Chesapeake Foods, Inc.

CHESAPEAKE FOODS Chesapeake Foods, Inc. and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 876, AFL-CIO.' Case 5-CA-15408 16 December 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS BABSON AND CRACRAFT On 11 October 1984 Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. The Respondent filed exceptions- and a supporting brief, and the General Counsel filed a memoran- dum in opposition to the Respondent's 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, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent, Chesa- peake Foods, was a joint employer of chicken catchers employed by Arzie Dennis, an individual, and that the Respondent, as a joint employer, vio- lated Section 8(a)(5) by laying off one of Dennis' chicken-catching crews without first bargaining with the Union over the decision to lay off and its effects. The judge further found this conduct vio- lated Section 8(a)(3) because he concluded that the' Respondent had discriminated against the employ- ees by laying them off because of their union mem- bership. For the reasons explained below, we re- verse the judge's finding that the Respondent and Dennis were joint employers and we therefore dis- miss the complaint.2 The record shows that the Respondent is en- gaged in a chicken-processing operation and has had a collective-bargaining relationship with the Union for several years. The latest relevant collec- tive-bargaining agreement was effective 14 Decem- I On 1 November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The judge initially rejected the Respondent's contention that the Board was collaterally estopped from determining the joint employer issue by virtue of a U S district court decision in a related Sec 301 pro- ceeding in which Senior Judge Roszel Thomsen had concluded that the Union had not proven that Chesapeake and Arzie Dennis were the joint or coemployers of the chicken catchers Teamsters Local 876 v Chesa- peake Foods, Inc, and Arzie Dennis, Civil No T-83-899 (D Md May 17, 1983) Because we reverse the judge's finding that the Respondent and Dennis are joint employers and we dismiss the complaint in any event, we find it unnecessary to pass on the issue of collateral estoppel Further, in these circumstances, we find it unnecessary to pass on the issue of whether the Respondent, if a joint employer, was obligated to bargain over its decision to lay off employees 405 ber 1981 to 17 December 1983 and covered a unit of the Respondent's employees including the truck- drivers and forklift operators who participated in the chicken-catching operation discussed below. The relevant facts regarding the chicken-catch- ing operations are as follows: Before the Respond- ent's chickens are processed, they first are raised by a farmer under contract to the Respondent. When the chickens are raised and ready for proc- essing, they must be retrieved from the farm and delivered to the Respondent's plant. This operation is carried out at the respective farms by a team composed of several of the Respondent's employ- ees, i.e., two or three truckdrivers and a forklift op- erator, together with an individual known in the in- dustry as a "weighmaster" and his chicken-catch- ing crew, who physically catch the chickens and place them in coops. Pursuant to oral agreements, the Respondent compensates the weighmaster for his chicken-catching services based on the number of chickens delivered to its processing plants. Arzie Dennis was one of the Respondent's weighmasters and in this capacity he employed and supervised two teams of six or seven chicken catchers each.3 Dennis and his crews worked exclusively for the Respondent. Dennis' catchers did not perform any work at the Respondent's plant, and they were not required to meet there; however, their practice was to do so to obtain the schedule before proceeding to work the various farms along with the Respondent's truckdrivers and forklift operators. The schedule set out the time and location of each farm to be worked and indicated how many chickens were to be caught and placed in each coop. Dennis normal- ly transported his crews to and from the farms in his own pickup truck. Dennis sometimes operated the Respondent's equipment if a forklift operator did not show up. In this event, the Respondent compensated Dennis in accord with its collective- bargaining agreement with the Union. Dennis was not authorized to discipline the Respondent's fork- lift and truckdrivers, but he was expected to report their absences or misconduct to the Respondent. If the Respondent received complaints about Dennis' catchers from growers or others, it would inform Dennis of the problem and have him resolve the matter. Dennis also was expected to discipline catchers who were regularly tardy. The Respond- ent directly handled problems involving its truck- drivers or forklift operators. It was Dennis who hired, fired, and paid the chicken catchers their wages. He also handled their 3 Two other weighmasters and their crews also worked for the Re- spondent 287 NLRB No. 43 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD payroll deductions, taxes, and workers' compensa- tion premiums, and he supplied them with rain- gear.4 On one occasion, in 1982, the Respondent received a complaint from a local merchant that one of Dennis' chicken catchers had stolen a bottle of wine from the merchant's store. The Respond- ent's plant manager, Molnar, advised Dennis of this matter and said that this was not the kind of em- ployee needed in the Chesapeake operation. Dennis terminated the employee. Dennis indicated that prior to the conversation with Molnar he had "not completely" made the decision to fire the employ- ee. Like the Respondent, Dennis also has a collec- tive-bargaining relationship with the Union. The latest relevant collective-bargaining agreement cov- ered a unit of Dennis' chicken catchers and was ef- fective 17 December 1982 to 17 December 1984. Dennis and the Union had renegotiated the wage rates of the chicken catchers in the summer of 1982 following Molnar's having advised Dennis that the Respondent was changing its method of compen= sating the weighmasters from a per-coop to a per- thousand basis. Dennis discussed with Molnar an appropriate rate for the chicken catchers, and Molnar mentioned that one company was paying a rate of $2 per thousand and also mentioned a $2.17 rate. Dennis told Molnar that he did not think that his catchers "would go for it." Thereafter, Dennis met with Union Official Reynolds to negotiate a new rate. Dennis proposed a rate of $2.17 per thou- sand, but he eventually agreed to accept the Union's counterproposal of $2.35 per thousand. Ne- gotiations occurred in Molnar's office and at least on one occasion Molnar was present, but there is no evidence that he engaged in the negotiations over the catchers' rates. In February 1983 Molnar called a meeting of all individuals involved in chicken catching-catchers, weighmasters, truckdrivers, and forklift operators. Molnar advised those present that the Respondent had a new president who wanted a reduction in the number of dead-on-arrival chickens. Molnar, ex- horted all to work to achieve this end. He told the catchers to take care not to smother the chickens as they put them in the coop arid, instructed the drivers and catchers where to place the dead chickens.5 At this meeting, Matthew Kee, one of Dennis' chickens catchers, asked Molnar if the catchers could expect a raise. Molnar responded that if they could expect anything, it would be an- other cut. Earlier in 1983, after the Respondent had 4 The Respondent has given Christmas turkeys to Dennis' chicken catchers, and it has permitted them to buy chickens at a discount employ- ee rate The Respondent also has invited the chicken catchers to various company social outings along with customers and other members of the community 5 There were then about two "DOA's" per thousand changed Dennis' method of compensation, Molnar had told Dennis that the Respondent needed to cut its costs and said that he would like to negotiate a reduction in the per-thousand rate that the Re- spondent was paying Dennis. Dennis refused to dis- cuss the matter.6 On 11 March 1983 Molnar told the Union that it was reducing by one-half the total compensation that it was paying Dennis. Molnar refused the Union's request that the decision be de- ferred and that the Respondent discuss the matter. On 18 March 1983 the Respondent's president, Randolph, wrote to Dennis advising that effective 20 March 1983 the Respondent was terminating the contract of one of his crews and was contracting with someone else because of "your contract rate, which is the highest in the industry, and your un- willingness to reduce your rate." Thereafter, Dennis laid off eight chicken catchers. The Re- spondent continued its contract with Dennis for one crew at the rate it had been paying Dennis. The judge concluded that the Respondent was a joint employer of Dennis' chicken catchers. In so doing, he found that the appropriate test to be ap- plied in determining joint employer status here is the "common law `right to control' test, as that right affects means to be employed as well as ends to be accomplished in the performance of an em- ployee's duties." Applying this test, the judge con- cluded that the Respondent was a joint employer with Dennis of Dennis' chicken catchers because he found the Respondent had "complete control" over the ends to be accomplished and the means by which Dennis' employees performed their duties. He found that the Respondent controlled "the most minute details" of the chicken catchers' worklife, i.e., whether, when, and where they worked each day. He also found that the Respondent had the power to effectively control the catchers' wages by virtue of its control over Dennis' compensation. The judge further found that the Respondent could terminate an entire crew and could force the disci- pline of catchers because of its extensive power over Dennis. He found this power in the Respond- ent's oral contract with Dennis, which he conclud- ed could be "terminated with a word or a stroke of the pen any time Dennis fails to do what Chesa- peake asks him to do." The judge concluded that there was "little but the mechanics of compensa- tion" that distinguished Dennis' catchers and Chesapeake's admitted employees and therefore he found that the Respondent was a joint employer with Dennis of his chicken catchers and violated the Act by laying them off. 6 The Respondent's other weighmasters, whose crews were not union- ized, were then paid at a,rate lower than Dennis was paid CHESAPEAKE FOODS 407 As noted earlier, we disagree with the judge's finding on the joint employer issue. In this regard, we initially note that the judge applied an incorrect test for determining the Respondent's alleged joint employer status. Contrary to the judge, the appro- priate test for ascertaining joint employer status is whether two separate entities share or codetermine "those matters governing the essential terms and conditions of employment" and to establish such status "there must be a showing that the [alleged joint] employer meaningfully affects matters relat- ing to the employment relationship such as hiring, firing, discipline, supervision and direction." TLI, Inc., 271 NLRB 798 (1984), affd. 772 F.2d 896 (3d Cir. 1985). See also Island Creek Coal Co., 279_ NLRB 858 (1986). Applying the appropriate test, we find it clear that the Respondent does not share or codetermine essential terms and conditions of employment of Dennis' catchers and does not pos- sess sufficient indicia of control over these employ- ees to support a finding of joint employer status. We note first that the catchers' essential terms and conditions of employment were dictated by the collective-bargaining agreement that was negotiat- ed by Dennis with the Union. The Respondent nei- ther negotiated nor conegotiated this agreement. Although Molnar was present at at least one ses- sion when Dennis renegotiated the contract wage rate with the Union after the Respondent had indi- cated it would change the method of compensating Dennis, Molnar's mere presence at those sessions was insignificant absent evidence that he actually negotiated with the Union while there. TLI, supra. No such evidence is present here.7 Similarly, absent Molnar's having actually joined in negotiat- ing the catchers' wages, no evidence of joint em- ployer status derives from Molnar's remarking to catcher Kee that catchers were likely to get a pay cut. At most, these remarks reflect only Molnar's opinion what Dennis might do. Contrary to the judge, we cannot conclude that the Respondent controlled the catchers' wages merely because Dennis performed services solely for the Respond- ent and his contract was terminable at will. Al- though Dennis' compensation came solely from the Respondent, the portion of that compensation, which ultimately was paid to the catchers as wages, was determined solely through Dennis' ne- gotiations with the Union. Clearly, it was Dennis and the Union, not the Respondent, who deter- mined the catchers' rates. Moreover, had the Re- spondent had the kind of powerful control over wages attributed to it by the judge, it could have forced Dennis to accept a decrease in his compen- sation and accordingly his employees' compensa- tion in March 1983. This, however, the Respondent could not do. Instead, the Respondent obtained the economic relief it wanted only by reducing the amount of work that it subcontracted to Dennis. Further, we find the evidence insufficient to es- tablish that the Respondent meaningfully affected other matters relating to the catchers' employment relationship such as hiring, firing, discipline, super- vision, and direction. It was Dennis who hired, fired, paid the catchers, and supplied them with necessary raingear.8 Farmers' complaints received by the Respondent about the catchers were re- ferred to Dennis for handling and it was Dennis, not the Respondent, who directly fired the catcher suspected of stealing. Finally, the Respondent's scheduling of the farms to be worked and its in- structing the catchers in certain mechanics of catching and the number of chickens to be placed in the coops cannot be found to constitute signifi- cant control over Dennis' employees. We note in this regard that it was Dennis who accompanied the catchers to the farms and that there has been no showing that any supervisor of the Respondent supervised the catchers' performance or exercised any control over them while at the farms. Millcraft Paper Co., 270 NLRB 812, 814 (1984); Island Creek Coal Co., supra. In the above circumstances, we reverse the judge and find that it has not been established that the Respondent was the joint employer of Dennis" chicken catchers. Accordingly, we shall dismiss the complaint. ORDER The complaint is dismissed. 8 We attach no significance to the Respondent's giving the catchers turkeys, discounted chickens, and invitations to social affairs as the evi- dence does not establish that these items are emoluments of employment rather than mere gratuities Jacqueline Wei Mintz, Esq., for the General Counsel. James C. Hoover, Esq., of Atlanta, Georgia, for the Re- spondent Robert J. Reynolds, of Salisbury, Maryland, for the Charging Party. DECISION STATEMENT OF THE CASE WALTER H. MALONEY JR., Administrative Law Judge. This case came on for hearing before me at Salisbury, Maryland, upon an unfair labor practice complaint,' ' We also do not find it significant that these sessions took place in the plant manager's office in the absence of evidence that Molnar actually ' The principal docket entries in this case are as follows participated in the negotiations Continued 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD issued by the Regional Director for Region 5, which al- leges that Respondent Chesapeake Foods, Inc.,2 violated Section 8(a)(1), (3), and (5) of the Act. More particular- ly, the complaint alleges that the Respondent laid off one of its unionized chicken-catching crews without first bar- gaining with the Union concerning the layoff, and that it replaced that crew with a nonunion crew. Respondent insists that the crew in question was not made up of its own employees but was staffed by employees of an-inde- pendent contractor, for whose actions Respondent bore no legal responsibility when it terminated a portion of the contractor's business Upon these contentions the issues here were joined.3 FINDINGS OF FACT 1. THE UNFAIR LABOR PRACTICES ALLEGED Respondent Chesapeake Foods, Inc. (Chesapeake) was founded in 1972. In the course of its early operations it purchased two plants, one at Salisbury, Maryland, and one at nearby Berlin, Maryland, for the purpose of slaughtering, dressing, and packing chickens. In October 1983, it closed the Salisbury plant and transferred all em- ployees to Berlin. At this location Respondent employs between 300 and 400 food processors, who are represent- ed by the United Food and Commercial Workers (UFCW), and about 35 maintenance, shipping, ware- house, and live-haul employees who are represented by the Charging Party in this case. Respondent has. contracts with about 150 farmers (whom it refers to as growers) who raise chickens on their properties for processing at the Berlin plant Re- spondent provides the farmers with chicks, chicken feed, and medicine. The chicks are then raised by the growers in their own chicken houses for 7 weeks in the case of fryers and for 14-16 weeks in the case of broilers. Re- spondent sends chicken-catching crews to the farms when it deems the chickens are ready for processing. These crews, who normally work at night, enter the grower's chicken house and place the chickens in coops The coops are , then lifted by forklifts onto waiting trucks, which are owned and operated by Respondent, and are transported immediately to the processing plant where they are placed in cooling areas for about 4-6 Charge filed against Respondent and an alleged joint employer, Arzie Dennis, by International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union No 876 (Union), on May112, 1983, complaint issued against Respondents Chesapeake Foods, Inc and Arzie Dennis by the Regional Director on June 21 , 1983, Re- spondent Chesapeake's answer filed on July 6, 1983, amended complaint issued by the Regional Director on July 12, 1984, deleting Arzie Dennis as a respondent, Respondent Chesapeake 's answer to amended complaint filed on July 23, 1984, hearing held in Salisbury, Maryland, on August 1 and 2 , 1984, briefs filed by the General Counsel and Respondent on or before October 1, 1984 2 Respondent admits, and I find, that it operates a plant in Berlin, Maryland, where it processes and sells chickens During the preceding 12 months, Respondent has sold and shipped from its Berlin, Maryland plant directly to points and places located outside the State of Maryland prod- ucts valued in excess of $50,000 Accordingly, Respondent is an employer engaged in commerce within the meaning ,of Section 2(2), (6), and (7) of the Act The Union is a labor organization within the meaning of Section 2(5) of the Act a Errors in the transcript have been noted and corrected hours. The chickens are then slaughtered, packaged, and transported to markets all along the Atlantic coastline. Arzie Dennis, whose status is here in dispute, is a weighmaster4 or crew leader. He worked for Respond- ent between 1972 and 1976 and resumed his relationship with Respondent again in 1978. It is Dennis' responsibil- ity to assemble six-man crews and to supervise them in the performance of their chicken-catching efforts. For his efforts Dennis is compensated directly by Chesa- peake. In turn, he pays the chicken catchers with his own checks after withholding income taxes and social se- curity. He also pays workmen's compensation premiums for each crew member and carries liability insurance on them. There is no doubt that Dennis can hire and fire chicken catchers and that they are his employees. Whether or not he is a point employer with Chesapeake, so that his employees are also Chesapeake employees, is the subject of this litigation. Dennis ran one or more crews for Chesapeake from 1972 to 1976. For the ensuing 2 years Chesapeake oper- ated its chicken-catching operation with crews and crew leaders who were admittedly its own employees and who were all paid directly by Chesapeake. During this period of time, Dennis worked for another company. In 1978, the new arrangement proved unsatisfactory to Chesapeake so it resumed its former practice of retriev- ing chickens from the farms of its growers with crews operated and paid by its weighmasters. In May 1978, Dennis was again retained to provide two six-man crews. He did so until March 20, 1983 Two other weighmasters also have crews working for Chesapeake, which they op- erate separate and apart from Dennis' crews. Dennis signed a contract with the Charging Party in 1979 and again in 1981 and operated his crews under union condi- tions, which included the making of periodic fringe bene- fit payments to union health, welfare, and pension funds. These payments are in excess of 4 percent of each crew member's earnings. The other crews work under non- union conditions at different and lower rates of pay. As a result, Respondent was and is paying varying rates for the same chicken-retrieving function, depending on the nature and makeup of its four crews. Both sides agree that the wages paid the represented employees in the plant set a wage pattern for Chesa- peake's Teamsters-represented drivers and for the em- ployees of the weighmasters. The Teamsters and the UFCW often bargained jointly with Chesapeake. A per- centage increase in basic wages for processors was usual- ly agreed to with the Union as to other represented Chesapeake employees and shortly thereafter became the measure of increases granted to chicken catchers, both in wages and fringe benefits. Unlike plant employees, chick- en catchers have always been paid on a piecework basis.5 Until 1982, they were paid on a per-coop basis by 4 The term "weighmaster" is apparently a trade usage that was applied to leaders of chicken -catching crews on the Eastern Shore of Maryland when crews were paid by the weight of chickens delivered to the proces- sor, as distinguished from the present practice of paying crews by the number of "birds" that they catch 5 Forklift drivers who are Chesapeake employees are also compensated on a per-thousand basis, while truckdrivers who haul chickens to the Continued CHESAPEAKE FOODS 409 Dennis, while Dennis was in turn paid by Chesapeake on a poundage basis. Thereafter, both were compensated at a given rate paid for each thousand "birds" that` were caught every night. This change resulted in a consider- able cut in compensation for all of Dennis' chicken catchers. In May or June 1982, Robert Molnar, Respondent's plant manager, told Dennis that the Company was going to revise its manner of compensation to go to a per-thou- sand basis for compensating weighmasters and catchers. He discussed with Dennis an appropriate rate for catch- ers, mentioning the rate of $2 per thousand, which Perdue was paying, as well as a $2.17 rate. Dennis re- plied that he did not think his catchers would go for it. Thereafter, Dennis met several times with his catchers and with Union Secretary-Treasurer Robert Reynolds and proposed the $2.17 rate At one such meeting, held at the plant in Molnar's office, Molnar was present. Eventually the Union and Dennis agreed on a $2.35 per thousand rate for catcherss and Dennis and Chesapeake agreed on a $23.45-per-thousand rate for Dennis' com- pensation by Chesapeake. This rate was more than $3- per-thousand paid by Chesapeake to its other two weigh- masters. - Respondent's contract with the Union covering its 35 or so Teamsters-represented employees was effective De- cember 14, 1981, and ran for 2 years, although it was not signed, until March 5, 1982. In November 1982, Dennis signed a collective-bargaining agreement with the Union covering his two crews. It contained the above-recited chicken-catching rates. The effective date of the Union- Dennis agreement was December 17, 1982, and expires in December 1984. About December 1982, Respondent acquired a new company president, A. G. Randolph. Early in 1983, after the changes in the manner of payment of Dennis' crew had been effectuated and after Dennis had signed a new collective-bargaining agreement with the Union, Molnar told Dennis that the Company needed to cut its costs and said he would like to negotiate a reduction in the per-thousand rate that Chesapeake was paying Dennis. Dennis refused to discuss the matter. During this same period of time, Molnar initiated discussions with other crew chiefs to reduce their rates, which were already lower than the Dennis rate. On March 11, Molnar told the Union that it was re- ducing by one-half the total compensation it was paying Dennis. This was tantamount to saying that it was dis- continuing one of Dennis' two crews. Reynolds asked the Company to defer its decision and to discuss the matter. However Molnar declined. It appeared that Ran- dolph, who had previously worked for a processing company in the South, had engaged a crew of Mexicans plant are paid by the load Forklift operators normally earn 10-15 per- cent more than catchers 8 This figure means that for each 1000 chickens retrieved in a grower's facility and placed in one of Chesapeake's transport coops each member of the crew would receive $2 35 All negotiations presumed that a chick- en-catching crew would consist of six employees plus Dennis A six-man crew is a standard size utilized on the Eastern Shore of Maryland, not only by Chesapeake but by other processors as well A crew normally catches 30,000 chickens in the course of an evening and each member will make approximately $75 in North Carolina working under the supervision of a crew leader named Jose Martinez Martinez' crew had agreed"to work for Chesapeake at $14 per-thousand and was already in the area awaiting assignment . Reynolds sent Molnar a telegram, dated March 16, which read: You advised me that you intend to terminate some of the live haul employees who are working with Mr. Dennis. That termination is a breach of Article 197 of your contract and is an unfair labor practice. We are going to file unfair labor practice charges and are going to seek an injunction in federal dis- trict court. If you are willing to arbitrate the issue immediately and can maintain the status quo, we will withdraw the litigation and permit the arbitra- tor to resolve the dispute. Please notify me of your intentions as soon as possible. Please consider this a grievance and demand for arbitration. At the same time, a number of Dennis' employees who were slated for layoff filed individual grievances against Dennis. On March 17, Randolph replied to Reynolds as fol- lows: In reference to your letter of March 16, 1983, con- cerning Mr. Dennis and his catching crews, after reading Article Nineteen and discussing this with our Labor Representative, our conclusion is that we ,do not have any employees. Therefore, this article only pertains to catching employees that we would have or be employed by Chesapeake. Thereby (sic) this letter is not applicable to us. Your letter should be directed to Mr. Dennis. On March 18, Randolph wrote a "Dear Arzie" letter to Dennis, which read: Effective Sunday, March 20, 1983, Chesapeake Foods is terminating the contract on one of your crews. In lieu of your contract rate, which is the highest in the Industry , and your unwillingness to reduce your rate, we are discontinuing one half of your contract and are contracting one half with some one else. However, the remaining crew will still be con- tracted at the present rate. On March 21, Randolph sent another letter to Reynolds, reiterating what he had said in his March 17 letter to Reynolds and denying that Dennis' employees were em- ployed by Chesapeake or were covered by the Union- Chesapeake contract. 7, There is no doubt that the Respondent did not negoti- ate the termination of one-half of Dennis' contract or the 7 Art 19 appears in the 1981-1983 contract between the Teamsters and Chesapeake, which covers forklift and truckdrivers It provides The terms and conditions of employment of any chicken catchers or driver chicken catchers who are or may be employed by the Em- ployer shall be governed for the term of this Agreement by the terms and conditions of the Live Haul Contractors Agreements exe- cuted contemporaneously with this Agreement by and between the Union and various independent live haul contractors 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD layoff of any of Dennis' employees with the Union. As a result of Chesapeake's action, Dennis terminated one of his two crews, including the crew leader who supervised the members of that crew. Layoffs were made by senior- ity so that some members of both crews were terminated and a new crew made up of the most senior chicken catchers was assembled to work under Dennis' supervi- sion. Each crew had more than the six members who worked each night. They worked on a rotating basis and filled in when a member might be absent for any reason from his regular turn. Those laid off by Dennis as a result of the crew reduction were Cray Rowley, Ray- mond Smith, Richard Foreman, Preston Smith, Larry Briddick, Garfield Timmons, Joe Bell, and Richard Parker. Immediately thereafter, the Union filed suit in the United States District Court for Maryland under the pro- visions of Section 301 of the Labor Management Rela- tions Act, seeking to compel the Respondent to arbitrate the discharge of Dennis' crew. The action named both Chesapeake and Dennis as defendants." On April 15, 1983, an evidentiary hearing in this case was held in Bal- timore before U. S. District Judge Roszel C Thomsen. Judge Thomsen issued findings of fact and an order, dated May 17, 1983, in which he dismissed the civil action. In reaching this conclusion, Judge Thomsen found that Chesapeake and Dennis were not joint em- ployers. In arriving at his determination to enter judg- ment for the defendants, Judge Thomsen stated: Plaintiff had the right to present its case to the NLRB. It chose instead to file its complaint in this court. Based upon the facts found above, this court somewhat reluctantly concludes that plaintiff has not proved that defendants Chesapeake and Dennis are joint employers or co-employers of the chicken catchers. See, e.g., Radio Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255 (1965); Kaylor v. Crown Zellerbach, Inc., 643 F 2d 1362 (9th Cir. 1981); Pul- itzer Publishing Co. v. NLRB, 618 F.2d 1275 (8th Cir 1980); In Russom v. Sears Roebuck & Co., 558 F.2d 439 (8th Cir. 1977). About that same time, the Union filed the charge in this case II. ANALYSIS AND CONCLUSIONS A. Collateral Estoppel All parties agree that the resolution of this case turns on the question of whether Chesapeake and Dennis are joint employers of the chicken catchers. Respondent urges quite vigorously that the Board is bound by Judge Thomsen's determination that they are not joint employ- ers and that the principles of collateral estoppel prevent the Board from making an independent examination and resolution of that issue. Collateral estoppel, a variation or element of the doc- trine of res judicata, precludes one tribunal from reliti- gating any issues of fact or law, which have been finally determined in previous litigation. The obvious purpose of the rule is to eliminate or limit a multiplicity of suits con- cerning the same subject matter. In order to invoke col- lateral estoppel, a party must demonstrate in the second proceeding that the issue it seeks to withhold,from fur- ther or independent determination arose in another case involving both the same parties and the same issue, and that the question was actually resolved or decided by the first tribunal in reaching its decision. Montana v. United States, 440 U.S. 147 (1979). In the District Court case, the District Judge was called on to decide the liability of one employer for arbi- trating a grievance arising out of the contract between a union and another employer, and to determine this ques- tion in accordance with the principles of Federal common law. In this case, the Board and its administra- tive law judge are called on to decide whether an em- ployer has violated the provisions of the National Labor Relations Act by setting in motion a chain of events, which inevitably led to the discharge of the employees of another employer, without first negotiating with the collective-bargaining representative of the affected em- ployees. The District Court action is one which adjudi- cated private rights. The instant case involves the appli- cation and enforcement of a public right by an adminis- trative agency. Faced with a similar question, the First Circuit recent- ly held that the Board was not precluded from making an independent evaluation of the status of two assertedly joint employers, notwithstanding the fact that a Federal court had determined, in a previous suit to compel arbi- tration, that such a relationship did not exist . In making its decision, the Court held. In sum, "whether two firms are a single employ- er for collective bargaining purposes and whether a single contract is binding on two separate corpora- tions are not only different questions but they may have different answers " [IBEW v.] Namco Electric, Inc., 653 F 2d at 147. Given the difference in legal issues presented in the Section 301 action from those in the Section 8(a)(5) unfair labor practice proceeding, collateral estoppel is not applicable. Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 24 (1st Cir. 1983). This case clearly appears to be governed by the above- stated rule. A second consideration also makes it abun- dantly clear that collateral estoppel does not control the basic question in this case. The moving party in the unfair labor practice case here at issue, as in all com- plaint cases, is the General Counsel, a public official charged with the duty of prosecuting violations of a public law. The General Counsel was manifestly not a party to the Section 301 suit, which involved a private dispute between private parties, nor is he in privity with them. Leaving aside the question of whether estoppel can ever run against a public official,9 it would be con- 8 Teamsters Local 876 v Chesapeake Foods, Inc. and Arne Dennis, Civil No T-83-899 (U S D C, Md ) 8 See United States v City and County of San Francisco, 310 U S 16 (1940), United States v. Stewart, 311 U S 60 (1940) CHESAPEAKE FOODS trary to the principles of collateral estoppel, as well as an invasion of the statutory functions of the General Coun- sel, to bind him with the results of private litigation in which he did not appear and could not properly partici- pate. Accordingly, I conclude that the Board is free to make an independent evaluation in this case whether Dennis' chicken catchers were the employees of Chesa- peake as well as Dennis under the joint employer theory advanced by the General Counsel. , B The Joint Employer Question As noted above, Chesapeake employs at present four chicken-catching crews, all of whom operate on much the same basis as Dennis does." There is no doubt that Dennis is compensated directly by Chesapeake on the basis of what his crew produces in the course of a week's work, nor that Dennis in turn pays his crew the wages and fringe benefits that are governed by the terms and conditions of his agreement with the Union. Dennis performs some of the routine responsibilities normally as- sociated with an employer, namely payment of work- men's compensation premiums on a policy covering his crew and the withholding of income tax and social secu- rity payments owed by crew members. No such deduc- tions are made from the check he receives each week from Chesapeake. It is Dennis who hires and fires catch- ers and who is obligated to provide a six-man crew in attendance each night. However, when Dennis came back to work for the Respondent, in 1978 at the conclu- sion of the Respondent's experiment with hiring its own chicken catchers, Dennis was required to offer employ- ment to all of the catchers who had been working direct- ly for Chesapeake. No one disputes the fact that Dennis is the employer of the chicken catchers who were laid off on March 20, 1983. The question is whether they were also employees of Chesapeake by virtue of the inti- mate connection between Dennis and the Respondent. Throughout his relationship with Chesapeake, which dates back to 1972, Dennis has never had a written con- tract with the Respondent. His agreement to provide chicken-catching services is oral and is terminable at will Moreover, during his tenures with Chesapeake as a weighmaster, Dennis has not worked for any other em- ployer nor are his crews employed by any other employ- er They all work exclusively for Chesapeake and Dennis is expected to show up each night to work with them and to supervise them. The employment of chicken-catching crews is steady work and suffers only minor seasonal variations Dennis' crew normally works a 5-day week throughout the year. The work of chicken catching is closely integrated with the rest of the processing operation, which is carried on by individuals who are admittedly Chesapeake employ- ees. Chicks are delivered to growers periodically by Chesapeake employees and are grown under conditions that are closely watched by Chesapeake. On a nightly report, which is turned in to the Company describing his activities, Dennis is supposed to note any major deficien- cies that he has observed at a grower's farm. Chickens are scheduled for pickup by the live haul supervisor on the basis of age, as determined from its placement sched- ule. They must be picked up and delivered to the proc- 411 essing plant at Berlin in accordance with a tight nightly schedule, which permits no delay from farm to plant. Otherwise, some 300-400 processing employees will be prevented from performing their function, which neces- sarily must await the delivery of chickens by the Re- spondent's drivers Live chickens are not stored at the plant for any period of time. They are placed in cooling areas for 4-6 hours and then are killed immediately. The on-site pickup of the chickens by Dennis' crew is also closely integrated with the performance by Chesa- peake live-haul employees of their respective duties. Each night Dennis -and his crew are assigned to go to one or more of the farms owned by Chesapeake's 150 growers. They are told when to arrive at the farm and when to go to the next farm.1 ° Their working hours vary' from week to week and are established by Chesa- peake in conjunction with a rotation employed by it in conjunction with the scheduled hours of other chicken- catching crews. The nightly instructions tell them how many chickens to catch at each farm and even go so far as to state how many chickens must be put in each coop. These instructions also indicate how many coops are to be loaded on company trucks. The catchers work closely with the Chesapeake forklift driver, who loads each coop on to the company truck as soon as the catchers fill it. When the truck is full, it is driven away and another truck arrives for loading. The entire catching operation is so closely knit that if a forklift driver is not present Dennis steps in and operates the equipment in order to keep all activity from coming to an abrupt halt For his services on such occasions Dennis is given extra personal compensation, which is computed in accordance with Chesapeake's contract with the Teamsters. Dennis has no direct authority to discipline forklift and truckdrivers but he is expected to report any absences or misbehavior on their part to company officials immediately. Chesapeake exerts extensive control over chicken- catching employees in other ways. I credit the testimony of Matthew Kee, one of Dennis' catchers, to the effect that, in the spring of 1983, Plant Manager Molnar held a group meeting of all catchers, drivers, and weighmasters at the plant to discuss with them several matters pertain- ing to the performance of their duties. He informed them that the new company president, A. G. Randolph, wanted to cut down on the number of dead-on-arrival chickens that were being delivered to the processing plant. In particular, he wanted catchers to take care that they did not smother chickens as they put them in coops. The number then averaged about two "DOA's" per thousand and Randolph wanted it reduced to one "DOA" per thousand. Molnar also instructed drivers and catchers to place dead chickens on the floor of the truck rather than on the tops of the coops. He said that he 10 Dennis and his crew regularly report to the scale room at the Berlin plant each night to receive written instructions and to go with company forklift and truckdrivers to the assigned farms Dennis has no power to vary these instructions Crews also return to the plant each morning after work to obtain a count of the night's haul from the Company Normally, Dennis transports his crew to and from the grower's farm in his own pickup Whether Chesapeake requires catching crews to come to the plant is a small matter In fact they do so, and they perform their duties each night along side company employees as a team 412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wanted drivers and catchers to work as a team and he wanted the same coops put back on a truck that had been removed from the truck for the purpose of inserting chickens. Kee then asked Molnar if catchers could expect a raise. Molnar's reply was that, if they could expect anything, it would be another cut. It is clear from this record that Chesapeake can force Dennis to get rid of a catcher who is unacceptable to Chesapeake On one occasion, a local merchant com- plained to Chesapeake that George Moorman, a chicken catcher employed by Dennis, had stolen a bottle of wine from the merchant's store. Upon receiving the complaint from the merchant, Molnar immediately phoned Dennis, told him of the complaint, and stated that Moorman was not the kind of employee that was needed in the Chesa- peake operation Dennis took this comment to be an in- struction by Molnar to discharge Moorman and he did so. Dennis was expected to straighten out employees upon receipt of complaints by Chesapeake from growers, customers, or others, i i and was expected by Chesapeake to discipline employees who regularly reported late for work. Chesapeake also controlled the compensation of Dennis' chicken catchers. Dennis was and is a labor con- tractor. He, has no capital investment in the chicken- catching operation, other than his personal pickup truck and some raingear, which he furnishes his employees during inclement weather. The entire capital investment in the operation belongs to Chesapeake. The chickens, the coops, the pallets, the forklifts, and the hauling trucks belong to Chesapeake Other than expenses associ- ated with each employee's immediate compensation, such as fringe benefits, insurance, and social security contribu- tions, Dennis' only expenses are for gasoline and the services of an accountant. When Chesapeake discusses with Dennis his overall compensation for this labor-in- tensive operation, Chesapeake looks at his books and his expenses and negotiates a price based almost exclusively on Dennis' payments to catchers. It is disingenuous for the Respondent to pretend that it does not require Dennis to furnish a six-man crew or a crew of any size or number. All crews on the Eastern Shore are six-man crews, all crews that have worked for Chesapeake, under the control of Dennis or any other weighmaster, have been six-man crews, and negotiations between Dennis and Chesapeake presume that the figure under discussion is for a six-man crew. Chesapeake effectively determines the standard to be applied by crew chiefs in paying catchers, whether it be by the coop or by the thousand. The enormous disparity between its bargaining power and Dennis assures that the Chesapeake view will prevail in its dealings with its crew chiefs, including Dennis, and the fact that all con- tracts with these individuals are oral and terminable at will indicates that there are no practical limits to the extent to which Chesapeake can influence the labor rela- tions decisions of its crew chiefs. In 1982, when the manner of compensating chicken-catching crews was n One such complaint, which was registered by a grower with Chesa- peake, was that Dennis' crew took time out from their chicken-catching duties to go into the farmer's field and steal his prize watermelon unilaterally changed by Chesapeake, Molnar went to the extent of telling Dennis what figure per thousand would constitute appropriate compensation in his opinion for Dennis' employees. The gravamen of the complaint in this case is that Chesapeake could and did dictate to Dennis the number of employees Dennis would have by the simple unilateral expedient of cutting off one of Dennis' crews. Contrary to the District Court case, the record in this case supports a finding that collective bargaining be- tween Dennis and the Union concerning Dennis' em- ployees was conducted under the watchful eye of the Respondent. Discussions often took place at the Chesa- peake plant in Molnar's office. On more than one occa- sion Molnar was present. The results of such bargaining were normally predetermined by contracts already con- cluded by the Union and the Respondent covering plant employees. When Dennis resumed his former relation- ship with the Respondent in 1978, he did so by taking over the contract that Chesapeake had concluded with the Union covering Chesapeake's own chicken catchers. Dennis' employees receive certain emoluments from Chesapeake by virtue of their employment with Dennis, such as company picnics, outings, and Christmas turkeys. It appears that other members of the community, includ- ing customers, are also included in this largesse Dennis' chicken catchers are also entitled to buy processed chickens directly from the plant at a discount, a privilege reserved exclusively to Chesapeake employees. A proper analysis of the relationship between Dennis and Chesapeake can be obscured rather than illuminated by excessive reliance on cases relating to separate enter- prises that do business generally with the public at large and which have separate public identities and separate capital investments.12 Such analyses, often involving the question of alter ego status, regularly arise in the build- ing trades and the trucking industry. While such prece- dents are closely aligned to the relationship at issue in this case, there is a line of Board cases involving labor contractors whose major contribution (if not their only contribution) to the mutual enterprise is employee serv- ices.13 In such cases, the test of whether a company is the de facto employer of the employees of one of its con- tractors by virtue of a joint or single employer relation- ship turns on the common law "right to control" test, as that right affects means to be employed as well as ends to be accomplished in the performance of an employee's duties. NLRB v. United Insurance Co., 390 U.S. 254 (1968); NLRB v. Gibraltar Industries, 307 F.2d 428 (4th Cir. 1962). I believe that this is the proper test to apply in this case. Chesapeake's daily operational control over the most minute details of a chicken catcher's worklife is perva- 12 For example , South Prairie Construction Co v Operating Engineers Local 627, 425 U.S 800 (1976), Crawford Door Sales Co, 226 NLRB 1144 (1976), Nelson Electric Co v NLRB, 638 F 2d 965 (6th Cir 1981 ), Samuel Kosoff& Sons, Inc, 269 NLRB 424 (1984) 19 Manpower, Inc, 164 NLRB 287 (1967), Pilot Freight Carriers, 208 NLRB 853 (1974), Clayton B Metcalf 223 NLRB 642 (1976), AMP, Inc, 218 NLRB 33 (1975), Greyhound Corp, 153 NLRB 1488 (1965), enfd 368 F 2d 778 (5th Cir 1966), Mason City Dressed Beef, 231 NLRB 735 (1977), enfd 590 F 2d 688 (8th Cir 1978) CHESAPEAKE FOODS sive. Chesapeake determines whether, when, and where they report for work each day. The equipment used by these employees in the performance of their duties and the object of their work, namely chickens, are the prop- erty of Chesapeake. The Respondent tells them how many chickens to catch, how many to put in each chick- en coop, and how many coops should be loaded on each truck. It effectively controls their wages by controlling the price paid to the weighmaster, and it can enforce its control by its unfettered power to terminate, in whole or in part, the employment of an entire crew. The Respond- ent also has the clout to enforce discipline over chicken catchers by enforcing it over Dennis, whose oral con- tract can be terminated with a word or a stroke of the pen any time Dennis fails to do what Chesapeake asks him to do. Dennis and his crew work exclusively for Chesapeake. They do not engage in freelance chicken catching, and there is little but the mechanics of compen- sation that distinguish them from other members of the integrated crew with whom they work and who are ad- mittedly Chesapeake employees. Accordingly, I con- clude that Chesapeake exercises complete control not only over the ends to be performed by Dennis' employ- ees, but also the means by which they perform their duties. Accordingly, Chesapeake is a joint employer with Dennis of the individuals in question , and they are de facto Chesapeake's employees. C. The Operative Facts of the Violation On March 20, 1983, the Respondent terminated an entire crew of Dennis' employees and replaced them with another crew from North Carolina, which agreed to do the same work under nonunion conditions and for much less money. Cost cutting was the admitted purpose of the layoff. The Respondent admits that it took this step unilaterally and without bargaining with the Union over the decision or its consequences. Such action is an unlawful refusal to bargain that violates Section 8(a)(1) and (5) of the Act. Otis Elevator Co., 269 NLRB 891 (1984). Because the employees involved in the March 20 layoff were necessarily discriminated against in their hire or tenure because of their union membership , the Re- spondent's action also violated Section 8(a)(3) of the Act. I so find and conclude. NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).14 On these findings of fact and on the entire record con- sidered as a whole, I make the following CONCLUSIONS OF LAW 1. Respondent Chesapeake Foods, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Arzie Dennis is a joint em- ployer with Respondent Chesapeake Foods, Inc. of chicken catchers who are members of Dennis' crews. 2. International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local Union 14 Deferral to arbitration is not only inappropriate but impossible in this case. Both here and in the District Court, the Respondent went to great lengths to disclaim any responsibility for arbitrating the layoff of Dennis' employees Indeed, that is what the District Court case was all about. 413 No. 876 is a labor organization within the meaning of Section 2(5) of the Act. 3. All chicken catchers employed jointly by the Re- spondent and Arzie Dennis, excluding all office clerical employees, weighmasters, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. At all times material here, the Union has been the exclusive collective-bargaining representative of all em- ployees in the unit described in Conclusion of Law 3 with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 5. By laying off the employees in one of the two chicken-catching crews employed by it jointly with Arzie Dennis for economic reasons and by assigning work formerly performed by that crew to another group of employees, without first bargaining with the Union over the decision and the effects thereof, the Respondent has violated Section 8(a)(5) of the Act. 6. By the acts and conduct set forth above in Conclu- sion of Law 5, the Respondent discriminated against its employees in regard to hire or tenure or terms and con- ditions of employment of its employees in order to dis- courage membership in a labor organization in violation of Section 8(a)(3) of the Act. 7. The aforesaid unfair labor practices violate Section 8(a)(1) of the Act and have a close, intimate, and sub- stantial effect on the free flow of commerce within the meaning of Section 2(6) of the Act. REMEDY Having found that the Respondent committed certain unfair labor practices, I recommend that it be required to cease and desist therefrom and to take other actions de- signed to effectuate the purposes and policies of the Act. I recommend that the Respondent be required to recog- nize and to bargain collectively with the Union as the exclusive collective-bargaining representative of the members of Arzie Dennis' chicken-catching crews. I will recommend that it be required to adhere to the terms and conditions of any collective-bargaining agreements concluded by the Union with Dennis covering those crews and that it notify the Union and offer to bargain collectively with it concerning potential layoffs of such employees or transfers of work performed by such em- ployees. I further recommend that the Respondent be re- quired to reinstate to their former or substantially equiv- alent employment all the crew members who were laid off on March 20, 1983; namely, Raymond Smith, Cray Rowley, Richard Foreman, Preston Smith, Larry Brid- dick, Garfield Timmons, Joe Bell, and Richard Parker, and that it make them whole for any losses that they have suffered, in accordance with the Woolworth formu- la,15 with interest thereon at the adjusted prime rate used by the Internal Revenue Service for computation of tax payments. Olympic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716 (1962). Inas- 's F. W. Woolworth Co., 90 NLRB 289 (1950). 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD much as a determination of the amounts due to fringe 1213 (1979). I also recommend that the Respondent be benefit funds, both in contributions and penalties, may be required to post the usual notice advising its employees more difficult to compute, I will leave the determination of their rights and of the results in this case. of interest due on such payments to the compliance stage [Recommended Order omitted from publication.] of this proceeding . Merryweather Optical Co., 240 NLRB