                                  RECOMMENDED FOR FULL-TEXT PUBLICATION
                                       Pursuant to Sixth Circuit Rule 206
                                               File Name: 05a0001p.06

                          UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                          X
                                                           -
 TRUSTEES OF THE RESILIENT FLOOR DECORATORS
                                                           -
 INSURANCE FUND; THE RESILIENT FLOOR DECORATORS
                                                           -
 VACATION FUND; THE RESILIENT FLOOR DECORATORS
                                                           -
                                                               No. 03-1149
 PENSION FUND - DETROIT AREA; THE RESILIENT FLOOR
                                                           ,
 DECORATORS APPRENTICESHIP FUND; INTERIOR                   >
 SYSTEMS LOCAL 1045 OF THE MICHIGAN REGIONAL               -
                                                           -
                                                           -
 COUNCIL OF CARPENTERS, and UNITED BROTHERHOOD

                                  Plaintiffs-Appellants, -
 OF CARPENTERS AND JOINERS OF AMERICA,

                                                           -
                                                           -
                                                           -
          v.
                                                           -
                                                           -
                                                           -
 A & M INSTALLATIONS, INC., a Michigan Corporation,

                                 Defendants-Appellees. -
 and CARPET WORKROOM, INC., a Michigan Corporation,
                                                           -
                                                          N
                          Appeal from the United States District Court
                         for the Eastern District of Michigan at Detroit.
                       No. 01-72332—Lawrence P. Zatkoff, District Judge.
                                            Argued: October 27, 2004
                                     Decided and Filed: January 5, 2005
          Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; SARGUS, District Judge.*
                                               _________________
                                                    COUNSEL
ARGUED: Nicholas R. Nahat, NOVARA, TESIJA & MCGUIRE, PLLC, Southfield, Michigan, for
Appellants. Bruce M. Bagdady, KELLER THOMA P.C., Detroit, Michigan, for Appellees. ON BRIEF:
Nicholas R. Nahat, NOVARA, TESIJA & MCGUIRE, PLLC, Southfield, Michigan, for Appellants. Bruce
M. Bagdady, Barbara A. Rohrer, KELLER THOMA P.C., Detroit, Michigan, for Appellees.




   *
   The Honorable Edmund A. Sargus, United States District Judge for the Southern District of Ohio, sitting by designation.


                                                           1
No. 03-1149            Resilient Floor, et al. v. A & M Installations, et al.                        Page 2


                                           _________________
                                               OPINION
                                           _________________
        RONALD LEE GILMAN, Circuit Judge. The Trustees of the Resilient Floor Decorators Insurance
Fund (Resilient Floor), on behalf of several multiemployer fringe-benefit funds for union workers in the
floorcovering industry, appeal the district court’s grant of summary judgment in favor of A & M
Installations, Inc. and Carpet Workroom, Inc. This action is brought to collect employee fringe-benefit
contributions pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
§§ 1001-1461 (2004). According to Resilient Floor, the district court erred in concluding that no genuine
issue of material fact existed with respect to (1) whether A & M and Carpet Workroom were alter egos of
one another, or (2) whether Carpet Workroom’s installers were independent contractors. For the reasons
set forth below, we AFFIRM the judgment of the district court.
                                           I. BACKGROUND
       Carpet Workroom sells carpet and flooring to commercial customers. John Lukasik started the
company in 1982. Darren Jahner, Lukasik’s former brother-in-law, was an employee of Carpet Workroom
from 1986 until 2001, when he left the company to devote his full time and attention to A & M, a
corporation that he founded in 1997. A & M is a unionized carpet and flooring installation company. While
he was employed at Carpet Workroom, Jahner discovered that “there was a need out there” for a
floorcovering company that employed union installers, so he decided to form A & M. The need noted by
Jahner exists because there are a number of large customers, such as General Motors, that will only award
contracts to companies that employ union labor. Because Carpet Workroom often bids for the sale of carpet
on union projects, it frequently subcontracts its installation work to the unionized A & M.
        In addition to working on many of the same projects and having many of the same customers, Carpet
Workroom and A & M share office and warehouse space in the same building, for which A & M pays
Carpet Workroom $600 a month in rent. The physical proximity of the two companies’ operations permits
them to share office equipment and personnel as well. Occasionally, Carpet Workroom’s secretary and
other office staff answer A & M’s phones and assist it with payroll.
        As a union shop, A & M is required by the terms of its collective bargaining agreement to make
regular employee fringe-benefit contributions to the trust funds maintained by Resilient Floor. These
contributions are calculated based on the hours worked by A & M’s union employees. Periodic audits
conducted by Resilient Floor show that A & M is in full compliance with its payment obligations. Resilient
Floor maintains, however, that A & M and Carpet Workroom are in reality alter egos of one another, so that
Carpet Workroom should be bound by the terms of the collective bargaining agreement signed by A & M.
In the present action, therefore, Resilient Floor seeks to compel Carpet Workroom to make contributions,
based on the number of hours Carpet Workroom’s employees have worked, to the employee fringe-benefit
trust funds maintained by Resilient Floor.
        The district court granted summary judgment in favor of A & M and Carpet Workroom, holding that
they are distinct corporate entities and not alter egos of one another. Moreover, the court held that Carpet
Workroom would be exempt from making contributions in any event because the installers it utilizes are
independent contractors, not employees. This timely appeal followed.
                                             II. ANALYSIS
A.     Standard of review
        We review a district court’s grant of summary judgment de novo. Therma-Scan, Inc. v. Thermoscan,
Inc., 295 F.3d 623, 629 (6th Cir. 2002). Summary judgment is proper where there exists no genuine issue
No. 03-1149             Resilient Floor, et al. v. A & M Installations, et al.                         Page 3


of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
considering a motion for summary judgment, the district court must construe all reasonable inferences in
favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
B.     Summary judgment was appropriate on the issue of whether A & M and Carpet Workroom
       are alter egos
        “The alter ego doctrine is most commonly used in labor cases to bind a new employer that continues
the operations of an old employer in those cases where the new employer is ‘merely a disguised continuance
of the old employer.’” NLRB v. Fullerton Transfer & Storage Ltd., Inc., 910 F.2d 331, 336 (6th Cir. 1990)
(quoting Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106 (1942)). In this context, the alter ego theory
“prevent[s] employers from evading obligations under the Act merely by changing or altering their
corporate form.” NLRB v. Allcoast Transfer, Inc., 780 F.2d 576, 579 (6th Cir. 1986); see also NLRB v.
C.J.R. Transfer, Inc., No. 91-5272, 1992 WL 3708, (6th Cir. Jan. 10, 1992) (unpublished) (applying the
alter ego doctrine where a company stopped making required contributions to a benefit trust fund after
discharging all of its union employees, but the employees were promptly rehired to work in a nonunion
company under the same ownership).
        Resilient Floor alleges that Carpet Workroom created A & M to permit Carpet Workroom to
capitalize on union contract opportunities while simultaneously evading the collective bargaining
obligations faced by other union employers, and that such a business reorganization triggers the alter ego
doctrine. But, even if Resilient Floor could produce sufficient evidence to support its theory that A & M
was formed for this purpose, it can point to no legal basis to impose liability on Carpet Workroom for the
obligations contained within A & M’s collective bargaining agreement. When presented with a nearly
identical argument, the First Circuit declined to invoke the alter ego theory because it found that there had
been no “change in the structure or operations of the employer with whom the collective bargaining
agreement was negotiated” that had made the union “somehow worse off.” Mass. Carpenters Cent.
Collection Agency v. A.A. Bldg. Erectors, Inc., 343 F.3d 18, 21, 22 (1st Cir. 2003) (refusing to apply the
alter ego doctrine, even though its requirements were technically met, where the company sued “is and
always has been, a non-union entity” with no “preexisting labor law obligations”).
       Our own circuit has suggested in dicta that the alter ego doctrine might also be “applied to so-called
double-breasted operations to determine whether two or more coexisting employers performing the same
work are in fact one business, separated only in form.” Fullerton Transfer & Storage Ltd., Inc., 910 F.2d
at 336 & n.7 (using the traditional alter ego doctrine to impose liability, but hypothesizing in dicta that the
doctrine might be equally applicable “where a company operating with a unionized work force establishes
a second, nonunionized company performing the same work in the same market under the same control”).
Resilient Floor argues that this variation on the alter ego doctrine would also permit liability to be imposed
where a nonunion company establishes a union company and no preexisting labor obligations are disrupted.
         This argument is unpersuasive, however, because Resilient Floor disregards the fact that “an intent
to evade” preexisting obligations is “clearly the focus of the alter ego doctrine.” Cement Masons’ Pension
Trust Fund v. O’Reilly, 664 F. Supp. 277, 279 (E.D. Mich. 1987); see also Allcoast Transfer, Inc., 780 F.2d
at 579 (applying the alter ego theory to “prevent employers from evading obligations” under collective
bargaining agreements). In the absence of some “indication that the relationship between [the companies]
has changed over the years or has caused the [union] to receive less than that for which it bargained,” there
is no inequity that would justify a court’s imposition of liability. Mass. Carpenters Cent. Collection Agency,
343 F.3d at 22 (“If the [union] wants to ensure that employers with whom it contracts are not or will not be
part of a double-breasted operation, we see no reason why it cannot bargain for such an arrangement.”).
No. 03-1149             Resilient Floor, et al. v. A & M Installations, et al.                            Page 4


        Our own court faced this same argument in a case with nearly identical facts to those presented here,
in which an affiliate of Resilient Floor was the plaintiff, and we refused to apply the alter ego theory after
concluding that there was “no injustice, fraudulent intent, or need to protect employees from being deprived
of anticipated benefits” that could justify an extension of the doctrine. Resilient Floor Decorators Vacation
Fund v. Contract Carpet, Inc., No. 93-2594, 1995 WL 611148 at *5 (6th Cir. Oct. 17, 1995) (unpublished).
Because Resilient Floor has not alleged in the present litigation that A & M concealed its close relationship
with Carpet Workroom, and because there is no indication that Resilient Floor has not received the full
benefit of its collective bargaining agreement with A & M, the application of the alter ego doctrine is
inappropriate here as well.
        Even if we were to conclude that the alter ego doctrine could be applied to a situation where there
are no preexisting labor obligations, Resilient Floor has still failed to demonstrate that A & M and Carpet
Workroom “have substantially identical management, business, purpose, operation, equipment, customers,
supervision and ownership.” Nelson Elec. v. NLRB, 638 F.2d 965, 968 (6th Cir. 1981). Resilient Floor
points to the fact that A & M was created shortly after Lukasik met with union representatives and discussed
the possibility of Carpet Workroom becoming a union company. It also alleges that Carpet Workroom
loaned $5,000 to A & M shortly after it was formed so that A & M could post a security bond with Resilient
Floor to fulfill a condition of its collective bargaining agreement.
        This evidence, however, falls short of the kind of pervasive intermingling of funds and operations
necessary to support a finding that two companies are alter egos of one another. Compare Nelson Elec., 638
F.2d at 698 (finding a nonunion successor company to be the alter ego of its union predecessor where the
company name was changed but the customers, management, equipment, and employees remained the same
and the cash assets of the entities were commingled), with Roofers Local 149 Sec. Trust Fund v. Duane
Smelser Roofing Co., 285 F. Supp. 2d 936, 941-42 (E.D. Mich. 2003) (determining that two companies were
not alter egos of one another even where one company performed payroll for both and one of the companies
failed to repay a $420,000 informal loan from the other). We therefore find no error in the determination
of the district court that there is no genuine issue of material fact with respect to whether Carpet Workroom
and A & M are alter egos of one another.
C.     Summary judgment was appropriate on the issue of whether Carpet Workroom employs
       independent contractors to install its flooring
        Another key component of Resilient Floor’s claim was to establish the applicability of 29 U.S.C.
§ 1145 (a part of ERISA), which mandates that fringe-benefit contributions be made on behalf of employees
covered by collective bargaining agreements. This ERISA provision, however, is applicable only to
company employees, not independent contractors. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
321 (1992). Thus, even if Resilient Floor were able to establish that A & M and Carpet Workroom were
alter egos, it would still need to prove that the installers used by Carpet Workroom are employees within
the definition of ERISA in order to recover trust fund contributions on their behalf.
         This court applies de novo review to the question of whether an individual is an employee or an
independent contractor. Weary v. Cochran, 377 F.3d 522, 524 (6th Cir. 2004). Although ERISA’s
definition of an employee as “an individual employed by an employer,” 29 U.S.C. § 1002(6), “is completely
circular and explains nothing,” Darden, 503 U.S. at 323, the Supreme Court has formulated a common-law
test for the lower courts to apply in determining this issue. The most important consideration is whether
the employer has a “right to control the manner and means by which the product is accomplished.” Id.
(quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989)). To assess the amount of
control exercised by the employer, the court should look to
       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
No. 03-1149             Resilient Floor, et al. v. A & M Installations, et al.                           Page 5


        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.
Darden, 503 U.S. at 323-24 (quoting Cmty. for Creative Non-Violence, 490 U.S. at 751-52).
         Resilient Floor insists that several of the Darden factors support its contention that the persons used
by Carpet Workroom to install its carpets are employees of the company, and the issue is therefore
inappropriate for summary judgment. First, it points to the fact that Carpet Workroom schedules the
installers for assignments without having them bid on particular jobs. As the affidavits supplied by eight
of Carpet Workroom’s installers attest, however, the installers are free to decline any job to which they are
assigned by Carpet Workroom. This practice of assigning installers to particular jobs is apparently a matter
of efficiency for Carpet Workroom because, as the district court indicated, it would otherwise “spend a great
deal of time each week trying to contact installers in order to inquire whether they would like to work on
a given project.”
        Second, Resilient Floor insists that Carpet Workroom “retains control over the method and timing
of completion of the job, by controlling the composition of the work crew” through its practice of hiring
“more than one ‘independent contractor’ per job.” This contention also fails to establish that Carpet
Workroom’s installers are employees, however, because there are numerous reasons why a contractor might
hire several subcontractors to work on a given job. The district court, for instance, noted that this practice
permitted Carpet Workroom to finish its jobs in a more timely manner.
         Finally, Resilient Floors argues that the fact that Carpet Workroom “uses both independent
contractors and employees to perform the same type of work . . . [is] an indication that the employer has
misclassified the workers as independent contractors.” But Resilient Floor cites no authority for this
proposition. Moreover, even if this fact were legally significant, the evidence it relies upon fails to establish
that the employees of Carpet Workroom perform the same type of work as its independent contractors.
Resilient Floor bases its argument on the fact that Lukasik is a salaried employee of Carpet Workroom who
also occasionally installs carpet for the company. Lukasik’s deposition testimony, however, does not
support this contention. As the president of Carpet Workroom, Lukasik stated that he installs carpet “when
necessary . . . when [he] can’t find anybody to do it.” Resilient Floor presents no other evidence to bridge
the gap between this testimony and its contention that Lukasik’s role is no different than that of an installer,
thus failing to raise a genuine issue of material fact with respect to whether Carpet Workroom’s installers
are its employees.
        In addition, Carpet Workroom points to the affidavits of eight persons that it uses as installers, which
state that the installers use their own tools, work for other companies in addition to Carpet Workroom, set
their own work schedules, are free to accept or reject jobs from Carpet Workroom, carry their own
insurance, and do not receive fringe benefits from Carpet Workroom. Documents submitted by Carpet
Workroom also demonstrate that it files IRS Form 1099 for the installers it uses, as opposed to IRS Form
W-2 that it files for its employees. Resilient Floor has failed to refute this mass of evidence that suggests
that Carpet Workroom is solely in the business of selling carpet and that it subcontracts out all of its
installation work. Based upon the Darden factors, the evidence fully supports the district court’s conclusion
that Carpet Workroom’s installers are independent contractors and thus not subject to employee fringe-
benefit contributions.
                                            III. CONCLUSION
        For all of the reasons set forth above, we AFFIRM the judgment of the district court.
