699 F.2d 788 (5th Cir. 1983), 82-4094, N.L.R.B. v. DMR Corp.

Docket Nº82-4094.
Citation699 F.2d 788
Party NameNATIONAL LABOR RELATIONS BOARD, Petitioner, v. DMR CORP. and Harrill Electric Contractors, Inc., Respondents.
Case DateMarch 11, 1983
CourtUnited States Courts of Appeals, United States Court of Appeals (5th Circuit)

Page 788

699 F.2d 788 (5th Cir. 1983)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

DMR CORP. and Harrill Electric Contractors, Inc., Respondents.

No. 82-4094.

United States Court of Appeals, Fifth Circuit

March 11, 1983

Page 789

Elliott Moore, Deputy Associate Gen. Counsel, William R. Stewart, N.L.R.B., Washington, D.C., for petitioner.

Gardere & Wynne, Ronald M. Gaswirth, Laura M. Franze, Dallas, Tex., for respondents.

Application for Enforcement of an Order of the National Labor Relations Board.

Before BROWN, GEE and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case is before us on the application of the National Labor Relations Board for enforcement of its order entered against Harrill Electrical Contractors, Inc. (Harrill) and DMR Corporation (DMR). The Board found that Harrill and DMR, as a single employer, violated Section 8(a)(1) and (5) of the National Labor Relations Act (Act), 29 U.S.C. Secs. 158(a)(1) and (5), by failing to apply the terms of Harrill's collective bargaining agreements with Locals 59 and 116 of the International Brotherhood of Electrical Workers to electricians who were employed by DMR, and by failing to recognize Locals 59 and 116 as the bargaining representative of those employees.

The Board's order requires Harrill and DMR to cease and desist from the unfair labor practices so found, and in any other manner interfering with employees in the exercise of their rights under the Act. Affirmatively, the Board's order requires Harrill and DMR to make DMR employees whole for any losses they may have suffered by reason of their failure to honor the collective bargaining agreements with Locals 59 and 116 and to recognize and bargain with Locals 59 and 116 as the collective bargaining representative of their electricians. The Board's Decision and Order is reported at 258 N.L.R.B. No. 139 (1981).

Finding that there is insufficient evidence in the record to allow this court to decide whether the Board erred in finding that a bargaining unit of electricians employed by Harrill and DMR is an appropriate bargaining unit, we remand this case to the Board for further proceedings.

I.

Harrill is a Texas corporation with its principal place of business in Mesquite, Texas. It is engaged in business as an electrical contractor. Harrill was formed in 1975, first as a proprietorship owned and managed by Randy Harrill. Since early 1977, it has existed as a corporation with Randy Harrill as president, board chairman, manager and principal stockholder, owning a seventy-five percent interest in the company.

At all relevant times, Harrill has been party with Locals 59 and 116 to "letters of assent" binding it to the master labor agreements between those locals and certain

Page 790

chapters of the National Electrical Contractors Association (NECA). As concerns those electricians in its employ, Harrill has complied with its contractual obligations.

During the second half of 1978, Harrill all but ceased submitting bids on projects in the Dallas-Fort Worth area. It terminated all of its Fort Worth based electricians in November 1978 and the last of its Dallas based electricians in May 1979. Shortly before the administrative hearing in this case, however, Harrill did acquire and begin work on some new projects.

DMR was formed and incorporated in 1978. Its principal place of business is located in Dallas, Texas, and is about a fifteen to twenty minute drive from Harrill's Mesquite location. DMR was formed by Randy Harrill and two other individuals with Randy Harrill as principal stockholder owning an eighty percent interest in the company. In 1979, Anita Harrill, Randy Harrill's wife, was made president of DMR. Randy Harrill transferred, without cost, most of his DMR shares to her, making her DMR's principal stockholder owning a sixty-five percent interest in the company. He retained ownership of a fifteen percent interest in DMR.

As president of DMR, Anita Harrill was paid sixty dollars per week. She continued to perform the clerical tasks she had performed for Harrill. It appears that she had little to do with setting and implementing labor relations policies.

DMR is also an electrical contractor. In addition to Anita Harrill, its management consists of several individuals who had formerly worked for Harrill in much the same roles. Its financing, in the early months of its operation was primarily provided by loans from Harrill or from personal loans from Randy or Anita Harrill. DMR used trucks, tools and material that once belonged to Harrill. DMR purchased material from Harrill in transactions arranged by Randy Harrill, which may be characterized as less than "arms-length".

Randy Harrill played an important part in hiring several employees for DMR, all of whom had previously worked for Harrill. On one occasion, he also reassigned one of DMR's employees to another DMR job.

DMR, during the relevant time period, worked on several electrical projects on which the general contractor was a construction company for whom Harrill had previously performed work. DMR also acquired an electrical service contract for two facilities whose electrical service work had previously been done by Harrill.

DMR operated as a non-union employer, and as such it did not apply the terms of the collective bargaining agreement between Harrill and Locals 59 and 116 to its electricians. Neither did it bargain with the locals over the terms and conditions of employment of its electricians.

II.

The locals filed an unfair labor practice charge against DMR and Harrill which alleged violations of Section 8(a)(1) and (5) of the Act. In its Decision and Order, the Board found, that Harrill and DMR constitute a single employer, that an employer-wide unit of their combined electricians is the appropriate unit, and that Harrill and DMR had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Locals as the representative of DMR's electricians and by failing to apply the terms and conditions of the collective bargaining agreement to those employees.

Harrill and DMR attack the Board's order on two grounds. First, they argue that the single employer finding has no basis in law or fact. Secondly, they contend that the electricians employed by Harrill and DMR do not constitute the appropriate bargaining unit.

III.

It is settled that the Board may treat two or...

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14 practice notes
  • 739 F.2d 1305 (8th Cir. 1984), 83-1589, Iowa Exp. Distribution, Inc. v. N.L.R.B.
    • United States
    • United States Court of Appeals (8th Circuit)
    • July 11, 1984
    ...depends upon all the circumstances of the individual case. Penntech Papers, Inc. v. NLRB, supra, 706 F.2d at 25; NLRB v. DMR Corp., 699 F.2d 788, 791 (5th While the single employer doctrine focuses on whether two or more existing business entities should jointly be held to a single labor ob......
  • N.Y. Party Shuttle, LLC v. Nat'l Labor Relations Bd., 112221 FED5, 20-61072
    • United States
    • United States Court of Appeals (5th Circuit)
    • November 22, 2021
    ...absence of an 'arm's 5 length relationship found among unintegrated companies.'" Alcoa, 849 F.3d at 255 (quoting NLRB v. DMR Corp., 699 F.2d 788, 791 (5th Cir. A. Substantial evidence supports the Board's finding that there is common ownership and financial control among petitioners. A......
  • 964 F.2d 513 (5th Cir. 1992), 91-4106, N.L.R.B. v. Catalytic Indus. Maintenance Co. (CIMCO)
    • United States
    • United States Court of Appeals (5th Circuit)
    • July 6, 1992
    ...that § 9(b) of the Act confers broad authority and discretion upon the Board to determine appropriate bargaining units. NLRB v. DMR Corp., 699 F.2d 788, 791 (5th Cir.1983). 5 The Board's decision must stand unless it is "arbitrary, capricious, an abuse of discretion, or lacking in subs......
  • 734 F.2d 1057 (5th Cir. 1984), 83-4195, N.L.R.B. v. Magna Corp.
    • United States
    • United States Court of Appeals (5th Circuit)
    • June 22, 1984
    ...classification should be sustained if they have " 'warrant in the record' and a reasonable basis in the law." NLRB v. DMR Corp., 699 F.2d 788 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983), quoting NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S......
  • Request a trial to view additional results
14 cases
  • 739 F.2d 1305 (8th Cir. 1984), 83-1589, Iowa Exp. Distribution, Inc. v. N.L.R.B.
    • United States
    • United States Court of Appeals (8th Circuit)
    • July 11, 1984
    ...depends upon all the circumstances of the individual case. Penntech Papers, Inc. v. NLRB, supra, 706 F.2d at 25; NLRB v. DMR Corp., 699 F.2d 788, 791 (5th While the single employer doctrine focuses on whether two or more existing business entities should jointly be held to a single labor ob......
  • N.Y. Party Shuttle, LLC v. Nat'l Labor Relations Bd., 112221 FED5, 20-61072
    • United States
    • United States Court of Appeals (5th Circuit)
    • November 22, 2021
    ...absence of an 'arm's 5 length relationship found among unintegrated companies.'" Alcoa, 849 F.3d at 255 (quoting NLRB v. DMR Corp., 699 F.2d 788, 791 (5th Cir. A. Substantial evidence supports the Board's finding that there is common ownership and financial control among petitioners. A......
  • 964 F.2d 513 (5th Cir. 1992), 91-4106, N.L.R.B. v. Catalytic Indus. Maintenance Co. (CIMCO)
    • United States
    • United States Court of Appeals (5th Circuit)
    • July 6, 1992
    ...that § 9(b) of the Act confers broad authority and discretion upon the Board to determine appropriate bargaining units. NLRB v. DMR Corp., 699 F.2d 788, 791 (5th Cir.1983). 5 The Board's decision must stand unless it is "arbitrary, capricious, an abuse of discretion, or lacking in subs......
  • 734 F.2d 1057 (5th Cir. 1984), 83-4195, N.L.R.B. v. Magna Corp.
    • United States
    • United States Court of Appeals (5th Circuit)
    • June 22, 1984
    ...classification should be sustained if they have " 'warrant in the record' and a reasonable basis in the law." NLRB v. DMR Corp., 699 F.2d 788 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983), quoting NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S......
  • Request a trial to view additional results

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