Congoleum Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1971

194 N.L.R.B. 359 (N.L.R.B. 1971)

CONGOLEUM INDUSTRIES, INC. 359
Congoleum Industries, Inc. and Edmund R. Carlin.
Case 16-CA-4251
alleged . The case was tried in Wilburton, Oklahoma, on
May 25, 1971.
November 29, 1971
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
KENNEDY
On August 19, 1971, Trial Examiner Ramey
Donovan issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, the General Counsel filed
limited exceptions and a supporting brief, and the
Respondent filed a brief in answer to the General
Counsel's limited exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Congoleum Industries, Inc., Wilbur-
ton, Oklahoma, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
1 Respondent's motion for oral argument is hereby denied, since the
record and briefs adequately present the issues and positions of the parties
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner: The charge was filed
on February 1, 1971 by Edmund R. Carlin, an individual,
against Congoleum Industries, Inc., herein Respondent or
Congoleum. The complaint issued on March 17, 1971, and
alleged that Respondent caused Lovelace Electric, Inc., to
discharge and to deny employment to Carlin and that
Respondent also refused to employ Carlin in its plant, all
because of Carlin's union and concerted activities, and in
violation of Section 8(a)(3) and (1) of the Act. Respondent's
answer denies the commission of the unfair labor practices
I There is also mention in the record of an office at Trenton, New
Jersey.
2 Although the parties at the hearing used the term union or nonunion
contractor or subcontractor and we have used the term, it is not explicated
in the record. From our experiences and from that of the Board gleaned in
many cases in this field, the following brief exposition is made: In the
building construction industry, a union contractor is a contractor who is a
194 NLRB No. 53
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a Delaware corporation with a plant and
its general executive offices located in Kearny, New Jersey,
where it is engaged in the manufacture of carpeting and
floor covering. Respondent also has plants at other
locations in the United States, including its plant in
Wilburton, Oklahoma, which is the plant involved in this
proceeding.
During a representative 12-month period, Respondent, in
the course of its business operations at the Wilburton plant,
purchased and delivered to its plant latex, fibers, yarn, and
other materials valued in excess of $1 million of which
goods and materials valued in excess of $1 million were
transported to said plant from States of the United States
other than Oklahoma. In this same period, the Respondent,
in the course of its business operations, manufactured, sold,
and distributed from said plant products valued in excess of
$1 million of which products valued in excess of $1 million
were shipped from said plant directly to States of the
United States other than Oklahoma.
It is found that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
At some period, evidently in 1968 or no later than early
1969, Congoleum had decided to have certain construction
work performed at the Wilburton plant. Barchi was
Congoleum's manager of staff engineering. The record
indicates that his office was at Congoleum's main office in
Kearny, New Jersey.' Barchi was responsibly involved in
the drawings and specifications of the new construction
work that was to take place at the Wilburton plant and he
participated in the letting of the construction contract and
the negotiations with the contractor selected. The general
contractor who received the contract to perform the
Wilburton job was Yarborough. The latter was a union
contractor. As is customary in the construction industry,
particularly in jobs of some size and involving a variety of
types of construction work, subcontracts were let to various
specialized subcontractors; for instance, Belco was the
electrical subcontractor. Belco was also a union contractor
and Barchi testified that all the subcontractors under
Yarborough were union contractors except a company
installing the sprinkler system that employed "people from
here [the Wilburton area]." 2
party to a contract or agreement with an International union, e.g., the
Carpenters; the Electrical Workers; Plumbers and Steamfitters, and so
forth, or with a Local union affiliated with a particular International. The
contract will prescribe such things as wage rates, working conditions, and
the procuring of employees through the union. Under the latter , if a union
carpenter contractor, for instance, has a construction job where he needs
ten journeymen carpenters, he will ask the local carpenters union for ten
(Continued)
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The general contract of Congoleum and Yarborough
started in February, 1969. According to Barchi, the first
phase of the contract was scheduled for completion on
November 1, 1969, and the second phase to be completed
on July 1, 1970. Barchi states that as "co-architect for the
project," it was one of his duties to see that the work was
performed according to the terms of the contract and its
specifications. In the latter part of 1969 and early 1970,
Barchi states that he was at the Wilburton construction
project "at least every other week."
Because, assertedly, Yarborough was not completing the
work within the time periods prescribed and because of
poor quality work in some instances, Barchi states that "top
level" management of Congoleum cancelled the Yarbor-
ough contract in July 1970. Since Yarborough was the
general contractor, this meant not only the ending of his
relationship with the project but also terminated his
subcontractors who might still have work to do.
Barchi states that on matters of what he considered to be
work deficiencies, he had, prior to the termination of the
contract, taken up such matters with the general contractor,
Yarborough, since the job project was the general
contractor's responsibility. Barchi testified, "I didn't deal
with the subcontractors." Types of work that Barchi
enumerated as deficient were plumbing, concrete work, and
roofing.3 It also appears that there were some labor
problems in the Yarborough period. Barchi testified that
the last strike he recalled involved a matter of dispute as to
which particular craft union should perform some particu-
lar work. According to Barchi, "There was a walkout ...."
Barchi states that he did not recall an incident involving the
iron workers, but Grady, an employee who was working on
the job project at the time, states that in July 1970 there was
a strike and the iron workers had pickets on the site .4
To replace Yarborough as general contractor, Congole-
um entered into a contract with Pate Construction
Company. Pate, as general contractor, was to perform most
of the work itself, including plumbing, iron work and
anything else remaining to be done. However, Pate did
have one major subcontractor, Lovelace Electric, Inc., who
was to perform the electrical work. Both Pate and Lovelace
were nonunion contractors.
Pate began work on August '1, 1970, and Barchi states
that at the time the contract was given to Pate he had told
journeymen. The union will then refer ten journeymen to the contractor
and they will work as his employees . Without getting into refinements or
details of the process or legal aspects, it is usually the fact that the union in
the example above-mentioned will generally refer union journeymen (union
members) to the union contractor A union contractor, therefore,
customarily is one who employs union members or, in some circumstances,
nonunion people who are referred to him by the union and who are
therefore employed under the union aegis and within the terms of the
contractual hiring agreement whereby the contractor is obliged to secure
employees through the union.
3 Barchi states that there is some litigation pending as to what is owed
Yarborough under the contract.
4 At the hearing, the General Counsel requested that for background
purposes the Trial Examiner take official notice of a Board proceeding
involving Respondent that had been tried in Wilburton on January 25-28,
1971, but in which a Trial Examiner's decision had not been issued up to
the time of the instant hearing . The General Counsel's request was that the
Trial Examiner's decision in the prior case be officially noticed if it issued
prior to the time that the instant decision was written Respondent's
counsel stated that he had no objection to the instant Trial Examiner's
taking such notice. Accordingly, we take the following limited notice: A
Pate that when Yarborough had the contract, "the work
was not getting completed on time and that the obvious
reason was that the men were dogging the job." However,
Barchi gave no specific examples to Pate and did not
mention any individual names . Nor did he refer to any
individual employees at the hearing. According to Barchi,
he was satisfied with Pate's assurance that he would
complete the contract on time and in a satisfactory manner.
Barchi also was satisfied that Pate had or would have "the
number of people that were going to be required to do this
work." Barchi states that he did not tell Pate that it was the
policy of the engineering department not to hire employees
who had worked on the project under the union
contractors.
B. The Refusal to Hire Edmund Carlin
Carlin was an electrician who lived in Wilburton. He is a
man, we would judge, in his fifties , who appeared to be
physically and mentally alert. He formerly had lived in
Florida and while in high school he had gone through a 4-
year apprenticeship in what he referred to as "the electrical
workers union."5 He joined the Union and worked for
several years as a union journeyman electrician. When he
entered military service in World War II he discontinued
paying union dues and was dropped from the Union. After
the war, from 1946, he worked as a licensed electrician in
various parts of the country but was not a union member.
He had 20-25 years' experience in electrical work of all
types. In Wilburton he had worked as an electrician on
various jobs and he and his wife also operated a recreation
center for children in the town. During the course of this
recreation work, Carlin became acquainted with Downing,
personnel manager of Congoleum. This was over a period
of about 6 years. In the last few years Carlin had "quite a
lot of contact" with Downing through the latter's children
who were engaged in Carlin's model airplane flying project
at the recreation center.
At the time when Yarborough was the general contractor
on the Congoleum construction project in Wilburton,
Carlin was hired as an electrician by Belco, the union
electrical subcontractor on the job. Apparently Carlin had
detailed his background and experience to the local
representative of the electrician's union who was furnishing
case entitled , "Congoleum Industries, Inc and United Rubber, Cork,
Linoleum & Plastic Workers of America, AFL-CIO, Cases 16-CA-4037;
16-CA-4102; 16-CA-4130, TXD-379-71," was tried in Wilburton on
January 25-28, 1971, before Trial Examiner Samuel Ross The Trial
Examiner's decision was issued on July 27, 1971. The decision states that
the issues tried were alleged violations of Section 8(a)(1)(3) and (5) of the
Act, by Congoleum. The case involved efforts by the Rubber Workers
Union, beginning in May, 1970, and thereafter, to organize the
manufacturing employees in the Wilburton plant and certain alleged
conduct by Congoleum. The decision, inter aka, refers to a construction
project involving an addition to the plant that was going on during the
organizational effort among the manufacturing plant employees Two
instances of picketing of the plant by construction workers are described as
occurring on July 22, and 23, 1970. One picket sign bore the name,
"Steelworkers "
5 Evidently the International Brotherhood of Electrical Workers
(IBEW), AFL-CIO. This is basically a craft union that requires
apprenticeship training and in the construction industry this can be
regarded as the Electrical Workers Union, at least where union contractors
are involved.
CONGOLEUM INDUSTRIES, INC. 361
Belco with electricians. The Union gave Carlin a permit to
go to work for Belco and he thereafter worked under this
permit. Carlin worked for Belco on this job at two periods,
August, 1969 to January 1970 when he was laid off in a
reduction in force; and again, from May 1970 to about
June 17, 1970, when there was again a reduction in force.
There is no evidence of complaints or criticism of the
quality of Carlin's work for Belco, or about his conduct,
either by his employer, Belco, or by anyone else.
Thereafter, learning that additional work was being
performed on the Congoleum construction project, Carlin
telephoned Lovelace, early in September 1970. Lovelace, as
mentioned, was the electrical subcontractor under Pate, the
new general contractor. When asked about employment as
an electrician, Lovelace told Carlin that at that time he did
not need a man but to contact him later. About a week or so
later, September 10, 1970, Carlin met Lovelace at a local
hotel and described his background and experience to
Lovelace. He also told Lovelace that he had worked on the
Congoleum project. On this occasion or in the prior
telephone conversation Lovelace had told Carlin that in
order to be hired Carlin would have to "be cleared" by
Congoleum. Lovelace explained that if Carlin had been
connected or involved in the labor troubles or dispute on
the construction project that had previously occurred, he
did not think that Carlin could be hired. Carlin apparently
explained to Lovelace that he personally had not been
involved in any labor dispute or trouble during the prior
employment on the project. Carlin testified that "I guess I
convinced Mr. Lovelace that there was no reason why .. .
they [Congoleum] wouldn't clear me in any way whatsoev-
er." In any event, on September 10, Lovelace was
apparently satisfied about Carlin's qualifications as an
electrician and he told him to come to the plant the
following morning.
William Lovelace, vice president of Lovelace, is the
individual referred to previously as Lovelace. His testimony
corroborates substantially that of Carlin regarding contacts
between himself and Lovelace in 'September, 1970. For
instance, Lovelace testified that since Carlin had told him
that he had previously worked on the Congoleum
construction project, Lovelace had indicated that he would
have "to be cleared" by "Congoleum." According to
Lovelace, on September 10, it was understood between
himself and Carlin "that he [Carlin] would come to the
plant the following day, I believe it was, and see if he could
be cleared to go to work." Lovelace states that he had
previously discussed with Carlin the latter's qualifications
and experience and the indication is clear that, but for the
necessity of clearance by Congoleum, Lovelace would have
hired Carlin. At a later point, as we shall see, Lovelace
specifically so stated.
On the morning of September 11, Carlin came to the
plant entrance where he met Lovelace. The latter took
Carlin inside to the construction area and told him to wait
there while Lovelace went to "find out if he [Carlin] could
6 The evidence persuades us that Lovelace also either mentioned to Roy
Pate at this time that Carlin had previously worked on the Congoleum
construction project or Pate was aware of this by reason of the fact that
Lovelace was seeking clearance for Carlin. As we shall see, the only
employees of Lovelace on the job who were required to have clearance
from Congoleum were employees who had formerly worked on the
go to work, if he could be hired." Lovelace then went to
Roy Pate, the construction superintendent on the job for
Pate. Lovelace told Pate that he had Carlin, an electrician,
waiting in the plant and Lovelace asked Roy Pate if Carlin
"could be cleared for work."6 Pate said he "would check on
this" and he departed elsewhere into the plant for about 15
or 20 minutes. He then returned and told Lovelace that
Carlin "wasn't cleared." Lovelace then told Carlin that he
"wasn't cleared." Carlin departed the plant after remarking
to Lovelace that he felt that he could get himself, cleared
because he knew the Congoleum personnel manager
personally.?
Lovelace, the witness who gave the foregoing testimony,
impressed the Examiner as, on the whole, a reliable witness.
In our opinion, he had no hostility to either Congoleum or
Pate with whom he worked as a subcontractor and his
relationship with Carlin was neither that of a friend nor
close acquaintance. There is little doubt in our mind that
Lovelace described accurately the use of the word "clear"
or "not cleared" by himself and Roy Pate regarding
Lovelace's request for clearance from Congoleum to hire
Carlin as an electrician. For instance, after Lovelace had
testified on direct examination regarding the Carlin-
Lovelace-Pate episode, above, Respondent's counsel on
cross-examination asked Lovelace:
Q. What did he [Roy Pate] tell you when he
returned?
A. That Ed Carlin was not cleared or approved.
Q. Pardon me?
A. He was not cleared or approved.
Q. Do you remember him specifically stating that
he was not cleared?
A. Do I remember Roy Pate saying this?
Q. Yes.
A. Yes, I remember it quite well. Otherwise, I
would have hired Mr. Carlin.8
It is to be observed that when Roy Pate told Lovelace
that Congoleum refused to clear Carlin for employment by
subcontractor Lovelace, Pate gave no explanation of why
clearance had been denied and Lovelace asked for none.
Yet Lovelace after prior conversations with Carlin had
been satisfied that Carlin was an experienced and qualified
electrician, and Lovelace had an opening for an electrician,
Lovelace had also apparently been satisfied after meeting
with Carlin that the latter's character or personality were
satisfactory since it cannot be assumed that he would have
been prepared to hire'a man displaying irresponsible or
indolent traits of character.
When Pate informed Lovelace that Congoleum would
not clear Carlin, if Lovelace had not understood the
meaning or implication of lack of clearance, he surely
would have asked why a man he considered to be an
experienced and qualified electrician and a man he wished
to hire was not cleared. Carlin would have been Lovelace's
employer, not Congoleum's or Pate's. But Lovelace did not
ask for an explanation and Pate offered no explanation of
Congoleum job.
7 The acquaintanceship with Personnel Manager Downing has been
previously described
8 Carlin testified that at the plant Lovelace, after telling him to wait,
returned thereafter and said that Carlin could not go to work because
"Congoleum wouldn't clear me ]him, Carlin I."
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
why Carlin was not cleared. Nothing was said to the effect
that Congoleum had observed Carlin when he previously
had worked on the construction site and Congoleum had
determined that as an electrician Carlin did not know a
generator from a transformer, or that he was drinking on
the job, or that he spent his time standing around and not
working or producing. The reason, in our opinion, why
Lovelace understood and readily accepted the statement of
Pate that, in substance, Lovelace could not hire Carlin
because Congoleum would not clear Carlin, was that
Lovelace, as he had earlier told Carlin, was aware that
employees who were connected with the labor disputes at
the Congoleum project under the previous contractors
would not be cleared for hiring. Because Carlin had
apparently convinced Lovelace that he was not involved in
the labor trouble albeit he had worked there under the prior
contractor, Lovelace had thought that Carlin would be
cleared for hiring. However, when Carlin was not cleared
by Congoleum, and Pate so advised Lovelace, the latter
understood the reason.
Lovelace had started on the Congoleum project as a
subcontractor of Pate around August 21, 1970. Among the
men he hired at this early stage was an employee named
Grady, who had previously worked on the Congoleum job,
a fact unknown to Lovelace when he hired him. After
Grady was on the job, he was apparently noticed, because
Roy Pate came to Lovelace and said that if Lovelace hired
any more men who had previously worked at the plant
project "they would have to be cleared." This is the first
indication that Lovelace had had that such clearance was
necessary.
It is apparent that when Pate let the electrical subcontract
to Lovelace that nothing had been said to Lovelace about
securing clearance for employees he hired and Lovelace
had gone ahead and hired electrical employees, including
Grady. Lovelace at the time had not only been told nothing
about the necessity of clearance but he was unaware that
Grady had previously worked on the Congoleum job. In his
testimony, Lovelace indicates that probably Roy Pate was
the person who was first aware that Grady had worked
previously on the Congoleum project. Thus, "Since Ted
Grady was noticed on the job, I suppose, by Roy Pate, who
no doubt knew that he had previously worked there, then is
when I got the word that no more men who had previously
worked there would go to work until they were cleared."
The statement "I suppose" that Roy Pate had first noticed
Grady and that Pate knew when he saw Grady that Grady
had previously worked on the project is clearly surmise on
Lovelace's part and, in our opinion, an erroneous
conjecture. Lovelace had not known that Grady had
worked there before and, in our opinion, neither had Pate.
Pate had nothing to do with Grady and the latter had been
hired and put to work by Lovelace under his subcontract.
Neither Lovelace nor Pate had been present on the
9 Roy Pate did not testify.
10 Lovelace opined that Grady was cleared "because I think he had a
reputation of being an excellent worker..... This speculation was not
based on anything said by Pate but was evidently based on the fact that
Grady thereafter was a highly satisfactory employee in the work he
performed for Lovelace, a fact mentioned by Lovelace in his testimony.
Lovelace, although he had been prepared to hire Carlin presumably
because he believed he was or would be a good electrician, never had a
Congoleum job when it was being performed by Yarbor-
ough and his subcontractors. They knew nothing about
what employees were working during that period. We are
satisfied that it was Congoleum who noticed Grady when
he appeared on the job as an employee of Lovelace.
Congoleum was in a position to know and evidently did
know that Grady had formerly worked on the construction
project. It is therefore reasonable to conclude that
Congoleum, when it saw Jrady on the job in August or
September, informed Roy Pate, the superintendent of
general contractor Pate, of Grady's prior employment on
the job. But of what importance would it be to Congoleum
to mention that a man who had been hired by subcontrac-
tor Lovelace, who was evidently satisfied as to his
qualifications, had previously worked on the project? The
importance was, as additional evidence will bear out, that
in our opinion Congoleum, when it saw Grady on the job,
told Roy Pate not only of the fact of Grady's prior
employment but that hereafter Pate and its subcontractor
Lovelace were not to hire anyone who had worked on the
project under the prior contractor and subcontractors
unless the employee was cleared for employment by
Congoleum. And this is what Roy Pate told Lovelace as
described above .9
In the foregoing matter of Grady, although Roy Pate told
Lovelace that thereafter prehire clearance from Congoleum
was necessary before Lovelace hired anyone who had
previously worked on the Congoleum plant project, Pate
said that Grady could continue to work and that Grady
"was cleared." Pate did not tell Lovelace why Grady was
cleared, nor, at a later date, did he tell Lovelace why Carlin
was not cleared.10
Grady had been cleared to work, albeit somewhat
retroactively after his presence on the job was discovered,
but nevertheless cleared, although he had previously
worked on the project while Yarborough was the general
contractor. Grady worked for Yarborough as a general
laborer, shoveling mud, driving stakes , and so forth.
Nobody asked him about joining the Laborer's Union or
any other union while he was thus performing. There is, in
fact, no evidence that the Laborer's Union had a
representative on the project or that any laborers were
members of that Union on the project. Next, Grady
performed labor type work for what was evidently the work
of the brick-laying or masonry subcontractor. He testified
that he was "carrying blocks and mud[?] to the brick layers
or block layers." While he was working at this masonry job,
a business agent of the union, (Bricklayers?) asked him to
join the union. Grady arranged to join the following week
but his brother died in California and Grady went to
California. How long he was gone , we do not know. When
he returned, he went back to work but never saw the
business agent , again. Evidently he had been forgotten by
the agent and, in any event, Grady made no effort to join
chance to determine whether Carlin performed satisfactorily on Lovelace's
subcontract . We would assume that if Lovelace or Pate had found that
Carlin, after being hired on an hourly basis, was not doing his work
satisfactorily, he would have been discharged . This would have been
adequate insurance against poor employee performance unless Congole-
um's refusal to clear Carlin to work was based on some other
consideration.
CONGOLEUM INDUSTRIES, INC. 363
the union and worked as a nonunion man. Grady then
worked on the project for a company that was installing the
sprinkler system. This company was the only nonunion
subcontractor on the job. Grady was working for this
company in July 1970 when one of the unions, the Iron
Workers, according to Grady, picketed the project. Grady,
however, crossed the picket line and continued to work.
It was certainly Grady's right to cross a picket line if he
wished and it is no concern of ours except as a factual
matter. Although there is nothing about this in the record, it
is our experience in the field of labor law that on a
unionized construction project where, as here, the general
contractor and all the subcontractors except one are
union,'1 picketing of the project by an affiliated construc-
tion union, which happened at Congoleum in July, will
result in the unionized construction workers on the project
refusing to cross the picket line. This is true whether the
picket line is actual or symbolic, i.e., the carrying of a picket
sign in front of the project. An employee like Grady, who
crossed the picket line and continued to work, at least
distinguishes himself as either nonunion or as not in
sympathy with the particular union cause being projected
by the picketing. We regard it as unreasonable to assume
that Congoleum, amid its problems and conflicts with the
umon contractor and their employees, was not aware and
did not note that Grady continued to work on the sprinkler
construction and manifested thereby either his nonunion
status or at least lack of sympathy with the union picketing
of the project.
Lovelace had hired and had working for him on the
Congoleum project other employees in addition to Grady.
None of these employees had previously worked on the
project during the incumbency of the prior contractors. No
clearance was required or secured for these employees at
any time.12 Thomas Pate, owner and head of Pate,13 could
recall only Grady as an example of an employee, while Pate
was general contractor on the Congoleum job, who had
previously worked on the project under the prior
contractors.14 Pate said that, while he had no policy against
hiring union men, he knew of only two union men who had
worked for him on the Congoleum job and he only learned
that they were union men when they quit.15
We return now to Carlin, who on September 11, 1970,
had been told by Lovelace that he could not be hired
because Congoleum had refused to clear him. In the course
of the next few days, Carlin endeavored to reach by
telephone Congoleum Personnel Manager Downing, whom
he knew, in order to find out why he had not been allowed
11 It is not unlikely that Yarborough let the sprinkler subcontract to a
nonunion contractor because there was no umon sprinkler contractor
available. Commonly, union contractors and union employees in the
construction field do not work on the same job with nonunion people.
12 At one point in his testimony Lovelace stated that Roy Pate had
implied to him that the previous contractor on the Congoleum project "was
unable to get the job done or unable to get the men to get it completed"
and, therefore, "it was desirable" that employees, who had previously
worked on the job under the former contractor and under former
conditions, should "not be put back on the job and have the same thing
happen agam."
13 Thomas Pate described his company as "Pate Construction Company
or Thomas L. Pate, General Contractor." Roy Pate, the Pate
superintendent on the Congoleum job, was the brother of Thomas Pate
14 The number of employees working under the Pate contract vaned but
the maximum was about 65.
to work for Lovelace on the Congoleum project. Not having
succeeded in contacting Downing, Carlin left word for
Downing to call him at home. Later, Downing called Carlin
at his home. The latter was not present but Mrs. Carlin
spoke to Downing on this occasion, explaining that her
husband was not there. Downing asked Mrs. Carlin, what
did "Ed" [Carlin] want. She replied that he wanted to know
why he could not work for Lovelace on the Congoleum job.
Downing said he was very sorry because he knew Ed, but it
was the policy of the engineering department in Kearny
[the Congoleum engineering department], "that he
[Downing] didn't have anything to do with it, that it was a
policy set down by the engineering department that people
that were out there during the labor disputes [while
Yarborough, Belco, and so forth, had the construction
contract on the Wilburton Congoleum job] couldn't work
[could not be hired]." 16
Within the week or two after his rejection for employ-
ment on the Congoleum project and after his wife had told
him what Downing had said, Carlin contacted the State
Employment Office in McAlester, Oklahoma. The man to
whom he spoke told him about work on the Congoleum
project in Wilburton but he told the state representative
about his prior experience in trying to work at that project.
Several days later, Carlin received a telephone call from
someone at the State Agency to the effect that there was an
opening for an electrician at Congoleum. Carlin went to the
plant, "with the intention," he says, "of getting in and
talking to Mr. Downing." Carlin had become aware at.this
point that the opening for an electrician was for a
maintenance electrician, a Congoleum plant employee, and
not for a construction electrician working for a contractor
like Lovelace.17
At the plant there was a Mrs. Hamburg, a representative
of the State Employment Service, who was handling the
procurement of employees, under the government program
abovementioned, for Congoleum's plant. The hiring was a
joint operation of Hamburg and Congoleum. Carlin told
Hamburg that, before he filled out any application, he
"would like to talk to Mr. Downing and find out why I
couldn't go to work for the electrical contractor Lovelace
After a brief wait, Carlin was admitted to
Downing's office. He told Downing that he would like to
know why he had not been "cleared to work out there" for
Lovelace. Referring to the reason previously given by
Downing to Mrs. Carlin, Carlin said that he did not
understand why the engineering staff of Congoleum would
not clear him because, Carlin said, he was certainly
15 "The reason I know they were union is that they finally came and
told me they did not want to work any more. I asked them why and they
said they were union:' These two union men had not worked on the
Congoleum job previously.
16 Downing did not testify at the hearing. In his brief, the General
Counsel states that Downing was in the hearing room during the hearing.
While we have no reason to doubt the General Counsel's statement, we do
not make an evidentiary finding thereon. However, we do find that there is
nothing in the record to show that Downing was not available as a witness.
17 Congoleum was securing its plant employees in Wilburton under a
government assisted MDTAOJT program (Manpower and Development
Training Act, On The Job Training) and the pay for plant employees under
this program was $1.70 per hour. Carlin testified that he had been
employed over the years as a heavy construction electrician with a
prevailing wage around $6 per hour.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
qualified. Downing agreed that Carlin was qualified but
said that the matter "was completely out of his hands, that
it was a policy set down by the engineering staff of
Congoleum Industries of Kearny, New Jersey," that there
would be no men employed that had worked previously
with Belco or the other union contractors. Downing said
that he could not clear Carlin to go to work because they
had "umon trouble" on the project and Carlin had worked
for Belco, a union contractor on the job. Downing adhered
to his position despite the fact that Carlin told him that he
was not a union member, that he had worked for Belco
under a union permit, and that he had no part in any union
trouble on the job.
Although the record shows that Carlin did fill out some
kind of an application for employment at the Congoleum
plant as an electrician, it is our opinion that, because Carlin
learned that the job was that of a maintenance electrician at
$1.70 per hour, he was not actually interested in such a job,
and he made this reasonably,clear to Downing when he
spoke to him on the above occasion. Carlin's testimony, in
our opinion, indicates that he was interested in a job as a
construction electrician under Lovelace on the Congoleum
construction project. For instance , Carlin testified that he
probably told Downing regarding employment that he "did
not want to work at a dollar seventy an hour"; "I went in
[to Downing] with the primary purpose of talking to him
concerning why I wasn't cleared to work for the contractor
(Lovelace)"; "why I wasn't cleared to work for Mr.
Lovelace was my primary reason for going in and talking to
Mr. Downing rather than going through filling out an
application for Congoleum." Carlin states that in the course
of the conversation he probably said that he did not "want
to work for a dollar seventy an hour" but wanted to know
why he could not work for Lovelace. We adhere to our
above conclusion although Carlin testified that he felt that
if he was not cleared to work for Lovelace he probably
would not be cleared to work for Congoleum.
We have earlier described the testimony of Respondent's
witness , Barchi. The latter, in his testimony, did not refer to
the specific issue of the denial of employment to Carlin on
the Congoleum project although the General Counsel had
introduced largely uncontroverted evidence that Congole-
um had refused to clear Carlin to work for Lovelace
because Carlin had worked on the project under a prior
union contractor and was therefore identified with the
union and with labor trouble. Respondent has relied
principally, if not entirely, upon the testimony of Thomas
Pate regarding the refusal of employment to Carlin.
Thomas Pate's information about the Carlin matter is
indirect and somewhat removed from the event itself.
Thomas Pate was not a direct participant in what occurred
in September, 1970, when Lovelace sought clearance to
employ Carlin on the Congoleum job. According to
Thomas Pate, he first learned of the Carlin incident a few
months after the event when he saw a paper of some kind
"from some lawyer or something ...." 18 At this time,
according to Thomas Pate, he went to his brother Roy Pate,
the Pate Company superintendent on the Congoleum job,
"to find out what the deal was." Roy Pate then told Thomas
Pate, according to the latter, that Lovelace had come to the
jobsite with Carlin and "checked with Roy"; Roy then
checked with Congoleum's personnel manager, Gerald
Downing, to find,out if Downing knew whether Carlin was
"a productive employee," and Downing told Roy Pate that
in his opinion Carlin "was not a productive employee";
therefore, Roy ' Pate went back and told Lovelace that
Carlin could not and would not be hired.
Thomas Pate states that at the time he secured the general
contract from Congoleum he had various conversations
with Barchi, John Harrison, the Congoleum plant manager,
and Downing, the personnel manager of Congoleum. He
testified that there was no restriction placed on him as to
hiring but he told them that if he "was going to work for
them, [he] would be more than willing to cooperate with
them in any way possible." Thomas Pate also states that he
told Harrison and Downing that if they knew of any people
who had previously "worked there" who were
"nonproductive workers" he would want to "know this"
and would not hire such persons. It was, therefore,
according to Thomas Pate, pursuant to Thomas Pate's
policy of checking references of applicants, that Roy Pate
had checked with Congoleum about Carlin, and Lovelace
was not allowed to hire Carlin because Roy Pate had been
told by Downing that Carlin was not a productive worker.
Since Downing did not testify, we have no direct evidence
as to what he told Roy Pate about Carlin. If he did say that
Carlin was a nonproductive worker when working for
Belco, we have no way to evaluate the accuracy or good
faith of such a statement or to determine the basis of such a
statement or whether Downing or anyone else in the
Congoleum management had observed Carlin performing
his work as an electrician or had received any report about
his productivity. Since Roy Pate did not testify, we have
had no occasion to evaluate his accuracy and credibility as
to what he asked Downing, or what Downing told him, or
what Roy Pate understood or why he told Lovelace that
Congoleum had refused to clear Carlin.
In our opinion, the testimony of Thomas Pate, the
principal witness of Respondent, who states in effect that
Roy Pate made a routine check of Carlin with Congoleum
(but not with Belco or Yarborough who were the direct
former employers of Carlin) and, therefore, did not allow
Lovelace to hire Carlin because Congoleum said Carlin had
been an unproductive worker, is not convincing . There is
no testimony or substantial evidence that Carlin was not a
productive worker or had not been a productive worker, or
testimony by Downing or anyone else in Congoleum to this
effect, let alone any testimony as to a basis for such a
judgment if it was made. 19
18 Possibly the paper was a copy of the charge in the instant case that
was filed on February 1 , 1971, or some correspondence relating to the
September Carlin event
19 There is no evidence that Grady while working for the union
contractors was any more of a productive worker than Carlin All we know
about Grady while working on the project while Yarborough was general
contractor is that Grady worked for a number of the contractors until their
particular work was completed . Since he worked without being discharged,
he presumably was a satisfactory worker But we know as much or as little
about Carlin 's work under the former contractor . Carlin worked in two
periods for Belco and was never discharged or, as far as appears , criticized
by anyone He worked until the work of his employer was completed and
CONGOLEUM INDUSTRIES, INC.
We find the uncontroverted testimony of Carlin and his
wife, and, in important respects, the testimony of Lovelace
and the conversations between Lovelace and Carlin, to be
credible. The evidence as to statements made by Downing
to Carlin and Mrs. Carlin as to why Congoleum refused to
clear Carlin to work for Lovelace persuades us that
Congoleum caused Lovelace, through Pate, to refuse to hire
Carlin on September 11, 1970, because Carlin had worked
on the project under the prior union contractor and was
considered to be in some way affiliated or identified with
the Union and with past union trouble or potential umon
trouble in the future if he or others in his situation were
again employed under the successor nonunion
contractors 2° There is no convincing evidence that the
individual work competence, performance, or productivity
of Carlin, while previously employed on the project, was the
reason why he was not cleared to work for Lovelace. The
clear message to Carlin, on the facts of this case, (or to
others similarly situated) was that his error and deficiency
was that he had worked on the project for a union
contractor and with union members and was therefore
identified with the umon trouble that Congoleum had had.
The message was that in the future it would be wise not to
work for union contractors on a union job, insofar as
Congoleum was concerned, and such a message discourag-
es activity, i.e., working under the aforementioned condi-
tions, that is protected by Section 7 of the Act. Since the
"union trouble" that occurred included strikes and such
employer-union matters that have not been shown to have
been illegal, we find that Congoleum's causing Lovelace,
over whom it exercised effective hiring control, to refuse to
hire Carlin was a violation of Section 8(a)(1) and (3) of the
Act.
As we have earlier indicated, we do not believe that
Carlin, after his failure to be cleared for employment by
Lovelace on September 11, 1970, was interested in
employment in the Congoleum factory at that operation's
prevailing rate of $1.70 per hour. We believe that Carlin
manifested to Downing that he was not interested in plant
employment but that he was still interested in working as a
construction electrician for the electrical subcontractor.
Whether or not Congoleum would have employed Carlin at
$1.70 as a manufacturing plant employee is not the issue,
and, in any event, cannot be answered with a substantial
degree of adequacy. The events and evidence never focused
on plant employment for Carlin because in speaking to
Downing about employment, Carlin concentrated on the
matter of clearance to work as a construction electrician for
Lovelace. We therefore recommend dismissal of the
complaint allegation that Respondent refused to hire Carlin
as an employee in its manufacturing plant.
presumably was a satisfactory worker. At the time of the labor trouble, in
July, 1970, however, Grady had affirmatively demonstrated his nonunion
identification by crossing a umon picket line and continuing to work for a
nonunion subcontractor Also, Grady had been hired by Lovelace and was
on the job before Lovelace had been advised by Roy Pate that henceforth
all employees who had previously worked on the project must be first
"cleared" by Congoleum. Grady was allowed to remain, however, by
reason of an ad hoc "clearance."
20 Whether entirely correct or not in the case of Carlin, it was a fairly
shrewd judgment that if a worker in one of the skilled construction trades,
such as the Electrical Workers, was working with the members of the
CONCLUSIONS OF LAW
365
By refusing to clear Carlin for employment by contractor
Lovelace, over whose hiring policy Respondent exercised
effective veto control, because of Carlin's past employment
by a union contractor and Carlin's identification with the
union under whose auspices he had worked, as more fully
explicated above in this Decision, Respondent discriminat-
ed against Carlin for the exercise of his rights under Section
7 of the Act and thereby violated Section 8(a)(1) and (3) of
the Act.
Respondent did not refuse to employ Carlin in its
manufacturing plant in violation of Section 8(a)(1) and (3)
of the Act. -
THE REMEDY
Having found that Respondent has engaged in the unfair
labor practice, abovedescribed, it will be recommended that
Respondent cease and desist from such practices and take
certain action to remedy the effects thereof and thereby
effectuate the purposes of the Act.
It will be recommended that Respondent withdraw its
disapproval of the employment of Edmund Carlin by
Lovelace or Pate or by any other contractor ' on the
Congoleum project and advise Lovelace, Pate, or any other
contractor involved, that it has no objection to Carlin's
employment.
It is further recommended that Respondent make Carlin
whole for the wages he lost by reason of the discrimination
against him for the period from September 11, 1970, to the
date when Carlin's employment would have normally
terminated had he been employed by Lovelace. In the event
the work is still going on, the cutoff date will be the date
when Respondent notifies Carlin, Lovelace, Pate, and any
other contractor involved, that it has no objection to the
employment of Carlin and has withdrawn any prior
disapproval of Carlin's employment. Such backpay as may
be due Carlin will be less any net earnings of Carlin during
the prescribed period aforementioned. Backpay shall be
computed in accordance with the method described in F.
W. Woolworth Co., 90 NLRB 289, with interest at 6 percent
as set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
RECOMMENDED ORDER21
Congoleum Industries, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging the right of Edmund Carlin or any other
employee similarly situated to work for union contractors
and with labor unions and their members either as union
members, permit men, or otherwise, as guaranteed to
Electrical Workers Union on a union job under a union contractor, that
individual- either was a union member or had umon credentials or sufficient
identification with the union , to make him acceptable to the union and
therefore not basically unsympathetic to union mores and rules either
currently or possibly in the future if an appropriate occasion arose
21 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees by Section 7 of the Act, by discriminating in
regard to hire, tenure, or other conditions of employment of
such employees.
(b) Refusing to approve or clear for employment by
Lovelace Electric, Inc., or by any other contractor,
Edmund Carlin or any other qualified employee similarly
situated.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Notify Edmund Carlin, Lovelace Electric, Inc., and
Pate Construction Company, Thomas L. Pate, General
Contractor, that it has no objection to Carlin's employ-
ment.
(b) Make Edmund Carlin whole for any loss of wages he
may have suffered by reason of the discrimination against
him, in the manner set forth hereinabove under the section
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records necessary to analyze the amount of backpay that
may be due to Carlin. In conjunction with the backpay
obligation, request and obtain from Lovelace Electric, Inc.,
and Pate Construction Company or Thomas L. Pate,
General Contractor, such payroll records, social security
records, timecards, and personnel records, and all other
records as may be necessary to analyze the amount of
backpay due to Carlin, and make such records available to
the Board or its agents for the aforesaid purpose of
analyzing the amount of backpay that may be due.
(d) Post at its plant in Wilburton, Oklahoma, copies of
the attached notice marked "Appendix." 22 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from receipt of this Decision, what
steps have been taken to comply herewith 23
22 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
23 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 16, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had an opportunity to
present sworn testimony and other evidence, a Trial,
Examiner of the National Labor Relations Board has found
that we have violated the National Labor Relations Act in
certain respects and has-ordered that we remedy the effects
of our unfair labor practices and post this notice.
WE WILL NOT discriminate against Edmund Carlin or
any other employee because he has worked for or has
been identified with union contractors and with labor
unions working for union contractors.
WE WILL advise Lovelace Electric, Inc., and Pate
Construction Company, Thomas L. Pate, General
Contractor, that we have no objection to the employ-
ment of Edmund Carlin or any other employee in the
same situation as Carlin.
WE WILL pay Edmund Carlin any wages he may have
lost by reason of our discrimination against him on the
plant construction project.
CONGOLEUM INDUSTRIES,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office,
Federal Office Building, Room 8-A-24, 819 Taylor Street,
Fort Worth, Texas 76102, Telephone 817-334-2921.