Dmr Corp. And Harrill Electric Contractors, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1985

274 N.L.R.B. 38 (N.L.R.B. 1985)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DMR Corp . and Harrill Electric Contractors, Inc.
and IBEW Local 59, IBEW Local 116, Interna-
tional Brotherhood of Electrical Workers. Case
16-CA-8530
13 February 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 June 1984 Administrative Law Judge
Richard J. Boyce issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the Charging Party filed an answering brief, and
the General Counsel filed a brief in support of the
judge's decision.
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 Conclusions of Law
and Recommendation.
ORDER
The National Labor Relations Board adopts the
Conclusions of Law and Recommendation of the
administrative law judge and orders that the Re-
spondents, DMR Corp., Dallas, Texas, and Harrill
Electric Contractors, Inc., Mesquite, Texas, their
officers, agents, successors, and assigns, shall take
the action set forth in 258 NLRB 1063 (1981).
' On 30 June 1983 the Board accepted the Fifth Circuit's remand The
court 's decision thus is the law of the case The court stated that its
remand was for "a new hearing " on the appropriate unit question Con-
trary to the Respondent 's contention , the remand required taking addi-
tional evidence
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
I. BACKGROUND
RICHARD J . BOYCE , Administrative Law Judge. In a
decision reported at 258 NLRB 1063 (1981 ), the Board
determined that Harrill Electric Contractors , Inc., and
DMR Corp . (jointly Respondent) were in violation of
Section 8 (a)(5) and ( 1) of the National Labor Relations
Act (Act) in certain respects , and ordered that they
cease and desist therefrom and take prescribed affirma-
tive action to remedy the violations . Central to that de-
termination were findings that Harrill Electric and DMR
were a single employer ,- and that the electricians nomi-
nally employed by DMR properly belonged in the estab-
lished bargaining unit of Harrill Electric electricians.
On the Board's application for enforcement of its
order , the Fifth Circuit Court of Appeals concluded that,
while Harrill Electric and DMR were a single employer,
the record did not contain enough evidence to enable it
to pass on the soundness of the Board 's unit finding
NLRB v. DMR Corp ., 699 F . 2d 788 , 791, 793 (5th Cir.
1983). The court accordingly remanded the matter to the
Board
. . . for the limited purpose of a new hearing, and
new findings and conclusions on the sole issue of
the appropriateness vel non, of the single bargaining
unit of Harrill's and DMR's electricians.
Id. at 793.
The Board in turn issued an unreported order dated
June 30, 1983, directing that a hearing be held before me,
as the administrative law judge in the initial hearing, "for
the limited purpose stated in the court's opinion," and
that I then prepare a supplemental decision. Pursuant to
the Board's order, a hearing was held in Dallas, Texas,
on November 1, 1983, after which briefs were submitted
for the General Counsel and for the Charging Party.'
II. SUMMARY OF CERTAIN FINDINGS PREVIOUSLY
MADE
Among the Board's findings in the earlier decision, un-
disturbed by the court, are these:2
(a) Harrill Electric was incorporated in 1977, and
DMR in September 1978.
(b) In January 1979, in conjunction with the designed
deemphasis of activity as Harrill Electric and to escape
that entity's union obligations, Respondent began doing
electrical contracting as DMR.
(c) Respondent's first major project as DMR, appar-
ently, involved the rehabilitation of several buildings at
Texas Women's University, in Denton, which lasted a
number of months. Other projects as DMR included the
rehabilitation of 5 junior high schools in Birdville, Texas,
starting in the early spring of 1979; and the rehabilitation
of 12 schools in Fort Worth in the spring and summer of
1979.
(d) Other of Respondent's early activities as DMR en-
tailed the servicing of two Honeywell facilities in Dallas
County under a contract awarded in June 1979-work
previously done in the name of Harrill Electric; and war-
ranty work on at least four projects on which Respond-
ent as Harrill Electric had done the original work.
(e) Randy Harrill, Harrill Electric's president, major
shareholder, and manager , was a moving force in the
creation of DMR, and in the shift of personnel from the
former to the latter.
(f) On February 9, 1979, Mike Eavenson, then a fore-
man for Harrill Electric, was put in charge of the day-to-
day operation of DMR. At about the same time, Larry
Walters, Harrill Electric's estimator and materials buyer,
assumed the same role for DMR; and, in early April, Joe
' At the outset of the hearing on remand , counsel for Respondent
moved to dismiss the complaint , contending that the existing record, as
the Fifth Circuit had concluded , did not support the Board's prior unit
finding, and that the General Counsel had not made an adequate showing
under Sec 10(e) of the Act or Board precedent for the record to be re-
opened The motion was denied , whereupon counsel for Respondent left
the hearing, not to participate further
2 Extracted from 258 NLRB 1064-68
274 NLRB No. 7
DMR CORP
Rawlinson, Harrill Electric's job superintendent, shifted
to DMR in that capacity
(g) Those on DMR's payroll initially were one Bill
Lance, who was nominally in charge until supplanted by
Eavenson as of February 9, and two electricians, Jerry
Edwards and Kenneth Tuggle, none of whom had been
connected with Respondent before. In the week ending
February 13, the DMR payroll was doubled by the addi-
tion of three electricians theretofore with Harrill Elec-
tric-Mark Penney, Amos Pollard, and James Ralston.
(h) In March, 16 more were added to the DMR pay-
roll, of whom one, Tommy Lucas, had been with Harrill
Electric; and, in the week ending April 13, the DMR
payroll was increased by 4 more, including Rawlinson
and I other, Donald Watkins, from Harrill Electric.
(i) In all, some 160 people were on the payroll of Re-
spondent as DMR at one time or another in 1979, of
whom about 150 never before had been in Respondent's
employ.
III EVIDENCE DEVELOPED IN THE HEARING ON
REMAND
Six testified in the hearing on remand. Two, Joe Gil-
more and Alan Head, had been electricians for Respond-
ent during its time as Harrill Electric, leaving before it
began using the style of DMR. Three, the aforemen-
tioned Mark Penney, Amos Pollard, and James Ralston,
were electricians carried over from the Harrill Electric
to the DMR phase One, Kenneth Tuggle, also men-
tioned above, was among the first electricians hired by
Respondent as DMR, never before having worked for
Respondent Following is a summary of their testimony.
Gilmore. Gilmore testified that he was licensed by the
city of Dallas as a journeyman wireman in 1969; and that
he was employed by Respondent, as Harrill Electric,
from 1976 to mid-1979, doing both commercial and resi-
dential electrical work, as those terms are understood in
the industry The commercial work included tasks in
connection with the installation of air conditioning in
two high schools in Fort Worth, and the recurrent per-
formance of electrical service work at the Honeywell
Center and the LBJ Business Park, both in Dallas The
service work entailed "add[ing] plugs, switches, [and]
lights" incidental to the preparation of offices for new
tenants, as well as certain' activities in the maintenance of
existing systems. Gilmore's residential work consisted,
among other things, of electrical chores incidental to the
refurbishing of the West Dallas Housing Project and to
the construction of new houses in Mesquite He also did
what he termed a "minute" amount of electrical work in
occupied residences.
Head. Head testified that he worked for Respondent,
as Harrill Electric, from September 1978 to February
1979; and that 95 percent of the work he did "would be
classified as commercial work." He was hired to operate
a service truck, moving from location to location doing
electrical jobs of short duration-a few hours or days.
This took him to the Honeywell Center "on numerous
occasions," where he did both "general maintenance,"
such as repairing light fixtures, and "tenant work,"
which entailed the installation of lights, switches, plugs,
39
etc., to tenant specifications. Head also did this "exact
same type work" at the LBJ Business Park.
Other commercial work in which Head was involved
while with Respondent included the start-to-finish wiring
of a veterinary hospital being built, and the electrical
work required in the construction of a bank addition in
Balch Springs. The work at the veterinary hospital con-
sisted of "roughing in the pipe in the concrete, putting
all the pipe in the walls, hanging all tables to turn the
cows over . . . ." That at the bank was comprised of
running "all the conduit that went in the concrete before
the concrete was poured," running "all the pipe for all
the wiring to go in," setting "all the light fixtures," pit-
ting in "all the plugs .. . switches . . . [and] panels,", in-
stalling "all the intercom systems," running "all the pipe
for the telephone wires," setting "all the parking lot
[light] standards," and running "all the pipe and wire to
the parking lot lights."
Penney. Penney testified that he was licensed by the
city of Dallas as a journeyman wireman in 1973. While
with Respondent, as Harrill Electric, he did both com-
mercial and residential electrical work. The commercial
work was at a sheet metal factory in Austin. The resi-
dential work was concerned with the "upgrading" of the
West Dallas Housing Project, which included the instal-
lation of air conditioning, bathroom heaters, and plugs,
and with early "roughing in" on a house being built at
Lake Ray Hubbard.
Penney's first work for Respondent, as DMR, was on
the project at Texas Women's University, where he re-
mained for several weeks, "running pipe" in the crawl
spaces under the buildings being rehabilitated. That
project was deemed commercial, as opposed to residen-
tial. Mike Eavenson was Penney's foreman. He also had
been Penney's foreman on the earlier jobs at the West
Dallas Housing Project and in Austin.
Pollard. Pollard testified that he was licensed by the
city of Dallas as a journeyman electrician in 1970. He
did commercial and residential work during the time he
was with Respondent, as Harrill Electric The commer-
cial work was at an office complex on Midway Road in
or near Dallas, where he was involved in "tearing down
the old service and upgrading it with a new service for
higher amperage." The residential work included the
"upgrading" of the West Dallas Housing Project, under
the foremanship of Mike Eavenson, and "basically" the
same kind of work on a housing project in Waco, where
Don Watkins was the foreman.
Pollard's first assignment with Respondent, as DMR,
was at Texas Women's University, where he "ran con-
duit pipe and pulled wire and installed light fixtures."
Eavenson was his foreman for a time on that project.
Pollard then worked on the Birdville school rehabilita-
tion project, "running conduit and hooking up air condi-
tioning units." His foreman on that project was Don
Watkins, previously his foreman on the Waco housing
project. The Birdville school job, like that at Texas
Women's University, was commercial.
Ralston. Ralston testified that he was licensed by the
city of Dallas as a journeyman electrician in 1968. While
working for Respondent, as Harrill Electric, he did resi-
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dential work primarily, most notably at the West Dallas
Housing Project, where Eavenson was his foreman; and
at a similar project in Waco, under the foremanship of
Watkins. He also was involved in the wiring of houses
under construction. Ralston's one instance of commercial
work for Respondent, as Harrill Electric, was in a busi-
ness building on or near the Carpenter Freeway, where
he "ran some pipe, changed out some light fixtures,
pulled some wire, put in dimmer switches, [and] put in a
3-way switch."
Ralston worked on both commercial and residential
projects while with Respondent, as DMR His initial as-
signment was to the project at Texas Women's Universi-
ty, with Eavenson as his foreman. He next worked on
the Birdville school rehabilitation project. That entailed
"rerouting pipe, tearing out pipe, pulling out the service
cable, pulling in service cable, running two-and three-
inch pipe . . . [and] . . stuff like that," incidental to the
installation of central air conditioning. Ralston also
worked for Respondent, as DMR, in the remodeling of a
housing project in Ennis, which was residential in nature;
and on an establishment in Dallas called "The Light
Store," which was commercial.
Ralston testified that, "basically, [he] used the same
tools for Harrill as [he] did DMR"; and that the manner
in which the work was assigned, supervised, and per-
formed was "basically the same" in both situations.
Tuggle Tuggle testified that he was licensed by the
city of Dallas as a journeyman wireman about 1976; that
he was the first electrician hired by Respondent, as
DMR, remaining until February 1980; and that he oper-
ated a service truck, doing "all phases of electrical
work."
Tuggle did both commercial and residential work. The
commercial work was comprised of "mainly service-type
work" at the Honeywell Center and in the LBJ Business
Park This included adding plugs and fixtures, moving
fixtures, etc., usually taking 2 to 3 hours, after which he
would "go somewhere else and do the same type thing "
Tuggle also participated in the project at Texas Women's
University, where he "changed out some old panels and
hung some new light fixtures, and things of that sort."
He once wired a restaurant, as well. Tuggle's residential
work with Respondent, as DMR, consisted of "some
housing projects" in Ennis, of wiring "some houses" in
Plano, of working on "some houses" near Lake Ray
Hubbard and on "one or two" houses in Mesquite, and
of trimming out-i.e., installing plugs and switches and
hanging light fixtures, etc.-in a "fancy-type house" at
Lake Ray Hubbard.
Discussion
The newly developed evidence, at once uncontradict-
ed and credible, reveals that Respondent's electricians
performed a mix of the same kinds of commercial and
residential work, using much the same skills, during both
the Harrill Electric and DMR phases; and that, in Ea-
venson and Watkins, there was a considerable carryover
of on-the-job supervision These factors, in combination
with the undisturbed findings in the earlier decision
(most notably, Randy Harrill's continued active role, the
substantial continuity otherwise of top management, and
the union avoidance purpose behind the shift from Har-
rill Electric to DMR), warrant iteration of the comment
made in the earlier Board decision, at 258 NLRB 1069,
paraphrasing Appalachian Construction, 235 NLRB 685,
686 (1978):
The only real difference, other than name, between
[DMR] working on the project[s] and [Harrill Elec-
tric] was the absence of union labor.
It is concluded, therefore, adverting to the circuit
court's instruction in this matter, that the only appropri-
ate bargaining unit is "the single bargaining unit of Har-
rill's and DMR's electricians."
CONCLUSION OF LAW AND RECOMMENDATIONS
The Board's earlier unit finding was correct It is rec-
ommended that it adhere to its original order.
3 All outstanding motions inconsistent with this conclusion and recom-
mendation hereby are denied If no exceptions are filed as provided by
Sec 102 46 of the Board's Rules and Regulations, the findings, conclu-
sions , 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 purposes