F & F Construction Co., Inc., and Roland L. Barker, d/b/a R. L. Barker Construction Company

National Labor Relations Board - Board Decisions

Jul 8, 1982

262 N.L.R.B. 735 (N.L.R.B. 1982)

F & F CONSTRUCTION CO., INC.
F & F Construction Co., Inc., and Roland L. Barker,
d/b/a R. L. Barker Construction Company and
Laborers State of Indiana District Council and
Local Union 120 Laborers International Union
of America. Cases 25-CA-8627, 25-CA-7132,
and 25-CA-8156
July 8, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On January 28, 1982, Administrative Law Judge
Robert T. Wallace issued the attached Supplemen-
tal Decision in this proceeding. Thereafter, Re-
spondents filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and brief and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, and
hereby orders that the Respondents, F & F Con-
struction Co., Inc., and Roland L. Barker, d/b/a R.
L. Barkei Construction Company, Brownsburg, In-
diana, their officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
,SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge:
These proceedings were the subject of a consolidated
Decision and Order of the National Labor Relations
Board, issued on May 5, 1978, in which Respondent F &
F Construction Co., Inc., was ordered to make whole
certain workers employed by it during a period extend-
ing from December 9, 1974, to April 1, 1979, for any loss
of earnings they may have suffered as a result of its com-
mission of unfair labor practices in violation of Section
8(a)(l), (3), (4), and (5) of the National Labor Relations
Act. On April 28, 1979, the United States Court of Ap-
peals for the Seventh Circuit entered its Judgment en-
forcing the Board's Order.
Subsequently, a controversy arose over implementa-
tion of the Order; and, on November 7, 1980, the Re-
262 NLRB No. 98
gional Director of the Board for Region 25 issued a
backpay specification which, as amended, was the sub-
ject of a hearing before me at Indianapolis, Indiana, on
June 15-17, 1981. Prior thereto, by an amendment effec-
tive May 18, 1981, Roland L. Barker, d/b/a R. L.
Barker Construction Company, was added as a Respond-
ent. All parties were given full opportunity to partici-
pate, to introduce evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to submit written
briefs. Briefs, which have been carefully considered,
were filed by the General Counsel and separately by
both Respondents.
Upon the entire record, and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE ISSUES
In the specification, the Regional Director alleges that
approximately $840,000 (plus interest accrued to the date
of payment) is due to 3431 employees. The formula used
by the Regional Director in calculating the amounts due
each of those employees and the correctness of his calcu-
lations are not in dispute. Neither is the entitlement of
286 of the 343 employees. As to the remaining 57 em-
ployees, Respondent F & F contends that during the per-
tinent period they were employed as supervisors or in
job classifications not included within the bargaining unit
of employees affected by the Order; i.e., laborers, except
"rodding crew," and operating engineers. In addition,
Respondent R. L. Barker asserts that there is no basis in
law or fact for adjudging him personally liable for com-
pensating any of the employees of F & F. Those are the
only issues present in this proceeding, and they are con-
sidered seriatim below.
II. ANALYSIS AND CONCLUSIONS
Based upon his analysis of the evidence, counsel for
the General Counsel claims, on brief, that 33 employees
are shown to be entitled to approximately $265,780 back-
pay.2 As to those employees, F & F (through its presi-
dent, Roland L. Barker) claims nonentitlement because 7
were foremen, 6 were mechanics, 10 were rodders, 4
were truckdrivers, 3 were concrete finishers, and 4 were,
respectively, a welder, a carpenter, a policeman, and a
former owner.
Before proceeding to consider evidence relating to the
actual status of the 33 employees, a comment concerning
"burden of proof" is appropriate. As always, that burden
rests in the first instance on the moving party, here the
General Counsel. But, in backpay proceedings the Gen-
eral Counsel has the benefit of a presumption that em-
ployees discharged or laid off as a result of unfair labor
practices are entitled to some compensation, N.LR.B. v.
I The specifuation contains the names of 345 employees but 2 were
listed twice; i.e., Robert E. Shoulders is also listed as Eugene R. Shoul-
ders, and Charles E. Stout and Charles F. Stout refer to the same individ-
ual.
i ! find no basis in the record for awarding backpay to any of the re-
maining 24 employees for whom compensation was claimed by the Re-
gional Director.
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mastro Plastics Corporation, 354 F.2d 170, 178 (2d Cir.
1965), cert. denied 384 U.S. 972 (1966); and a primae facie
case is established upon a simple showing of gross
amounts those employees would have received but for
the employer's illegal conduct. Virginia Electric and
Power Company v. N.LR.B., 319 U.S. 533 (1943). When
such a showing has been made "the burden is upon the
employer to establish facts which would . . . mitigate
that liability." N.L.R.B. v. Brown & Root, Inc., et at, 311
F.2d 447, 454 (8th Cir. 1963). In this supplemental pro-
ceeding, however, no presumption applies because eligi-
bility for rather than the amount of backpay is at issue.
Accordingly, it is incumbent on the General Counsel to
provide evidence sufficient to sustain an informed deter-
mination that the 33 employees in question were within
the categories of employees covered by the Board's
Order; i.e., laborers (except rodding crew) or operating
engineers.
A. Status of Employees
Seven employees are shown to have worked for F &
F as "foremen" of crews of laborers. Of those, five (Fred
Wilson, Ralph Bonar, Sam Mynatt, Troy Sweet, and
Virgil McCloud) were never told they had, nor did they
exercise, any of the attributes of supervisors set forth in
Section 2(11) of the Act. Typically, their crews ranged
in size from two to eight men, and they spent virtually
all of their time doing the same work performed by
crewmembers; e.g., shoveling dirt, using jackhammers,
laying pipes, and pouring concrete. They did not read
blueprints and their instructions to crewmembers were
minimal since jobs were repetitive and most of the men
knew how to accomplish given tasks. They were paid on
an hourly basis and had no authority to hire, fire, disci-
pline, or reward employees, nor could they assign men
to particular crews. When discipline arose, invariably
they referred the involved employees to Roland Barker
and he determined what, if any, punishment was appro-
priate. In these circumstances, I find that the named indi-
viduals were in fact laborers. s However, in the case of
the remaining two "foremen," I find that one (Sam
Sproles) possessed throughout the pertinent period one
or more characteristics of a supervisor and that the other
(Max Miller) worked as a laborer through April 7, 1975,
and thereafter had supervisory responsibilities.
Seven employees are shown to have had involvement
with F & F's repair facility during the pertinent period.
Of those, two (Clifford Jarrett and Robert Wiggington)
performed no work on vehicles or equipment. The
former worked full-time on "yard cleaning" (e.g., stack-
ing lumber and pipes); and the latter spent 10 percent of
his time doing similar yardwork and he spent the rest of
his worktime using a jackhammer digging trenches for
conduit. It also appears from the testimony of Charles
Hamstra and Troy Sweet that the situation of Gene Wig-
gington was similar to that of this nephew Robert. Ac-
cordingly, the two Wiggingtons and Jarrett are found to
be laborers. Of the remaining four individuals three were
3 Although Ralph Bonar did not appear at the hearing, the testimony
of Fred Wilson warrants an inference that the former performed the same
functions and had the same responsibilities as the latter.
mechanics and one was a welder. Two of the mechanics
(Ronald Hendershot and William Myers) worked primar-
ily on equipment (dump trucks) not ordinarily manned
by operating engineers and, therefore, are found to lack
entitlement under the Board's Order. However, the third
mechanic (Charles Hamstra) and the welder (Gregory
Zents) are shown to have spent substantial portions of
their time working on field equipment and so reproperly
classified as operating engineers under the applicable col-
lective-bargaining agreement with Local Union No. 103
of the Operating Engineers.
Ten workers 4 assertedly were members of rodding
crews engaging in cleaning operations involving insertion
of metal rods through conduits. Assuming that "rodders"
are not in fact laborers, the evidence shows that the 10
individuals did rodding work only sporadically and that
they spent most of their time digging ditches, using jack-
hammers, and performing other work typically of a kind
normally performed by laborers. Accordingly, I con-
clude that they were laborers within the meaning of the
Board's Order. Similarly, two men (Canada Boyd and
Roosevelt McKinney) claimed to have been concrete fin-
ishers are shown to have spent very little of their time
actually finishing concrete. Instead, their primary work
was that of laborers. The same is true with regard to the
four s alleged truckdrivers. Over their respective employ-
ment periods, driving jobs were relatively infrequent and
even then were incident to their work as laborers.
James Proctor worked for F & F during a 3-week
period. He dug ditches, shoveled concrete, and used a
rake. He did no carpentry work as alleged.
The final two employees whose status is in question
are James Hammer and Frank Jones. The former is al-
leged to have worked for F & F in the capacity of traffic
policeman and the latter is claimed to lack entitlement to
any backpay because he was a former owner of F & F.
Although neither appeared at the hearing it appears from
the testimony (1) of Robert Walters that Hammer was a
policeman who, when off-duty, worked as a member of a
crew of laborers and, as need arose, donned his uniform
and directed traffic, a function that was performed by
other members of the crew in his absence; and (2) of Re-
spondent Roland Barker that Jones worked for F & F as
an operating engineer during the third quarter of 1978, a
period long after he had ceased to have any ownership
interest in that Company. Accordingly, I conclude that
Hammer and Jones worked, respectively, as laborer and
operating engineer within the pertinent period.
B. Alter Ego Issue
The unfair labor practices for which F & F was found
responsible in the Board's decision were committed
while Roland Barker was F & F's sole owner, president,
and official in charge of day-to-day operations, e.g.,
hiring, formation of work crews, and discipline Indeed,
he is shown in that decision to have been the supervisor
who effectuated most of those practices. However, he
I Roger Brown, Charles Kernodle, Maurice Malicoat, Robert Mitchell,
Ralph Mynatt, Bobby Ray Shoulders, Robert E. Shoulders, Paul Stier-
walt, Craig Tucker, and Terry Wilber.
6 Roger Fordyce, John Hopkins, Larry Roberts, and George Stevens.
736
F & F CONSTRUCTION CO., INC.
was not named as a respondent either in the unfair labor
practice charge or in the original complaint. He contin-
ued as sole owner and chief operating official of F & F
until March 1, 1979. On that date, approximately 8
weeks before the court of appeals affirmed the Board's
decision, he caused F & F to cease doing business and
simultaneously advised customers that services would
continue to be provided by him as an individual doing
business as R. L. Barker Construction Company. Thus,
in a circular-type letter dated March I, 1979, sent to the
customer from whom F & F received approximately 90
percent of its revenues in 1978 (Indiana Bell Telephone
Co.), he stated:
This is to inform you that at the end of February
1979, we have ceased doing business as "F & F
CONSTRUCTION COMPANY, INC." Beginning March
1, 1979, a new company is being formed and will be
known as "R. L. BARKER CONSTRUCTION COMPA-
NY."
We will be at this same location, 1605 N. Coun-
try Club Road, Indianapolis, Indiana, until our new
building is completed, hopefully, the latter part of
spring. We will be moving to Brownsburg, Indiana,
on St. Rd. 136E.
Our New mailing address will be "P.O. Box 125
Brownsburg, Indiana, 46112." However, we will
still be using our post office in Speedway, Indiana,
until we have completed and cleared up all of our
business transactions with "F & F CONSTRUCTION
COMPANY, INC."
We will keep the phone number 271-2821 while
we are here at this location, however, approximate-
ly, the 16th of March, we are changing the number
271-3642 to our new Brownsburg number 852-
8979.
We wish to thank you for your business and if
you should have any questions concerning the
above, please feel free to contact us.
Enclosed with that letter was a detailed listing of his
rates for labor and use of construction equipment which
was identical to F & F's then current schedule of rates.
The asserted reason for discontinuance of operations
by F & F is that Barker felt that customers still persisted
in identifying that Company with its former owners
(Frank Jones and Findley Davidson) and he wanted the
public to know that he was in control of operations.
As an individual proprietor, Barker performed essen-
tially the same construction services that had been pro-
vided by F & F, using the same type of equipment and
many of the same employees. As contrasted with F & F,
however, only 50 percent of his total revenues in 1979
and 1980 ($456,061 and $431,264, respectively) were de-
rived from pipelaying operations for Indiana Bell. The
other 50 percent was obtained through an expansion of
residential-type work, such as pouring asphalt for drive-
ways, building swimming pools, and constructing septic
systems. In addition, Barker's construction services were
performed generally within a 50-mile radius of Indiana-
polis, whereas F & F operated on a statewide basis.
Barker opened a swimming pool supply store at his new
facility in Brownsburg and made his repair shop at that
location available to the general public for auto body
work. Although Barker's brother (Eugene) served as
secretary/treasurer of F & F, the latter had no involve-
ment with Barker Construction Company.
At the time of the hearing herein, F & F held as its
only asset an unspecified amount representing proceeds
from sale of its office/garage facility in Indianapolis.
In these circumstances, I have no hesitation in con-
cluding that Roland Barker, d/b/a R. L. Barker Con-
struction Company, is simply "another face" or the alter
ego of F & F. Barker is shown as sole owner and chief
operating official of both companies, and in the latter ca-
pacity was the supervisor responsible for most of the
unfair labor practices found in the Board's decision. Sub-
sequent to that decision he chose to discontinue oper-
ations of F & F and proceeded immediately to perform
essentially the same operations as an individual propri-
etor. In effect, this entailed "a mere technical change in
the structure or identity of the employing entity . . . to
avoid the effect of the labor laws," and Barker "is in re-
ality the same employer and is subject to all the legal
and contractual obligations of the predecessor." IHoward
Johnson Co., Inc. v. Detroit Local Joint Executive Board,
Hotel & Restaurant Employees & Bartenders International
Union, AFL-CIO, 417 U.S. 249, fn. 5 (1974).
Respondent Barker also contends that the Board lacks
jurisdiction over him because his proprietary operations
are not shown to have been performed "in commerce"
or "to have affected commerce" as those terms are de-
fined in Section 2(6) and (7) of the Act. But, such a
showing is not necessary where, as here. Barker is found
to be the alter ego of Respondent F & F. As such lie is
derivatively liable for backpay due discriminatees result-
ing from unfair labor practices of F & F. In factr howex-
er, I find that the requisite jurisdictional shoswing has
been made since Barker received in excess of $5)0,(X)1 an-
nually for services performed for an employer (Indiana
Bell) which provides a link in the interstate telecommu-
nications network. See Jurisdictional Standards, issued
October 2, 1958, as amended.
Finally, citing Rose Knitting Mills. Inc., and Boclaire
Fabrics, Inc.. 237 NLRB 1382 (1978), Barker argues that
the case against him should be dismissed because he was
not made a respondent herein until 1 month before the
hearing in this supplemental proceeding. However, in
Southeastern Envelope Co., Inc., et al.. 246 NLRB 423
(1979), the Board reversed Rose Knitting !Mills to the
extent it differed from prior policy as expressed in C'o.s
Delivery Service. Inc., 198 NLRB 1026. 1027 (1972), and it
quoted with approval language in the latter decision, as
follows:
It is well established that liability for backpay
. .may be imposed upon a party to a supplemen-
tal proceeding, even though [it] had not been a
party to the proceeding in which the unfair labor
practices were found if [it] was sufficiently closely
related to the party . . . [which] committed the
unfair labor practices ....
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here, Barker's relationship to F & F has been found to
be that of an alter ego. In addition, the principal inequity
perceived in Rose Knitting Mills does not exist here be-
cause Barker did not establish his proprietary business
until long after issuance of the Board's decision in the
unfair labor practice case. Further, and wholly apart
from nonapplicability of the doctrine of laches as a de-
fense to a backpay obligation (N.L.R.B. v. J. H. Rutter-
Rex Manufacturing Company, Inc., 396 U.S. 258 (1969)),
the Regional Director here appears to have moved to
amend the backpay specification with due diligence after
learning of the proprietary operations, and Barker had
ample notice and opportunity to address the alter ego
issue in this proceeding.
ORDERs
The Respondents, F & F Construction Co., Inc., and
Roland L. Barker, d/b/a R. L. Barker Construction
Company, Brownsburg, Indiana, their officers, agents,
successors, and assigns, shall pay to the discriminatees
listed on pages 141 through 144 of the amended backpay
specification the amounts (plus interest thereon accrued
* In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
to the date of payment as specified in Florida Steel Cor-
poration, 231 NLRB 651 (1977), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), minus any tax with-
holdings required by Federal or state laws) there set
forth next to their names, except (1) that the amount due
Max Miller shall be recomputed to include only compen-
sation for work performed up to and including April 7,
1975, with interest, and (2) that no backpay is required to
be paid to the following individuals:
Donald Adams
Donald R. Adams, Sr.
Dennis Barker
Scott Barker
David Cassell
Gene Cassell
David A. Caudill
Johny Culcross
Donald Downs
John T. Guy
Ronald C. Hendershot
Glen Lewis
Johnnie C. Malicoat
William P. Malicoat
William Rudy Myers
Eugene Napier
Frank L. Napier
Lige Napier, Jr.
Carlton Robinson
Eugene A. Smith
Sam Sproles
Robert J. Stokes
Charles E. Stout
Wayne R. Stwalley
Kermit Walker
Robert Walters
Gilbert Yentes
IT IS FURTHER ORDERED that the amended backpay
specification be an is hereby dismissed as to the individ-
uals named immediately above.
738