Charles Carter & Co.

National Labor Relations Board - Board Decisions

May 15, 1978

236 N.L.R.B. 37 (N.L.R.B. 1978)

CHARLES CARTER & CO.
Charles Carter & Company, Inc. and Ulysses Gage,
Jr. Case 15-CA-6433
FINDINGS OF FACT
I JURISDICTION
May 15, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On January 31, 1978, Administrative Law Judge
John C. Miller issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings.' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
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.
i The Adminislrative Law Judge Inadvertently referred to Charles Roberl
Carter, Respondent's president, as Robert Carter in portions of his Deci-
sion. We hereby modify the Administrative L aw Judge's t)ecision to correcl
those references
2 In affirming the Administrative Law Judge's dismissal of the complaint.
Chairman Fanning relies solels on the Administrative t.aw Judge's factual
finding that emplosee tUlsses Gage voluntarils quit his empiolment with
respect to both the Respondent's realty operati;on and its construction work
DECISION
SrATFMENT OF THE CASE
Respondent is a Louisiana corporation with its principal
office located at 1565 Choctaw Drive, Baton Rouge, Loui-
siana, where it is primarily engaged in the building of com-
mercial, industrial, and municipal buildings. The com-
plaint alleges and Respondent admits that it annual)y
purchases materials in excess of $50,000 from outside the
State of Louisiana. I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.'
Based on the undisputed testimony of Johnny Bell. pres-
ident of Construction and Laborers' Union 1177, that such
organization represents employees in collective-bargaining,
I find that it is a labor organization within the meaning of
Section 2(5) of the Act.
II lHE ALLEGED L;NFAIR LABOR PRACTICES
A. Background Facrs
It is undisputed that on February 28, 1977, Respondent,
by its president, Robert Carter, hired Ulysses Gage, Jr., as
a general cleanup man to clean, maintain, and service cer-
tain realty properties owned personally by Robert Carter.
Thereafter, Gage worked at various rental properties of
Carter performing general cleanup after the departure of a
tenant which included the removal of trash, cleanup of the
apartment, mowing of lawns, and general maintenance
work. After several weeks of cleanup, Gage began report-
ing to work at a construction site known as the central
mechanics building, where he was primarily utilized to haul
trash and scrap to the dump. On March 30, 1977, Gage
also worked 6 hours for Port-O-Let, another subsidiary of
Charles Carter Co., which leased portable toilets which
were hauled from construction site to construction site.
Thus, for a period extending from February 28 until
March 30, Gage performed miscellaneous jobs at various
locations, and was working for the last 10 days at a con-
struction site identified as central mechanics building.
While there, he learned that laborers on the construction
site were receiving $6.58 an hour.2 Gage testified that he
joined the Laborers' Union voluntarily on his lunch hour,
March 30. and in the afternoon returned to the office of
Charles Carter where he advised Carter that he was forced
to join the Union and would have to be paid at union scale.
JOHN C. MILLER. Administrative Law Judge: This case
was heard at Baton Rouge, Louisiana, on November 8,
1977, on a complaint issued on May 13, 1977, alleging that
Respondent terminated the employment of Ulysses Gage,
Jr., on March 31, 1977, because of his membership in. and
activities on behalf of, Construction and General Laborers'
Local Union 1177 in violation of Section 8(a)(3) and (I) of
the National Labor Relations Act, as amended.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the
following findings:
C'harles Carter & Company. Inc. is primarily engaged in the construc-
tion of commercial. industrial. and municipal buildings. Charles Carter per-
sonalls ons and operates certain rental properties. Port-O-L. et is the trade
name of a portable sanitation business All of these are owned hb Charles
Carter and the C(ompans is utilhzed for bookkeeping and pasroll purposes
with reimbursement bs the rental properties. plus a fee for services rendered
bs the C omepans In ijew of the single ownership and evidence of integra.ed
operations. I find that the (Complns. the rental properib. and Port-O-l.et
constitute a single emploi er for purposes of this tontrovers,
While Respondent's initial response to the compl.int referred Io the
union scale for laborers as an hourl) wage if S6. 87 an hour. this was the
hournl rate established bh a subsequent contract The record establishes that
the hourl, rate for laborers at the time of the incident here insolved was
Sh6 5
236 NLRB No. 5
37
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carter responded that he was hired to work on the real
estate properties at $3 an hour and that he could not afford
to and did not intend to pay the [construction] union scale
for general cleanup work. He then sent Gage to see Ross,
job superintendent on the central mechanics jobsite, to see
if there was any work for him there. Gage testified that he
returned the dump truck the next morning to the jobsite
and was advised by Thomas Willis,3 sometime assistant to
Ross, the project superintendent, that things were slow and
they had no work for him. It is conceded that it was raining
at the time and there were few employees on the jobsite.
Thereafter. Gage returned the truck to the office, left the
key for the truck, and departed the job. He never returned
thereafter either to the construction site or to Carter's of-
fice.
Paragraph 8 of the complaint alleged that Respondent
discharged Gage because of his announcement that he had
joined the Union. In response to the complaint, Respon-
dent advised the Regional Director by letter as follows:
When Gage advised that he had become [sic] member
of the Construction and General Laborers' Local
Union 1177 and demanded $6.87 per hour [the union
rate of pay] he was advised that his services were no
longer needed and that we could not consider paying
$6.87 for the task for which he was employed, that is
the yard work, minor touch-up painting in which he
was incompetent, etc.
On the basis of Respondent's response the General
Counsel moved for Summary Judgment before the Board
and in response thereto Respondent claimed that Gage was
discharged because of incompetence, not his union mem-
bership. Thereafter, the Board remanded the case for hear-
ing, because "the material facts concerning the alleged dis-
criminatory discharge remain unclear" and raised issues
that could best be resolved on the basis of an evidentiary
hearing and record testimony. The hearing on November
8, 1977, followed.
Gage testified that, when he was hired, Charles Carter
told him he was hired to replace his father, that the job
would be permanent, and that he would be paid $3 an hour
and would receive a raise at a later date. McShane, a com-
panion of Gage, was also hired at the same time and testi-
fied that, although he was only hired temporarily while on
a week's vacation from his regular job, Gage was told his
job would be permanent.
Carter's recollection of the hiring process was that he
talked briefly to Gage about being hired for general clean-
up work and then referred him to Miss Sellers, his real
estate manager, who was to give him detailed instructions.
He denied that Gage was hired permanently and stated
that they never carried a full-time employee to handle
cleanup or maintenance work on his rental properties but
hired casual labor as the need arose, utilizing different peo-
ple who were interested in part-time employment. Patricia
Aubin, bookkeeper and payroll clerk for Charles Carter &
I find it unnecessars to deternine whether W illii was i supervsisior ltilh-
in the meaning of the Act. Inasmuch as Gage's lestimony is undispuled aind
credited, it is sufficient that I find that Whillis acted ais an lauthorized i ac1it i
colnesying t1, (;lge that he Aas not needed on the job.
Co., credibly testified and confirmed that, in the 2 years
she had been employed, there had never been a full-time
employee to handle cleanup work for Carter's realty busi-
ness.4 Carter was not aware that Gage had spent much
time working at the central mechanics jobsite. With respect
to the alleged termination meeting of March 30, neither
Gage nor Carter recalled discussing the actual wage rate
but Carter stated that it was understood that Gage's re-
quest for "union scale" meant wages in the $6-an-hour
area. Carter testified credibly that Gage's membership in
the union was irrelevant, noted that hiring at the construc-
tion jobsites was done by his project superintendents, and
that, to the best of his knowledge, laborers were generally
hired by being referred from the Laborers' Union and that
they were paid the existing union wage scale. Ross, the
construction superintendent on the central mechanics job-
site credibly testified to the same effect. Johnny Bell, presi-
dent of Laborers' Local 1177, confirmed that his organiza-
tion referred laborers to Carter Construction Company
and that they received the current union scale of $6.58
hourly, plus 45 cents fringe benefit payment or a total pay-
ment of $7.03 an hour, in effect at that time as established
by a contract with the Associated General Contractors.'
Carter was not, however, a signatory to the latest contract
but simply paid the wage scale set out there. In the past,
Gage had worked for Carter & Company a total of 16
hours during a 3-year period of 1974-76. Additionally, Re-
spondent's bookkeeper stated that, during the time she had
worked for Carter, Gage's employment was intermittent.
The work that Gage had been performing prior to his posi-
tion at the central mechanics building had been primarily
part-time cleanup, whenever the need arose.
Miss Sellers, Gage's initial supervisior, testified that
Gage was not an entirely satisfactory employee in his
cleanup work under her supervision, and that he took inor-
dinately long lunch hours for which she had docked him
pay and, furthermore, that his workmanship as a painter
was very sloppy. Finally, on the last day of his employ-
ment, she stated that Gage refused a work assignment be-
cause he harbored resentment concerning hours that she
had docked him. At that juncture, she concluded that she
would not use his services again and so informed Carter.
Gage confirmed that he refused work offered by Miss
Sellers and, although disputing that such incident occured
on March 30, conceded that it did occur prior to the date
of his termination. 6
4 I find antid conclude that. ii the extent the term permanent mas have
heen utilized in the hiring of (iage. it meant that he was permanentl) on-call
is the need for him arose and nnot that he was lnecessarils going to he
emplosed on ai full-time regular basis of 40 hours i week
Bell testified to the ispe of work done hT the laborers he represents fle
stated. iater alia: "We don'l usualls haul debris We load the debris and
hase a man to go along on the truck, if anything falls off This is under the
Jurisdiction for the truck driers. I'his is another juridictrion. and we tr, to
refrain fronm infringing on another man'sjurisdiction? ' " Emphasis supplied I
While I do not preclude the possihiliht that Gage did engage in some
l;thorer's work while on the construction site, he was continued on the jbh-
site prinarlls to drive the truck and haul debris from there to the dump.
Thus. if (iage 'sas seeking a job solely is a laborer al the construction site.
lie uis in essence seeking ui change in jobs from that which he performed
Ahile still primarily a peisonai employee of ('hurles Carter's realty opera-
tions.
"(iage testified: "Well, Miss Sellers asked me to go hack down to Lake-
shore and clean tip some debris the', had around, and I told her that I
38
CHARLES CARTER & CO.
Ross, the job superintendent and Gage's supervisior at
the central mechanics jobsite, testified that he was unaware
of Gage's salary rate and merely turned in timecards with
hours on them. He also maintained that much of his hiring
was from direct union referral; however, an occasional
nonunion worker was utilized on the site when needed.
Ross also confirmed that he told Gage he could use him at
the central mechanics building if Mr. Carter did not need
him. He indicated that he did not talk with Carter concern-
ing Gage's employment at the site. He was unaware that
his assistant, Thomas Willis, Jr.. had told Gage he was not
needed on March 31, 1977. On that day, it was raining and
only a few people were working on the jobsite.
B. Contentions of the Parties
The General Counsel contends that the evidence clearls
establishes that Respondent discharged Gage on March 30.
because of his activities in joining the Union and seeking
thereby to increase his wages. It is further contended that.
when Gage informed Respondent that he had joined the
Union and wanted to be paid union scale. Respondent ter-
minated him in an attempt to discourage any further at-
tempt to achieve higher wages by joining the Union.
Respondent. in its initial response to the complaint, stat-
ed that it would not consider paying union scale ($6.87 plus
fringes) "for the task for which he was employed. that is
the yard work, minor touch-up painting in which he was
incompetent, etc." At and after the hearing, Respondent
also contends that Gage was not actually discharged but
voluntarily quit his employment. Alternatively. it contends
that, even if Gage were found to be discharged, he was not
discharged because of his union membership but because
of his incompetence, insubordination, and inappropriately
high wage demands.
C. Concluding Findings
The preceding facts establish that Gage, hired for clean-
up and general laborers work in Carter's realty business at
$3 an hour, began working on the central mechanics build-
ing construction site on a "fill-in" or when not needed in
Carter's realty business; that, while so employed he discov-
ered that laborers on the construction site were being paid
$6.58 an hour and he decided that since he was working
there he should receive similar pay.
Gage, however, did not approach Ross. the construction
superintendent, and ask to be hired as part of his laborer's
crew. Instead, he voluntarily joined the Union on his lunch
hour on March 30 and, later that day, returned to Charles
Carter to tell him, personally, that the Union required him
to join and accordingly he would have to get the union
scale. Gage acknowledged at the hearing that he volun-
tarily joined the Union. Carter testified that he did not
believe Gage's story about being forced to join the Union
but merely stated to Gage that he was not going to pas him
wasn't going back down there and work for Nou [sil bhecausre 'he chlcated
me out of some hours, and she said. well. Ihat's all right. sou didn't do ush
a good job anwa5 '"
union scale to do cleanup work and told him to see Ross to
see if he could still use him at the construction site.? Carter
credibly testified that Gage's union membership was irrele-
vant and that he could not afford to paN union scale for
cleanup on his low-cost housing rental units. With respect
to the cleanup work on the realty properties Gage was the
onlv employee.
Carter credibly testified that he neither hired nor fired
from his construction jobs and that authority was given to
his project superintendents. Ross credibly testified in a
similar vein. Carter or Miss Seller. his realty manager. did
hire employees intermittently as needed, for his realty op-
erations.
This case exemplifies a failure of communication be-
tween the parties and at the least, a classic misunderstand-
ing by Gage and a failure to explicate bv Carter, of the
distinction between the operations at the construction site
where laborers received the union scale and the operations
of the realty business where a different wage scale was
utilized.
In view of mx previous factual findings that Carter did
not fire or hire at the construction site and that either he or
Miss Seller did the hiring for his realty operations, I find it
necessary to consider the issue of whether Gage was dis-
criminatorilv terminated or voluntarily quit from the realty
operations separately from that same issue at the construc-
tion site.
I am cognizant that at first blush the circumstances here
appear to establish a classic discharge because of union
activities. A demand for union scale and an alleged termi-
nation because of a refusal to pay such scale appear to
establish that the demand for higher wages and the union
membership are inextricablx interwoven and therefore a
prima fauie violation of Section 8(a)(3) exists.8 However, a
close examination of the facts and the context in which this
so-called termination occurred fully rebuts this prima facte
case.
I. Alleged "termination" from the realty job
I find that Gage. by his own testimony, had rejected
further realty work when he told Miss Seller, manager of
the realty operations. that he would not work for her any-
more because she had previously docked him time for
being absent from the job.
Moreover, Gage's request for union scale was prompted
by the fact that he had discovered that laborers on the
construction site were receiving at least twice his wage
scale. In effect, Gage was asking for the "union scale" for
work at the construction site. Thus, it is apparent that there
was a failure of communication between Gage and Carter.
Gage. who had been working at the construction site for
some 10 days. reasonably concluded that, since he was
working there, he should get the same scale as other labor-
'It belabors the obh Lous it note Ihat this whole controrscr..s caould ha.e
been asoilded bs sinmpls paleing (;age the "union scale" when he worked on
the construclrnn site s a. labhorer and bh pasing him the S3 rate when he
worked on the reali 5 operations But note. ho.weser fn 5. herein where I
express serious rescrsalni, s whether (;age'5s work it the .loistrutllon sile
,.is Iruli laborer's work
t Cf Ilerh 4rhur In, t d h i ( itwso,, l ('irrwe Inrtil/ii, lon 225 N'I RB n106
1976t)
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers. Yet, when Gage spoke to Carter about receiving union
scale, he did not couch his wage demand in terms of work
on the construction site. Carter, while dimly aware that
Gage was visiting and working intermittently at the con-
struction site when not needed in his realty operations,
considered Gage's primary job as the sole employee of his
realty operations and his response in that context was sim-
ply that he would not pay the union scale for "cleanup"
work for his realty operations. Moreover, Carter even then
did not terminate Gage but told him to see Ross at the
construction site to see if they had some work for him
there. If Carter was discriminatorily motivated at that time
because Gage had joined the Union why would he have
referred Gage to Ross at the construction site to see if work
was available for him there?
With respect to the realty operations, therefore, I con-
clude that, inasmuch as Gage admittedly refused Miss
Sellers' proffered work assignment involving the realty op-
erations, he voluntarily terminated his employment with
that aspect of Carter's operations. Secondly, to the extent
that Respondent's initial answer in effect concedes a termi-
nation brought about by Gage's wage demands, I find that
Carter's statement that he could not use him at union scale
and that such demand may cost him his job meant that, if
and when work arose, Gage would not be called or consid-
ered because of his high wage demands. To the extent that
Carter indicated that Gage would not be considered for
future employment, I find this was prompted by his wage
demands and not his union membership. While Carter in
effect terminated Gage from future consideration for em-
ployment in the realty operations as the need arose, such
termination was solely motivated by economic considera-
tions and not by Gage's union membership. Stated another
way, I find that Gage's union membership was not the
motivating cause for his failure to be utilized in the realty
operations. If Gage had simply demanded $5 or $6 and
hour for realty cleanup work, Carter would likewise have
refused to employ him. Moreover, the absence of union
animus, as detailed hereinafter, buttresses my conclusion
that the "termination," if such it be considered, was solely
motivated by economic considerations and not by Gage's
union membership.
As to the absence of union animus, the record estab-
lished that Gage's father, who worked for Respondent for
30 years, was a union member. Ross, the construction su-
perintendent, whose credible testimony was substantially
confirmed by Union President Johnny Bell, testified that
probably 95 percent of the laborers hired on the central
mechanics job were referred from the Laborers hiring hall
and that they were paid the current union scale. Bell fur-
ther testified that the Union had been referring people to
Carter jobs as far back as 1960 and when questioned as-
serted that he did not know of anyone discriminated
against [by Carter] because of union membership. Further.
Gage, as the sole cleanup employee in the realty opera-
tions, could not bargain for wages because a one-man unit
is not an appropriate unit for bargaining.
In sum. I conclude that Gage's rejection of Miss Sellers'
offer of work with respect to the realty operations amount-
ed to a voluntary termination from that aspect of Carter's
operations. Secondly. even assuming that Carter's state-
ment established an intent not to employ Gage in the fu-
ture, such decision was solely motivated by economic con-
siderations and not by Gage's union membership. Lastly.
even if contrary to my factual findings it were concluded
that Gage had made wage demands on behalf of himself,
with respect to realty work, a one-man unit has long been
held inappropriate for bargaining. For all of the above rea-
sons, I find that Gage's separation from the realty opera-
tions was not discriminatorily motivated within the mean-
ing of Section 8(a)(3) of the Act.
2. Separation from the job at the construction site
With respect to the construction site work, I find that
the record does not establish that Gage was terminated for
his demand for "union scale" but in fact supports the con-
clusion that Gage was temporarily laid off because of the
rainy conditions existing that day and that it was not nec-
essarily a permanent layoff or termination. In view of the
fact that Gage did not return to the construction site at any
subsequent time, I find that his failure to do so in effect
makes him a voluntary quit. Moreover. in view of the lack
of knowledge at the construction site that Gage had either
joined the Union or was seeking the union scale, his failure
to be employed there cannot be found to be discriminato-
rily motivated. It is normal in the construction industry for
laborers to be employed intermittently either because of
the weather or the need or lack of need for laborers at that
particular phase in the construction. Accordingly, I find
that as to the construction site Gage was simply told he
was not needed and that statement was prompted by poor
weather conditions that day. Even if I assumed that that
amounted to a permanent termination, the lack of knowl-
edge at the construction site that Gage was seeking "union
scale" wages or had in fact joined the Union precludes a
finding that such "termination" was discriminatorily moti-
sated. Accordingly, I find that Gage was not discriminato-
rily laid off or terminated from the construction site at the
central mechanics building.
For all the reasons discussed above, I conclude that,
when Gage refused further realty work assignments and
failed to seek further employment at the construction site
after March 31, 1977, he voluntarily terminated his em-
ployment with Respondent. Accordingly. I shall dismiss
the allegations of the complaint in their entirety.
Upon the foregoing findings of fact and upon the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 9
[he complaint herein is dismissed in its entirety.
-In the e'ent no exceptilns. are filed as provided bh Sec. 102 46 of Ihe
RuleI and Regulations of ihe National Ihor Rgulaltonn Boardf the lindindi .
cmicllusln-. and recommended Order herein shal. as preovided in Sec
102 48 of tIhe Rules and ReCuldlions. he adopted h, the Board and heome
ii findinig. ,conclusio, ns. and Order, and all obhjetlions Ihereto shall he
ItitC C tl Ul',, d f-, ;ill puxrpO,,es
40