence that Dillon exercised any responsibility
with respect to their discipline or work evaluation. Their
pay, fringe benefits, and other conditions of employment
were determined by a labor agreement to which both
Dillon and Lara were bound. Dillon could not even re-
quire them to perform overtime work. At most, the Gen-
eral Counsel has adduced evidence that two persons paid
by another employer performed work on the HUD job
pointed out to them by Dillon personnel. This is insuffi-
cient to establish that Dillon was the employer of those
two persons. It cannot be determined from the evidence
adduced by the General Counsel whether Dillon was the
sole employer, whether Lara was the sole employer,
whether Dillon and Lara were joint employers, or
whether Dillon and Lara were engaged in a joint ven-
ture with respect to the HUD rod work.
If Lara were the sole employer, then no discharge was
effectuated. If Dillon and Lara were joint employers,
then it was incumbent on the General Counsel to demon-
strate, in light of their continued employment, that some
form of discrimination in employment conditions oc-
curred. There is insufficient evidence on which to con-
clude that Fleisch and Kelley suffered any adversity.
They worked as rod workers in the Cincinnati area on
July 21 and continued thereafter to work as rod workers
in the Cincinnati area. No detriment was demonstrated
by the fact that their jobsites changed.The evidence does
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not establish that they would have had any lengthier em-
ployment as rod workers at the HUD job than at the
other Lara jobsite. Rod worked ceased at both sites
about the same time. There is no evidence that one or
the other site was more arduous, dangerous, or inaccesi-
ble, or more subject to overtime compensation. Thus,
even if Dillon could be construed to be a joint employer,
the General Counsel has failed to prove that Fleisch and
Kelley suffered any discrimination because of their con-
certed activities of July 21.3
ORDER
Because of the foregoing conclusions, I recommend
that the complaint be dismissed in its entirety.
s 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.
1140