U.S. Dismantlement Corp. And H&H Contractors, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1990

298 N.L.R.B. 1068 (N.L.R.B. 1990)

1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
U.S. Dismantlement Corporation and H&H Contrac-
tors, Inc., a Single Employer and/or Joint Em-
ployer and Jesus Guzman . Case 13-CA-27481
June 29, 1990
DECISION AND ORDER
MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On December 6, 1989, Administrative Law
Judge Robert T. Wallace issued the attached deci-
sion. Respondent U.S. Dismantlement Corporation
filed exceptions and a supporting brief, and the
General Counsel filed a response to the exceptions.
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 in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, l and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, U.S. Dis-
mantlement Corporation and H&H Contractors,
Inc., a Single and or Joint Employer, Chicago, Illi-
nois, their officers, agents, successors, and assigns,
shall take the action set forth in the Order.
1 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We affirm the judge 's finding that the Respondents violated Sec.
8(a)(3) and (1) by discharging Jesus Guzman because he engaged in pro-
tected union activity when assisting a fellow employee to join the Union
and to secure a higher wage rate and backpay at the rate under the
Union's collective-bargaining agreement with the Respondent, U.S. Dis-
mantlement Corporation (USD). We do not, however, rely on the judge's
statement that the Respondents ' executive , Daniel Hoffman, acted "in a
fit of pique" because Guzman 's conduct "unwittingly interfered with
Hoffman's scheme to pay below scale wages to employees of USD's non-
Union affiliate [Respondent] H&H [Contractors, Inc.]."
Martin P. Barr, Esq., for the General Counsel.
Gerald A. Golden, Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of Chicago, Illinois, for the Respondent.
DECISION
union and/or protected concerted activity and, therefore,
in violation Section 8(a)(1) and (3) of the National Labor
Relations Act.
Based on the entire record, including my observation
of the witnesses and after due consideration of briefs
filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
It is admitted and I find: (1) that U. S. Dismantlement
Corporation (USD) is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, and (2) that Local Union No. 225, Laborers' Inter-
national Union of North America, AFL-CIO (Union) is
a labor organization within the meaning of Section 2(5)
of the Act.
A. Relationship Between USD and H&H
Contractors, Inc.'
USD was organized in 1980 and has its headquarters in
Chicago, Illinois. It is engaged in the demolition of build-
ings , and its operations are performed at various points in
a number of States including, as here pertinent, Chicago.
Daniel Hoffman and Edward Heil each own a 50-percent
interest in its stock. Hoffman is its sole director, presi-
dent, treasurer, and registered agent in Illinois. Allen
Foremeister is vice president. And Mike Mardirosian is
superintendent of overall operations.
The Company has been party to successive multiem-
ployer collective-bargaining agreements with the Union,
the latest being effective for a 3-year period beginning on
July 15, 1986. Among other things, the agreement pro-
vides that all employees shall become union members by
the seventh day after being hired,2 check off of "work-
ing" dues (20 cents per hour), and direct remission to the
Union of pension and fringe benefit payments. The con-
tract contains no provision relative to seniority and the
only reference therein to grievances is one calling for ar-
bitration of disputes over the meaning of contract terms.
As to pay, the agreement provides $9.50 an hour for
demolition workers, with an extra 50 cents per hour
added for laborers designated as burners or power
tool/equipment operators.3
H&H was organized by Hoffman in April 1987 for the
purpose of salvaging items of value from buildings (i.e.,
lighting fixtures, doors, sinks, and carpets). At the time
this case was heard, it performed a substantial part of its
services (40 to 60 percent) at sites being demolished by
USD. It is a nonunion company paying its workers $6 an
hour and no benefits. Hoffman and Heil each own 50
percent of its stock; and the titles and role of Hoffman
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. On
a charge filed by Jesus Guzman on January 14, 1988, as
amended, a complaint issued on February 22, 1988. The
case was heard by me in Chicago, Illinois, on July 20
and 21 and on August 15 and 16, 1988. The basic issue is
whether Guzman's termination was for engaging in
1 Because of its relationship with USD (discussed), I find that it too is
an employer within the meaning of Sec. 2(2), (6), and (7) of the Act.
2 The Union's initiation fees and quarterly membership dues total $368
per member for the first year and, under the contract, portions of that
amount are authorized to be withheld from wages and remitted to the
Union directly by USD.
2 Although the contract provides a $6 32 rate for trainees during their
first 400 working hours, that provision was not observed and all newly
hired USD laborers were paid the $9.50 rate.
298 NLRB No. 158
U.S. DISMANTLEMENT CORP. 1069
and Foremeister with respect to H&H are exactly the
same as with USD.
USD provides H&H office and yard space at its head-
quarters building. It also provides H&H with equipment
(vehicles, tools, etc.) and a variety of administrative
functions, such as payroll, clerical, and personnel serv-
ices. The latter include decisions on hiring, awarding
overtime, and determining when and who to layoff. In
addition, on-the-job supervision of H&H laborers is per-
formed by foremen of USA At times they are directed
to help USD employees in wrecking, and the latter often
assist H&H employees in salvage. Although fees alleged-
ly are charged for equipment rental and services, no
written arrangements, lease or otherwise, exist.
Approximately 50 percent of the laborers of both com-
panies are Spanish-speaking, and most speak that lan-
guage exclusively. The Union does not have stewards at
jobsites; and there are no Spanish-speaking personnel at
the headquarters of USD or the Union.
Learning in June 1987 that a laborer was being paid
below scale wages by H&H at'an USD jobsite in Chica-
go, the Union's president (Daniel Dumo) made a formal
written demand on USD in July for specific information
concerning H&H and its relationship to USD. No infor-
mation having been provided by March 14, 1988, the
Union on that date filed a charge alleging unlawful
double-breasting in violation of Section 8(a)(1) and (5).4
B. Guzman 's Layoff
Guzman worked continually for USD since 1981 save
for frequent short-term layoff; normal in the demolition
industry. He was made a burner in 1982 and continued in
that capacity until October 20, 1987, when he was laid
off permanently.
Over the years, Guzman developed an adequate-but
far from fluent-ability to speak English, and when the
need arose he served without charge as an interpreter for
fellow laborers not so gifted. He also had an enterprising
spirit. For example, on hot summer days he sold soda
pop at jobsites for 50 cents a can when drinking water
was not readily available, after providing free pop (and
sometimes lunch) to Foreman Pasqual Miranda; and on
paydays (Fridays) he undercut currency exchanges by
cashing checks for $1 or $2 per check, again providing
free service to Miranda. Also, he operated a carpool to
jobsites in the "Loop," charging $10 a week per rider for
a 2-hour round trip commute, or $15 for a longer drive
to Arlington Heights.
In early October 1987, Guzman was recalled to work
on a demolition job at State and Lake Streets in Chicago.
He worked the 4:30 p.m. to 1:30 a.m. shift along with ap-
proximately 15 to 20 other workers, including Jesus
Garcia a laborer of H&H. At the direction of Miranda
everyone alternated in performing wrecking and salvage.
During a workbreak on October 19, Garcia volun-
teered that he was earning $6 an hour. Both Guzman and
4 The Union's charge elicited a complaint in Case 13-CA-27599 which
was later consolidated with the instant proceeding . At the outset of the
hearing the Union presented a request , approved by the Regional Direc-
tot, to withdraw its charge . I granted the request and remanded the com-
plaint in Case 13-CA-27599
Miranda urged him to join the Union, thereby to obtain
$9.50 an hour as an employee of USD.5 Guzman, un-
aware of the existence of H&H, thought that Garcia also
would be entitled to backpay at that rate and, after
pointing out that he was going to the Union's office on
the next day, he offered to drive Garcia there before
work.
Garcia accepted the ride and was admitted as a
member of the Union on the morning of Tuesday, Octo-
ber 20. Then both went immediately to USD headquar-
ters where Guzman advised Payroll Manager Bell of
Garcia's new status, adding that Garcia "wondered when
he wanted the raise, more more money." She assured
them that Garcia would thereafter receive contract
wages. Not satisfied, Guzman asked: "he get back pay,
no?" Bell responded that there was no entitlement be-
cause he had worked for H&H. Unaware of that compa-
ny or of any difference in working conditions, Guzman
repeated the question several times, his volume getting
louder as if to compensate for his inarticulatenesses. At
that point, Owner Hoffman (who was nearby and over-
heard the conversation) intervened and in a loud angry
voice said "he was going to tell the superintendent Mike
[Mardirosian]" ' and ordered them to leave. Both did so
promptly. 6
On reporting to work at 4:30 p.m. that day, they were
met by Foreman'Miranda. He asked why they had gone
to the office, observing that Hoffman was so angry at
their visit that he had kicked a desk; and he told them
that they should not have gone there without permission.
Alerted by Miranda's tone, Guzman asked if he was to
be laid off. Miranda said he would let him know at the
end of the shift.
At lunchtime (11 p.m.) Miranda responded to a further
inquiry of Guzman by stating that Mardirosian had or-
dered his and Garcia's layoff at the end of the shift "be-
cause you went to the office." He suggested that
Guzman talk to Mardirosian or Hoffman.
Guzman opted not to return to work. After he left the
premises, Miranda told Garcia that he would try to per-
suade the bosses, to keep him on. His effort was success-
ful and Garcia returned to work the next day, and con-
tinued on until a general layoff occurred several weeks
later. 'He received $9.50 an hour on and after October 21.
The next morning Guzman went to USD headquarters
and asked Mardirosian why he was the only one laid off.
The latter replied with a question: "Do you want to talk
to Hoffman?" Guzman said "yes" and 5 minutes later
was ushered into Hoffman's office. The conversation was
brief. Guzman pleaded for his job, promising "I don't
[sic] no more help nobody." To which Hoffman replied
H Both Hoffman and USD 's payroll manager (Pam Bell) testified as, to
a USD policy whereby once an H&H employee joined the Union he
would automatically become an employee of USD upon being put to
work by a USD foreman . No application was necessary . This happened
in a number of instances where foremen pleased with the quality of an
H&H employee's work, recommended that the employee join the Union.
A corollary of this policy was that an H&H employee who joined the
Union ceased being an employee of nonunion H&H.
6 Prior to this incident , Hoffman was unaware of Garcia's employment
by H&H. He had met Guzman on several occasions when the latter
sought help in being rehired after layoffs.
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he was "much too important" to be involved with
such matters. At that point a secretary entered and
placed Guzman's final paycheck on Hoffman's desk, the
amount of which represented full payment for hours
worked up through 11 p.m. on October 20.7 Hoffman
handed the check to Guzman who asked, "Do I have my
job back?" Hoffman replied, "No. Talk to Mike [Mardir-
osian.]" Guzman left the office and again saw Mardiro-
sian who told him he would consider his recall when the
Company began to hire again.
Guzman was never recalled although USD subse-
quently hired other hourly wage demolition workers.
ny. Further, USD supervisors exercise responsibility
over H&H employees with respect to hiring, overtime,
and layoffs; and they supervise H&H employees in the
performance of their jobs.
But even if Respondents are separate entities, they
nevertheless are joint employers. As noted, USD super-
visors interview applicants for positions with H&H.
They also supervise and direct H&H employees at the
salvage yard and at demolition sites , and Hoffman sets
the wages and working conditions for H&H employees.
Accordingly, USD "meaningfully affects" matters relat-
ing to the employment relationships of H&H employees.
II. ANALYSIS AND CONCLUSIONS
A. Single/Joint Employer Issue.
To determine whether two entities are sufficiently in-
tegrated so that they may fairly be treated as a single
employer, the Board and the courts examine four princi-
pal factors : ( 1) common management; (2) centralized
control of labor relations ; (3) interrelation of operations;
and (4) common ownership . Sakrete of Northern Califor-
nia, 137 NLRB 1220 (1962), enfd . 332 F.2d 902 (9th Cir.
1964), cert. denied 379 U.S. 961 (1965). While none of
these factors viewed separately has been held control-
ling, the Board has stressed the first three factors, par-
ticularly centralized control of labor relations . Parklane
Hosiery Co., 203 NLRB 597, 612 (1973). Single-employer
status depends on all the circumstances and has been
characterized as an absence of an "arm 's length relation-
ship found among unintegrated companies ." Blumenfeld
Theatres Circuit, 240 NLRB 206, 215 (1979), enfd. 626
F.2d 865 (9th Cir. 1980).
The joint employer concept recognizes that two or
more business entities are in fact separate but they share
or codetermine those matters governing the essential
terms and conditions of employment . TLI, Inc., 271
NLRB 798 (1984). Whether an employer possesses suffi-
cient indicia of control over employees employed by an-
other employer is essentially a factual issue . Laerco
Transportation & Warehouse, 269 NLRB 324 (1984). To
establish joint employer status, there must be a showing
that the employer meaningfully affects matters relating
to the employment relationship such as hiring , firing, dis-
cipline, supervision, and direction. Id. at 325.
The evidence demonstrates that Respondents USD and
H&H constitute a single employer . They are shown to be
commonly owned and managed and there is a high
degree of interrelation between the two companies. They
share office space, telephone lines, and equipment; and,
as H&H possesses no administrative capacity of its own,
USD personnel provide virtually all its administrative
services . Although H&H assertedly pays USD for each
service, the fee arrangements are orally agreed on, an un-
usual arrangement between corporations purportedly op-
erating at arms length.
Respondents also enjoy centralized labor relations
through the person of their common president Hoffman
who sets wages and working conditions for each compa-
7 Friday is the regular payday for USD employees, including those
who worked less than a full week.
B. Guzman's Discharge
As to events on October 20 and 21, I have credited
Guzman and Garcia having found their testimony both
candid and consistent as compared to what I regard as
shifting, unpersuasive, and totally pretextual accounts
provided by Respondent.8 And I conclude that Guzman
was fired by Hoffman in a fit of pique because, by assist-
ing Garcia to join the Union and thereby qualifying him
for higher contract rates,9 he unwittingly interfered with
Hoffman's scheme to pay below scale wages to employ-
ees of USD's nonunion affiliate H&H,1 ° a matter then
being investigated by the Union.
Patently, the assistance rendered by Guzman involved
protected union and concerted activity in matters related
to terms and conditions of employment. With Garcia, he
acted to enforce the collective-bargaining agreement.
Delta Gas, 282 NLRB 1315 (1987); Interboro Contractors,
157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir.
1967), approved in NLRB v. City Disposal Systems, 465
U.S. 822 (1984).
As to rejected accounts offered by Respondent:
Hoffman concedes that as a result of the incident in his
office on October 20 he advised USD Superintendent
Mardirosian that when the next layoff occurred Guzman
was to be laid off before anyone else. Since he was laid
off on that very day and never recalled (although others
were), I infer that Mardirosian properly understood that
Hoffman wanted Guzman fired immediately.
Hoffman explains that he was angry and ordered the
"layoff" because Guzman was taking advantage of
Garcia and other employees by charging money for his
services."' I find that explanation incredible. By his own
account Hoffman made no effort to ask Garcia (or other-
wise inquire) whether Guzman was being paid. Instead,
he assumed that fact because supervisors had told him
that Guzman was a "bad guy" who habitually "exploit-
ed" fellow Hispanic employees. He does not explain why
he became concerned and angry on October 20 when by
his own account he was made fully aware of Guzman's
8 As to pretext, see Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
9 See in. 5.
10 Although some H&H employees had been employed by USD upon
becoming union members, this was done only recommendation of super-
visors. Guzman, however, was an "outsider" and Hoffman had no prior
knowledge of Garcia or his work performance.
11 Hoffman concedes that Guzman's "commotion" in the office on Oc-
tober 20 had nothing to do with his decision.
U.S. DISMANTLEMENT CORP. 1071
alleged depredations at least 1 year earlier during which
time he was repeatedly recalled to work.
Indeed Hoffman at the hearing did not claim that em-
ployee exploitation was grievous enough to have been
the immediate cause of Guzman's layoff. Rather, he as-
serts that the timing was determined independently by
Mardirosian and Foreman Miranda" based on their
judgment that economic circumstances necessitated a
one-man layoff on October 21 at the end (1:30 a.m.) of
Guzman's work shift. That claim is belied by the fact
that Guzman was replaced as a USD employee at 4:30
p.m. on the same day by Garcia.
CONCLUSION OF LAW
For the reasons stated I find that Respondents violated
Section 8(a)(1) and (3) of the Act in discriminatorily dis-
charging Guzman, and that the resulting unfair labor
practice affects and, unless enjoined, will continue to
affect commerce within the meaning of Section 2(6) and
(7). Since no need is shown for a visitatorial (discovery)
remedial order of the type sought in the complaint, that
request is denied. See Cherokee Marine Terminal, 287
NLRB 1080 (1988).
REMEDY
In addition to the traditional cease-and-desist order
and requirement for notice posting, my Order will re-
quire Respondents to offer unconditional reinstatement to
Guzman and to make him whole for all wages and bene-
fits lost as a result of his unlawful discharge, in accord-
ance with the formula set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as provided in New
Horizons for the Retarded, 283 NLRB 1173 (1987). See
generally Isis Plumbing Co., 138 NLRB 716 (1962).
(b) In any like or related matter interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Jesus Guzman immediate and full reinstate-
ment to his former job or, if no longer in existence, to a
substantially equivalent job, without prejudice to his se-
niority and other rights and privileges previously en-
joyed, and make him whole, with interest, for any loss of
earnings suffered as a result of the discrimination prac-
ticed against him, in the manner set forth in the remedy
section of this decision.
(b) Expunge from their files any reference to the dis-
charge of Jesus Guzman and notify him in writing that
this has been done and that his discharge will not be
used against him in any way.
(c) Preserve and, on reasonable request, make available
to the Board and its agents for examination and copying,
all payroll records and reports and all other records re-
quired to ascertain the amount, if any, of backpay due
under this Order.
(d) Post at their facilities in Chicago, Illinois, copies of
the attached notice marked "Appendix." 14 Copies of the
notice, in English or Spanish, on forms provided by the
Regional Director for Region 13, after being signed by
the Respondents' authorized representative, shall be
posted by the Respondents immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Disposition
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondents U.S. Dismantlement Corporation and
H&H Contractors, Inc., Chicago, Illinois, their officers,
agents, successors, and assigns., shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they urge others to join any union or
seek to obtain wage rates specified in any applicable col-
lective-bargaining agreement.
1 2 Miranda testified that he had additional reasons for the layoff.
Among other things, he claims that Guzman regularly had others do his
work so that he could wander around and that he appropriated for him-
self salvage items from jobs "once or twice a week" despite being ad-
monished not to do so numerous times. I find these to be nothing more
than after the fact rationalizations . Miranda simply followed orders from
Hoffman as relayed to him by Mardirosian.
'3 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.
is If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
The National Labor Relations Act gives you these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge or otherwise discriminate
against you for urging others to join Local Union No.
225, Laborers' International Union of North America,
AFL-CIO, or any other union.
WE WILL NOT discharge or otherwise discriminate
against you for seeking to obtain rights given to you
under a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under the Act.
WE WILL offer Jesus Guzman immediate and full rein-
statement to his former job or, if no longer in existence,
to a substantially similar job, without prejudice to his se-
niority or other rights and privileges, and make him
whole, with interest, for any loss of earnings he my have
suffered as a result of our discriminatory act in firing
him.
WE WILL expunge from our records any reference to
the firing of Jesus Guzman and will notify him, in writ-
ing, that this has been done and that it will not be used
against him.
U.S. DISMANTLEMENT CORPORATION AND
H&H CONTRACTORS, INC.