J. Huizinga Cartage Co., Inc. v. N.L.R.B.
| Decision Date | 28 August 1991 |
| Docket Number | Nos. 90-2543,90-2683,s. 90-2543 |
| Citation | 941 F.2d 616 |
| Parties | 138 L.R.R.M. (BNA) 2596, 119 Lab.Cas. P 10,897 J. HUIZINGA CARTAGE COMPANY, INC. and Simpson Motor Transportation, Inc., Single Employer and/or Joint Employers, Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert E. Gordon, argued, Chicago, Ill., for J. Huizinga Cartage Co., Inc. and Simpson Motor Transp., Inc.
John C. Truesdale, N.L.R.B., Contempt Litigation Branch, Aileen A. Armstrong, William Mascioli, argued, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., and Elizabeth Kinney, Ann Crane and John W. Peck, N.L.R.B., Region 13, Chicago, Ill., for N.L.R.B.
Before WOOD, Jr., CUDAHY and FLAUM, Circuit Judges.
J. Huizinga Cartage Company, Inc. ("Huizinga") and Simpson Motor Transportation, Inc. ("Simpson") seek review of an order of the National Labor Relations Board ("Board"). The Board petitions for enforcement of that order. For the following reasons, we grant enforcement of the Board's order.
Huizinga is a freight cartage business located in Chicago, Illinois. John Huizinga, Sr. ("Huizinga Sr.") is the founder and president of Huizinga. John Huizinga, Jr. ("Huizinga Jr.") is the vice-president of Huizinga. It is undisputed that Huizinga and Simpson share common ownership and operate as a single integrated business. 1
The bargaining units representing the Company's employees are Locals 705 and 710 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union"). Local 705 covers delivery of general freight to customers in the Chicago area and Local 710 has jurisdiction over the transportation of meat products in the Chicago area. The collective bargaining agreement for Local 705 provided that the bargaining unit covered "[a]ll employees engaged in deliveries and pickups made on behalf of or to any place of business of any Employer." The Local 710 agreement covered a bargaining unit defined as "[a]ll full-time and regular part-time meat drivers, employed at the Employer's Chicago, Illinois facility."
The drivers for the Company fall into one of three categories: (1) unionized employees who operate equipment owned by the Company; (2) nonunionized employees who operate equipment owned by the Company; and (3) independent contractors who operate their own equipment. The Company paid only union employees the wages and benefits conferred by the terms of the collective bargaining agreements. None of Simpson's drivers was a member of Local 705 or 710. The parties charging the Company with unfair labor practices--Floyd Richardson, David Toles, and Leonard Atkins--were not union members and were not paid wages or benefits in accordance with either collective bargaining agreement.
Richardson began working for Huizinga in 1983. At his initial interview with Huizinga Sr., Richardson indicated that he had a union withdrawal card from his former job and would like to renew his union membership. Huizinga Sr. responded that there was no union at Huizinga nor did he want one. Richardson later learned that some Huizinga employees were union members. Richardson testified that he then approached Huizinga Jr. and informed him that he would like to join the union in order to obtain medical benefits for his children. Huizinga Jr. replied that Richardson would be fired by Huizinga Sr. if he joined the union.
Toles was hired by Huizinga in 1984. During 1985, Toles contacted Local 705 and signed a union authorization card. Toles showed the card to Huizinga Jr. who told Toles he had done a "stupid" thing and that he should go home. A few days later Huizinga Sr. called Toles at home and said that things could be worked out and requested that Toles return to work. On July 31, 1986, Toles filed a charge with the Illinois Department of Human Rights alleging that he had suffered employment discrimination because he is black and that the Company had discriminatorily denied him the benefits of union membership.
Atkins was also hired by Huizinga in 1984, but he did not express an interest in union membership until 1986. On August 14, 1986, Richardson, Toles, and Atkins went to the Local 705 union hall. Richardson entered the hall first and signed an authorization card which he had obtained from a union representative. Atkins then proceeded into the union hall and requested an authorization card. The individual Atkins spoke with told Atkins that another Huizinga employee had just been there and Atkins was not allowed to sign an authorization card. Atkins testified that he was referred to someone named "Coco"--presumably another union representative. Atkins then left the hall. After leaving the union hall, Richardson, Toles, and Atkins then proceeded to the Illinois Department of Human Rights where Richardson and Atkins filed charges against Huizinga alleging racial discrimination.
Several days later, Richardson showed Huizinga Jr. his union authorization card and Huizinga Jr. later warned Richardson that Huizinga Sr. was planning to fire him. 2 Following their trip to the union hall, the three charging parties received paychecks from Simpson rather than Huizinga. They had previously received checks from Huizinga Cartage. In late August 1986, Richardson, Toles, and Atkins were each given an employment application and a "Subcontractors Affidavit" to complete and sign. The affidavit represented that the signatory was working as a subcontractor, not as a salaried employee, and was therefore responsible for income and withholding taxes, workman's compensation insurance, personal health, and personal liability insurance.
Richardson spoke with Huizinga Jr. who told him that he could not work unless the subcontracting forms were completed. Huizinga Jr. informed Atkins that he would not receive his paycheck until the documents were completed. Although Atkins returned the documents unsigned, Huizinga Jr. released his paycheck. Shortly thereafter, Atkins quit his employment following an accident for which he refused to complete an accident report. Richardson and Toles both refused to sign the subcontracting forms--and both were told that there was no work available for them. On September 2, 1986, Richardson and Toles went to the Huizinga terminal and were again told by Huizinga Jr. that there was no work for them. Neither Richardson nor Toles worked for Huizinga following September 2, 1986.
Richardson, Toles, and Atkins filed unfair labor practice charges alleging that the Company had discharged them in violation of sections 8(a)(1) and (3) of the National Labor Relations Act ("Act"). 29 U.S.C. § 158(a)(1) and (3). The ALJ concluded that the Company violated sections 8(a)(1) and (3) of the Act by: (1) laying off Richardson and Toles; and (2) by directing that Richardson, Toles, and Atkins sign subcontractors affidavits in order to be allowed to work. The Company was also found to be in violation of section 8(a)(1) of the Act by threatening Richardson with discharge if he continued to seek union membership and benefits. The ALJ found that Atkins's discharge was not unlawful because the Company would have discharged him regardless of his involvement in union activity. 3
The Board affirmed the findings, conclusions, and order of the ALJ with certain modifications. 298 N.L.R.B. 145 (1990). The Board amended the ALJ's conclusion with respect to Atkins by determining that the Company violated sections 8(a)(1) and (3) of the Act "by directing its employee Leonard Atkins about August 29 to sign subcontractor's affidavits on pain of Atkins not receiving his paycheck." Moreover, the Board omitted the ALJ's reference to Atkins in its conclusion concerning the Company's refusal to assign work to the charging parties absent completion of the subcontractors affidavits.
In order to remedy the violations, the Board affirmed the ALJ's order that the Company cease and desist from its unfair labor practices and from interfering in the exercise of its employees' rights under section 7 of the Act. 29 U.S.C. § 157. The Board also ordered the Company to offer reinstatement to their former jobs (or substantially equivalent positions) to Richardson and Toles, and to award them backpay. The Company was also ordered to make available to the Board all relevant personnel records and to post an appropriate notice to employees. The Company seeks review of the Board's order and the Board petitions for enforcement of the order. This court has jurisdiction pursuant to section 10(e) of the Act. 29 U.S.C. § 160(e).
Decisions of the Board are reviewed deferentially by this Court. National By-Products, Inc. v. NLRB, 931 F.2d 445, 451 (7th Cir.1991); NLRB v. Bliss & Laughlin Steel Co., 754 F.2d 229, 234 (7th Cir.1985). Section 10(e) of the Act provides that the factual findings of the Board are "conclusive" if they are supported by "substantial evidence on the record as a whole." 29 U.S.C. § 160(e); Indianapolis Power & Light Co. v. NLRB, 898 F.2d 524, 529 (7th Cir.1990). We may not displace the Board's determinations simply because we would have arrived at a different conclusion had the case been reviewed de novo. Id. at 529; Bliss & Laughlin, 754 F.2d at 234.
The Company first argues that the Board's finding that Richardson and Toles were employees rather than independent contractors was not supported by substantial evidence. Section 2(3) of the Act provides that independent contractors are exempt from NLRB jurisdiction. 29 U.S.C. § 152(3). The determination of an individual's status as an employee or independent contractor is a fact-based inquiry and focuses on "the employer's ability to control the purported employee." NLRB v O'Hare-Midway Limousine Serv., 924 F.2d 692, 694 (7th Cir.1991). The key factor in evaluating employer control is whether the...
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