Plumlee v. Dow Chemical Co., 1998-TSC-8 (ALJ Feb. 25, 1999)

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USDOL/OALJ Reporter
Plumlee v. Dow Chemical Co., 1998- TSC-8 and 9 (ALJ Feb. 25, 1999)

Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201

Date: February 25, 1999

Case No.: 1998-TSC-8

In the Matter of:

LINDA L. PLUMLEE,
Complainant

against

DOW CHEMICAL COMPANY,
Respondent.

* * * * *

Case No.: 1998-TSC-9

In the Matter of:

LINDA L. PLUMLEE,
Complainant

against

CORPORATE EXPRESS DELIVERY SERVICE,
Respondent.

RECOMMENDED ORDER GRANTING DOW CHEMICAL COMPANY'S MOTION
TO DISMISS OR FOR SUMMARY JUDGMENT FOR LACK OF JURISDICTION

In a complaint filed with the Department of Labor on April 16, 1998 Linda L. Plumlee (Complainant) alleged that Dow Chemical Company (Dow) and Corporate Express

[Page 2]

Delivery Systems (Corporate Express ) retaliated against her for reporting environmental infractions in violation of four environmental protection statutes: the Clean Air Act (CAA), 42 U.S.C. §7622; the Toxic Substances Control Act (TSCA), 15 U.S.C. §2622; the Water Pollution Control Act (WPCA), 33 U.S.C. §1367; and the Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971. On September 21, 1998 the Occupational Safety and Health Administration dismissed the complaint against Dow finding that Complainant was not employed by Dow at the time she filed her allegations. Complainant appeals that decision.

Dow has filed a Motion to Dismiss or for Summary Judgment for Lack of Jurisdiction. Complainant has filed a Notice of Opposition and Dow has filed a Rebuttal. Dow asserts Complainant cannot satisfy the common law test for "employee" to establish DOL's jurisdiction over a claim filed under these statutes. For the reasons stated below, the motion is granted and it is recommended that the case against Dow be dismissed .¹

Each of the statutes at issue in this case contains one of two similar anti- discrimination provisions, as follows:

No person shall fire or in any other way discriminate against, or cause to be fired or discriminated against, any employee . . . (WPCA, SWDA).

No employer may discharge any employee or otherwise discriminate against any employee . . .(CAA, TSCA).

While the term "employee" should be interpreted broadly to achieve the purposes of these various statutes, Congress has specifically limited the protections afforded by the statutes to "employees." Since none of these statutes defines "employee" the conventional master-servant relationship as understood by common law agency doctrine must be applied to the relationship to determine if Complainant is a covered employee under the various whistleblower protection provisions. Nationwide Mutual Ins. Co. v. Darden, 112 S. Ct. 1344 (1992). This Darden common law test has been held applicable to the WPCA, SWDA, CAA and TSCA. See Reid v. Secretary of Labor, 106 F.3d 401, 1996 WL 742221 (6th Cir.). As the unanimous Court noted in Darden:

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Id., quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-752 (1989).

[Page 3]

Dow presented evidence concerning the employment relationship between Dow, Corporate Express and Complainant. The majority of this evidence has not been opposed by Complainant. In her Opposition to Dow's Motion, Complainant only argues that Judy James of Dow directed her work, provided regular work instructions, approved overtime and was referred to as the Dow supervisor in the area where she worked. She provides antidotal evidence of the interaction between herself and various Dow personnel. The following facts are not rebutted by Complainant and, applying the Darden test, support a finding that Complainant is not an employee of Dow.

Corporate Express is a publicly-traded, Fortune 500 company that provides supplies and services to large corporations like Dow. The operations of Dow and Corporate Express are not interrelated in any way. Dow and Corporate Express have different officers, directors and managers. Any common ownership is simply a function of the status of Dow and Corporate Express as major publicly held corporations. Dow and Corporate Express exercise no control over the labor relations of the other or any of its affiliates. The two corporations are independently managed with entirely separate and distinct labor relations policies and practices. Dow does not exert any influence over the way in which Corporate Express performs its business.

Dow is a multi-national corporation that manufactures and sells chemical products. At its facilities in Freeport, Texas, Dow has several large warehouses used for storage of spare parts and equipment. As part of the North American Agreement between Dow and U.S. Delivery Systems, Inc.(an affiliate of Corporate Express) dated July 6, 1996, Dow contracted to have Corporate Express provide delivery services for these parts and equipment. The term of the contract was five years. Complainant was not a party to this contract.

Pursuant to the contract, Corporate Express is to provide eight hours of delivery services, five days per week. Corporate Express identifies the delivery schedule needs for the Dow warehouses. Corporate Express selects, pays, assigns and reassigns delivery personnel without any participation by Dow. The delivery duties are not integrated into Dow's business operations, but are a special service provided by Corporate Express. Corporate Express is responsible for ensuring that all its drivers are properly trained, but all contractors are included in Dow's safety meetings and Dow contractors also complete certain computer assisted training provided by Dow.

[Page 4]

Pursuant to Paragraph 9 of the contract, Corporate Express was an independent contractor and not an employee or agent of Dow and all Corporate Express personnel providing services to Dow are representatives, employees, associates or agents of Corporate Express.

In performance of the contract, Corporate Express delivery personnel receive a computer printout specifying the part or material to be delivered and the location to which the delivery is to be made. Corporate Express establishes the expected delivery schedule and the delivery drivers choose their own delivery routing method. When a special delivery not on the computer printout is necessary, a Dow employee may request Corporate Express personnel to make the special delivery on their next run.

Since Dow contracted with Corporate Express for delivery services, Dow will allow any properly trained and qualified substitute selected by Corporate Express to take Complainant's place in her absence. Corporate Express selects all permanent or temporary replacements. Dow does not.

Corporate Express personnel independently divided up and assigned which territory a delivery driver was responsible for covering. In performing her delivery duties at Dow, Complainant used a pick-up truck owned by her husband. The truck was not owned or supplied by Dow. Complainant used a two-way radio to communicate with other Corporate Express drivers. The radio was not owned or supplied by Dow. On infrequent occasions when material to be delivered would not fit on Complainant's truck, Complainant would make deliveries on a flatbed truck owned by Dow.²

Pursuant to the contract, Dow had contracted with Corporate Express for delivery services only and had no right to require Corporate Express delivery personnel to perform any services other than deliveries. At times delivery drivers might volunteer to help with additional responsibilities such as receiving or cleanup but that was not an expectation of the job.

Complainant was never paid any wages or provided any benefits by Dow. Complainant's compensation and benefits were governed entirely by whatever arrangements she had with Corporate Express. Dow played no role in selecting, hiring, firing or paying any delivery contractors provided to Dow by Corporate Express.

Pursuant to the contract, Dow had the right to question the assignment, or continued assignment, or any individual to perform services under the contract including the right to request that personnel be reassigned by Corporate Express. On April 6, 1988 Dow requested that Complainant's work assignment at Dow end at Corporate Express's earliest convenience, leaving Complainant available for reassignment elsewhere.

On July 31, 1996, Complainant and Corporate Express entered into a contract whereby Complainant was to provide transportation services to Corporate Express. The contract was for a period of one year. According to the terms of the contract, the parties agreed and acknowledged that Complainant was an independent contractor and any and all services provided by Complainant would be performed by her in such capacity. The contract expressly states that Complainant is not an employee of Corporate Express.

[Page 5]

Pursuant to the terms of the contract, Corporate Express may request that Complainant provide transportation services by advising her of the place and time of pick-up, the destination of the delivery and any time constraints or special conditions related to the delivery. Complainant had the right to decline or accept any such request. Pursuant to paragraph 3 of the contract, Complainant controlled the methods and means of the work.

Pursuant to the contract, Complainant was responsible for all payroll taxes and provided her own vehicle and insurance and was responsible for all costs and expenses related to the ownership and operation of the vehicle. The contract provided that Complainant would provide a driver's application form for each of her drivers.

Complainant's compensation was set by the contract between her and Corporate Express. Complainant was to receive 60 percent of the amount charged by Corporate Express to their customers for each delivery or 60 percent of the daily, weekly, or monthly amount charged by Corporate Express to their customers. Dow is not mentioned in the contract.

III

As a preliminary matter, Complainant alleges that Dow and Corporate Express should be treated as joint employers. In support of this theory, she alleges that both Dow and Corporate Express directed her work and there was a necessary interrelationship between Dow and Corporate Express in respect to her work schedule and in the details of performing her work. If Complainant or other Corporate Express drivers had not delivered parts during rush and scheduled deliveries, the required maintenance of the chemical plant could not have been conducted safely and on schedule.

These facts alone do not establish a joint employer relationship. The Secretary of Labor in Palmer v. Western Truck Manpower, Case No. 85-STA-6 (Sec'y, Jan. 16, 1987) listed the following criteria to determine whether two entities are joint employers: 1) interrelation of operations; 2) centralized control of labor relations; 3) common management; and 4) common ownership or financial control. See also Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983; Schweitzer v. Advance Telemarketing Corp., 104 F.3rd 761, 764 (5th Cir. 1997). Even construing the evidence most favorably to Complainant, I find that the evidence does not show an interrelation of operations between Dow and Corporate Express. As pointed out in Dow's Reply brief, such a strained interpretation of interrelations of operations would make employees of UPS and Federal Express employed by those for whom they make deliveries. Dow had absolutely no control over whether Complainant worked at its facilities. That was a matter between Complainant and Corporate Express. And even then, pursuant to her contract, Complainant had the right to refuse any assignment. In addition, Complainant has presented no evidence that the last three criteria exist. Therefore, I find Dow and Corporate Express are not joint employers of Complainant.

[Page 6]

Applying the Darden test, I find the facts support a finding that Complainant was not an employee of Dow. First, under the contract between Dow and Corporate Express, it was the parties' intent that Corporate Express was considered an independent contractor and all personnel of Corporate Express were considered representatives, employees, associates or agents of Corporate Express. Further, in her contract with Corporate Express, Claimant expressed her intent that she was to be considered an independent contractor of Corporate Express. Although an employment relationship can still be considered one of employer/employee despite the contrary intentions of the parties, see, e.g., Faulkner v. Olin Corp., 85-SWD-3, Recommended Decision at 3 (August 16, 1985) aff'd, Final Order of Secretary of Labor (Nov. 18, 1985), the parties' intentions must nevertheless be given weight. Of significance, Dow never was a party to any contract with Complainant. Dow's only contractual relationship was with Corporate Express and all details and responsibilities for hiring and assigning personnel (including Complainant) were left to Corporate Express. Dow had no say over when and how long Complainant performed delivery services for Corporate Express.

It is also noted that the contractual relationship between Dow and Corporate Express was for a fixed period of time (five years) rather than the indefinite period characteristic of an employment relationship. Complainant's contract with Corporate Express was also for a fixed period of time but was for only one year.

Dow did not control the manner and means by which delivery services were accomplished. Corporate Express personnel received a printout indicating what needed to be delivered and where the delivery was to be made. Corporate Express personnel determined the delivery schedule, who made the delivery and the delivery routing method. While Dow certainly had an interest in insuring the deliveries were properly made, global oversight, as opposed to control over the manner and means of performance, was fully compatible with an independent contractor relationship. North American Van Lines, Inc. v. National Labor Relations Board, 869 F.2d 596 (D.C. Cir. 1989).

In regard to the other Darden factors to be considered, virtually none of them are indicative of an employer/employee relationship between Dow and Complainant. First, Dow paid Corporate Express an hourly rate for delivery services performed. Dow had no control over the rate or method used by Corporate Express to pay its personnel or over the benefits Corporate Express personnel received. The contract between Complainant and Corporate Express did not even mention any services that were to be provided to Dow.

Under its contract with Dow, Corporate Express was to provide a mutually agreed upon number of trucks and drivers to Dow. Pursuant to the contract between Corporate Express and Complainant, Complainant was to provide her own vehicle and insurance and was responsible for all cost and expenses related to the ownership and operation of the vehicle. Dow had no input nor influence as to the manner in which Corporate Express provided the needed trucks and drivers.

[Page 7]

Complainant alleges Dow furnished some equipment, tools and office supplies that were used in the performance of her duties. However there is no evidence that these were used by Complainant on any type of a regular basis. As discussed above, the main instrumentality necessary for the completion of the delivery services (the truck) was not owned or maintained by Dow.

Although the skill required to complete the delivery service was not extremely high, it was a skill that Corporate Express (and Complainant) were more adapt at performing than Dow. In her complaint, Complainant refers to Dow as a customer of Corporate Express. In that role as customer, Dow contracted with Corporate Express for delivery services. Part of the business of Corporate Express is providing delivery services to corporations like Dow. Certainly, Corporate Express and its personnel are more expert at this service than Dow. Further, Dow is not in the delivery business whereas delivery services are part of the regular business of Corporate Express and Complainant.

Dow had no right to assign additional projects and duties to any Corporate Express personnel. The Dow/Corporate Express contract was for delivery services. While Complainant has presented evidence of one instance in which she performed overtime to work on inventory, this does not alter the fact that under her contract with Corporate Express, Complainant could refuse any assignment she chose.³

Lastly, Dow provided no benefits to Complainant and Complainant has always treated herself as an independent contractor for federal income tax purposes and has taken deductions that self-employed persons are entitled to take.

Complainant has failed to meet her burden to establish that the Department of Labor has jurisdiction over her claims under the CAA, TSCA, WPCA, or the SWDA and therefore her claims against Dow should be dismissed.

RECOMMENDED ORDER

Wherefore, the above considered, IT IS HEREBY RECOMMENDED that:

1. Dow Chemical Company's Motion to Dismiss or for Summary Judgment for Lack of Jurisdiction is granted; and

2. The complaint of Linda L. Plumlee against Dow Chemical Company be dismissed.

So ORDERED.

LARRY W. PRICE
Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S- 4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).

[ENDNOTES]

¹ Dow has made a factual jurisdictional challenge and has submitted affidavits and documents to support its motion. It is well settled that the burden of establishing jurisdiction is on the Complainant. The burden placed on Complainant is not an onerous one as Complainant is required only to demonstrate facts which support a finding of jurisdiction in order to avoid the motion to dismiss. I have construed the proposed evidence most favorably to Complainant, however Complainant cannot rest upon the mere allegations or denials of the pleadings.

²In her Opposition, Claimant alleges that Dow also provided a forklift, sideloader, personal computer, telephone, facsimile machine, copying machine, hand tools, safety equipment and office supplies.

³ In her Affidavit, Complainant states that her diary lists dates and times when Dow and Corporate Express supervisors provided direct instruction for her to perform work other than delivery duties. Complainant does not provide any further direction as to these instructions. A review of the diary only reveals two instances that could arguable be classified as direct instructions to perform work other than delivery duties. The first was on December 12, 1997 when Dewayne Bennett gave her a three page list of parts that needed to be pulled and thrown away in the dumpster. It is not clear who employed Dewayne Bennett. The second incident occurred on January 2, 1998 when Tommy Guynes, who appears to occupy the same status with Corporate Express as Complainant "asked me to get the keys for one of the tow motors and do the daily inspection on it. I told him "no" that I would not do this.