Cabot Corp.

National Labor Relations Board - Board Decisions

May 11, 1976

223 N.L.R.B. 1388 (N.L.R.B. 1976)

1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cabot Corporation and Payne and Keller of Louisiana,
Inc. and International Chemical Workers Union,
Local 483
Cabot Corporation and Payne and Keller of Louisiana,
Inc. and Southwest Security Service and Interna-
tional Chemical Workers Union, Local 483
American Federation of Unions, Local 102 and Inter-
national Chemical Workers Union, Local 483.
Cases 15-CA-5513, 15-CA-5521, and 15-CB-
1576
May 11, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 23, 1975, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent Cabot
Corporation (Cabot) and Respondent Payne and
Keller of Louisiana, Inc. (P & K) each filed a brief in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
1. The Administrative Law Judge finds that nei-
ther Respondent Cabot nor Respondent P & K vio-
lated Section 8(aX5) and (2) when P & K recognized
and bargained with Local 102. We agree for the rea-
sons stated by him as amplified below.
The facts are fully described in the Decision of the
Administrative Law Judge. Briefly, Cabot is a Dela-
ware corporation engaged in the manufacture of car-
bon black and related products. On July 1, 1974,
Cabot's production and maintenance employees
went on strike. On July 22 and 24, 1974, Cabot en-
tered into two contracts with P & K, a building and
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and and find no basis for reversing his findings.
2 We note that it was neither alleged nor contended that the use of the
"Membership Application" questioning the employees' membership in
other unions was independently violative of Sec . 8(a)(l) or Sec . 8(b)(l)(A).
construction and plant maintenance firm with whom
it had had no previous relationship. The first was for
construction of a fence which Cabot deemed neces-
sary because of the strike. The second was for main-
tenance. Initially, P & K employees were to build the
fence and perform overhauling maintenance. Cabot
customarily subcontracted the latter work. Upon
completion of the overhauling maintenance, on Sep-
tember 23, P & K began performing general mainte-
nance for the duration of the strike. On July 26, P &
K entered into a collective-bargaining agreement
with American Federation of Unions, Local 102
(hereinafter Local 102), covering P & K employees at
the Cabot plant. The General Counsel alleges that
Cabot is a joint employer with P & K, and Cabot and
P & K violated Section 8(a)(2) and (5) of the Act by
recognizing and bargaining with Local 102 since the
Cabot employees were already represented by Inter-
national Chemical Workers Union, Local 483 (here-
inafter Local 483), and the P & K employees, as em-
ployees of the joint employer, are part of the Local
483-represented unit. The Administrative Law Judge
found that Cabot and P & K do not constitute a joint
employer and therefore that neither violated Section
8(a)(2) and (5) of the Act when P & K recognized
Local 102.
The question of joint employer status must be de-
cided upon the totality of the facts of the particular
case. Basically, the determining factor in an owner-
contractor situation is whether the owner exercises,
or has the right to exercise, sufficient control over the
labor relations policies of the contractor or over the
wages, hours, and working conditions of the
contractor's employees from which it may be reason-
ably inferred that the owner is in fact an employer of
the employees.'
The General Counsel relies on both the contractu-
al relationship between P & K and Cabot and their
methods of operation under those agreements in his
effort to establish that Cabot and P & K are a joint
employer. The contracts ° provide that P & K is an
independent contractor. Both agreements are cost-
plus contracts. As would be expected in a cost-plus
agreement, all cost items are set forth in great detail,
specifying precisely Cabot's eventual obligation un-
der the contract. But the inclusion of the wage rates
to be paid P & K's employees does raise the question
as to whether Cabot is exercising control indicative
of the joint employer status since such inclusion
could imply that these wage rates might have been
negotiated between the contracting parties. However,
if Cabot was to do business with P & K, it at least
3 See Westinghouse Electric Corporation, 163 NLRB 194 (1967).
The contracts are nearly identical in defining the relationship between
Cabot and P & K.
223 NLRB No. 205
CABOT CORP. 1389
had to meet the cost of the employees' wages. P & K
was already a party to a contract with Local 102 as a
member of a multiemployer group and was paying
the rates provided therein. It is those rates which the
Cabot-P & K agreement set forth.5 It is not unusual
to specify clearly the extent of such liability. Had the
two firms merely provided that Cabot would reim-
burse P & K for wages at the rate the latter was
already paying elsewhere under its collective-bar-
gaining agreement, no question would arise. We see
no basis for any different conclusion merely because
the rates themselves were included .6
As to the noncost items of the contracts, the provi-
sions, considered separately or jointly with each
other and with the cost items, also do not serve as a
basis for concluding that Cabot possessed the type of
control which would establish a joint employer rela-
tionship. Rather, they are the customary terms of
such cost-plus contractual arrangements. True, Ca-
bot was given the right thereunder to insist that P &
K remove employees from the job. But Cabot had no
right to require the complete removal of an employee
from P & K's payroll, and had no control over the
hiring of P & K employees. Also, provision was made
to allow either party to terminate the contractual re-
lationship on 30 days' notice, and Cabot, additional-
ly, to terminate at any time. However, Cabot's right
of termination simply was a direct outgrowth of the
parties' recognition that the relationship was tempo-
rary, lasting only until the strike ended. As for the
terms that P & K was required to perform the job. in
accordance with Cabot's drawings and job specifica-
tions, and P & K's performance was subject to
Cabot's approval, such provisions merely established
the right of Cabot to insist that the final product con-
form with its requirements and be done satisfactorily.
Clearly, this is an ordinary provision in such arrange-
ments, for any contractor has this right and would be
expected to retain and assert it over a subcontractor
as part of their bargain. In any event, in the absence
of provisions establishing Cabot's control over the
means used to achieve that end as well, they do not
indicate a joint employer relationship. Finally, the
5 There does appear to have been some disagreement between P & K and
Cabot as to whether the appropriate rate was the Local 102 construction
rate or the Local 102 maintenance rate, with the parties finally deciding that
the latter was the appropriate rate.
6 Also included are provisions which require Cabot, inter alia, to reim-
burse P & K for the cost-of-living expense incurred by P & K personnel and
for professional expenses incurred by P & K. These provisions further point
out the arm's-length relationship between P & K and Cabot. Whether P &
K had hidden its labor costs in bidding for the contracts or agreed to item-
ize them as here , we are at a loss to understand our dissenting colleague's
argument that Cabot's agreeing to reimburse P & K completely for such
costs and others somehow served to remove from P & K the status of an
independent contractor vis-a-vis Cabot . Surely P & K was entitled to recover
from Cabot the total expenses incurred , including employee wages and ben-
efits.
contracts contain a prohibition against subletting.
Such a provision is hardly unknown in subcontract-
ing and this provision in a cost-plus contract, such as
the one here involved, establishes nothing more than
that Cabot, having put faith in the integrity of P & K
in the matter of costs, did not wish unknowingly to
have that arrangement transferred to someone in
whom it might have less confidence.
As to actual operations under the contract, P & K
had its own office at the plant, had its own timekeep-
er, maintained its own payroll, and paid its employ-
ees' social security and taxes. For the first 2 months,
P & K's supervisors alone directed the work of the P
& K employees, notwithstanding that Cabot supervi-
sors did make a daily head count of P & K employ-
ees at the Cabot plant and did monitor P & K's per-
formance. However, the head count related, again,
directly to the fact that this contract was a cost-plus
contract and Cabot wanted to be sure that P & K
was giving it an accurate accounting of the costs. As
to the monitoring of P & K's performance, that was
part of Cabot's right to insist that the ultimate prod-
uct be satisfactory and not an attempt to direct P &
K as to the means used to achieve that end. Conse-
quently, it does not establish a joint employer rela-
tionship.
In light of the foregoing, it is clearly evident that
the cost-plus contracts merely insured that Cabot ob-
tain a satisfactory work product at cost and protect-
ed it against unnecessary charges being incurred,
while giving P & K a profit, but that Cabot did not
exercise the type of control which would establish a
joint employer relationship.' Cabot's policing of the
contracts only assured it that P & K was actually
incurring the expenses for which it claimed reim-
bursement and that the final product was satisfac-
tory.'
As heretofore indicated, on September 23, 1974, P
& K switched from doing overhaul maintenance to
performing general maintenance work. Cabot's su-
pervisors then began to supervise the work of the P &
K employees. This supervisory arrangement was, as
fully detailed by the Administrative Law Judge, nec-
essary both because of safety requirements and be-
cause it would have required a great deal of training
to give P & K supervisors an expert knowledge of the
equipment and operations. Since this aspect of the
work was to last only until the strike was over and
was subject to immediate termination by Cabot, the
7 By their terms, the contracts provided that P & K was an independent
contractor. The Board views this as an important factor in determining
whether a joint employer relationship exists. Mobil Oil Corporation, 219
NLRB 511 (1975).
8 Hychem Constructors, Inc., Texas Eastman Company, Division of Eastman
Kodak Company, and Hudson Engineering Corporation, 169 NLRB 274
(1968).
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties concluded that training the P & K supervisors
to attain expertise in these matters was unwarranted
in the circumstances . In all other respects , the parties
continued to operate as before. We find that this sin-
gle change in the operations , long after the recogni-
tion and bargaining with Local 102 had taken place,
is not sufficient to warrant a finding that P & K and
Cabot were or became a joint employer.9 Even after
this change , all labor relations matters arising out of
the P & K operations were handled exclusively be-
tween P & K and Local 102. At no time did Cabot
have any part in setting wages for the P & K employ-
ees or the hiring or discharge 10 of P & K employ-
ees."
Having found that Cabot and P & K do not consti-
tute a joint employer and since no other basis is sug-
gested by the General Counsel for finding a violation
by either, we conclude that Cabot has not violated
either Section 8(a)(2) or Section 8(a)(5) of the Act
in connection with P & K's relationship with Local
102.12
2. The complaint also alleges that Southwest Se-
curity Service, hereinafter Southwest, as an agent of
Cabot and P & K , engaged in misconduct against
striking employees which violated Section 8(a)(1) of
the Act. The Administrative Law Judge found no
merit in these allegations . We agree.
Our dissenting colleague points to four items
9 We note that when P & K recognized Local 102 there was no certainty
that its employees would ever perform any of the regular maintenance work.
10 As noted, it had no right to do so except to the limited extent that
Cabot could require removal of employees from the plant.
11 Our dissenting colleague relies primarily on Ref-Chem Company and El
Paso Products Co., 169 NLRB 376 (1968): Hamburg Industries Inc., Fidelity
Services. Inc. d Industrial Technical Services, Inc., 193 NLRB 67 (1971), and
Mobil Oil Corporation, supra, to support his position . These cases are factu-
ally distinguishable . In Ref-Chem, the maintenance contractor was con-
trolled in all aspects of the work and its labor relations policies and. in
addition, the financial interests of the maintenance contractor and the own-
er of the plant were intertwined . The amount of control is much less here
and there is no similar intertwining of the financial affairs of the two com-
panies. In Hamburg, one employer , a manpower supplier, furnished another
employer's entire work force , including first-level supervisors . That work
force was subject to virtually complete control of the second employer. The
second employer determined which tasks were to be performed and how
they were to be performed . He also , in practice, set the wage rates. Here, in
contrast , P & K was hired to perform a specific task and determined how
that task was to be performed . Cabot did not determine any of the wage
rates. Rather, the rates used had been set as the result of collective bargain-
ing elsewhere. Further, the contracts here , unlike those in Hamburg. were to
be of short duration , i.e.. no longer than the course of the strike . It is unlike-
ly that there would be any change in the wage rates during their existence.
Unlike our dissenting colleague , we do not believe that it is particularly
useful in attempting to determine the relationship between P & K and Ca-
bot to look at what indirect influence Cabot might exercise over an event
which was not contemplated by the parties and in all likelihood would not
occur. In Mobil Oil, the control by Mobil Oil over the Santa Fe Drilling
Company employees was almost complete . Thus Mobil had the authority to
fire, promote , discipline, reassign or reclassify, grant time off, and authorize
overtime. No such broad authority is present herein.
12 In finding that Cabot and P & K are not a joint employer, we find it
unnecessary to reach the Administrative Law Judge's alternative finding
that even if they were their recognition of and bargaining with Local 102
would not have been unlawful.
which he deems indicative of restraint and coercion
engaged in by persons hired to protect the Cabot fa-
cility. He would find that Southwest as an employer
of these individuals must clearly be held responsible
for their actions while on duty.
The first involves guard Aucoin's conduct on July
12, 1974. Aucoin was involved in two incidents on
that day both away from his assigned post, which
was at an off-plant location. First, he discharged a
weapon into a vehicle parked at the home of Chemi-
cal Workers vice president, LaGrange, while en route
to the plant, drunk. Because of his drunken condi-
tion, upon his arrival at the plant he was instructed to
leave. As he was leaving, he assaulted a picket with a
pistol and threatened another picket by pointing a
pistol at him. Since the first incident occurred away
from the picket line and his post, and the second
after Aucoin had left, we conclude that Aucoin was
engaged in misconduct that clearly extended beyond
the apparent scope of his authority. Since his con-
duct was unauthorized and occurred while he was
not on duty-indeed, he appears to have been termi-
nated-we are unable to find that Respondent
Southwest was responsible therefor. Our dissenting
colleague however, points to the fact that Aucoin
asked for and was given a second chance a few days
later and allowed to return to work, but then was
subsequently discharged at the direction of a Cabot
official. The fact that an employee is given a second
chance following misconduct does not, in our opin-
ion, in itself warrant a finding that Southwest adopt-
ed and was responsible for such misconduct.
Next our dissenting colleague points to the inci-
dent involving guard Hunter. Hunter discharged his
gun within 40 to 50 yards of the picket line. South-
west was advised that Hunter had been loading his
shotgun at the time and the discharge was caused by
closing the breech too quickly. No gestures were
made toward the picket line on that occasion. Hunter
was returned to guard duty the next day, but was
terminated a day or two later. Since there is no evi-
dence that the discharge of the shotgun was intended
to coerce the pickets, and since there is nothing to
indicate that the discharge of the gun was other than
accidental, we conclude there is insufficient evidence
to establish that Southwest violated Section 8(a)(1)
even if it could be said that it was responsible for
guard Hunter's actions.
Our dissenting colleague next points to the actions
of guard Harding. Harding was driving through the
picket line at the main gate entrance when one of the
striking employees told Harding to be careful, that
Harding would be in "big trouble" if he hit any of
the pickets. Harding said he was coming through and
anyone who was in his way would be hit. Harding
CABOT CORP. 1391
stopped the vehicle and got out, gun in hand. He
then preceded the vehicle with his wife driving, pick-
ing up some tacks from the entrance way and throw-
ing them in front of a car belonging to one of the
picketing employees. Some words ensued and Har-
ding drove into the plant. While leaving the plant
that afternoon, Harding had a guard dog on a leash.
He got out of his vehicle at the entrance and picked
up some more tacks from the entrance way. Harding
had some words with one of the pickets. Another
guard approached and told Harding to leave. We
find that Harding's conduct here was defensive in
nature and not an attempt to interfere with the right
of the striking employees to picket peacefully. Ac-
cordingly, there is insufficient evidence to establish
that Southwest violated Section 8(a)(1) even if it
could be said that it was responsible for guard
Harding's actions.
Finally, our dissenting colleague points to the con-
duct of Southwest's president, Theriot, and the testi-
mony that on a few occasions Theriot deliberately
drove a vehicle so as to endanger pickets at plant
entrances. As the Administrative Law Judge notes, a
sheriff's deputy was present on one such alleged oc-
casion and the deputy made no charge against Theri-
ot, but did arrest a picketing employee for obstruct-
ing the entrance way. Also, a picketing employee
testified that "at times" the pickets would start mov-
ing across the road at the entrance way whenever
they saw Theriot approaching. As our dissenting col-
league correctly notes, assaults by an automobile are
not inconsequential regardless of how many times
they occur. However, the evidence is such that we are
unable to find that the General Counsel has estab-
lished that Theriot deliberately drove a vehicle so as
to endanger the pickets. Rather the evidence seems
to establish that pickets would deliberately move in
such a way as to place themselves in danger when
Theriot approached. In these circumstances we are
unable to conclude that Respondent Southwest has
violated Section 8(a)(1) by Theriot's conduct.
Since we conclude that General Counsel has not
established that Southwest ratified, condoned, or au-
thorized its guards or officers to engage in any con-
duct which violates Section 8(a)(1), we shall adopt
the Administrative Law Judge's recommendation
that those allegations of the complaint be dis-
missed.13
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as. its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
MEMBER FANNING, dissenting:
Contrary to my colleagues and the Administrative
Law Judge, I would find that Cabot Corporation,
hereinafter Cabot, and Payne and Keller of Louisi-
ana, Inc., hereinafter P & K, were joint employers. In
my judgment, the operative facts in this case and
Board precedent require that a joint employer rela-
tionship be found.
The Administrative Law Judge, citing Fidelity
Maintenance & Construction Company, Inc., and Co-
lumbia Nitrogen Corporation, 173 NLRB 1032
(1968),14 concluded that, based on the "totality of the
facts" in this case, he was not satisfied that Cabot
and P & K were joint employers. As further noted by
the Administrative Law Judge, it was stated in Fideli-
ty Maintenance that "the determinative factor in a
owner-contractor situation, is whether the owner ex-
ercises or has the right to exercise sufficient control
over the labor relations policies of the contractor, or
over the wages, hours and working conditions of the
contractor's employees, from which it may be rea-
sonably inferred that the owner is in fact an Employ-
er of the employees involved." However, applying, as
did the Administrative Law Judge, the "right to exer-
cise sufficient control" test, I cannot but conclude
that Cabot and P & K were joint employers.
Since late 1955, the International Chemical Work-
ers Union, Local 483, hereinafter Chemical Workers,
has represented a unit of production, maintenance,
and labor employees at the Cabot facility. The most
recent collective-bargaining agreement between Ca-
bot and the Chemical Workers expired July 1, 1974.
When the parties failed to reach agreement. on a new
contract, the Chemical Workers, on July 1, 1974,
went on strike. The unit consisted of about 210 em-
ployees, including about 90 maintenance workers.
Even prior to the strike, Cabot entered discussions
with P & K to obtain the latter's services for con-
struction of a fence around Cabot's property and for
furnishing plant maintenance. On July 22 and 24,
1974, the parties executed a construction and a main-
tenance contract.15
14 1 note that in Fidelity Maintenance, supra, the Board found it unneces-
sary to reach the joint employer issue. However, I do not quarrel with the
basic principle of law as stated by Administrative Law Judge Nachman in
the Fidelity Maintenance case . Further, inasmuch as the operative facts in
Fidelity Maintenance were different from the facts herein, I would not regard
that case, even assuming the Board had affirmed on the joint employer
issue , as precedent for this case.
13 In view of this finding , we find it unnecessary to decide whether, if 15 Inasmuch as the construction and maintenance contracts are nearly
Southwest had acted unlawfully , Respondents Cabot or P & K also would identical as to defining the relationship of the parties and inasmuch as the
have been responsible for such conduct . Continued
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The maintenance contract between the parties es-
tablished that Cabot retained the right to control P &
K employees, thereby establishing a joint employer
relationship. The agreement was a cost-plus contract
in which all wages paid by P & K to the employees
were fully recoverable from Cabot in addition to P &
K's add-on fee. Cabot also paid various "reimbursa-
ble employee costs" including required taxes, insur-
ance fees, contribution to welfare and benefit funds,
and even the cost-of-living payments for all P & K
employees at actual cost. Cabot also agreed to supply
all tools and safety equipment and agreed to pay for
any other equipment needed. Cabot even agreed to
reimburse P & K for any professional cost incurred
by P & K in connection with the contractual rela-
tionship. The contract gave each party a right of ter-
mination upon 30-day written notice, with a further
right for Cabot to terminate at any time. P & K fur-
ther agreed not to assign, transfer, convey, sublet, or
otherwise dispose of any contract or any right, title,
or interest therein, to anyone without the prior writ-
ten consent of Cabot, and even subletting by P & K
does not relieve P & K of its liabilities and obliga-
tions under the contract. Cabot reserved the right to
inform P & K of specific work to be performed and
of the equipment and personnel which Cabot
deemed adequate to perform such work and of the
date on which the work would be commenced. P & K
agreed to perform work in accordance with drawings
and specifications furnished by Cabot. Cabot re-
tained the right to inspect, test, approve, or disap-
prove the work and services performed by P & K. In
the event of any dispute between P & K and other
contractors or workmen, Cabot's decision on the
matter would be final. Cabot retained the right to
have any worker which it deemed incompetent dis-
charged from the work and not rehired without the
consent of Cabot. Further, Cabot required that all P
& K employees observe Cabot's safety and plant re-
gulations.
Based on the foregoing, I think it clear that Cabot
had the right to exercise substantial authority over
the work of the employees supplied by P & K. Fur-
ther, the costs borne by Cabot, as well as Cabot's
retained rights, belie any contention that the parties
were dealing at arm's length or that P & K was oper-
ating as an independent contractor.
In cases similar to this one, such as Ref-Chem
Company, 169 NLRB 376; Hamburg Industries, Inc.,
193 NLRB 67; and Mobil Oil, 219 NLRB 511, the
Board has found a joint employer relationship to ex-
ist.
maintenance contract is of more importance in this case, my discussion is
limited to analysis of the maintenance contract.
In Ref-Chem, supra, the Board found a joint em-
ployer relationship between a manufacturer of petro-
chemical products and each of a succession of con-
tractors performing maintenance for the
manufacturer. The factors relied upon by the Board
in that case are similar to the factor present in this
case . There, the contractual agreement between the
parties gave the manufacturer the right to terminate
the agreement at will; the right to request removal of
any employee it deemed incompetent, careless, un-
qualified, or guilty of improper conduct; the right of
approval over all work; and the right of prior approv-
al in control over wages, cost of materials, and equip-
ment rentals . The same factors as were present in
Ref-Chem are present here and support a finding that
Cabot and P & K are joint employers.
In Hamburg Industries, Inc., supra, the Board
found a joint employer relationship between Ham-
burg, which was engaged in the business of providing
repair, maintenance, and remanufacture of railroad
cars, and a labor contractor supplying all workers,
including supervisors, to Hamburg. Hamburg direct-
ed what work would be done and had its superinten-
dent check the work being performed. However, un-
like this case, the contractor's supervisors directed
employees and communicated the owner's instruc-
tions to the employees. Hamburg retained the right
to terminate the contract at any time, the right to
require that work be redone, the right to have its own
safety rules followed by all employees at the plant,
the right to have employees removed from the plant,
and the right to veto overtime and change the hours
or work for all employees. Hamburg reimbursed the
labor contractor for all costs, including wages and
taxes, and paid the contractor a fee. The wages were
based on an employee handbook, pay scale, and
fringe benefits which were used by the contractor in
regard to all companies for whom it provided serv-
ices . Though the facts in Hamburg Industries were
not as strongly in favor of a joint employer relation-
ship as are the facts herein,16 the Board concluded, in
16 My colleagues attempt to distinguish the Hamburg case from the facts
herein but fail to do so. The factors cited by the majority are nearly identi-
cal in both cases.
In regard to control , Cabot's was as "virtually complete" as was
Hamburg's (the plant owner in the other case). Both these employers could
require the removal from the plant of any employee supplied by its contrac-
tor, and both had their own superintendents constantly checking the quality
of the work being performed . Cabot, like Hamburg, could reject unsatisfac-
tory work. Cabot, like Hamburg, could inform its contractor of the specific
work to be done and require certain equipment and personnel be used to
accomplish the task . Cabot's personnel , as did Hamburg's, gave its labor
contractor daily instructions as to how the various maintenance and con-
struction jobs were to be performed . However, as noted above , Cabot sup-
plied the first-line supervisors while Hamburg relied on its labor contractor
to supply supervisors . Accordingly, if Hamburg's control may be character-
ized as "virtually complete ," so should the control exercised by Cabot.
Also. Cabot's authority as to wage rates was the same as Hamburg's. In
Hamburg, the labor contractor paid its employees the same rates paid at
other plants where the contractor supplied the manpower . The contractor
CABOT CORP. 1393
view of Hamburg's considerable control over the la-
bor contractors operation in such critical areas as
work instruction, quality control, and the right to re-
ject work, work scheduling, and indirect control over
wages, it was "obvious" that Hamburg was a joint
employer with its labor contractor.
Board precedent makes it clear that, where an em-
ployer retains the right to exercise significant control
over the employees of its contractor, a joint employer
relationship will be inferred between the employer
and the contractor. The Board does not require that
the employer actually exercise the rights it retained in
regard to the employees of its contractor." However,
to buttress its finding of a joint employer relation-
ship, the Board has, on occasion, looked to the actual
operation of the contractual relationship between the
parties. In Mobil Oil, 219 NLRB 511, the Board, in
affirming the Administrative Law Judge's finding of
a joint employer relationship between the operator of
an oil platform and its labor contractor, noted that
the operator's production foremen exercised daily
control over the employees supplied by the labor
contractor. Upon examining the operative facts in
this case, it cannot be denied that Cabot actually ex-
ercised its rights vis-a-vis the employees supplied by P
& K.
After the commencement of the strike, from about
July 24 to September 24, 1974, P & K employees
worked at the Cabot facility under the direct supervi-
sion of P & K Superintendent Bennett. Bennett re-
ported to Cabot Superintendent Black. Black was
consulted regarding applications for employment to
work at the Cabot facility. Cabot personnel made a
daily head count of P & K workers and checked the
performance of P & K workers in order. to insure that
it was done pursuant to Cabot's instruction. Black
himself toured the plantsite to insure that P & K's
employees were working properly. Also, Bennett re-
ceived crew assignments, callout requests for addi-
tional personnel, instructions, and engineering assis-
tance from various Cabot personnel. Cabot required
that P & K's daily payroll sheets be verified and ap-
could unilaterally increase the wages and benefits but would need
Hamburg's prior approval in order to be reimbursed for such increased
wages . Here , Cabot and P & K set out in their contract the wage rates for
employees supplied by P & K. P & K alleges that those rates are the same as
it pays at other plants where it supplies the labor. Presumably, were P & K
to increase the wage rates set out in its contract with Cabot, it would need
Cabot's prior approval in order to be reimbursed for such increases. Thus,
Cabot has the same indirect control over wages as did the employer (plant
owner) in the Hamburg case. It is clear that Hamburg dictates that a joint
emptloyer relationship be found to exist between Cabot and P & K.
1 In addition to the cases I have already discussed , see also Hoskins
Ready-Mix Concrete, Inc., and Trinity Portland Cement Division , General
Portland Cement Company, 161 NLRB 1492 (1966), citing N.L.R.B. v. New
Madrid Manufacturing Company, 215 F.2d 908 (C.A. 8. 1954); and Bethle-
hem-Fairfield Shipyard, Incorporated, and M & M Restaurant Operating Com-
pany, Inc., 53 NLRB 1428 (1943).
proved on a daily basis by Cabot supervisory person-
nel prior to submission for payroll processing. Final-
ly, it should be noted that apparently there were no P
& K supervisors other than Bennett at the Cabot site.
Below Bennett, there were "working foremen" sup-
plied by P & K. However, these foremen were appar-
ently unit employees and not supervisors. Inasmuch
as a substantial number of employees were hired dur-
ing Bennett's tenure at the Cabot facility, it is appar-
ent that it was necessary for Cabot personnel to con-
tribute significantly to controlling and directing the
employees provided by P & K. Thus, even in the
initial period after the beginning of the strike, Cabot,
through Superintendent Black and other personnel,
exercised significant control over employees supplied
by P & K.
If any doubt existed as to Cabot's actual exercise
of control over employees of P & K, that doubt
ceased to exist after September 24, 1974. From that
date forth, Bennett left the Cabot plant and Cabot's
trained supervisory staff began exercising day-to-day
supervision, direction, assignment, and instruction of
personnel supplied by P & K. Cabot's supervisors
approved the daily employees' worksheets completed
by the P & K maintenance workers in the same fash-
ion and under the same circumstances as they had
done with unit employees prior to the strike. There-
fore, looking beyond the rights retained by Cabot in
its agreement with P & K, it is clear that Cabot actu-
ally exercised substantial control over workers sup-
plied by P & K. The Administrative Law Judge
found that Cabot used its own supervisory personnel
for reasons of safety and because it was deemed un-
warranted to train P & K supervisors in view of the
possibly temporary nature of the contract. The rec-
ord also indicated that Cabot used its own superviso-
ry personnel because it was deemed that they could
do a more efficient job than supervisory personnel
supplied by P & K. Certainly, the inability of P & K
to supply trained supervisors who could properly in-
sure safety and efficiency militates strongly in favor
of characterizing P & K as a supplier of labor person-
nel and not a sole employer at the Cabot plant. Over-
all, it is clear, as in Mobil Oil, supra, that daily control
in supervision was exercised by Cabot over the em-
ployees supplied by P & K. The Administrative Law
Judge, without citing what factors he considered det-
erminative, has ignored significant Board precedent
in finding no joint employer relationship here. Con-
trary to the Administrative Law Judge and my col-
leagues, I am satisfied, based on the specific factors
and precedent cited herein, that Cabot and P & K
are joint employers.
Finding no joint employer relationship, my col-
leagues do not reach the other issues raised in this
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case. However, having reached a different conclusion
on the joint employer issue, I would further find that
Cabot and P & K committed numerous violations of
the Act.
Contrary to the Administrative Law Judge, I
would find that Cabot and P & K violated the Act by
recognizing the American Federation of Unions, Lo-
cal 102, hereinafter Local 102, as the exclusive bar-
gaining representative of the unit of employees per-
forming maintenance work at the Cabot facility. On
July 26, 1974, Local 102 sought and received from
the joint employers recognition and a collective-bar-
gaining agreement covering employees working at
Cabot. The Administrative Law Judge, assuming ar-
guendo that Cabot and P & K were joint employers,
concluded that the recognition of Local 102 was law-
ful. I disagree. There is no proper basis for the Ad-
ministrative Law Judge's conclusion that the issue
here be resolved as though there were two separate
bargaining units , one composed of strikers and one
composed of replacements. Had the Board been con-
ducting an election in this situation , I think it clear
that there would have been but one bargaining unit
composed of both strikers and replacements." The
fact that a strike is occurring does not warrant divid-
ing the certified unit into two separate bargaining
units. Thus, in analyzing the lawfulness of the recog-
nition of Local 102, I begin with the principle that
there was but one bargaining unit at the Cabot facili-
ty. Also, as stated in Ref-Chem, supra, "as joint em-
ployers, each is responsible for the conduct of the
other and whatever unlawful practices are engaged in
by one must be deemed to have been committed by
both." Cabot and P & K both had an obligation to
bargain with the lawful bargaining representative of
the employees.
The Administrative Law Judge, in finding the rec-
ognition lawful, states that Cabot was not required to
bargain with the Chemical Workers concerning the
terms and conditions of employment of the strike re-
placements. Quoting from Leveld Wholesale, Inc., 218
NLRB 1344 (1975), the Administrative Law Judge
stated, "it would be asking a great deal of any union
to require it to negotiate in the best interest of strike
replacements during the pendency of a strike, where
is Respondents contend that the replacements did not become part of the
bargaining unit because the replacements were "temporary." However, I
note that Cabot sent written communiques to employees in August. 1974
stating "the company is operating the plant and plans to continue operating
the plant" and "on September 5, 1974, the company is going to commence
the hiring of replacements for striking employees ." If Cabot considered the
relationship with P & K to be temporary. it did not so inform the striking
employees nor, for that matter , the new hires . As a P & K official stated,
"we serve industry, either construction or maintenance , and hopefully it
leads into permanent things." Under these circumstances , as replacements
were hired to perform part of Cabot's regular operation and with no definite
termination date , I would not find the replacements to be "temporary."
the strikers are on the picket line." However, the
statements of the Administrative Law Judge cloud
the real issue involved here. The refusal-to-bargain
allegation regarding Cabot is not based on a failure
by Cabot to discuss with the Chemical Workers the
terms and conditions of employment of the strike re-
placements. Cabot obviously had a right to continue
to operate its place and to hire replacements. There is
also no allegation here that the Chemical Workers
violated their duty to represent fairly all employees
in the unit. Rather, the true issue is whether or not
Cabot (and P & K) could lawfully recognize Local
102 as the exclusive bargaining representative for the
one bargaining unit of Cabot employees. As the
Board also stated in Leveld Wholesale, "even after
termination of the contract a union represents all the
employees in the bargaining unit. That includes both
strikers and strike replacements." Inasmuch as it is
clear that Local 102 never represented a majority of
employees in the bargaining unit of Cabot employ-
ees, Cabot and P & K's recognition of Local 102 was
unlawful and violated Section 8(a)(1), (2), (3), and (5)
of the Act. Local 102's acceptance of recognition,
while clearly a minority representative, violated Sec-
tion 8(b)(1)(A) and (2) of the Act.
I would further find that Cabot and P & K violat-
ed Section 8(a)(1) and (5) of the Act by granting sub-
stantially higher wages to strike replacements than
those offered in negotiations to the Chemical Work-
ers. Cabot's final wage package to the Chemical
Workers prior to the strike called for pay increases
during the first year of a 2-year contract that would
make the average pay of a unit classification $4.94
per hour. (With a high of $5.29 per hour and a low of
$4.69 per hour.) However, Cabot agreed to pay $6.55
per hour, along with increased benefits, to the strike
replacements. The Administrative Law Judge con-
cluded that Cabot and P & K need not have bar-
gained with the Chemical Workers about the wages
paid to replacements. Once again, the Administrative
Law Judge misstates the precise issue because he im-
properly divided the bargaining unit into two sepa-
rate units. The issue is whether or not Cabot and P &
K acted consistent with good-faith bargaining in
agreeing to pay new hires substantially higher wages
than those offered to the bargaining representative of
the employees in the bargaining unit. The law is clear
that, even in the context of a strike, an employer may
not grant unilateral increases (i.e., higher wages) to
new hires and/or replacements while not first offer-
ing such to the bargaining representative of unit em-
ployees.t9 Cabot and P & K unilaterally and without
19 Glazers Wholesale Drug Company, Inc., 211 NLRB 1063 (1974): Tom
Joyce Floors, Inc., 149 NLRB 896 (1964), enfd. at 353 F.2d 768 (C.A. 9.
1965): Si. Clair Lime Company, 133 NLRB 1301 (1961).
CABOT CORP. 1395
notice to the Chemical Workers substantially in-
creased wages for bargaining unit employees and
thereby violated Section 8(a)(5) and (1) of the Act.
Cabot and P & K can find no comfort by claiming
that they (or at least P & K) were bound to pay the
wages set out in Local 102's statewide contract. As
stated above, Local 102 was a minority representa-
tive and as such could not enter into a contract with
the joint employer nor enforce its statewide contract
as to them . Thus , Cabot and P & K were not obligat-
ed to sign, nor could they lawfully agree to sign, a
contract with Local 102 providing for wages to unit
employees surpassing the wage package offered to
the Chemical Workers. Nor did Cabot and P & K
make a clear showing that economic necessity dictat-
ed the paying of higher wages in order to recruit re-
placements. In this case , it is apparent that one of the
principal reasons that occasioned the strike was the
parties' inability to reach agreement on a wage pack-
age. Under these circumstances , it was manifestly in-
consistent with good-faith bargaining for Cabot and
P & K to grant substantially higher wages to those
employees hired as replacements . I would find that
Cabot and P & K violated Section 8(a)(5) and (1) of
the Act by unilaterally increasing wages for bargain-
ing unit employees.
The complaint also alleged that Southwest Securi-
ty Service , hereinafter Southwest , as an agent of Ca-
bot and P & K, engaged in misconduct against strik-
ing employees which violated Section 8(a)(1) of the
Act. The following incidents are indicative of the re-
straint and coercion engaged in by the person hired
to protect the Cabot facility.
(a) On July 12, 1974, guard Aucoin, while on duty
and en route to the Cabot plant, discharged a weap-
on into a vehicle parked at the home of Chemical
Workers vice president, LaGrange. After arriving at
the plant , Aucoin was asked to leave . Aucoin, upon
leaving the plant, beat up a picket with a pistol and
pointed the weapon at those in the picket line, and
orally admonished other pickets that " I am going to
come back. I am going over the top of you, over you.
I will come back. There is no one that will stop me
from coming back in this plant ." A few days later,
Aucoin asked for a second chance and Southwest
President Theriot returned him to duty. Still later, a
Cabot official directed that Aucoin not be permitted
to work at the Cabot facility. The Administrative
Law Judge, finding that Aucoin had left his assigned
post while committing his misconduct, concluded
that neither Cabot nor Southwest could be held re-
sponsible for Aucoin 's actions.
(b) Guard Hunter discharged his shotgun within
40 to 50 yards of the picket line. Theriot testified that
the discharge was an accident , but he was not even
present when the incident occurred. Thereafter,
Hunter was arrested by police called by pickets, but
he was bailed out of jail by Theriot and returned to
work the next day. No attempt was made by South-
west or Cabot to disavow to pickets the actions of
Hunter who was, however, discharged a day or two
later.
(c) Guard Harding was driving through the picket
line, and he was told to be careful or he would be in
"big trouble." Apparently, Harding's vehicle had al-
most struck a picketing employee. Harding stopped
his vehicle, drew his gun, and threatened a picket
with physical harm. Thereafter, Harding picked up
some tacks in the roadway and proceeded into the
plant. When leaving that day, Harding had a guard
dog with him and dared the picketing employees to
get in his way. Harding stated to the pickets, "You all
aren't tired of having your tires cut?" Picketing em-
ployees voiced their protest about Harding to anoth-
er guard who replied that Harding's days were num-
bered. However, no action was taken against
Harding.
(d) Numerous incidents are described in the rec-
ord as to Southwest President Theriot's conduct
while approaching and driving into the plant, at-
tempting to intimidate strikers by either driving at
excessive speed and/or swerving close to those on the
picket line. Employee Mayon testified that he was
struck by the extended mirrors on Theriot's vehicle.
Later, when Theriot was leaving the Cabot facility he
stated to Mayon, "You son-of-a-bitch. You ever get
in my way I will run over your ass." Contrary to the
Administrative Law Judge, I cannot find these as-
saults by Theriot to be "inconsequential" because
these assaults occurred on only a few occasions
among the numerous times Theriot entered and ex-
ited the plant. Intimidation is not rendered less seri-
ous because it is not practiced at every possible op-
portunity.
The foregoing incidents involved clear violations
of the Section 7 rights of the Cabot and P & K em-
ployees.20 Southwest, as employer of the guards (hav-
ing ignored the criminal records of guards Aucoin
and Hunter in hiring them), must clearly be responsi-
ble for the action of their employees while on duty.
The remaining issue is whether or not Cabot (and its
joint employer, P & K) may be held responsible for
the restraint and coercion of their employees occa-
sioned by Southwest guards. Under the circum-
stances herein, I would not allow Cabot to hide be-
hind the alleged "independent contractor" status of
Southwest to insulate it from responsibility for the
guard misconduct. Theriot admittedly discussed dai-
20 Stark Ceramics, Inc., 155 NLRB 1258 (1965).
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly with Cabot officials each incident involving
guards, and Cabot supervisory personnel were pre-
sent on the buses when Theriot threatened pickets
with assault . Cabot made no attempt to disavow or
apologize for the misconduct of the guards. Cabot
hired Southwest as its agent to provide guard services
and authorized Southwest guards to carry weapons.
Cabot belatedly took action to dismiss guards Au-
coin and Hunter for their misconduct but took no
action in regard to the misconduct of Harding and
Theriot. Cabot, by failing to take timely corrective
action against the misconduct of the guards of South-
west, interfered with the rights of its striking employ-
ees in violation of Section 8(a)(1) of the Act.21
Accordingly, I dissent from my colleagues' failure
to find a joint employer relationship between Cabot
and P & K and also from my colleagues' refusal to
deal with the significant issues in this case.
21 D. W. Newton, an Individual, d/b/a Newton Brothers Lumber Company,
103 NLRB 564 (1953 ), enfd . 214 F.2d 472 (C.A. 5, 1954).
DECISION
STATEMENT OF THE CASE
RALPH WINKLER , Administrative Law Judge : Hearing in
this matter was held in Franklin, Louisiana, on February
25-27, 1975, on charges filed by Chemical Workers, a con-
solidated complaint issued against Cabot , P & K, South-
west, and Local 102 on December 20, 1974, and answers
filed by Respondents.
Upon the entire record in the case, including my obser-
vation of the demeanor of witnesses and consideration of
briefs , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS-EMPLOYERS
Cabot Corporation (Cabot) is a Delaware corporation
engaged in the manufacture of carbon black and related
products.
Payne & Keller of Louisiana , Inc. (P & K) is a Louisiana
corporation engaged in the building and construction and
plant-maintenance industry.
Southwest Security Service (Southwest) is a Louisiana
corporation engaged in the business of providing industrial
security and guard services.
I find , as the parties agree , that Respondent corporations
meet the Board's jurisdictional standards and each is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
International Chemical Workers Union, Local 483
(Chemical Workers) and Respondent American Federa-
tion of Unions , Local 102 (Local 102) are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Statement
Since 1955 Chemical Workers has continuously repre-
sented a unit of production, maintenance, and labor em-
ployees at the Cabot Canal plant. Cabot and Chemical
Workers have had successive collective-bargaining agree-
ments covering this unit, the last such agreement running
from July I, 1972, until July 1, 1974. On June 30, 1974,
Chemical Workers rejected Cabot's final package offer for
a renewal agreement, and the following day (July 1) the
entire unit went out on a bargaining strike, and they were
still out at the time of the hearing herein (February 27,
1975). There were approximately 210 employees. All but I
of the 210 strikers were members of Chemical Workers.
P & K, as stated above, is engaged in the building and
construction and plant-maintenance business, which it per-
forms for various employers in Louisiana. Until the events
in the present case, there had not been any relationship,
financial or managerial or contractual , between P & K and
Cabot. Cabot periodically has its equipment overhauled in
so-called turnaround situations, during which the equip-
ment is shut down for general maintenance. Cabot has en-
gaged independent contractors in past turnaround situa-
tions, and on such occasions the contractor's maintenance
employees have worked alongside Cabot's own mainte-
nance employees. On July 22 and 24, 1974, Cabot executed
cost-plus contracts with P & K for new construction and
for maintenance work. P & K thereafter performed turna-
round operations and, on September 23, it began perform-
ing "running maintenance" in the plant . Running mainte-
nance is work normally performed by Cabot's striking
maintenance employees during plant operations. Cabot
had thus decided to continue plant operations during the
strike.
The cost-plus contracts between Cabot and P & K set
forth the wage rates paid by P & K to its employees in
mentioned job classifications. These rates were derived
from a statewide multiemployer contract between approxi-
mately 12 employer parties (including P & K) and Local
102. The multiemployer contract, and the rates established
therein, were in existence well before P & K commenced
negotiations with Cabot. Cabot, to repeat, is not a party to
the aforementioned multiemployer contract with Local
102, and has nothing to do with establishing the wage rates
or other terms of such contract.
On July 26, 1974, on the basis of a card check, P & K
entered into a collective-bargaining agreement with Local
102 covering terms and conditions of employment of P &
K employees at the Cabot plant, and also providing for a
nondiscriminatory referral procedure and a 31-day union
membership requirement. As indicated above, this contract
contained the wage rates established in the multiemployer
statewide contract to which P & K was a party. P & K
hired its own employees and otherwise carried out the
terms and conditions of its collective-bargaining agreement
with Local 102 on its Cabot project.
CABOT CORP.
Asserting that Cabot and P & K are joint employers, the
General Counsel contends that Cabot is a joint employer
with P & K of P & K's employees at the Canal plant and
that P & K is a joint employer with Cabot of Cabot's strik-
ing employees. Upon this joint employer premise, the Gen-
eral Counsel alleges, in part, (a) that the striking employees
of Cabot and the replacement employees of P & K are all
within the bargaining unit represented by the Chemical
Workers and that P & K's replacement employees consti-
tute a minority of that overall Cabot-P & K unit; (b) that
Cabot and P & K violated Section 8(a)(2) by P & K's con-
tract with Local 102 because Local 102 represented a mi-
nority of employees within the asserted Cabot-P & K unit;
(c) that Cabot and P & K violated Section 8(a)(5) by P & K
recognizing and contracting with Local 102 at a time that
Cabot and P & K were obliged to recognize Chemical
Workers as exclusive bargaining representative for a Ca-
bot-P & K unit; and (d) that Cabot and P & K further
violated Section 8(a)(5) by unilaterally increasing the wage
rates and other benefits of the asserted Cabot-P & K unit
without discussing such matters with Chemical Workers,
this allegation being founded on the fact that P & K's con-
tract with Local 102 provided higher wages and benefits
than Cabot's striking employees had received under the
expired contract between Cabot and Chemical Workers.
Cabot and P & K deny the General Counsel's joint-em-
ployer allegation. The record establishes that at all material
times Cabot has recognized and still recognizes Chemical
Workers in behalf of Cabot's own employees and the rec-
ord also establishes that Cabot's contract with P & K for
"running maintenance" work was, at most, only for the
duration of the strike and that the P & K employees are
thus only temporarily employed at the Cabot plant and
were not engaged by P & K as permanent replacements for
any of Cabot's striking employees.
B. The Cabot-P & K Relationship
The Cabot arrangement with P & K provides a cost-plus
basis of remuneration to P & K and also provides that
Cabot reimburse P & K for cost-of-living expenses incur-
red by P & K personnel. Their contract also provides,
among other things, that Cabot reimburse P & K for pro-
fessional costs incurred by P & K in connection with the
contractual relationship; that P & K not sublet its contract
to any other party without Cabot's consent and that P & K
perform its contract in accordance with Cabot's drawings
and job specifications and that such performance be sub-
ject to Cabot's approval.
The contract in question gives each party a right of ter-
mination upon 30-days' written notice, with a further right
in Cabot to terminate at any time. This latter reservation
was necessary in view of the parties' clear intent. that the
maintenance contract would not continue beyond the
Chemical Workers strike. P & K had its own office at the
plant and had its own timekeeper; it maintained its own
payroll and paid its employees' social security and other
taxes . Cabot personnel made a daily head count of P & K
workers and checked P & K's performance in order to safe-
guard Cabot's own interests under the cost-plus aspect of
the contract, and, as indicated above, the wage rates paid
1397
by P & K stemmed from P & K's preexisting multiemploy-
er contract with Local 102. Cabot and P & K agreed that
Cabot personnel would direct P & K personnel in "running
maintenance" work, the reason being that they considered
it much safer and deemed it unwarranted to train P & K
supervisors for such purpose in view of the temporariness
of the contract and Cabot's right to cancel the arrangement
whenever the strike would end. The record further estab-
lishes in this connection that the plant utilize an explosive
process involving a substantial safety factor and that an
intimate knowledge of plant equipment and operations is
necessary to safeguard against such hazard.
Although Cabot reserved a right to have P & K dis-
charge any employee of P & K deemed incompetent by
Cabot, the record establishes that P & K hired all its own
employees and that Cabot also did not participate in dis-
charging any P & K personnel. All grievance and discipli-
nary matters, indeed, all labor relations matters arising out
of the P & K operations, were handled exclusively between
P & K and Local 102.
C. Conclusions Respecting Cabot and P & K
The relationships between independent entrepreneurs
frequently do not fit a stereotype, and thus no single factor
is controlling in determining a joint employer issue. Such
issue "must be decided upon the totality of the facts of the
particular case. Basically, the determinative factor in an
owner-contractor situation is whether the owner exercises
or has the right to exercise sufficient control over the labor
relations policies of the contractor, or over the wages,
hours, and working conditions of the contractor's employ-
ees, from which it may be reasonably inferred that the
owner is in fact an employer of the employees involved:'
Fidelity Maintenance & Construction Company, Inc., 173
NLRB 1032, 1037 (1968). There are, in addition to the
cases cited by the parties, many other cases treating each
element in the relationship between Cabot and P & K, and
in some cases the results go one way and in other cases
another, the reason being, of course, that it is the "totality
of the facts of the particular case," all of which must be
viewed realistically in terms of the purposes of the parties
for establishing their relationship and their means of
achieving such objective. On such basis, and measuring the
factors in the present case against the "right-to-exercise-
sufficient-control" test, I am satisfied upon the foregoing
and the entire record herein that Cabot and P. & K are
separate corporate entrepreneurs and that they are not
joint employers of one all-inclusive unit asserted by the
General Counsel to consist of Cabot's striking employees
and those employees of P & K temporarily working at the
Cabot plant under P & K's maintenance contract with Ca-
bot. As a joint employer contention is the General
Counsel's sole predicate for Cabot's liability and as I reject
such contention, I conclude that Cabot has not violated
either Section 8(a)(2) or (5) in connection with P & K's
relationship with Local 102. And because P & K was not a
joint employer with Cabot of Cabot's employees, I also
find that P & K has not violated Section 8(a)(2) or (5)
because of any purported 'obligation to treat exclusively
with Chemical Workers and not at all with Local 102.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover , even were I to find a joint employer relation-
ship as alleged by the General Counsel , I still would not
find a violation in the respects mentioned above . Suppose,
for example, that P & K were not in the picture , but that
Cabot itself hired temporary replacements for the duration
of the strike . In such hypothetical situation , the General
Counsel would assert-as he does here, in fact-that the
temporary replacements became merged into the Chemical
Workers unit and that, by operation of law , Chemical
Workers became statutory representative of these tempo-
rary replacements . This would mean , under the General
Counsel's contention , that Chemical Workers would then
be obliged , for example, to represent the temporary re-
placements concerning all grievances and all other terms
and conditions of employment under the statutory man-
date of doing so within the concepts of fair representation,
all at a time that Chemical Workers was seeking to main-
tain the solidarity of strike action by Cabot's permanent
employees . "It would be asking a great deal of any union,"
Administrative Law Judge Taplitz remarked in Leveld
Wholesale, Inc., 218 NLRB 1344 (1975), " to require it to
negotiate in the best interests of strike replacements during
the pendency of a strike , where the strikers are on the pick-
et line." The employment interests of Cabot's permanent
(striking) employees and P & K 's temporary (working) em-
ployees are essentially dissimilar , primarily because the
tenure of P & K 's employees ends at Cabot when Cabot's
employees discontinue their strike and return to work. In
other words , their tenure-certainly a fundamental em-
ployment condition-is mutually exclusive . (See a related
matter under Sec. 9(a)(3) of the Act.)
Cabot was entitled to continue operating its plant during
the strike and, in view of the economic nature of the strike,
to hire permanent replacements for the strikers . Cabot did
not permanently replace the strikers , however, and it con-
tinued recognizing and still recognizes Chemical Workers
as exclusive bargaining representative for its striking unit.
Even had Cabot itself hired temporary replacements, it
would not have been required to bargain with Chemical
Workers concerning changes in wages paid temporary re-
placements (Imperial Outdoor Advertising, 192 NLRB 1248,
1249 (1971); The Dow Chemical Company, 216 NLRB 82
(1975); cf . Hawaii Meat Co., Ltd v. N. L. R. B., 321 F.2d 397
(C.A. 9, 1963); N.L.R.B. v. Robert S. Abbott Publishing
Company, 331 F.2d 209 , 213 (C.A . 7, 1964) ). An identical
underlying rationale supports the proposition , in my opin-
ion, that for the duration of the strike the statutory princi-
ple of exclusivity 1 would not foreclose Cabot from recog-
nizing Local 102 as representative of a wholly separate unit
of temporary strike replacements . This is particularly so
where , as in the present case , there is no showing that the
recognition of Local 102 by P & K (or , assuming contrary
to the fact, by Cabot as well) and the granting of wages
and other benefits different from those paid Cabot's strik-
ing employees under their expired contract either were in-
tended to, or had the effect of, intruding into the protected
sphere of the strikers or otherwise undermining the status
of Chemical Workers as representative of its striking unit.
1 Sec. 9 of the Act. See N.LR.B. v. Jones & Laughlin Steel Corp., 301 U.S.
I. 44-45 (1937).
The General Counsel does not contend that Cabot vio-
lated Section 8(a)(2) or (5) if there is no joint employer
relationship between Cabot and P & K, and I have found
there was no such relationship; and, absent such relation-
ship, he also does not allege that P & K would not be
entitled to treat with Local 102 in behalf of P & K's own
employees. P & K employees have their own legitimate
statutory interests in representation, and these interests are
no less entitled to protection even if, contrary to the fact, P
& K be considered a joint employer with Cabot. This case
involves the rights of various parties and individuals, to
wit, the right of Cabot employees to strike and to have
their union-Chemical Workers-accorded exclusive bar-
gaining recognition in behalf of their unit, the right of Ca-
bot to continue operating during the strike, and the right of
P & K's employees to the Act's protection in regard to their
own, albeit different, employment status. There are still
other rights and commensurate obligations, unnecessary to
mention, all of which must be accommodated one to the
other. I do not believe that a wooden application of a doc-
trine of exclusivity furnishes the answer in the circum-
stances of this case where practical sense would indicate a
situation involving two separate bargaining units, each
having a community of interests not shared with the other.
I conclude, therefore, that Cabot and P & K are not joint
employers and that neither violated Section 8(a)(2) and (5)
in the foregoing respects whether they are or are not joint
employers.
D. Hiring-Hall Allegations
The complaint alleges that Cabot and P & K have violat-
ed Section 8(a)(1) and (3) of the Act and that Local 102 has
violated Section 8(b)(1)(A) and (2) of the Act ii that the P
& K-Local 102 contract requires "preferential, hiring of
members of Local 102 and membership in and/or clear-
ance by Local 102 as a condition of hire and tenure of
employment" and there was "an understanding, agree-
ment, and/or practice" granting preference in employment
to "members and/or applicants for membership in Local
102" and that dues, initiation fees, and other money were
deducted from wages of employees and delivered to Local
102 as a condition of employment. Insofar as Cabot is con-
cerned, the above allegations are founded on the General
Counsel's contention that Cabot and P & K were joint
employers of P & K's employees at the Cabot plant. Hav-
ing found that there was no such joint employer relation-
ship, these 8(a)(3) allegations against Cabot must also fall.
The present discussion therefore concerns only P & K and
Local 102. It should be noted, preliminarily, that the com-
plaint does not allege that P & K unlawfully accorded bar-
gaining recognition to Local 102 for P & K's employees on
the Cabot job if P & K and Cabot are not joint employers.
I therefore do not consider such matter except to note, as
indicated above, that it was granted upon a card check of
Local 102 designation cards.
The July 26, 1974, collective-bargaining agreement be-
tween P & K and Local 102 provides, among other things,
that Local 102 shall refer applicants on a nondiscriminato-
ry basis with P & K reserving a right to reject an applicant
on a nondiscriminatory basis, and the agreement also con-
CABOT CORP. 1399
tains a checkoff clause and a maintenance-of-membership
provision for members and a 31-day union-security clause
for nonmembers. Although the complaint alleges these
contract clauses to be unlawful, the General Counsel indi-
cated at the hearing and apparently now agrees that the
clauses themselves are lawful, as they are, and he does not
further pursue that particular matter in his brief. See Local
357, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [Los Angeles-Seattle
Motor Express] v. N.L.R.B., 365 U.S. 667 (1961). This
leaves for consideration whether in the administration of
the referral agreement employment preference was given to
members of Local 102 or to applicants for such member-
ship.
Local 102 maintained a local recruiting office for appli-
cants for referral to the P & K project at the Cabot plant
and to employment elsewhere with other employers, and it
also placed newspaper ads and sought the assistance of the
State Employment Office in that connection. Applicants
for referral were given a form to fill out. Among the ques-
tions on the form were: "Why are you interested in joining
this Union?; Have you ever been a member of another
Union?; If yes, which one?; Have you ever applied for
membership to another Union?; If yes, when ?,
Who ?" The form also contained an applica-
tion for membership in Local 102. Admitting in its brief
that the form was not "entirely kosher," and asserting that
it discontinued using the form when the matter was called
to its attention by General Counsel personnel during the
investigation of this case, Local 102 claims that the form
was actually used only as an application for referral and
not as an application for union membership. Relying on
the Court's statement in Local 357, Teamsters, supra, that
"the only encouragement or discouragement of union
membership banned by the Act is that which is 'accom-
plished by discrimination"' (365 U.S. 676), Local 102
urges that no such discrimination did in fact occur.
Did P & K and Local 102 have an arrangement or prac-
tice whereby referral preference was given to members of
Local 102 or to applicants for such membership? The rec-
ord shows that Local 102 referred 84 members and 200
nonmembers during the period between July 27, 1974, and
January 31, 1975; that only 41 of the 200 nonmembers
eventually joined Local 102; and that only approximately
44 percent of P & K's complement thus were or became
members of Local 102.
Bill Owens was called as a witness by the General Coun-
sel. Owens testified that he applied for a referral at Local
102's office and spoke with Charles Bruno, then an assis-
tant business agent of Local 102. Bruno gave Owens one of
the aforementioned applications to fill out, and Owens told
Bruno he was a Cabot striker and "in the union" (which I
take to mean the Chemical Workers although he was actu-
ally not such a member). Owens completed the application.
A day or two later, Bruno called Owens to his office and
gave Owens a referral slip to the P & K job at the Cabot
plant, and he requested Owens to sign this slip, which Ow-
ens did. This referral slip states, in substance, that the re-
ferred individual (Owens, in this instance) is not a member
of Local 102 and is not required to pay any fees or dues to
Local 102 until such individual works under the Local 102
contract for 30 days and that "Payment of any fee is volun-
tary and is not a . . . requirement for a referral or employ-
ment." Bruno also expressly informed Owens 2 that Owens
"did not have to join any union," and Owens further testi-
fied that Bruno neither requested nor collected any money
from him and that Bruno told him that he "could join
Local 102 after 30 days employment. Bruno told Owens
that, if Owens desired, he would also refer Owens to anoth-
er P & K job in Baton Rouge. Owens never did report for
work at the Cabot plant or elsewhere.3
Barry Clements also was a General Counsel witness. Cle-
ments testified that he was hired directly by P & K, and
was shortly introduced to a Local 102 steward at the Cabot
jobsite. The steward requested Clements to sign the same
kind of referral slip signed by Owens (not the application
for referral) and explained to Clements, according to Cle-
ments' testimony, that he had 30 days within which to join
the Union and that P & K would check off dues if he,
Clements, wanted it. Clements further testified that no
money for union purposes was ever taken out of his pay-
checks.
In operating the hiring hall arrangement with P & K,
Local 102 turned over the application forms to P & K in
view of P & K's right-to-reject reservation. Clearly some of
the union information requested thereon was beyond an
employer's legitimate interest. However, the referral slips
and contemporaneous remarks by Local 102's agents to job
applicants (as in the case of Owens, for example) removed
any unlawful conditions as far as discrimination in actual
hiring was concerned. Considering the statistical evidence
and the entire record herein, I conclude that the record
does not preponderantly establish that, in operating the
referral arrangement, P & K accorded employment prefer-
ence on the basis of membership in Local 102 or that Local
102 caused or attempted to cause such preference by P &
K. I shall therefore recommend dismissal of the 8(a)(3)
allegations against P & K and 8(b)(2) allegations against
Local 102.
E. Allegations Respecting Southwest Security Service
(Southwest)
The complaint alleges that Southwest was an agent of
Cabot and P & K and that Cabot, P & K, and Southwest
violated Section 8(a)(1) of the Act by specified conduct of
Southwest. George Theriot is Southwest's president.
It is recalled that the Chemical Workers strike began on
July 1; and the Union has continuously picketed the plant
since then, primarily at the plant's main gates and at the
contractor's gate. On June 28, 1974, in anticipation of the
2 1 do not credit Owen's testimony that Bruno used the term "union bust-
er" during their conversations. This might be Owen's interpretation of the
fact that Bruno advised him that Cabot intended to operate during the
strike.
3 The General Counsel adduced some testimony to the purported effect
that Local 102 discriminated in referrals against a few striking Cabot em-
ployees, including a vice president of the Chemical Workers. Apart from
substantial questions concerning the bona fides of these individuals (Owens
included) in seeking employment and other material circumstances, I am
not satisfied that this particular matter was alleged or fully litigated. I there-
fore do not consider it further.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike, Cabot entered into a security contract with South-
west under which the latter provided "guard personnel,
[guard] dogs , vehicles , equipment and services as required
by [Cabot]." It is further recalled that Cabot did not enter
into contracts with P & K until July 22, 1974. P & K there-
after had an arrangement of its own with Southwest where-
by Southwest provided guard service, beginning September
1, on personnel buses and at an offsite motel where P & K
maintained an office and housed some P & K personnel.
Cabot urges that the events involving Southwest should
be appropriately viewed in context. It thus appears in this
connection that at the time of the hearing the strike was in
its eighth month, and that armed guards were on duty dur-
ing that entire period on round -the-clock shifts at some 5
to 10 locations at the plant premises. For a period of 150
days, Theriot drove a vehicle across a picket line in enter-
ing the plant premises , from a minimum of 10 to approxi-
mately 25 times each day. The Chemical Workers main-
tained logs of all individuals and vehicles passing through
their picket line.
The following events are the substance of Southwest's
alleged misconduct.
July I I-Chemical Workers Vice President Charles La-
Grange testified that he and union committee member
Louis Caro drove to within 20 feet of a guard post in a
secluded swampland area at the rear of the plant about
9:30 p.m. LaGrange testified that they went there to ob-
serve the operation of the plant, that they dismounted, and
that a Southwest guard on duty there drew an imaginary
line with his sidearm and that the only conversation was
the guard 's instructions not to cross the line . LaGrange
testified that there is game hunting behind that part of the
plant , that that area is accessible only through a cane field
or a levee road, and that he had never before approached
the plant at that point. LaGrange further testified that he
and Caro did not identify themselves as union people, that
they did not know the guard, and that the guard did not
know them.
July 12-Louis Aucoin, a Southwest guard en route to
the plant, discharged a weapon into a vehicle parked at
LaGrange's home about I a.m. Aucoin was apparently
drunk at the time (LaGrange notified the sheriffs depart-
ment, and officers arrived within 15 minutes ). Upon arriv-
ing at the plant Aucoin was instructed to leave by Theriot's
brother (because of his condition) and on this occasion
Aucoin beat up a picket with a pistol and threatened an-
other picket by pointing a pistol at him. Aucoin had left his
assigned post at an off-plant location that night, and he
was not authorized by Southwest to be at the plant on that
occasion . A few days later, Aucoin told Theriot he was
sorry for his behavior on July 12 and requested a "second
chance." Theriot took him back and assigned him to guard
duty at the plant as well as to duties in behalf of P & K,
and no reports respecting subsequent misconduct were
made against him. However , it later came to the attention
of Cabot General Manager L. H. Westmoreland that Au-
coin was on the plant premises , whereupon Westmoreland
directed Theriot that Aucoin was not again permitted on
Cabot property. And on October 24, Aucoin was convicted
of criminal charges in connection with the July 12 events.
July 13-Southwest guard Joseph Hunter and another
guard were seen talking together when Hunter's shotgun
went off. (Theriot testified, in effect, that he was advised
that Hunter had been loading a shotgun at the time and
that the discharge was caused by closing the breech too
quickly.) Hunter was some 40-50 yards from the picket line
when the gun discharged, according to General Counsel
witness Wilbert Ardeneaux. Ardeneaux further testified
that the guards made no gestures toward the picket line on
that occasion and that he did not consider the matter im-
portant at the time. One of the pickets summoned the po-
lice, and Hunter was promptly arrested for "criminal mis-
chief with firearms." Hunter returned to guard duty the
next day, and was terminated a day or two later.
Mid-August-As Southwest guard Henry Harding was
driving through the picket line at the main gate entrance,
one of the striking employees (Dennis Boudreaux) told
Harding to be careful and that Harding would be in "big
trouble" if he hit any of the pickets. Harding said he was
coming through, and anyone who was in the way would be
hit. Harding stopped the vehicle and got out, gun in hand.
Then preceding the vehicle, now driven by his wife, Har-
ding picked up some tacks in the entranceway and threw
them in front of a car belonging to one of the picketing
employees. Some words ensued , and Harding drove into
the plant. When leaving the plant that afternoon, Harding
had a guard dog on leash as he got out of his vehicle at the
entrance , and picked up some more tacks from the en-
tranceway. Harding had some words with Louis Caro, one
of the pickets. Another guard approached unarmed-he
had removed his gun belt-and inquired what was going
on. This guard told Harding to leave, which Harding did,
and Caro told this other guard that Harding "always tries
to start trouble. We don't have that kind of trouble with all
the guards... .
September 3-Victor Caro testified that an unidentified
guard was "quick drawing" his pistol in front of a guard-
house, "like Wild Bill Hickok or somthing," and that the
guard pointed toward the pickets several times and then
several times at some overflying birds.
In addition to the foregoing matters there was testimony
which I do not credit that Theriot purportedly told a union
officer he would cause "trouble" at this officer' s house.
And there also is testimony that on a few occasions Theriot
deliberately drove a vehicle so as to endanger pickets at
plant entrances. A sheriff's deputy was present on one such
alleged occasion; the deputy made no charge against Ther-
iot and did arrest one of the picketing employees for ob-
structing the entranceway. Picketing employee Aldon
Mayon testified that "at times" the pickets would start
moving across the road at the entranceway whenever they
saw Theriot approaching. In view of the many hundreds, if
not thousands, of times that Theriot passed through a pick-
et line in entering the plant, I agree with Respondent that
the evidentiary support for this particular allegation as to
Theriot's driving is inconsequential , at best, even assum-
ing-arguendo only-the truth thereof. I do not believe the
matter warrants further discussion.
There is no showing that either Cabot or P & K author-
ized, ratified, or condoned any of the described action of
Southwest guards. Indeed, no complaint was made to Ca-
bot even though Chemical Workers did have meetings and
CABOT CORP.
other communciations with Cabot during the period re-
specting negotiating matters . That Southwest is an inde-
pendent guard contractor does not , by such fact , alone,
shield a principal contractor for conduct of the former's
employees. On the other hand, such fact does not itself
constitute basis alone for imputing responsibility to the
principal contractor . N.L.R.B. v. National Paper Company,
etc., 216 F .2d 859 , 868 (C .A. 5, 1954). And, without a find-
ing of joint employer relationship , there is no basis for lia-
bility as to P & K, for none of the alleged guard miscon-
duct involved any P & K operations . Even as to Southwest
(not as agent , but qua employer) the record does not sup-
port a finding that Southwest be held responsible for any
described misconduct , so far as employees' rights under the
Act is concerned. Civil or criminal responsibility under
state law is another matter , but that is outside the scope of
this proceeding.
CONCLUSIONS OF LAW
1401
1. Cabot, P & K, and Southwest are employers within
the meaning of Section 2(6) and (7) of the Act.
2. Chemical Workers and Local 102 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Cabot and P & K are not joint employers.
4. Cabot, P & K, Southwest, and Local 102 have not
engaged in any unfair labor practices alleged in the com-
plaint.
Upon the foregoing, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
It is ordered that the complaint herein be dismissed.
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.