Dmr Corp. And Harrill Electric Contractors, Inc.

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