DiMucci Construction Co. v. National Labor Relations Board

24 F.3d 949
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 17, 1994
DocketNos. 93-2555, 93-2862
StatusPublished
Cited by6 cases

This text of 24 F.3d 949 (DiMucci Construction Co. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiMucci Construction Co. v. National Labor Relations Board, 24 F.3d 949 (7th Cir. 1994).

Opinion

MORAN, District Judge.

Petitioners DiMueei Construction Company (“DiMucci”), Wheeling Construction Company (“Wheeling”) and Semi Builders, Inc. (“Semi”) seek review of a National Labor Relations Board (“NLRB” or “the Board”) decision which affirmed an administrative law judge’s (“ALJ”) decision and adopted the ALJ’s order in this unfair labor practice dispute. The NLRB has cross-petitioned for enforcement of its order, which was issued against DiMucci, Wheeling and Semi, as joint employers. The International Union of Operating Engineers, Local 150 (“the Union”), intervened in this matter, requesting that this court enforce the NLRB’s decision and deny the DiMucci/Wheeling/Semi petition. For the reasons discussed below, we order enforcement of the NLRB’s order.

I

This case came before the ALJ after DiMucci and Wheeling allegedly violated a settlement agreement that had been entered on May 7,1990. This agreement was reached in the face of allegations that DiMueei and Wheeling, as joint employers, had committed numerous unfair labor practices in their efforts to keep their employees from organizing and joining the Union, including discharging employees and failing to recall employees because of their union sympathies.1 The agreement required joint employers DiMucci and Wheeling to make whole employees Berry, Stone, Sumrall and Cederstrom by payment of certain sums of money. DiMucci and Wheeling represented to the ALJ that they were no longer doing excavation and sewer construction work and, as a result, they were not in a position to offer reinstatement to Beery, Stone, Sumrall or Ceder-strom, all of whom performed that type of work. Accordingly, reinstatement was not provided for in the settlement agreement. The agreement did provide that DiMucci and Wheeling would post a notice to employees which included the following provision:

WE WILL offer preferential hire to Russell Stone, Fred Beery, Tommy Sumrall, and Larry Cederstrom to their former positions, or if their former positions no longer exist, to substantially equivalent positions, without prejudice, if DiMucci Construction Co. and/or Wheeling Construction Co., jointly or severally, go back into the business of being an excavating or sewer contractor within the next 18 months from the date of the Regional Director’s approval of this Settlement Agreement.

The agreement also provided that DiMucci and Wheeling would not, for those 18 months, subcontract or contract for excavation or sewer construction work with any employer that is a joint employer with either DiMucci or Wheeling.

The Union filed a charge with the NLRB on August 15, 1990, which it amended on November 7,1990, alleging that DiMucci and Wheeling, as joint employers of Semi’s employees, had gone back into the excavation and sewer construction business without offering preferential hire to Beery, Stone, Sumrall and Cederstrom. After investigating the charge, the Regional Director set aside the settlement agreement, reissued the prior consolidated complaints against DiMuc-ci and Wheeling, and issued a new complaint (case 13-CA-29659). The new complaint alleged that DiMucci, Wheeling and Semi were joint employers of Semi’s employees and that, as such, DiMucci and Wheeling were engaging in excavation construction and were doing so without having recalled employees Beery, Stone, Sumrall and Cederstrom. The new complaint further alleged that the failure to recall the four employees in accordance with the settlement agreement was because of their union activities and therefore violative of sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act (“the Act”). [952]*952The new complaint was consolidated with the prior consolidated complaints.

At the opening of the unfair labor practice hearing on the final consolidated complaint, DiMucci and Wheeling admitted that they were joint employers. DiMucci and Wheeling denied both committing the unfair labor practices alleged in the original pre-settlement consolidated complaints and violating the settlement agreement. However, they subsequently amended their answer and, for the purpose of litigating the issues raised in case 13-CA-29659, admitted all of the allegations in the prior complaints. In its answer, Semi denied committing the unfair labor practices alleged in case 13-CA-29659.

Pursuant to the admissions DiMucci and Wheeling made with respect to the pre-set-tlement complaint allegations, the ALJ found that they violated section 8(a)(1) of the Act in a number of ways: promising a wage increase and wage incentive plan to discourage union support; creating the impression that employees’ union activities were under surveillance; creating the impression that attempts to unionize would be futile; interrogating employees, impliedly threatening employees with discharge; threatening employees with reprisal, including loss of jobs, discharge and layoff; and granting wage increases to employees for the purpose of discouraging union support. Also pursuant to these admissions, the ALJ found that DiMuc-ci and Wheeling had violated sections 8(a)(3) and 8(a)(1) of the Act by failing to recall employees Sumrall and Cederstrom from layoff and by discharging employees Beery and Stone.

Based on the evidence presented at the hearing with respect to the allegations in 13-CA-29659, the ALJ found that since at least April 30, 1990, DiMucci, Wheeling and Semi engaged in excavation work as joint employers of Semi’s employees. The ALJ further found that joint employers DiMucci, Wheeling and’Semi failed to recall the four employees as required under the settlement agreement because those employees supported the Union. Accordingly, the ALJ found that the failure to recall the employees violated sections 8(a)(3) and 8(a)(1) of the Act. This decision was issued on April 9,1992. DiMuc-ci, Wheeling and Semi filed exceptions to the ALJ’s decision with the NLRB. On May 28, 1993, the NLRB affirmed the ALJ’s rulings, findings and conclusions in their entirety and adopted the ALJ’s recommended order. This appeal followed.

II

Petitioners’ first contention on appeal is that the Board erred in finding that DiMucci, Wheeling and Semi were joint employers of Semi’s employees. Petitioners maintain that the ALJ applied the wrong standard in determining whether a joint employer relationship existed — that the ALJ erred by focusing on general control and control over day-today activities instead of commonality of labor relations. Moreover, petitioners argue that the ALJ should not have credited the testimony of Jeffrey Wilt. Thus, petitioners allege that the Board’s adoption of the ALJ’s findings and recommended order was erroneous.

DiMucci, Wheeling and Semi could be considered joint employers if DiMucci and Wheeling exerted significant control over Semi’s employees. N.L.R.B. v. Western Temporary Serv., Inc., 821 F.2d 1258, 1266 (7th Cir.1987). This issue is essentially a factual question. Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 898, 11 L.Ed.2d 849 (1964); G. Heileman Brewing Co. v. N.L.R.B., 879 F.2d 1526, 1531 (7th Cir.1989).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
24 F.3d 949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimucci-construction-co-v-national-labor-relations-board-ca7-1994.