Dick Gore Real Estate

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 999 (N.L.R.B. 1993)

999
312 NLRB No. 147
DICK GORE REAL ESTATE
1 See also Allegany Aggregates, 311 NLRB 1165 (1993).
2 Millard Processing Services, 304 NLRB 770, 771 (1991) (Mem-
ber Raudabaugh dissenting on the application of the test to the facts
of the case), citing Sunset Line & Twine Co., 79 NLRB 1487, 1508
(1948).
3 Contrary to the Union’s contention, we do not find that the mere
presence of Gobin at the jobsite on an almost daily basis, by itself,
or in combination with the Respondent’s other actions, placed Gobin
in the position of having apparent authority to deal with the Union
on the Respondent’s behalf. Gobin was present at the jobsite to per-
form his duties coordinating subcontractors.
Member Raudabaugh agrees with his colleagues that Gobin had no
actual or apparent authority to act for the Respondent during the in-
cident in question, and that he was therefore not then acting as the
Respondent’s agent. Accordingly, Member Raudabaugh finds it un-
necessary to pass on the judge’s finding that Gobin was a ‘‘piece-
work’’ employee rather than an independent contractor. In either
case, the Respondent was not liable for his conduct during the inci-
dent in question.
4 Because we find that Gobin was not acting as an agent of the
Respondent at the time of the incident, we find it unnecessary to
pass on whether Sec. 8(a)(1) would have been violated if Gobin had,
in fact, been an agent of the Respondent.
D.G. Real Estate, Inc., d/b/a Dick Gore Real Estate
and Northwest Indiana District Council of Car-
penters. Case 25–CA–22132–1
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 28, 1993, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Charging Party Union filed exceptions and a support-
ing brief, and the Respondent filed a cross-exception
and a brief in opposition to the Union’s exceptions.
The Union filed an answering brief in opposition to the
Respondent’s cross-exception.
The National Labor Relations Board has considered
the decision and the attached record in light of the ex-
ceptions and briefs and has decided to affirm the
judge’s rulings, findings and conclusions and to adopt
the recommended Order.
In adopting the judge’s finding that the Respondent
was not responsible for the threats to union members
by its job coordinator, Ralph Gobin, we agree with the
judge, for the reasons stated by him, that Gobin was
not a supervisor or general agent of the Respondent.
We also agree with the judge’s finding that Gobin
lacked apparent authority to make the threats at issue
in this case on behalf of the Respondent. In this re-
gard, we find no merit to the Union’s contention that
the Respondent had placed Gobin in a position where
he had apparent authority to deal for it with the Union.
Thus, the Union notes that Gobin was present at the
construction site on an almost daily basis, that the Re-
spondent’s president, Dick Gore, introduced Gobin to
picketers as the Respondent’s real estate agent, and
that Gobin accompanied Dick Gore to a union meet-
ing.
In determining apparent authority, the Board applies
the standard endorsed in Dentech Corp., 294 NLRB
924, 925 (1989), quoting from Service Employees
Local 87 (West Bay Maintenance), 291 NLRB 82
(1988):1
Apparent authority is created through a mani-
festation by the principal to a third party that sup-
plies a reasonable basis for the latter to believe
that the principal has authorized the alleged agent
to do the acts in question. NLRB v. Donkin’s Inn,
532 F.2d 138, 141 (9th Cir. 1976); Alliance Rub-
ber Co., 286 NLRB 645, 646 fn. 4 (1987). Thus,
either the principal must intend to cause the third
person to believe that the agent is authorized to
act for him, or the principal should realize that
this conduct is likely to create such a belief. Re-
statement 2d, Agency § 27 (1958, Comment). Two
conditions, therefore, must be satisfied before ap-
parent authority is deemed created: (1) there must
be some manifestation by the principal to a third
party, and (2) the third party must believe that the
extent of the authority granted to the agent en-
compasses the contemplated activity. Id at § 8.
The burden of proving any type of agency relationship
is on the party asserting the relationship.2
Applying these principles to this case, we find that
the General Counsel did not meet his burden of estab-
lishing that Gobin had apparent authority to act on be-
half of the Respondent at the time of the incident. Al-
though the Respondent’s president, Dick Gore, intro-
duced Gobin to union picketers as the Respondent’s
real estate agent and had Gobin attend a union meeting
with him, we find that these limited and ambiguous ac-
tions fell far short of providing any reasonable basis
for union members to believe that Gobin was author-
ized to deal with the Union on behalf of the Respond-
ent.3 Accordingly, we find, like the judge, that Gobin
did not possess apparent authority to deal with the
Union on behalf of the Respondent at the time of the
alleged violation. Therefore, the Respondent did not
violate Section 8(a)(1) of the Act.4
ORDER
The recommended order of the Administrative Law
Judge is adopted and the complaint is dismissed.
Merrie Thompson, Esq., for the General Counsel.
Kenneth A. Jenero, Esq., for the Respondent.
Paul T. Berkowitz, Esq., for the Charging Party.
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Case 25–CA–22112–2 previously consolidated with this case for
purposes of trial has been severed from this proceeding and settled.
Accordingly, those portions of the formal documents in this proceed-
ing which apply only to Case 25–CA–22112–2 are not in evidence.
2 All dates are 1992.
3 Gobin is a partner in a construction company not affiliated with
Respondent.
4 I am persuaded this painting was the work of a union sym-
pathizer, probably a picket, inasmuch as they several times called
Gobin a rat (or rat bastard) as he passed them, and one of them even
wore a rat suit.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This case
was litigated before me at Portage, Indiana, on March 26,
1983, pursuant to charges filed by the Union on September
2, 1992, and complaint1 issued November 12, 1992, alleging
that Respondent has violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by the conduct of its super-
visor and agent, Ralph Deon Gobin, on about August 30,
1992, in brandishing a rifle and threatening to shoot employ-
ees and picketeers because of their union and concerted ac-
tivities. Respondent denies it has violated the Act.
The issues raised by the pleadings and the evidence are
two. The first is whether Gobin was a supervisor and/or an
agent of Respondent when the conduct occurred. The second
is whether his conduct violated the Act. Upon the entire
record, and after considering the demeanor of the witnesses
and the posttrial briefs of the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and I find that
at all times material to this proceeding Respondent, a cor-
poration with an office and place of business in Portage, In-
diana, and various jobsites in the Portage area, has been en-
gaged in the retail sale of homes and real estate, and in the
construction industry as a general contractor in the construc-
tion of such homes, and during the 12-month period ending
September 1, 1992, in conducting its business operations de-
scribed above in subparagraph 2(a), derived gross revenues
in excess of $500,000 and purchased and received at its fa-
cility goods valued in excess of $50,000 from other enter-
prises, including Wolohan Lumber, located within the State
of Indiana, each of which other enterprises had received
goods directly from points outside the State of Indiana. Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
During the summer of 1992,2 Respondent was constructing
houses on a piece of land divided into 56 units and named
Bel Air VII. After preliminary development of the site by
laying out and cutting roads and installing sewers, water
lines, and other utilities, Respondent subcontracted the actual
construction of the homes to independent contractors. Re-
spondent then hired Ralph Deon Gobin as a coordinator to,
as the title implies, coordinate the scheduling of the sub-
contractors so that they arrive at the site to perform their par-
ticular function in the proper sequence and at the proper
time, and to ensure the subcontractors build according to the
preestablished plans and specifications.
From late May to mid-September, the Union conducted
area standards picketing of the Bel Air VII site. Gobin and
his wife lived in a house which he built at his own expense3
in that development at the end of Tulip Avenue which runs
in a straight line from the entrance to the site where the pick-
eting was going on until it dead ends in front of Gobin’s
house which fronts on Joann Street. When Gobin returned
from a fishing trip on June 27, he discovered someone had
used black paint spray to write ‘‘rat bastard’’ in large letters
on his garage door.4 Removal of the graffiti and repainting
of the door by Ferguson Decorating, Inc., a company with
no apparent connection to Respondent or Gobin, cost $235.
When the defacement of the garage door was brought to the
attention of James Hornak, the Union’s business representa-
tive present at the picket site, the Union either, as Hornak
states, offered to send some men to paint the door or, as
Gobin recalls, said they would take care of the repair. In any
event, Gobin had it painted, sent the bill to the Union, and
has not been repaid by the Union. The defacement of the ga-
rage door frightened Gobin’s wife, a victim of multiple scle-
rosis, to the point of hysteria.
On Sunday, August 30, about 3 p.m., Gobin returned to
his home from a veterans’ function after drinking beer for
some 3 hours. As later events will show, he was intoxicated.
As he drove through the picket line enroute to his house, one
of the pickets called him a rat bastard. Reaching home, he
called the police and reported this incident at 3:16 p.m.
Thereafter he sat in his porch swing. The police stopped by
briefly in response to his call, and left after advising they
could do nothing about the name calling. Several minutes
later, three of the pickets, Victoria Hedger, Curt Yeager, and
Mike Gajewski, who were members of a union committee set
up to organize residential carpenters, decided to walk down
Tulip Avenue to Joann Street, turn to the right, and talk to
several people constructing a house on Joann Street three or
four lots away from Gobin’s house about the advantages of
union membership. As they got within a hundred feet or so
of Gobin’s house, he raised a rifle above his head, not point-
ing it at them, and warned them. Hedger states Gobin said
he was going to shoot them if they got too close. Yeager re-
calls Gobin saying he would shoot them if they came on his
property. According to Gajewski, he heard Gobin say things,
he doesn’t remember exactly what, but Gobin said to leave
him alone and if they didn’t leave someone was going to get
hurt. Gobin testified that he said, ‘‘Don’t come any closer to
my house. If you do, whichever one of you want to go first?
Whichever one, come on.’’ Considering the intoxicated con-
dition of Gobin when he issued his warning, which casts
some doubt on his recollection, together with the various ver-
sions offered by the three union people and the uncontested
fact he did have a rifle in his hand and brandished it in the
air in such a fashion the pickets started calling him Cochise,
I am persuaded that, whatever the exact words were, Gobin
1001DICK GORE REAL ESTATE
5 Sec. 2(11) of the Act provides: ‘‘(11) The term ‘supervisor’
means any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to di-
rect them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.’’
6 Bay Area-Los Angeles Express, 275 NLRB 1063, 1073 (1985).
7 Chicago Metallic Corp., 273 NLRB 1677, 1680 (1985); Bay
Area-Los Angeles Express, supra; RAHCO, Inc., 265 NLRB 235, 248
(1982).
by his words and actions conveyed a threat to repel the three
with his rifle if they entered his property. This message per-
suaded Yeager and Gajewski to retreat to the picket line. Of
sterner stuff or foolhardy, I shall not guess which, Hedger
proceeded to her goal without further incident, talked to the
working employees as planned, and returned to the picket
line.
Gobin had called the police on his portable telephone
when the three employees began their walk in his general di-
rection. He states he did so because he did not know what
they were going to do and because his house had previously
been vandalized. After the pickets returned to their starting
point, Gobin drove down to the picket line and had started
to talk to Hornak when the police arrived. Gobin was then
given sobriety tests, failed them, and was arrested at 3:39
p.m. and charged with public intoxication. The police con-
fiscated his Winchester 308 rifle which had three live rounds
in its magazine. Several months later he pleaded guilty to the
charge and was placed on probation.
B. Contentions and Conclusions
The General Counsel contends the conduct of Gobin on
August 30 violated Section 8(a)(1) of the Act because Gobin
was then a supervisor and general agent of Respondent who
was therefore responsible for his conduct. The Union agrees.
Respondent denies Gobin was anything more than an inde-
pendent contractor or was clothed by Respondent with any
authority sufficient to render Respondent responsible for his
acts.
Respondent has no employees other than Gobin on the Bel
Air VII site, and there is no evidence he supervised any of
Respondent’s employees elsewhere. The only evidence that
Gobin ever exercised any supervisory authority5 over anyone
flows from the testimony of Douglas Woods, who credibly
states that on a few occasions while he was employed by
Gore Companies at Bel Air VII, the respondent in Case 25–
CA–22112–2 which has been settled and severed from this
proceeding and a subcontractor at Bel Air VII, Gobin in-
structed him to move some materials, perform some con-
struction tasks, and, on one occasion, work overtime. Woods
concedes however that he acquiesced to Gobin’s direction
because Todd Gore, the president of Gore Companies, in-
structed him to so do after Woods questioned Todd Gore
concerning Gobin’s authority over him. This would indicate
that Gobin possessed some supervisory authority on behalf of
Gore Companies, but it does not show Respondent gave
Gobin such authority. With respect to Woods’ testimony that
Gobin said he was a supervisor, it is not credited, but even
if credited it has no probative weight because it is beyond
question that an individual may not by his own ipse dixit
make himself an agent of another. There is no charge against
Gore Companies or Todd Gore before me, nor is there any
showing Todd Gore was acting for Respondent when he told
Woods to follow Gobin’s instructions.
With respect to the argument that Dick Gore held Gobin
out as a general agent of Respondent by having Gobin ac-
company him to speak with the Union’s representative, all
the record shows is that when Dick Gore asked Gobin to go
with him to the picket line Dick Gore did so because Gobin
was a union member, and there referred to Gobin as a real
estate agent. I am persuaded that Dick Gore probably had
some idea the presence of Gobin, a union member, might
contribute to an amiable relationship between Respondent
and the picketing union. Nothing in this conduct warrants a
finding of supervisory or general agent status for Gobin, nor
does the fact he later accompanied Dick Gore to a meeting
with the Union, in which Gobin has not been shown to have
been an active participant rather than a mere observer. The
notion advanced by General Counsel that the circumstance
that Gobin and Respondent used the same attorney is signifi-
cant in assessing Gobin’s status is rejected.
With respect to the supervisory issue, the few incidents to
which Woods refers are, at best, isolated and infrequent inci-
dents of supervision which do not prove Gobin was a super-
visor.6 Moreover, the Board has agreed on several occasions
that it has a duty to employees to be alert not to construe
supervisory status too broadly because the employee who is
deemed a supervisor is denied employee rights which the Act
is intended to protect.7 There simply is not enough evidence
before me to establish gobin was or is a statutory supervisor
of Respondent.
Respondent’s argument that Gobin was an independent
contractor at the time of the incident in question is also with-
out merit. In determining this issue I have noted the Board’s
teaching in Operating Engineers Local 701 (Lease Co.), 276
NLRB 597, 600–601 (1985) that:
In determining whether individuals are employees or
independent contractors under the National Labor Rela-
tions Act, the Board is required to apply common law
agency principles. See NLRB v. United Insurance Co.,
390 U.S. 254 (1968). Under this approach, ‘‘there is no
shorthand formula or magic phrase that can be applied
to find the answer, but all of the incidents of the rela-
tionship must be assessed and weighed with no one fac-
tor being decisive.’’ Id. at 258. The predominant con-
sideration is whether the employer reserves not only the
right to control the results of the work in question, but
also the manner and means by which those results are
accomplished. Other relevant factors are set forth in Re-
statement 2d, Agency. [Footnote omitted.]
Gobin is a journeyman carpenter and a union member, but
does not currently work as a carpenter. He now has three
areas of employment. He is a real estate agent for Dick Gore
Real Estate, is a one-third owner in a general construction
firm in which Respondent, its officers, and its owner have
no financial interest, and currently works for Respondent,
who calls him a job coordinator and an independent contrac-
tor. There is no written agreement between Gobin and Re-
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Joyce Sportswear Co., 226 NLRB 1231, 1234 (1976).
9 Bricklayers Local 6 (Key Waterproofing), 268 NLRB 879, 882
(1984). 10 See, e.g., G. H. Hess, Inc., 82 NLRB 463 fn. 3 (1949).
spondent. Their oral arrangement is that Gobin receives
$1000 when a house whose construction he has coordinated
is sold. He receives no fringe benefits, pays his own ex-
penses, and has no income tax, social security, or other
withholdings from the $1000 received. George Richard
(Dick) Gore, Respondent’s president, personally engaged all
the subcontractors for his development at Bel Air VII after
the various building plans and specifications and preliminary
ground work had been prepared by him and his staff, not in-
cluding Gobin. Thereafter, Gobin was charged with making
sure the subcontractors perform their duties in a construction
sequence consistent with the preestablished plans and speci-
fications to which they must adhere while so performing.
Gobin, who is skilled in the construction of homes, has au-
thority to detect and call the attention of these subcontractors
to deviations from the plans and specifications that such de-
viations may be corrected. He is the only coordinator em-
ployed by Respondent on the Bel Air VII development.
The failure to pay on a regular salary basis, to deduct
taxes and social security payments from commission checks,
or to reimburse an employee for job related expenses have
been held to be indications of independent contractor status.8
It has also been held that ‘‘oral agreements, providing for in-
dividual services which are readily terminable, are inconsist-
ent with independent contractor status.’’9 Gobin has no guar-
antee of continued employment as a coordinator so far as this
record shows, and his employment appears to depend upon
the judgment of Dick Gore who is free to terminate Gobin
at will, barring some intervening state statute or precedent.
These pro and con considerations are, however, not decisive
factors in the instant case. The controlling factor concerning
his alleged status as an independent contractor is his inability
to vary the plans and specifications to which subcontractors
must adhere. The governing items were given to Gobin for
scheduling and, if necessary, enforcement, but Gobin has no
independent discretion concerning how he conducts his co-
ordinating duties. All it amounts to is routine notification to
subcontractors when the construction of a house has reached
the stage where their contribution is required, which is deter-
mined by the established order of construction, i.e. floors,
walls, roof, etc., and the house plans agreed upon between
Richard Gore and the purchaser, and monitoring of the sub-
contractor’s progress to guarantee compliance with the plans.
Gobin, in his function as a coordinator, acts as an experi-
enced employee who is not a supervisor but is entrusted with
this mission of advising subcontractors it is time for them to
perform their portion of the construction in accord with the
established plans and specifications prepared by Gobin’s su-
perior, or to rectify deviations therefrom. Compare Knogo
Corp., 265 NLRB 935, 936–237 (1982) (Iris Gonzalez).
Gobin is obviously an agent of Respondent for the purpose
of notifying subcontractors to commence work in a timely
fashion consistent with the preestablished work sequence
controlled by the building specifications and plans approved
by Respondent or to correct construction errors. These admo-
nitions to subcontractors are statements of requirements rath-
er than mere suggestions, and therefore must be complied
with. This is not, however, enough to establish Respondent
is vicariously liable for statements Gobin might make to em-
ployees, as distinguished from subcontractors. Mack’s Super-
markets, 288 NLRB 1082, 1087 (1988). Gobin was con-
trolled in his conduct by Respondent’s plans and specifica-
tions and cannot be said to have had any right to vary their
enforcement. The results were accomplished consistent with
Respondent’s set plans with the manner and means of that
accomplishment left in the control of the subcontractors. All
Gobin could do was bring variations from Respondent’s
plans and specifications to the attention of the subcontractors
and report them to Respondent’s president Gore where the
authority to enforce the subcontracting agreements resided.
Gobin was simply an employee on a piecework basis and not
an independent contractor, and his agency status was limited
to his dealings with subcontractors and not their employees.
Gobin was not a supervisor, independent contractor, or a
general agent of Respondent, but, according to the General
Counsel and the Union, he had sufficient apparent authority
to lead the pickets to believe he was speaking and acting for
Respondent on August 30. In Star Color Plate Service, 279
NLRB 576 (1986), the Board noted ‘‘Under the doctrine of
apparent authority, the test for determining whether an em-
ployee is an agent is whether, under all circumstances,
[other] employees would reasonably believe the employee in
question was reflecting company policy and speaking and
acting for management,’’ citing Community Cash Stores, 238
NLRB 265 (1978), and further explained in Communications
Workers Local 9431 (Pacific Bell), 304 NLRB 446 (1991),
that apparent authority is the result of an express or implied
manifestation by a principal to a third party that another is
his or her agent. There is no indication Respondent engaged
in any antiunion conduct or displayed antiunion animus at
any level warranting even a suspicion Respondent instigated
or condoned a level of behavior equivalent to that of Gobin
or, indeed, any lesser conduct because Respondent opposed
the picketing or union activity in general, nor is there any
evidence Dick Gore led anyone to believe Gobin was his
agent for anything but the coordinating work described here-
in.
Here, we have an intoxicated man standing on his own
porch in his bare feet on a Sunday, waving a rifle in the air,
and threatening to defend his property against trespass. I can-
not believe that any rational person could seriously believe,
considering the reasonably peaceable relations between the
pickets and Respondent but for some verbal harassment and
the defacement of Gobin’s garage door which could reason-
ably be considered conduct by a union sympathizer although
not necessarily a picket, this bizarre conduct of Gobin re-
flected Respondent’s policy or that he was speaking and/or
acting for management.
Gobin was not acting as an agent of Respondent when he
threatened the three union members on Sunday, August 30,
and they had no valid reason to believe he was. If the Board
should conclude otherwise, there remains the question of
whether his conduct violated the Act. The time-honored
test10 is whether the conduct in question, objectively viewed,
reasonably tended to interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed them in Section
7 of the Act. Hedger, Yeager, and Gajewski, although not
Respondent’s employees, were employees within the mean-
1003DICK GORE REAL ESTATE
11 See, e.g., Little Rock Crate & Basket Co., 227 NLRB 1406
(1977).
12 See, e.g., Van Leer Containers v. NLRB, 943 F.2d 786 (7th Cir.
1991).
13 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ing of the Act.11 When they set out as members of a union
committee to interview other employees and attempt to inter-
est them in union membership, they were engaged in pro-
tected union activity and protected concerted activity. The
question therefore is whether Gobin’s conduct had the re-
quired tendency to interfere, restrain, or coerce, and therefore
violated the Act. Gobin’s words and actions clearly reason-
ably tended to restrain and coerce the three from entering his
premises, but those words and actions were not directed at
their protected activity or their progress any place but onto
his property. That two of the three abandoned their journey
because Gobin said and did what he did or that one did not
is not dispositive of the issue. It is settled that employees’
subjective reactions to conduct does not determine its lawful-
ness.12
Gobin’s words and actions, inexcusable as they were, had
no reasonable tendency, objectively viewed, to interfere with,
restrain, or coerce the three in the exercise of their right to
traverse the public streets to their destination where their in-
tent was to promote prounion sympathies.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The complaint is dismissed.