Engineered Steel Concepts, Inc., (2008)

Docket Number:13-CA-43235
 
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Engineered Steel Concepts, Inc. and ESC Group Limited, Alter Egos and General Drivers, Warehousemen, and Helpers Union Local 142, International Brotherhood of Teamsters. Case 13–CA–43235

May 30, 2008

DECISION AND ORDER

By Chairman Schaumber and Member Liebman

On July 3, 2007, Administrative Law Judge Eric M. Fine issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order.3

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Engineered Steel Concepts, Inc., and ESC Group Limited, East Chicago, Indiana, their officers, agents, successors, and assigns, shall take the action set forth in the Order.

Dated, Washington, D.C. May 30, 2008

______________________________________

Peter C. Schaumber, Chairman

______________________________________

Wilma B. Liebman, Member

(Seal) National Labor Relations Board

Lisa Friedheim-Weis, Esq., for the General Counsel.

Steven A. Johnson, Esq. and Jennifer J. Monberg, Esq., of Merrillville, Indiana, for the Respondents.

Steve Parks, of Gary, Indiana, for the Charging Party.

DECISION

Statement of the Case

Eric M. Fine, Administrative Law Judge. This case was tried in Chicago, Illinois, on February 12 and 13, 2007. The charge and amended charge were filed by the General Drivers, Warehousemen, and Helpers Union Local 142, International Brotherhood of Teamsters (the Union or Local 142) on March 13 and 17, 2006, respectively, against Engineered Steel Concepts, Inc. (ESC) and ESC Group Limited (Group), alter egos (jointly referred to as Respondents).[4] The complaint was issued on November 30, alleging that ESC established Group for the purpose of evading its responsibilities under the National Labor Relations Act (the Act), and that ESC and Group are alter egos. The complaint, as amended at the hearing, alleges that Respondents through Martin Surdell promised employees jobs with Group on the condition that they work for nonunion wages and without union benefits in violation of Section 8(a)(1) of the Act, that in February, Respondents discharged/laid off employees Anthony Miletich, Marc Roop, and Steve Wagner in violation of Section 8(a)(1) and (3) of the Act; that in February or early March, Respondents continued their operation of ESC in the disguised continuance of Group, in order to avoid their collective-bargaining obligation with the Union, that since that time Respondents have refused to recognize the Union, have refused to abide by and repudiated their collective-bargaining agreement with the Union, and have subcontracted bargaining unit work, all without prior notice to the Union or giving it the opportunity to bargain over the decisions or their effects on employees, and that this conduct was violative of Section 8(a)(1) and (5) of the Act.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondents, I make the following[5]

Findings of Fact

i. jurisdiction

ESC, a corporation, with a place of business in East Chicago, Indiana, has been engaged in the business of hauling by truck steel-related by products within the steel industry. Group, a corporation, with an office and place of business in East Chicago, Indiana, has been engaged in the business of hauling by truck steel-related by products within the steel industry. During the past calendar year, ESC and Group have each provided services valued in excess of $50,000 for Mittal Steel USA (Mittal), an enterprise itself directly engaged in interstate commerce within State of Indiana. Respondents admit and I find that ESC and Group are each employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

Tom Anderson is the founder and sole owner of ESC. Anderson met Martin Surdell and Ronald Callihan as fellow members of management while they were working in the steel industry. Anderson’s most recent employer in the steel industry was a company called LTV. Anderson left LTV in 2002 as a result of a plant shutdown. Anderson started ESC after leaving LTV. Anderson testified ESC remained in existence at the time of the unfair labor practice trial in February 2007. At that time, ESC supplied drill bits and shafts to some Mittal Steel plants and to some other steel companies. Anderson testified that ESC also provides technology to US Steel such as thermal and visual cameras, tour monitoring devices, refractory monitoring, and furnace technology.

Anderson was in an automobile accident in April 2003, sustaining a brain injury. He testified the injury affects his short- and long-term memory, temperament, and tolerance levels. Anderson testified that, after the injury, Surdell helped him with the operation of ESC. Anderson testified that Surdell “would drive me around and attempt to help me in whatever needed to be done.” Anderson testified Surdell was never employed by ESC and he never received a salary or any compensation for his work. Anderson testified Surdell helped him out until December 2006, when Surdell had back-related surgery. Anderson estimated Surdell is 77 or 78 years old. Surdell was given a business card and title with ESC. Anderson testified Surdell made calls on behalf of the Company, but claimed Surdell did not make the calls independently stating, “He’d always checked with me first.”

ESC purchased 100,000 tons of c-fines on October 7, 2004, from International Steel Group (ISG). C-fines are finely granulated steel refuse that are recycled by steel mills. ISG was eventually sold to Ispat-Inland, a steel company which at the time of the hearing was taken over Mittal. ESC did not have its own trucks or drivers at the time it purchased the c-fines. Anderson used other trucking companies to deliver the material. Anderson concluded if he delivered the material with his own trucks there would be better service and possible cost savings. As a result, ESC purchased three trucks and trailers.

Anderson contacted Local 142 to inquire about drivers for the trucks and he, along with Surdell, met with Local 142 Business Agent Steve Parks on March 8, 2005, at the union hall. On that date, Anderson, on behalf of ESC, signed a contract with Local 142, entitled “General Construction of Building, Heavy & Highway Projects.” The contract’s effective dates were June 1, 2003, to May 31, 2006. During the meeting, Anderson and Surdell presented their ESC business cards to Parks listing Anderson as the general manager and Surdell as the national sales manager. Parks credibly testified that it was explained to him by Anderson and Surdell that Surdell would be taking care of the day-to-day operations of ESC.[6] Parks did not sign the collective-bargaining agreement on behalf of the Union. Rather, it was presigned by the Union’s principal officers who did not attend the meeting.

Parks credibly testified that: During the March 8, 2005 meeting, Anderson and Surdell asked Parks what contracts were available for the type of work they were going to do. They explained that they were going to be hauling commodities from one steel mill to the other, which at the time was between ISG and Inland Steel.[7] Anderson mentioned something about having a contract for a large of amount of work, that this was just going to be the first contract and that he hoped to have a good relationship with the Union in the future.[8] Parks explained the Union had a commodity hauling agreement or ESC could also be placed under the Union’s general construction agreement. Parks stated he would rather see a commodity agreement for this type of work because it really was not on-site construction work. Anderson did not like the wage and benefit structure in the commodity agreement for which employees are paid on a weekly basis as opposed to the construction agreement in which they are paid for the hours worked. The commodity agreement also had seniority, holiday, and vacation language not contained in the construction agreement. Anderson preferred the construction agreement since if he only had work for 3 or 4 days, then he only had to pay the benefits on the hours actually worked. Parks went along with Anderson’s request for the construction agreement because he was trying to accommodate the Company’s needs, and the wages were similar for hauling commodities from mill to mill in both agreements. Parks testified that he did not take any notes during the meeting. When asked on cross-examination if Anderson took notes, Parks testified, “I, I don’t, I have no awareness of that.” When asked on rebuttal whether he saw Anderson taking notes during the meeting on March 8, 2005, Parks testified, “No.”

Parks testified Anderson did not bargain any provisions in the contract he signed. Rather, Parks just gave him a choice of two contracts. Parks testified that he described each of the contracts, but he did not steer Anderson to either one of them. Parks testified that he told Anderson that if he signed the construction contract he could compete for construction work and that if he signed the commodity contract with the construction addendum, he could also compete for construction work. Parks testified that under either contract it was anticipated that ESC might do construction work to keep the drivers busy. Parks testified that, after the deal was completed, Anderson and Surdell asked that now that they had the agreement if they could get some highway...

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