G. Wes Ltd. Co.

National Labor Relations Board - Board Decisions

Oct 13, 1992

309 N.L.R.B. 225 (N.L.R.B. 1992)

225
309 NLRB No. 33
G. WES LTD. CO.
1 The caption is amended to reflect the correct name of Respond-
ent Environment Technology of Fort Wayne, Inc.
2 We find no merit in Respondent Environment Technology’s ar-
gument regarding certain allegations in the General Counsel’s
posthearing brief. The Respondent states that the General Counsel’s
brief, which alleges that the unfair labor practices occurred on July
10, 1990, failed to conform with the allegation contained in the com-
plaint, which alleges that the unfair labor practices occurred ‘‘on or
about July 11, 1990.’’ The judge found the unfair labor practices oc-
curred on July 10. The Respondent complains that it was prejudiced
and would have adduced other evidence had it been on notice of the
precise date that was at issue. We reject this argument, as the com-
plaint allegation that the unfair labor practices occurred ‘‘on or about
July 11, 1990’’ put the Respondents on notice of the timeframe in-
volved, and there is no dispute that the Respondents at hearing were
fully apprised of and litigated the incident at issue. See Haynes Sat-
ellite Co., 136 NLRB 95, 98 (1962), enf. denied on other grounds
310 F.2d 844 (6th Cir. 1962).
3 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all of the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In finding that Environment Technology unlawfully refused to hire
employee Leo Saahir for antiunion reasons, we do not rely on the
judge’s finding that no union members were hired during the picket-
ing.
In the first sentence of the second paragraph of the section of the
judge’s decision entitled ‘‘The Dismissal of Joseph Gray,’’ the date
‘‘July 11’’ should be ‘‘July 17.’’
4 We affirm the judge’s findings that Environment Technology
violated the Act by interrogating employees Gray and Saahir and re-
fusing to hire Saahir. In providing a remedy for Environment Tech-
nology’s refusal to hire Saahir, we shall correct the judge’s failure
to provide for backpay to be computed in accordance with the for-
mula in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
in accordance with New Horizons for the Retarded, 283 NLRB 1173
(1987). Finally, we shall order Environment Technology to remove
any reference from its files to the refusal to hire Saahir and to notify
him in writing that this has been done.
5 The judge cited one instance in which Environment Technology
interviewed an employee, Richard Poe, who later became a G. Wes
employee. Environment Technology excepts to the introduction of
evidence pertaining to this incident on the basis that it occurred 3
months after the alleged unfair labor practice.
Assuming the evidence is properly admissible, we do not believe
that one isolated incident occurring 3 months after the alleged unfair
labor practice is proof that Environment Technology controlled G.
Wes’ hiring. See International Shipping Assn., 297 NLRB 1059,
1067 (1990).
G. Wes Limited Company and Environment Tech-
nology of Fort Wayne, Inc.1 and Joseph Gray.
Case 8–CA–22907
October 13, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 28, 1992, Administrative Law Judge
Elbert D. Gadsden issued the attached decision. The
Respondents filed exceptions and supporting briefs,
and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings,2 findings,3 and con-
clusions only to the extent consistent with this Deci-
sion and Order.4
1. The judge found that Respondents G. Wes Lim-
ited Company (G. Wes) and Environment Technology
of Fort Wayne, Inc. (Environment Technology) are
joint employers and therefore jointly liable for the un-
fair labor practices found. We disagree.
Separate entities will be found to constitute joint
employers for purposes of the Act where one entity
shares or codetermines those matters governing the
terms and conditions of employment of the other enti-
ty’s employees, such as hiring, firing, discipline, super-
vision, and direction. Laerco Transportation & Ware-
house, 269 NLRB 324, 325 (1984). Applying that test
here, we conclude that Environment Technology does
not exercise sufficient control over the terms and con-
ditions of employment of G. Wes’ employees to sup-
port a joint employer finding.
There is no dispute that the employers are separate
entities, with separate financial control and separate
management. Further, each employer determines for
itself the wage and benefit package it pays to its re-
spective employees. They maintain separate payroll
records, and they pay worker’s insurance, worker’s
compensation, and unemployment compensation funds
separately. G. Wes contracts with other general con-
tractors to supply labor for asbestos removal.
We find further that the evidence fails to establish
that either Respondent exercises control over the oth-
er’s employees with regard to hiring, firing, or dis-
cipline. With regard to hiring, the evidence indicates
that each Respondent conducts separate interviews of
job applicants and makes separate hiring decisions
without contacting the other. The subcontract between
Respondents provides that Environment Technology
has no right to reject any employee hired by G. Wes
and that Environment Technology cannot request la-
borers by name.5
There is no evidence that either Respondent ever
disciplined employees of the other. As noted above,
the subcontracting agreement between the Respondents
does not allow Environment Technology to terminate
any G. Wes employee. The judge nevertheless found
that Environment Technology fired G. Wes employee
Joseph Gray. Contrary to the judge, we find no evi-
dence to indicate that Environment Technology Super-
visor May made any determination to terminate Gray
or that he recommended to Ileogben that Gray be
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Accordingly, we shall reverse the judge’s finding that Environ-
ment Technology violated Sec. 8(a)(3) by terminating Gray.
7 That Ileogben did not investigate the report as to Gray’s condi-
tion does not establish that the decision to terminate was made by
May. What is significant is that it was Ileogben who determined that
the conduct as reported was serious enough to warrant discharge.
8 We attach no significance to the fact that G. Wes employees oc-
casionally called Environment Technology instead of G. Wes when
reporting that they were going to be absent for the day, as it is ex-
pected that employees would inform their onsite supervisor whether
they would be appearing for work. We further note that there is no
evidence Environment Technology granted or denied leave to any G.
Wes employee.
9 The only other evidence consisted of Environment Technology
Supervisor May’s testimony that he oversaw the job and ‘‘was there
to get the job done as best and as good and as fast as possible.’’
10 We cannot conclude that Environment Technology caused or at-
tempted to cause G. Wes to fire Gray for antiunion reasons. The
complaint did not allege and the parties did not litigate this theory.
Cf. International Shipping Assn., 297 NLRB 1059 at 1059 (1990)
(where employer found not to be a joint employer of discriminatees,
Board held that employer was not liable for refusing to employ or
offer reemployment to discriminatees, but was liable for attempting
to cause and causing another employer to refuse to hire them, a mat-
ter clearly encompassed by the complaint and fully litigated). We
further find no basis for the judge’s unexplained conclusion that En-
vironment Technology was independently liable for Gray’s dis-
charge, even if no joint employer status were found.
fired.6 Rather, G. Wes’ vice president, Pius Ileogben,
decided to fire Gray after receiving information from
May that Gray showed up intoxicated at the jobsite be-
fore his starting date. Ileogben later discussed the mat-
ter with G. Wes’ president, Gail Wesley, and another
G. Wes manager.7
Although Environment Technology supervisors su-
pervised G. Wes employees onsite on a day-to-day
basis, we find that the evidence concerning the extent
of the supervision is insufficient to establish a joint
employer relationship.8 The evidence shows that the
employees in question were trained and certified asbes-
tos abatement workers. There is no record evidence
showing that the supervisors instructed G. Wes em-
ployees specifically how to do the work or the manner
in which they were to perform the assigned tasks. The
limited evidence in the record concerning the super-
vision of asbestos abatement workers consisted of testi-
mony by the supervisor of another employer’s asbestos
abatement project, who stated that such workers were
told what areas were to be worked and with whom the
employees were to work, and the work was then left
to the employees to perform.9 The General Counsel
thus has failed to adduce specific evidence to establish
that Environment Technology’s supervision was any-
thing but limited and routine in nature. As the Board
has stated, ‘‘[M]erely routine directions of where to do
a job rather than how to do the job and the manner
in which to perform the work’’ are insufficient to sup-
port a joint employer finding. Island Creek Coal Co.,
279 NLRB 858, 864 (1986).
We conclude that the absence of G. Wes supervision
onsite and the oversight of the project by Environment
Technology supervisors does not warrant a finding that
Environment Technology was a joint employer of the
workers furnished by G. Wes to perform the asbestos
removal.
Accordingly, in the absence of evidence that hiring,
firing, processing of grievances, administration and ne-
gotiation of contracts, granting of vacations or leaves
of absence, or discipline were determined jointly by
the Respondents, the General Counsel has failed to es-
tablish that G. Wes and Environment Technology share
or codetermine the essential terms and conditions of
employment of the employees. We therefore reverse
the judge’s finding of joint employer status.
2. The judge, based on his joint employer finding,
concluded that G. Wes was liable for Environment
Technology Supervisor May’s unlawful interrogations
of Gray and Saahir and refusal to hire Saahir. Having
reversed the judge’s joint employer finding, we find no
basis for concluding that G. Wes was liable for Envi-
ronment Technology’s unlawful acts. We also note that
G. Wes was not even alleged in the complaint to have
been liable for May’s refusal to hire Saahir.
The judge also found that Environment Technology,
through Supervisor May, terminated G. Wes employee
Gray because he was a union member. He found G.
Wes jointly liable for the discharge, based again on his
finding that Environment Technology and G. Wes
were joint employers. Having reversed the judge’s
joint employer finding and his finding that Environ-
ment Technology fired Gray,10 and because there is no
evidence that May was acting for G. Wes or that G.
Wes’ decision to terminate Gray was independently
motivated by antiunion reasons, we find no basis for
concluding that G. Wes violated the Act by discharg-
ing Gray.
Accordingly, all allegations against G. Wes are dis-
missed.
CONCLUSIONS OF LAW
1. By coercively interrogating employees about their
union affiliations, Respondent Environment Tech-
nology has violated Section 8(a)(1) of the Act.
2. By refusing to hire an applicant for employment
because of his union affiliation, Respondent Environ-
ment Technology has discriminated against the appli-
cant in violation of Section 8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board orders that Re-
spondent, Environment Technology of Fort Wayne,
Inc., Fort Wayne, Indiana, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
227G. WES LTD. CO.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Unlawfully interrogating employees and prospec-
tive employees or applicants for employment about
their union affiliation.
(b) Discriminatorily refusing to hire an applicant for
employment because of his union affiliation.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Leo Saahir immediate and full employ-
ment which he would have enjoyed if he were not re-
jected on the Polsky job in July 1990 or, if such posi-
tion no longer exists, to a substantially equivalent posi-
tion without prejudice to seniority or any other rights
or privileges that he would have enjoyed, and make
him whole for any loss of earnings and other benefits
suffered by reason of the discrimination against him,
with interest.
(b) Expunge from its records any reference to the re-
fusal to hire Saahir for employment in July 1990, and
notify him in writing that this has been done and that
evidence of the unlawful conduct will not be used as
a basis for future personnel actions against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility copies of the attached notice
marked ‘‘Appendix.’’11 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT unlawfully interrogate employees and
prospective employees or applicants for employment
about their union affiliation.
WE WILL NOT discriminatorily refuse to hire an ap-
plicant for employment because of his union affili-
ation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer to Leo Saahir immediate and full
employment which he would have enjoyed if he were
not rejected on the Polsky job in July 1990 or, if such
position no longer exists, to a substantially equivalent
position without prejudice to seniority or other rights
or privileges he would have enjoyed, and make him
whole for any loss of earnings and other benefits suf-
fered by reason of the discrimination against him, with
interest.
WE WILL remove from our records any reference to
our refusal to hire Saahir for employment in July 1990,
and notify Saahir in writing that this has been done
and that evidence of the unlawful conduct will not be
used as a basis for future personnel actions against
him.
ENVIRONMENT TECHNOLOGY OF FORT
WAYNE, INC.
Susan E. Fernandez, Esq., for the General Counsel.
John Holcomb, Esq. and Keith Praytel, Esq. (Millisar &
Nobil), of Cleveland, Ohio.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. A
charge of unfair labor practices was filed on July 30, 1990,
by Joseph Gray, an individual (Gray or the Charging Party),
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
against G. Wes Limited Company (Respondent G. Wes Lim-
ited) and Environmental Technology of Fort Wayne, Inc.
(Respondent Environmental Technology).
In essence the complaint alleges that Respondent G. Wes
Limited and Respondent Environmental Technology are joint
employers, and that by interrogating an applicant for employ-
ment concerning his union membership and activities, Re-
spondents, as joint Respondents, interfered with, restrained,
and coerced employees for employment in the exercise of
rights guaranteed them in Section 7, in violation of Section
8(a)(1) of the Act; that by refusing to hire an applicant-em-
ployee for employment because the applicant-employee
joined, supported, or assisted the Union, and engaged in
other concerted activities, the Respondents have interfered
with, restrained, and coerced applicant-employees in the ex-
ercise of rights guaranteed in Section 7, in violation of Sec-
tion 8(a)(1) of the Act, that by refusing to hire an employee
because he is a member of the Union Respondents have dis-
criminated against an applicant for employment, in violation
of Section 8(a)(1) and (3) of the Act; and that by terminating
the employment of the Charging Party because he joined,
supported, or assisted the Union and engaged in other con-
certed activities for purposes of collective bargaining and
mutual aid or protection, and discouraging membership in the
Union, Respondents have discriminated against the Charging
Party in violation of Section 8(a)(1) and (3) of the Act.
Respondent Environmental Technology filed an answer to
the complaint on November 13, 1990, and Respondent G.
Wes Limited filed an answer on November 28, 1990, respec-
tively, denying that either has engaged in unfair labor prac-
tices as set forth in the complaint.
The hearing in the above matter was held before me on
April 11 and 12, 1991, in Akron, Ohio. Respondent G. Wes
Limited has elected to proceed without legal representation
in this proceeding. Briefs have been received from counsel
for the General Counsel and counsel for Respondent Envi-
ronmental Technology and from Respondent G. Wes Lim-
ited, respectively, which have been carefully considered.
On the entire record in this case, including my observation
of the demeanor of the witnesses, and my consideration of
the briefs filed by the respective representatives, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent G. Wes Limited is an
Ohio corporation with its principal office and place of busi-
ness in Columbus, Ohio, where it is engaged in providing
labor to entities engaged in asbestos removal.
In the course and conduct of its business operations, Re-
spondent G. Wes Limited annually provides services valued
in excess of $50,000 to other enterprises located within the
State of Ohio, which are engaged in commerce on other than
an indirect basis.
Since the complaint alleges that G. Wes Limited annually
provides services valued in excess of $50,000 to other enter-
prises located within the State of Ohio, which are engaged
in commerce on other than an indirect basis, and Respondent
G. Wes Limited does not specifically deny such facts, but
simply denies the allegation because it is without information
sufficient to form a belief as to the truth of the remainder
of the allegation, I find that Respondent G. Wes Limited is,
and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
At all times material Respondent Environmental Tech-
nology is and has been an Indiana corporation with its prin-
cipal office in Fort Wayne, Indiana, where it is engaged in
asbestos removal, including removal of asbestos from build-
ings located in Akron, Ohio.
In the course and conduct of its business operations, Re-
spondent Environmental Technology annually purchases
goods and materials valued in excess of $50,000 directly
from points located outside the States of Indiana and Ohio,
and receives those goods and materials at its facilities in the
State of Indiana and its State of Ohio jobsites.
The complaint alleges, the answer admits, and I find that
Respondent G. Wes Limited is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges that the International Laborers
Union, Local 894 (the Union) is now, and has been at all
times material, a labor organization within the meaning of
Section 2(5) of the Act.
In its answer, G. Wes Limited denied the allegation that
the Union is a labor organization simply because it is without
information sufficient to form a belief as to the truth of the
allegation.
Respondent Environmental Technology filed an answer,
denying the allegation that the Union is a labor organization
simply because it is without information sufficient to form a
belief as to the truth of the allegation.
At the hearing Kenneth C. Holland, business manager of
the International Laborers Union, Local 894 for the past 2
years, testified that employees attend and participate in union
meetings and engage in picketing activity; that the Union
deals with employers concerning employee grievances, labor
disputed; that the Union negotiates contracts on behalf of the
employees; and that on July 5, 1990, 35 or 40 pickets of his
organization picketed Respondent Environmental Technology
at the Polsky project, Akron, Ohio, until an injunction reduc-
ing the number of pickets was issued by the court July 18,
1990. All picketing activity ceased around July 28, 1990.
After the court’s order on July 18, 1990, less pickets were
limited to picket at the entrances to the parking lot. The peti-
tion for the injunction was filed solely by Environmental
Technology.
Based on the foregoing uncontroverted and credited testi-
mony of the Union’s business agent and the legal action
taken by Environmental Technology, I find that the Inter-
national Laborers Union, Local 894 (the Union) is now, and
has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The complaint alleges that Respondent G. Wes Limited
(G. Wes) and Respondent Environmental Technology (Envi-
ronmental Tech) are joint employers and that they jointly
violated the Act by: (1) interrogating employees and appli-
cants for employment about their union affiliation; (2) that
229G. WES LTD. CO.
Respondents discriminated against an applicant by refusing
to hire him because he was a member of the Union; and (3)
Respondents discriminated against an employee by discharg-
ing him because of his membership in the Union.
B. The Business Operating Relationship of Respondent
G. Wes and Respondent Environmental Tech
The complaint alleges that Respondent G. Wes and Re-
spondent Environmental Tech are joint employers. Both Re-
spondents deny they are joint employers and both maintain
that they are separate and independently operated entities.
Notwithstanding, since both Respondents entered into a busi-
ness arrangement for the removal of asbestos on the Polsky
project in Akron, Ohio, wherein Environmental Tech is the
contractor on the jobsite and G. Wes is the subcontractor,
furnishing some of the laborers to do the job, their relation-
ship in carrying out the contractual-subcontractual obligations
will be examined for joint employer status.
Hiring Manpower for the Polsky Job
In hiring laborers for the Polsky job, Pius Ileogben of G.
Wes, interviewed Frankie Walker in the spring of 1990 at
Columbus, Ohio. Pius interviewed Walker again at a hotel in
Akron, Ohio, on July 9, 1990. After Walker presented his
certificate and medical report, Pius told Walker he was hired
and furnished him with a mask-respirator.
Walker started to work July 16, 1990, on the day shift.
Two weeks later he testified he told his night supervisor he
was a member of the Union. Two weeks thereafter he was
switched to the night shift where he worked under the super-
vision of Phil May, and sometimes Bob Lowe of Environ-
mental Tech. Walker was furnished with wirecutters, scaf-
folds, ladders, hammers, crowbars, and asbestos bags by En-
vironmental Tech.
Mark Fuller applied for a job on the Polsky project at G.
Wes in Columbus, Ohio, in May 1990. Pius, of G. Wes,
interviewed him and told him he was hired. Fuller accepted
the position but did not report for work because he found
other work. Nevertheless, Fuller testified that during the
interview with Pius, the latter asked him was he in the
Union. Pius did not deny he asked Fuller was he in the
Union and Fuller’s certificate indicates it was issued by Ohio
Laborers Training and Upgrading Trust Fund and Fuller had
presented his certificate to Pius.
Subsequently, Fuller applied for the Polsky job at Environ-
mental Tech in Akron, Ohio. He talked with Project Super-
visor Ed May on several occasions. Eventually, in August
1990, Ed May hired him and Fuller presented his certificate
and evidence of medical examination. His certificate of train-
ing was issued by Ohio Laborers Training and Upgrading
Trust Fund. Another worker was hired on the Polsky job the
next day by Pius of G. Wes.
Paul DeBose, a member of the Union, was interviewed for
the Polsky job in Akron by Supervisor Ed May October 10
or 15, 1990. DeBose testified he was not asked anything
about his union affiliation although he presented his certifi-
cate to Supervisor May, which indicates it was issued by
Ohio Laborers Training and Upgrading Trust Fund.
DeBose testified without dispute that 2 days after he was
on the job (December 1 or 2), Environmental Tech’s legal
counsel, John Holcomb, Esq., asked him about his attitude
and also whether the Employer was fair to union workers.
He replied, ‘‘yes,’’ and Holcomb asked him if he would tes-
tify in the upcoming (instant) Board proceeding. DeBose said
he told Holcomb he did not think he (DeBose), as a union
member, should volunteer to testify but he would appear if
he were subpoenaed. Holcomb did not suggest what he
should testify about. The charge in this proceeding had been
filed since July 30, 1990, and the complaint was issued Octo-
ber 31, 1990.
Holcomb, who represents Respondent Environmental Tech
in this proceeding, did not testify or deny that he held the
above-described conversation with DeBose. Since I was per-
suaded by the demeanor of DeBose that he was testifying
truthfully, I credit his undisputed account.
Richard Poe was interviewed at the Polsky jobsite by En-
vironmental Tech’s supervisor, Ed May, and he started to
work October 6, 1990. Poe gave his certificate to May,
which indicates it was issued to Poe by Ohio Laborers Train-
ing and Upgrading Trust Fund. Poe testified he did not speak
with Pius of G. Wes. However, he said he received his W-
2 form at the end of the year from G. Wes. Poe’s pay
records bear the name G. Wes, who paid him. (G.C. Exhs.
2a–j). Project Supervisor Ed May admitted he interviewed
Richard Poe but testified Poe was hired by G. Wes. May’s
testimony in this regard is consistent with G. Wes’ pay
records and Poe’s testimony about his W-2 form.
Richard Poe further testified that he is a member of the
Union but that he did not so inform Supervisor May and the
latter did not ask him about his union affiliation. He said he
worked under the supervision of Bob Adams of Environ-
mental Tech, and he worked until March 11, 1991, when the
Polsky job was completed. He acknowledged some laborers
were laid off prior to him because the job was winding
down, and that some of those laborers laid off were non-
union.
Finally, Poe testified that during his last week on the job
(March 2), Supervisor Ed May asked him if he would testify
in the instant case on behalf of G. Wes, by whom Poe under-
stood he was employed. His testimony is not denied by May
and having been persuaded by the demeanor of Poe, I credit
his testimony.
Brian McKnight was interviewed in October or November
1990 at the Polsky jobsite by Environmental Tech’s project
supervisor, Ed May. Also present was someone named Tom,
of Environmental Tech. McKnight is a member of the Union.
He testified that although Ed May saw his certificate show-
ing it was issued by Ohio Laborers Training and Upgrading
Trust Fund, he did not ask him about his union affiliation
and he was hired and worked under the supervision of Bob
Adams.
McKnight testified that on his first day on the job he had
a conversation with Supervisor Ed May and Tom as follows
(Tr. 84–85):
A. Well, we met downstairs, I was saying to Ed May
and Tom, the job supervisor, they said Dick Poe and
Fred would work with G. Wes and I would be working
for them, E. T. I would be making less money, that the
$3.00 would go into a fund. And I said, Well I’d rather
work for G. Wes because I’d rather not work for this
fund, and they said, well, it’s like money in the bank
because you’ll receive your money in 30 days after the
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The above-corroborated evidence is essentially uncontroverted
and I credit it because I was persuaded by the demeanor of Gray
and Saahir that they were telling the truth, and there is no reason
to discredit them.
2 The above testimonial account of Gray and Saahir is essentially
corroborated, each by the other.
job. Well, they lied to me. I haven’t got my money yet.
It takes six weeks to find out—six months to get my
money and they’re taking $200 for secretarial fees or
something like that.
Q. So actually we did not—G. Wes Limited did not
have anything to do with U.S. on that job?
A. No E.T.
McKnight further testified that a portion of his wages was
to be deducted as a contribution to the pension fund. On his
second day on the job he was laid off because he was un-
aware his certification had expired. He was recertified and
when he returned to the job, Tom asked to see his certifi-
cation and he presented it (ET Exh. 11) to him. It is noted
that McKnight’s old and new certification (ET Exh. 11) does
indicate they were issued by ‘‘Ohio Laborers Training and
Upgrading Trust Fund.’’ McKnight said he had no dealings
with G. Wes.
The Union, Local 894 commenced picketing the Polsky
project on July 5, until July 28, 1990.
The Alleged Discriminatees
Joe Gray, a member of the Union, was interviewed for a
job on the Polsky project by Pius at G. Wes, Columbus,
Ohio, in the spring of 1990. He showed his certification and
medical report to Pius and filled out an application for em-
ployment. Pius tentatively assured Gray a job. About 8
weeks later (early July), Gray received a letter from Pius of
G. Wes, inquiring about his (Gray’s) availability. Gray re-
sponded in person for an interview by Pius in a hotel in
Akron, Ohio. Pius hired and issued Gray and two other la-
borers, respirators for which each of them signed. In a letter
dated July 8, 1990, Gray was advised by Pius to report for
work at Polsky on July 16, 1990, at 4 p.m.
Meanwhile, in April or May 1990, laborer Leo Saahir in-
quired of G. Wes about employment on the Polsky project.
Respondent G. Wes sent Saahir an application which he
completed and returned to G. Wes. In late June or early July
1990, G. Wes sent a letter to Saahir for an interview in Tal-
madge, Ohio. Saahir was interviewed there by Pius of G.
Wes, but Saahir was not offered employment.
In late June and early July 1990, both Joseph Gray and
Leo Saahir were working (asbestos removal) for Safety Envi-
ronmental Energy Group at a Fairlawn Elementary School
jobsite in Akron. Gray and Saahir testified that Gray had
heard from other workers that they were still hiring at
Polsky. Gray was already scheduled to report to work at
Polsky July 16, and Saahir had not been offered employment
there. Because union pickets were at the Polsky project and
Saahir had not been offered a job there, Gray suggested he
and Saahir go to Polsky during their lunch period, so he
(Gray) could see what if any gate he should enter on July
16, and Saahir could inquire about obtaining employment
there.1
On July 10, 1990, with Saahir driving his car, Gray and
Saahir left their Fairlawn school jobsite at 12 noon and drove
to the Polsky project where they had to park a block or two
away. When they arrived at the Polsky entrance, they saw
two men and a security guard. They asked to see the super-
visor, and Ed May of Environmental Tech identified himself.
Saahir testified that he asked Supervisor May if he was hir-
ing and he handed May his credentials. May asked him
(Saahir) did he belong to the Union and Saahir said, ‘‘Yes,
but I do non-union jobs.’’ While returning Saahir’s creden-
tials to him (Saahir), Saahir testified Supervisor May asked
him if he was presently a member of the Union. Saahir re-
plied, ‘‘Yes,’’ and May said, ‘‘Well we don’t hire Union
members.’’ He said he asked why not and May said because
the Union is picketing them (Environmental Tech). May
added, but ‘‘if you so desire, you can call our main office.’’
Saahir said he did not call the main office because he knows
from experience that if the foreman doesn’t want you on the
job you’re not going to be hired.
Joseph Gray testified he heard May tell Saahir Environ-
mental Tech was not doing anymore hiring. Otherwise,
Gray’s testimony essentially corroborates Saahir’s.
Thereafter, May told Gray who heard only parts of his
conversation with Saahir, to come into the Polsky door.
When Gray came out, Saahir said he and Gray left and re-
turned to work.
Joseph (Joe) Gray testified he approached the Polsky door
and told the security guard he worked there. Ed May came
over to Gray’s location immediately and Gray told May his
name and that he was employed by G. Wes. Gray said May
asked him did he belong to the Union and he said, ‘‘Yes but
he did not think that was a problem, because he worked on
Union and non-union jobs.’’ Gray did not present his certifi-
cation or medical report, probably because he was not report-
ing to work that day (July 10 or 11). May took Gray’s name,
told him he would check it out, and went into his trailer of-
fice a few feet away. Saahir was not immediately close
enough to hear the latter conversation with Supervisor May.
Gray said he and Saahir left the Polsky jobsite.2
With respect to the July Polsky visit by Gray and Saahir,
Project Supervisor Ed May testified that when Gray told him
he was supposed to work for him, he smelled alcohol on
Gray, who was acting very happy. He said he went into the
trailer to check on Gray, and he called G. Wes because, for
safety, they did not want anyone who was high on the job.
Gray did not have his paperwork (credentials) to present to
May so May called G. Wes and told Pius Gray reported to
work with no credentials and apparently intoxicated, and Pius
told May not to put Gray to work. May denied he had any
conversation with Saahir or that the latter had ever asked him
for work.
Also in a letter to the investigator in the instant case, Pius
of G. Wes Limited advised the investigator that on July 11,
1990, G. Wes representative on the Polsky job (Supervisor
May) called his Columbus office to verify whether Joe Gray
was an employee of G. Wes; and that Gray was reported
staggering and unable to conduct himself in a gentleman like
manner, with heavy ‘‘alcohol breath.’’
As scheduled, Gray reported for work at Polsky July 16
and a representative for Environmental Tech stopped him
and advised him he could not work at Polsky, took Gray’s
respirator, and told him to call G. Wes Limited. When no
231G. WES LTD. CO.
3 I was persuaded by the obvious exaggeration and the demeanor
of Finkbeiner that his testimony was not objective and truthful, and
I discredit his description of the incident that Gray and Saahir had
created a commotional confrontation effort and that they appeared to
be intoxicated. He mentioned his concern about the ongoing picket-
ing and the possibility of it disrupting the job work. Perhaps his con-
cern explains his exaggeration of the efforts of Gray and Saahir to
see Supervisor May. No other witness characterized the incident as
a confrontation or a commotion.
one called Gray that day, Gray called G. Wes the next day.
At that time, Gray asked Pius what happened to the Polsky
job. Pius told him he had been informed that he (Gray) and
another jobseeker had reported to Polsky intoxicated with a
bad attitude and were not wanted on the jobsite. Both Gray
and Saahir denied they were intoxicated or that either of
them had been drinking alcohol. Saahir said he is of the
Islam faith which forbids drinking, and he has not drank al-
cohol in 20 years. He said he has never seen Gray drunk or
using drugs.
Supervisor May denied he had any conversation with
Saahir and he specifically denied he asked Saahir was he in
the Union and Saahir said, ‘‘yes he was’’; or that he told
Saahir ‘‘we’re not hiring Union people because the Union is
picketing the Polsky project.’’
Supervisor May also denied he asked Gray was he a union
man, but acknowledged he wrote down Gray’s name and
called Pius of G. Wes, and told him Gray reported for work
without work papers and appeared to be intoxicated.
In support of Supervisor May’s contention that Gray ap-
peared intoxicated and ungentlemanly when he and Saahir
visited Polsky in July, Respondent presented the following
witnesses:
Officer Jeffrey Newman of the University of Athens Po-
lice Department testified he was present when Joe Gray and
Leo Saahir visited the Polsky job entrance. He testified he
told them unless they had business there they had to move
along because they had some trouble there with pickets. He
suspected they were under the influence of alcohol from an
odor of alcohol he thought he smelled. However, he said
after Gray and Saahir talked with Supervisor Ed May, they
left the project.
John W. Stachowiak, University of Akron Police Depart-
ment, testified that he was on duty when Gray and Saahir
visited the Polsky project in July and saw those two black
men at the corner of High and Center Streets. They appeared
happy and were boisterous—happy-go-lucky. He passed them
and as he continued his route around the building, a white
male shouted to his friends, ‘‘Hey, hey, I think those two
black guys took my wallet.’’ The General Counsel objected
at this juncture, but I overruled him in order to receive the
whole, seemingly unrelated, story and allow counsel for Re-
spondent an opportunity to establish an evidentiary connec-
tion.
Officer Stachowiak said he simply looked at the white
male who he thought might have approached or called him
to complain. Instead, the white male, with his companion,
looked at him and continued on their way. He did not talk
to the two black males and said he did not smell alcohol on
them nor see them staggering.
I find all of Officer Stachowiak’s testimony speculative
without probative substance, and failing to establish any rel-
evant connection to the testimony and issues in this case. In
fact his testimony failed to establish any wrongdoing on the
part of Gray or Saahir.
John Finkbeiner, architect for the State of Ohio overseeing
compliance of the plans on the Polsky job, testified that he
was present when Gray and Saahir visited the Polsky project.
It is particularly noted that Finkbeiner is the first and only
witness who described the efforts of Gray and Saahir to enter
the Polsky entrance as confrontational with the security offi-
cer and Supervisor Ed May. It is especially noted that neither
Supervisor May nor Officer Newman described Gray and
Saahir’s efforts to enter the project as a commotion or
confrontational. The credited evidence shows that both men
(Gray and Saahir) had an uncontroverted, valid, earnest, and
understandable interest to see the job supervisor (May), in an
effort to obtain work for Saahir and for Gray to observe the
scope of the picketing activity in progress. Both Officer
Newman and Supervisor May testified that, although Gray
and Saahir tried to enter the project, they were stopped by
Officers Newman and/or Stachowiak without any forceful or
resisting conduct, and they complied with the officers’ or-
ders.
Finkbeiner acknowledged he was not a part of the con-
versation between Gray and May and Saahir and, admittedly,
did not hear all the conversation. He failed to show that he
was near enough to Gray or Saahir to be able to smell alco-
hol and he did not testify he smelled alcohol on them.3
With respect to the testimony of Officer Newman regard-
ing a wallet, Gray testified that it was after leaving Polsky,
on their way back to Saahir’s car, not on their way to
Polsky, that he saw a wallet on the ground which he picked
up and handed to a guy who he thought dropped it. Saahir
testified he remembers Gray picking up the wallet and giving
it to a guy who he said had dropped it. The guy accepted
the wallet.
Gray denied he drinks or was drinking alcohol on the day
or the night before he and Saahir went to the Polsky project.
He said he has not drank since he was treated for drug and
alcohol abuse a few years ago. Leo Saahir testified that he
nor Gray had been drinking; that he is of the Islam faith
which forbids drinking, and he has not drank alcohol spirits
in 20 years.
The General Counsel presented a witness, in the person of
George Pappas, project manager of the Safe Environmental
Group, an enterprise engaged in asbestos removal. Pappas
testified that in July 1990 Safe Environmental Group was in-
volved in a job in public schools in Akron, Ohio. Both Joe
Gray and Leo Saahir worked on that job under his super-
vision. Payroll records on that job show that Gray and Saahir
worked full time July 9–15, 1990.
Pappas said he was on the job and supervised Gray and
Saahir daily July 9 through 12, 1990. He said at no time did
he ever observe behavior by Gray or Saahir which appeared
as either of them was intoxicated or under the influence of
drugs. He further testified he has seen other workers wearing
the mask who appeared intoxicated, and they had to remove
the mask and check out because they said they were ill,
which he interpreted as being unable to breathe properly be-
cause of not having recovered from intoxication.
The payroll records also show that on July 10, 1990, Gray
and Saahir were 30 minutes late returning from lunch and
were docked for 30 minutes. Pappas’ testimony and these
records support Gray and Saahir’s testimony that they went
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to Polsky and talked to Ed May on July 10, 1990. I credit
their testimony in this regard because the payroll records cor-
roborate it. Pappas testified that Gray and Saahir were work-
ing in either the boiler room or the crawl space that day. Al-
though he was within conversational distance of each of
them that afternoon, he said he did not smell any alcohol on
either of them, and did not note anything unusual about their
behavior, such as slurred speech, after they returned from
lunch. He said he has known Saahir and Gray in a working
capacity on other jobs over a period of 5 years, and has
never known or suspected either of them to be under the in-
fluence of alcohol or drugs.
As I observed Gray, Saahir, and particularly Pappas tes-
tify, I was persuaded by their demeanor that they were testi-
fying truthfully about the sobriety of Gray and Saahir on the
day the latter workers visited Supervisor May at the Polsky
jobsite. I therefore credit their testimony and discredit the un-
supported suspicions about their sobriety by Supervisor May,
Officer Newman, Office Stachowiak, or Architect Finkbeiner.
Consequently, based on the foregoing credited evidence, I
find that neither Joe Gray nor Leo Saahir was intoxicated or
under the influence of alcohol or other drugs when they vis-
ited Supervisor May at the Polsky project.
Gray’s Crimes of Theft and Fraud
Finally, Respondent introduced into the record the criminal
record of indictments and convictions of Joe Gray, with re-
spect to various crimes of fraud, theft, as well as his past use
of alcohol and drugs. Presumably, such evidence was submit-
ted by Respondent to challenge the credibility of Joe Gray,
with respect to his testimony that Supervisor May asked
Gray and Saahir were they members of the Union; May tell-
ing Saahir Respondent Environmental Tech was not hiring
anymore workers, or any more union members; and denying
that Gray or Saahir were intoxicated or under the influence
of alcohol when they visited supervisor May at the Polsky
jobsite.
However, while the authenticity of the criminal record of
Gray is not questioned, I have considered it, and I neverthe-
less credit Saahir and Gray’s account not only because I was
persuaded by their demeanor that they were testifying truth-
fully in this regard, but also because Gray’s account is cor-
roborated by Saahir who has no such criminal record. Addi-
tionally, Gray’s account regarding intoxication is also sup-
ported by the credited and corroborated account of Pappas
and other circumstantial evidence of record. Because the ac-
counts of Gray and Saahir are credited, perhaps the question
is raised why would Respondent Environmental Tech (May)
contend that Gray and Saahir were intoxicated, were under
the influence of alcohol, and ungentlemanly when they went
to the Polsky job July 10. In this regard, I find that it may
be reasonably and logically inferred from the credited evi-
dence of record that such contentions were contrived by Su-
pervisor May as a defense to the unfair labor practice
charges filed July 30, with the hope of concealing any pos-
sible finding that his real reason for not allowing Gray to
work and not hiring Saahir was because of their union mem-
bership and the ongoing picketing at the jobsite by Gray and
Saahir’s Union. May was apprised of their union affiliation
when, in response to May’s question, they acknowledged
they were members of the Union. Moreover, May saw
Saahir’s certification which indicated he was a union mem-
ber.
It may also be asked why would such a conclusion be
drawn or a finding made when the evidence of record shows
that Respondents Environmental Tech and G. Wes hired and
had in their employ on July 10 and 11, union and nonunion
employees. While the evidence of record does not specifi-
cally answer this question, I am persuaded that the evidence
is sufficient to logically conclude and find, as I do, that Re-
spondent Environmental Tech did not want to hire anymore
union workers on the jobsite while the Union was picketing
the Polsky jobsite. The picketing was in progress at the
Polsky project from July 5 to July 28, 1990.
Questions
Two questions raised by the foregoing evidence are wheth-
er (1) Project Supervisor Ed May asked Gray and Saahir
about their union affiliation during their July 10 visit to the
project, and (2) Ed May told Saahir he (Environmental Tech)
was not hiring union people because the Union was picketing
the Polsky job.
Conclusions
Supervisor May denied he asked Gray and Saahir about
their union affiliation, or that he told Saahir Respondent En-
vironmental Tech was not hiring any union people because
the Union was picketing the job. In evaluating the credibility
of Gray, Saahir, and May, it is noted that neither of Re-
spondents’ witnesses (Officer Newman, Officer Stachowiak,
nor Architect Finkbeiner) testified they overheard all or any
conflicting parts of the conversation May had with Gray
and/or Saahir. However, Saahir testified he told May he un-
derstood May was hiring and handed May his certificate,
etc., and May asked him was he a union member. Gray cor-
roborated Saahir’s testimony in this regard. When Saahir
said, ‘‘Yes, but I perform non-union jobs,’’ May asked, ‘‘Are
you still in the Union’’ and Saahir said, ‘‘Yes.’’ May then
told him ‘‘well, we don’t hire Union members because the
Union is picketing the job site.’’ Gray only heard May add,
Respondent Environmental Tech was not doing anymore hir-
ing. Saahir’s account is essentially corroborated by Gray and
May’s account is not corroborated and I credit the corrobo-
rated accounts of Gray and Saahir.
It is also noted that one of the reasons Gray and Saahir
went to Polsky during their lunch hour on July 10 was to
try to get Saahir employed on the Polsky job. I find it dif-
ficult to conceive of Gray, and especially Saahir, reporting
to Polsky intoxicated under the circumstances. After all, they
had just left work for Safety Environmental Group, and both
were intending, and did in fact return to work, even though
they were 30 minutes late in doing so. However, even their
late return to work is understandable, considering the dis-
tance they explained they had to go to get to Polsky and re-
turn, for which late return records show they were docked
30 minutes. Perhaps even more persuasive evidence that
Gray and Saahir were not drinking or under the influence of
alcohol is the credited testimony of their supervisor at Safety
Environmental Group, George Pappas.
Supervisor Pappas testified he saw Gray and Saahir at
close range before and immediately after lunch. He categori-
cally denied detecting any evidence (odor or behavior) of al-
233G. WES LTD. CO.
4 I fully credit George Pappas’ testimony because he is a disin-
terested third party in the outcome of this dispute, and I was per-
suaded by his demeanor that he was testifying truthfully. His account
is consistent with the corroborated and consistent testimony of Gray
and Saahir and I credit them and discredit Supervisor May’s
uncorroborated and unsubstantiated assertion.
cohol or use of substance abuse by either worker not only
on that day, but throughout their 4- or-5 year work history
on other jobs.4
With respect to May’s assertion that Gray and/or Saahir
were drinking, were intoxicated, or were under the influence
of alcohol, it is particularly noted that none of May’s (Re-
spondent Environmental Tech) witnesses actually corrobo-
rated or supported May’s assertion in this regard. More spe-
cifically, Officer Newman simply testified that he suspected
Gray and Saahir were under the influence of alcohol which
he thought he smelled. Newman did not offer any reasons or
other evidence to support his suspicion or what he thought
he smelled.
Officer Stachowiak testified he did not smell alcohol on
Gray or Saahir and he did not see them staggering.
Architect Finkbeiner testified that he did not get close
enough to Gray or Saahir to smell their breath and he did
not see them staggering as they walked.
Based on the foregoing credited testimony of George
Pappas, the nonsupporting testimony of Respondent Environ-
mental Tech’s witnesses, Newman, Stachowiak, and
Finkbeiner, I credit the corroborated testimony of Joseph
Gray and Leo Saahir that they were not intoxicated or under
the influence of alcohol or drugs when they went to Polsky
in July. Correspondingly, I discredit Supervisor May’s testi-
mony that either worker was in fact intoxicated or drinking
alcohol. Further, I find the above-credited testimony that Su-
pervisor Ed May did in fact ask Gray and Saahir whether
they were members of the Union; and that Supervisor May
told Saahir he (Respondent Environmental Tech) was not hir-
ing members of the Union.
Further supporting the above credibility resolutions that
Supervisor Ed May was not telling the truth when he told
Saahir Respondent Environmental Tech was not hiring union
members is the obvious analytical and rational reason why
May told Saahir Respondent was not hiring union members,
and why it did not hire Saahir. In this regard, May could
have simply told Saahir there were no openings or he was
not hiring. May probably did not tell Saahir that because it
was not in fact the truth, as Gray had previously heard he
was hiring. According to the uncontroverted and credited tes-
timony of Mark Fuller, Fuller was hired 2 or 3 weeks later,
in August 1990, and an employee named John, hired a day
later. Also, according to records and testimony, Richard Poe
was hired October 6, 1990.
In all probability, Respondent Environmental Tech (May)
was hiring on July 10 or preparing to hire within a few
weeks, since it actually hired laborers a few weeks after
Saahir’s July 10 visit to Supervisor May. Moreover, I was
persuaded by the demeanor of Saahir and Gray that they
were testifying truthfully that May asked them were they
members of the Union and that May told Saahir he was not
hiring union members. Also, it may be reasonably inferred
from any delay in May’s (Environmental Tech’s) hiring
union members between July 10 and 30, that such delay was
purposely avoided because the union picketing of the Polsky
project continued in progress until about July 28, 1990.
It is particularly noted that the charge in the instant case
was filed July 30, 1990, and Respondent hired Mark Fuller
a few days after termination of the picketing on August 6,
1990.
Environmental Tech (May) hired Mark Fuller, a known
member of the Union, who May testified had worked for him
on prior jobs. Fuller’s hiring was followed by the hiring of
union members Richard Poe on October 6 and Brian
McKnight in late October or early November 1990. Under
these circumstances, it may be reasonably inferred from such
actions by May, and I find, that May (Environmental Tech)
hired union members, Fuller, Poe, and McKnight after the
unfair labor practice charge was filed, to make it appear that
Respondent was not discriminating against union members.
Such action by Respondent, however, is not convincing in
the face of the fact that no union members were hired during
the picketing by the Union (July 5–28, 1990), even though
Saahir applied for work July 10 (during the picketing) and
was told union members were not being hired because the
Union was picketing the job.
Additionally, Joe Gray, who had in fact been hired and
was to start work July 16, 1990, was terminated on that date
by Supervisor May in collaboration with Supervisor Pius of
G. Wes. I further find that it is clearly established by more
than a fair preponderance of the evidence, that Supervisor
May’s rejection of Saahir and the termination of Gray by
May and Pius were actions consistent with what May had
told Saahir on July 10, that Respondent Environmental Tech
was not hiring union members because the Union was picket-
ing the job.
Based on the foregoing credited evidence, I find that Su-
pervisor May interrogated Joe Gray and Leo Saahir about
their union affiliation during their visit to the Polsky project
on July 10. Because Gray was already employed on the job
and May was his supervisor, I find May’s interrogation of
Gray was coercive, especially because May was asking the
question because the Union was picketing the job and, as
later found, infra, May did not want to hire anymore union
members while the picketing was in progress.
Although Saahir was not yet employed by either Respond-
ent on July 10, I nevertheless find that Supervisor May’s in-
terrogation was coercive because Saahir was applying for
employment at the time, and May interrogated him in order
to reject him if he were in fact a member of the Union. May
did not want to hire any more union affiliated workers on
the job because, as he explained to Saahir, the Union was
picketing Respondent Environmental Tech.
Under these circumstances, I find that Supervisor May’s
interrogation of Gray and Saahir was in violation of Section
8(a)(1) of the Act. Lassen Community Hospital, 278 NLRB
370, 374 (1986).
Based on the foregoing evidence, I find that Respondent
Environmental Tech (May), taking it at its word, refused to
hire Saahir and in fact terminated the employment of Gray,
because they were members of the Union and their Union
was picketing the Polsky job at the time. Because Supervisor
May’s conduct was taken because Saahir and Gray were
union members, it was discriminatory and in violation of
Section 8(a)(1) and (3) of the Act. Phelps Dodge Corp. v.
NLRB, 313 U.S. 177 (1941).
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Dismissal of Joseph Gray
Respondent Environmental Tech’s supervisor, May, said
he took Joe Gray’s respirator and declined to put him to
work when Gray reported to the jobsite July 16 because after
he called Pius of G. Wes on the day of Gray and Saahir’s
visit (July 10), he told Pius Gray was there claiming work
without work papers and was getting intoxicated.
Gray testified that when he called Pius the next day July
11 and asked him why was his Polsky job terminated, Pius
told him he had been informed by Supervisor May that Gray
and Saahir had reported to the jobsite intoxicated, with a bad
attitude, and they were not wanted on the job. When Pius
was asked during this proceeding why was Gray terminated,
Pius said ‘‘misconduct on the job site (July 10 or 11) was
one reason, because Gray should not have been at Polsky be-
fore July 16, and he could not be trusted in the work area.’’
Pius admitted he did not contact Gray to learn Gray’s version
of what transpired at the jobsite on July 10.
However, it has been found herein that neither Gray nor
Saahir had been drinking or was intoxicated when they saw
May at the Polsky project.
C. Whether Respondent Environmental Technology
Possessed Sufficient Control over the Employees
Supplied to It by Respondent G. Wes Limited to
Constitute the two Entities a Joint Employer
The compliant alleges that Respondent G. Wes Limited
and Respondent Environmental Technology are joint employ-
ers.
In this regard the evidence of record is without dispute
that at all times material, Respondent Environmental Tech-
nology is and has been, an Indiana corporation with its prin-
cipal office in Fort Wayne, Indiana, where it is engaged in
the removal of asbestos from buildings in various locations,
including the Polsky project in Akron, Ohio.
The same record evidence shows Respondent G. Wes Lim-
ited is an Ohio corporation with its principal office in Co-
lumbus, Ohio, where it is engaged in the business of provid-
ing labor to entities engaged in asbestos removal, such as
Respondent Environmental Technology.
Respondent G. Wes Limited has admitted that at all times
material, the following named persons have occupied the po-
sition set forth opposite their respective names: Gayle Wes-
ley, president and director; Pius Ilegoben, vice president and
director and project manager.
Likewise Respondent Environmental Technology admitted
that at all times material, the following named person occu-
pied the position set forth opposite his name: Edward (Ed)
May, project supervisor.
Otherwise, however, both Respondents deny the super-
visory status of the persons who occupy the positions which
each has acknowledged occupies the position opposite his or
her respective name. Notwithstanding, the uncontroverted
evidence shows that Gayle Wesley is president and director
of G. Wes Limited, and that both Pius Ilegoben and Edward
(Ed) May hire and fire employees; and that May gives direc-
tions and work assignments to employees on the job, as well
as permission to report late and leave early. By Gayle Wes-
ley holding the position she holds as head of G. Wes Lim-
ited, and the indicia of authority to hire and fire, admittedly
exercised by Pius Ilegoben and Ed May, I conclude and find
that Gayle Wesley, Ilegoben, and May are supervisors within
the meaning of Section 2(11) of the Act. Guarbo Lace Mills,
249 NLRB 658 (1980); Gatliff Business Products, 276
NLRB 543, 555 (1985).
As counsel for the Respondent argues, in determining joint
employer status, the Board has recognized the separateness
of two legal entities and the fact that there is arm’s-length
business transactions between them. However, it nonetheless
examines the business relationship of the two entities to de-
termine whether one entity exercises sufficient control over
the employees of the other, to the extent that it meaningfully
affects matters relating to the employment relationship, as
hiring, firing, discipline, supervision, and other conditions
subject to mandatory collective bargaining. Laerco Transpor-
tation, 269 NLRB 324, 325 (1984); United States Steel
Corp., 270 NLRB 1318, 1319 (1984).
In the instant case, pursuant to law, neither Respondent G.
Wes nor Respondent Environmental Tech may hire laborers
for asbestos removal unless each laborer has and presents a
required current certificate for such removal, and a written
statement that he or she has successfully completed a phys-
ical examination. The certificate frequently indicates the la-
borer’s Union affiliation.
Pursuant to the terms of the subcontracting agreement be-
tween Respondent G. Wes and Respondent Environmental
Tech, Respondent G. Wes has the authority to hire and fire
the laborers it supplies to the general contractor on the job
(here, Respondent Environmental Tech), and provide the em-
ployees with a respirator. However, the laborers supplied by
Respondent G. Wes take orders and directions from the su-
pervisors of the general contractor on the job (Respondent
Environmental Tech) (G.C. Exh. 8).
Also pursuant to the Respondents’ agreement the laborers
employed by G. Wes are to call G. Wes to report their ab-
sences, although the G. Wes employees did not always call
and report their absences to G. Wes. However, G. Wes’ man-
ager (Pius) called Environmental Tech’s job supervisor (Ed
May) at 8:30 every morning and supervisor May would in-
form G. Wes of any absences of G. Wes employees. On the
Polsky job, Respondent G. Wes paid health benefits pursuant
to the prevailing wage statute on employees it furnished Re-
spondent Environmental Tech, but G. Wes employees could
not purchase such insurance.
G. Wes paid workmen’s compensation for the employees
it hired and made a direct cash benefit to them for a pension
plan. G. Wes also paid the matching FICA contributions on
its employees wages. It paid the health care provider (River-
side Physicians Center) for its employees who resided in Co-
lumbus, Ohio, but employees who resided in Akron, Ohio,
could select their own health care, and G. Wes would reim-
burse them or the provider for physical examinations. G.
Wes also paid for retraining its employees.
Correspondingly, Respondent Environmental Tech also
subcontracted with AES on the Polsky job and AES employ-
ees could purchase health insurance through AES. Environ-
mental Tech’s employees also had a retirement plan whereby
$3 went into the plan for every hour the employee worked.
Respondent Environmental Tech paid the matching FICA
contributions and workmen’s compensation premiums on its
employees. Respondent G. Wes employees could not partici-
pate in any of Environmental Tech’s employee’s benefits.
235G. WES LTD. CO.
Pursuant to the terms of the subcontractual arrangement
with G. Wes, Environmental Tech did not possess the right
to reject laborers hired by G. Wes. Nor could Environmental
Tech terminate the employment of employees hired by G.
Wes.
Environmental Tech did not contact, discuss, or consult
with G. Wes prior to filing for the court injunction on July
20, 1990, against the union pickets at the Polsky jobsite.
Without consulting with each other, both Respondent G.
Wes and Respondent Environmental Tech responded inde-
pendently to the charge in the instant proceeding.
Conclusion
Examination and analysis of the relations of the business
operations between Respondent G. Wes and Respondent En-
vironmental Tech revealed the following evidence:
The record shows that Respondent G. Wes is an Ohio cor-
poration with its principal place of business in Columbus,
Ohio.
Respondent Environmental Tech is an Indiana corporation
with its principal office in Fort Wayne, Indiana. Both cor-
porations have separate management and ownership, and are
in fact separate entities.
The evidence further shows that the two entities (G. Wes
and Environmental Tech) are engaged in the same business
of asbestos removal from buildings, and that they entered
into a subcontractual arrangement whereby G. Wes, as sub-
contractor would supply laborers to Environmental Tech,
contractor, for removal of asbestos on the Polsky project job
in Akron, Ohio. The law recognizes separate entities entering
into such business relationships but in the event of a labor
relations dispute, it will examine their operations to deter-
mine to what extent they share or co-determine those matters
governing the essential terms and conditions of employment.
Boire v. Greyhound Corp., 376 U.S. 473 (1964); NLRB v.
Browning Ferris Industries, 691 F.2d 1117 (3d Cir. 1982),
enfg. 259 NLRB 148 (1981).
If it is factually determined by the Board or the courts that
one employer (entity) possesses sufficient indicia of control
over the employees of the other employer (entity), which
meaningfully affects matters relating to the employment rela-
tionship such as hiring, firing, discipline, supervision, and di-
rection, and other conditions subject to mandatory collective-
bargaining, joint employer status will be found. Laerco
Transportation, 269 NLRB 324, 325 (1984); United States
Steel Corp., 270 NLRB 1318, 1319 (1984).
In the instant case, Respondent Environmental Tech pos-
sesses the authority and does in fact supervise the employees
of G. Wes limited as well as Environmental Tech’s employ-
ees. The subcontractual arrangement between the two enti-
ties, provides that Respondent Environmental Tech does not
possess the authority to reject laborers hired by G. Wes; and
that Environmental Tech does not possess the authority to
terminate the employment of employees hired by G. Wes.
However, the record evidence shows that there has been
some interchange or usurpation of authority between the two
entities with respect to one entity interviewing and hiring,
and to a lesser extent, one entity rejecting and terminating
the employment of employees of the other. More specifi-
cally, the evidence shows that laborers Frankie Walker and
Joseph Gray were interviewed and hired for the Polsky job
by Pius of G. Wes in Columbus, Ohio. Mark Fuller, Paul
DeBose, and Brian McKnight were interviewed, hired, and
actually employed by Supervisor Ed May of Environmental
Tech, at the Polsky job in Akron, Ohio. All the above inter-
views and hirings were carried out in accordance with the
subcontractual arrangement.
Interestingly, however, is the fact that Richard Poe was
interviewed and hired by Supervisor Ed May of Environ-
mental Tech at the Polsky job in Akron, Ohio, but was actu-
ally employed and paid by Pius of G. Wes in Columbus,
Ohio. The latter interviewing and hiring action by Supervisor
Ed May (Environmental Tech) suggests that, in practice, he
actually possessed such authority, or that he was the author-
ized or ratified agent of Respondent G. Wes to interview and
hire Poe on behalf of Respondent G. Wes, who employed
Poe.
Equally interesting is the fact that discriminatee Joe Gray
was interviewed twice, hired, and given work equipment
(respirator) by Pius of G. Wes, Columbus, Ohio.
However, when Joe Gray reported for work at Polsky July
16, as scheduled, his respirator was taken from him by Su-
pervisor Ed May (whom Pius referred to as G. Wes’ rep-
resentative on the job) and told by May he could not work
(dismissed), and directed to call Pius of G. Wes in Colum-
bus. When Gray called Pius and asked what happened to the
Polsky job, Pius told Gray he had been informed by May
that he (Gray) and another jobseeker had reported to the job
(July 10) with a bad attitude, intoxicated, acting
ungentlemanly, and they were not wanted on the job. It is
particularly noted that Gray was not scheduled to report to
work at Polsky until July 16, and Pius was well aware of
that fact. Moreover, it was Pius who approved the date (July
16) for Gray to report to the Polsky job. It is therefore clear
that Pius knew Gray was not reporting to the jobsite to go
to work on July 10. In all probability that is why Gray did
not have his work papers (certificate and medical report) to
present to May.
It is also especially noted that Pius did not ask Gray if he
was intoxicated and ungentlemanly when he went to the job-
site on July 10. Nor did Pius ask Gray why he was there on
July 10 instead of July 16, or what was his version of what
transpired with Supervisor May during his visit on July 10.
Under these circumstances, I find that Supervisor Pius’ lack
of inquiry and concern about ascertaining the facts about
what transpired at the Polsky jobsite on July 10 clearly and
reasonably implies, and I find, that Supervisor Ed May either
had the authority from past practice or direction from Pius
to take Gray’s respirator (which was given to him by Pius),
and to terminate his employment; or that Supervisor May
usurped the authority and terminated Gray’s employment
with G. Wes, and that Pius of G. Wes subsequently ratified
Ed May’s action. In either such event, I find that Supervisor
Ed May had the authority to terminate Gray on behalf of G.
Wes and that May’s actions meaningfully affected matters re-
lating to the employment relationship of Gray, directing, su-
pervising, and firing him. Laerco Transportation, supra;
United States Steel Corp., supra.
Consequently, when Supervisor Ed May’s subcontractual
authority to assign work, direct work, grant early departure,
and daily supervision of G. Wes’ and Environmental Tech’s
employees is considered in conjunction with Ed May’s au-
thority to interview and hire Richard Poe for employment
with G. Wes, and his authority to take Gray’s respirator
236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(given to him by G. Wes) and to dismiss Gray or terminate
his employment with G. Wes, I conclude and find on a fair
preponderance of the evidence that Ed May possessed the au-
thority to carry out such actions; and that all of these indicia
of supervisory authority possessed and exercised by May, af-
fected matters relating to the employment relationship of hir-
ing, firing, direction, supervision, and other conditions sub-
ject to mandatory collective bargaining of G. Wes’ employ-
ees. American Air Filter Co., 258 NLRB 49 (1981).
I also find that by asking employee Richard Poe would he
testify in the instant Board proceeding on behalf of G. Wes
(May), Environmental Tech was apparently recruiting em-
ployee witnesses on behalf of G. Wes to testify on behalf of
G. Wes. I find such conduct by Environmental Tech (May)
does not cast Environmental Tech in the posture of a sepa-
rate and single entity, operating independently of Respondent
G. Wes.
Thus, I further find on the foregoing evidence that Re-
spondent Environmental Tech, through its Polsky project su-
pervisor, Ed May, possessed and exercised sufficient indicia
of control over the employees of Respondent G. Wes to con-
stitute the two entities (G. Wes and Environmental Tech)
joint employers within the meaning of the law. Laerco
Transportation, supra; United States Steel Corp., supra.
Finally, I find on the foregoing evidence and findings that
by interrogating Joseph Gray and Leo Saahir about their
union affiliation, Respondents G. Wes and Environmental
Tech, jointly interfered with, restrained, and coerced employ-
ees in the exercise of their Section 7 rights, in violation of
Section 8(a)(1) of the Act; that by terminating the employ-
ment of Joseph Gray because of his union affiliation, Re-
spondent discriminated against him in regard to tenure of
employment, in violation of Section 8(a)(1) and (3) of the
Act; and by specifically telling Leo Saahir Respondent was
not hiring him because Respondents were not hiring union
members because the Union was picketing Respondents’ job,
and in fact carrrying it out, Respondent G. Wes Limited and
Respondent Environmental Tech discriminated against Leo
Saahir, in violation of Section 8(a)(1) and (3) of the Act.
Even if Respondent Environmental Technology and Re-
spondent G. Wes Limited were not found to have joint em-
ployer status, I, nevertheless, would find that Respondent En-
vironmental Technology separately and independently vio-
lated the Act as herein described.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices I will recommend that they be ordered
to cease and desist therefrom and that they take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondents interrogated their employ-
ees about their union affiliation, Respondents have interfered
with, restrained, and coerced their employees in violation of
Section 8(a)(1) of the Act; having found that Respondents
terminated the employment of their employee because of his
affiliation in the Union and the Union’s picketing Respond-
ents’ jobsite, Respondents have discriminated against their
employee, in violation of Section 8(a)(1) and (3) of the Act;
and that by refusing to employ an applicant for employment
because of his affiliation with the Union, and the union pick-
eting the Respondents’ jobsite, the Respondents have dis-
criminated against the employee, in violation of Section
8(a)(1) and (3) of the Act; the recommended Order will pro-
vide that Respondents cease and desist from engaging in
such unlawful conduct.
Because of the character of the unfair labor practices here-
in found, the recommended Order will provide that Respond-
ents cease and desist from, in any like or related manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir.
1941).
CONCLUSIONS OF LAW
1. Respondent G. Wes Limited is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent Environmental Technology is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. Respondent G. Wes Limited and Respondent Environ-
mental Technology are joint employers within the meaning
of the law.
4. By coercively interrogating employees about their union
affiliations, Respondents have violated Section 8(a)(1) of the
Act.
5. By discriminatorily terminating the employment of an
employee, Respondents have violated Section 8(a)(1) and (3)
of the Act.
6. By refusing to employ an applicant for employment be-
cause of his union affiliation with the union picketing the
jobsite of Respondents, the Respondents have discriminated
against the employee, in violation of Section 8(a)(1) and (3)
of the Act.
[Recommended Order omitted from publication.]