Industries Contractors, Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1979

244 N.L.R.B. 1154 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Contractors, Inc. andJohn Cabell. Case 25-
CA- 10248
September 18, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On June 20, 1979, Administrative Law Judge
Joseph J. Saunders issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
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
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Industrial Contractors, Inc., Evansville, Indiana, its
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility 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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 In the "Remedy" section of his Decision, the Administrative Law Judge
inadvertently failed to cite Isis Plumbing a Heating Co., 138 NLRB 716
(1962), which sets forth generally the Board's rationale for granting interest
payments.
Also, the Administrative Law Judge declined to make a recommendation
on the General Counsel's request that interest be set at 9 percent per annum.
The General Counsel's request that interest be set at that rate is hereby
denied. See Florida Steel Corporation, 231 NLRB 651 (1977).
l In par. I(d) of his recommended Order, the Administrative Law Judge
used the broad cease-and-desist language, "in any other manner." We have
considered this case in light of the standards set forth in Hickmott Foods,
Inc., 242 NLRB 1357 (1979), which issued subsequent to the Administrative
Law Judge's Decision. and have concluded that a broad remedial order is
inappropriate inasmuch as it has not been shown that Respondent has a
proclivity to violate the Act or has engaged in such egregious or widespread
misconduct as to demonstrate a general disregard for the employees' funda-
mental statutory rights. Accordingly, we shall modify the recommended Or-
der so as to use the narrow injunctive language, "in any like or related
manner."
The Administrative Law Judge inadvertently failed to conform his notice
to the recommended Order. We shall therefore correct the notice accord-
ingly.
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph (d):
"(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THEl
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were permitted to
introduce evidence, The National Labor Relations
Board found that in September 1978 we unlawfully
discharged John Cabell because of his becoming a
member of Local No. 106, United Slate, Tile, and
Composition Roofers, Damp and Waterproof Work-
ers Association.
WE REINSTATED John Cabell to his former job
in November 1978 with restoration of his senior-
ity or other rights or privileges.
WE WILL pay John Cabell the money he lost as
a result of our discrimination against him, with
interest.
WE WILL NOT unlawfully discharge employees
for membership in a union or for engaging in
union activities or protected concerted activities.
WE WILL NOT threaten employees with dis-
charge or other reprisals if they join Local No.
106, United Slate, Tile, and Composition Roof-
ers, Damp and Waterproof Workers Association,
or any other labor organization.
WE WILL NOT prohibit nonunion employees
from communicating with union employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed by Section
7 of the Act.
INDUSTRIAL CONTRACTORS, INC.
DECISION
STATEMENT OF THE CASE
JOSEPH J. SAUNDERS, Administrative Law Judge: This
proceeding pursuant to Section 10(b) of the National Labor
Relations Act, as amended, hereinafter the Act. was heard
in Evansville, Indiana, on February 21, 1979. pursuant to
due notice. The issues raised by the pleadings' are, in es-
' The charge was filed on October 6. 1978; the complaint was issued on
November 8, 1978. An answer was filed by Respondent on November 14.
244 NLRB No. 179
1154
INDUSTRIAL CONTRACTORS. INC.
sence, whether Industrial Contractors, Inc.. hereinafter Re-
spondent, interfered with, restrained, and coerced its em-
ployee John Cabell in violation of Section 8(a)(1) of the
Act, and discriminated against him in violation of Section
8(a)(3) of the Act, by acts and conduct of its agents and
supervisors hereinafter set forth.
The General Counsel of the Board, Respondent, and the
Charging Party appeared and were represented at the hear-
ing. All parties were afforded full opportunity to be heard,
to introduce and meet material evidence, to examine and
cross-examine witnesses, to present oral argument, and to
file briefs. Briefs were filed by the General Counsel and
Respondent on or about April 5. 1979, and have been full)
considered.
Upon consideration of the entire record and the briefs.
and my observation of the witnesses and their demeanor, I
make the following:
Findings of Fact
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein.
a corporation duly organized and existing under the laws of
the State of Indiana with principal place of business at Ev-
ansville, Indiana. Respondent is engaged in the general con-
tracting business. During the year preceding issuance of the
complaint, which period is representative of all times mate-
rial herein, Respondent performed services valued in excess
of $50,000, and purchased, transferred and delivered to its
Evansville, Indiana, facility, goods and materials valued in
excess of $50,000 which were transported to said facility
directly from States other than the State of Indiana.
II. THE LABOR ORGANIZATION INVOLVED
United Slate, Tile and Composition Roofers, Damp and
Waterproof Workers Association Local No. 106, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that during September 1978 Re-
spondent violated Section 8(aXl) and (3) of the Act by the
following conduct: (a) Harry Girvin and Dan Lehman, su-
pervisors and agents of Respondent, threatened John Cab-
ell with discharge if he became or remained a member of
Local No. 106; (b) through Girvin it prohibited Cabell
when he was a nonunion employee from communicating
with employees of Respondent who were members of Local
106; and (c) it discharged Cabell and thereafter failed and
refused to reinstate him because he had joined Local No.
106.
Respondent contends that Cabell was performing work
outside the jurisdictional scope of its collective-bargaining
agreement with Local No. 106, that Cabell nevertheless
1978, admitting certain allegations of fact but containing a general denial of
the violations alleged in the complaint.
joined the Union. that Respondent did not have work for
Cabell within the coverage of the union agreement under
which he allegedly chose to bring himself, and therefore
Respondent was justified in discharging him. Respondent
also contends that Cabell's work included guard duties. and
that Respondent would have violated the provisions of Sec-
tion 9(b)(3) of the Act by keeping in its employ a person
which the Union that he had joined could not lawfully rep-
resent.
B. The Facts
1. Background
Respondent is a general contractor. It has a roofing de-
partment which employs from 15 to 40 employees depend-
ing on the season. At the time of the hiring of the Charging
Party by Respondent all employees of the roofing depart-
ment with the exception of two Teamsters were represented
by Roofers Local No. 106.
Respondent has a storage yard, consisting of three build-
ings with a fenced area, which is located about half a mile
from its main office in Evansville. Equipment and materials
used in roofing work are regularly stored at this yard. Prior
to September 1978 no employee of Respondent was as-
signed to the yard on a full-time basis. From time to time
various employees of Respondent were assigned to unload
new materials coming into the yard and to straighten up the
yard. Supplies were removed from the yard as needed, usu-
ally by roofing crews on their way to job sites. Roofers were
under instructions from Respondent to execute charge-out
forms to reflect removal of materials from the storage yard.
identifying the job on which they were to be used. The!
were to credit material upon return. However. this record-
keeping was seldom actually performed. according to Re-
spondent's rotxfing department manager.
2. The hiring of Cabell and the scope of his duties
John Cabell was hired by Respondent on September 5,
1978. Cabell was interviewed and hired by Harry Girvin.
the roofing department manager. Girvin and Lehman, the
roofing department superintendent, are responsible fbr ac-
quiring and supervising completion of roofing work per-
formed by Respondent. Cabell was hired at the rate of $3
per hour and was assigned to work in the storage yard on a
full-time basis each day. Cabell was hired to be a "yard-
man," and that is the only job title ever assigned to him or
entered on Respondent's records concerning him.
There was general agreement in the testimony of Cabell
and Girvin as to the scope of Cabell's duties. Cabell testi-
fied that he was instructed by Girvin to arrive at the storage
yard a half hour before the working time of roofer employ-
ees and to open up the gate to the yard. Similarly. he was
directed to lock up the yard at the close of the business day.
His duties during the day included maintaining records.
charging out materials as they were removed by employees
for use in roofing jobs, crediting materials which were re-
turned, tagging equipment found to be in need of repair
and sending such equipment to Respondent's main loca-
tion. keeping the storage yard neat and orderly, assisting
I I 5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees of loading roofing materials on
trucks, operating a forklift truck on the premises in connec-
tion with the loading and unloading of materials, and noti-
fying Girvin or Lehman to order additional materials when-
ever particular supplies began to run low. While Girvin
generally corroborated this testimony by Cabell, he stressed
the "security" purpose underlying Respondent's decision to
station an employee at the storage yard on a full-time basis
during working hours. Thus, Girvin testified that he told
Cabell that he was being hired:
[P]rimarily [for] protection, because we had been losing
various amounts of materials from this area. The gate
was unlocked all day, and sometimes all night, we
didn't have anyone assigned to take care of it, so we
were losing material, and we employed him to look
after this material; make sure the place was locked at
night; to make sure that everything that went out of
stock would be signed for, or at least charged to a job.
However, in describing Cabell's specific duties. Girvin's ac-
count closely matched Cabell's enumeration of the func-
tions he performed. Girvin testified:
First of all he was supposed to come in, I think a half
hour before work time of the roofer employees and
stay a half hour after the work time of the roofer em-
ployees in order to open up the gate, or yard for them
to get in and out; to charge out any materials that were
sent out of the yard to our jobs, or anybody else's job
for that matter; to credit any materials that might be
brought back from any job; to tag equipment that
needed repair, that is if he knew it needed repair, to he
sent in for repair; to in general straighten the area up
so we could find and make an inventory of what type
of materials we had in the yard, rather than being in-
termixed, you know, have a quantity of each one; to in
general keep the appearance of the yard in a neat and
orderly manner.
Girvin also acknowledged that Cabell's duties included as-
sisting any employee of Respondent in obtaining materials
at the storage yard, helping such employee, if necessary, to
load the materials on trucks, and to operate a forklift truck
on the premises in connection with taking out or putting
materials back in stock.
3. The direction to Cabell to "keep things hush-hush"
Cabel testified that Girvin, at the time he hired Cabell.
told him "not to get too familiar with ... any of the guys
there, and that one of the reasons he was going to hire me
was because no one knew me there .... And he told me ...
to keep things hush-hush" Cabell further testified that Gir-
vin said that Cabell should not allow other employees to
"know what my status was there at the yard." Girvin in his
testimony did not deny or give a contradictory version of
this incident.
4. Statements by Respondent's officials that Cabell would
be discharged if he joined the Union
As previously noted, Cabell joined Respondent's work
force on September 5, 1978. Later in September-the date
is uncertain but It was approximately September 22, 1978
Cabell telephoned Local 106 and inquired whether he was
required to join the Union. The following day. George
Smith, president of Local 106, went to the storage yard and
talked to Cabell about joining the Union. Smith apparently
interested Cabell in joining the Union; however, he did not
have any authorization cards with him so he told Cabell
that he would return with them at a later time. Four or 5
days later Smith received a message to contract (Cabell. lie
called the telephone number contained in the message and
wound up talking to Girvin. In this conversation. Smith
informed Girvin that Cabell wanted to join ocal 106.
Smith testified. and Girvin did not deny or give a contradic-
tory version, that Girvin thereupon stated that i 'Cabell did
join the Union he would have to let him go.
On September 29. 1978, Smith and Bobby Williams,
business manager of Local No. 106. went to the storage
yard. During a discussion with Cabell about his joining Lo-
cal No. 106, Williams gave Cabell union dues checkoff au-
thorization forms which Cabell signed. Williams and Smith
then took the checkoff forms to the main office of Respon-
dent. In the absence of Girvin to whom he had intended to
give the forms. Williams gave them to Lehman with the
comment that Cabell had joined the union. According to
Williams. Lehman responded, "Well I guess that's the end
of his job." Lehman testified that he replied by saying
"something close to this that we would probably get rid of
him." In this conversation Lehman also said. "Are you try'-
ing to tell me I can't hire who I want to do work in that
yard down there?" Williams then said, "No, what I am
telling you is that Cabell has joined the union, and you're
telling me that you're firing him because he has. Is that
correct?" To this Lehman replied. "That's about the size of
it."
5. The discharge
Cabell testified that about midafternoon on September
29, 1978, Girvin and Lehman came to the storage yard.
Girvin showed Cabell the checkoff slips and told Cabell
that he had signed himself out of a job. At one point in the
conversation, Girvin indicated to Cabell that if he had
needed more money he should have come to Girvin about
it. After some further conversation, Girvin asked Cabell to
turn over the key to the yard, gave him a final paycheck.
and discharged him. Neither Girvin nor Lehman contra-
dicted this account.
Girvin testified that Cabell was terminated because Re-
spondent would have violated its agreement with Local No.
106 by retaining him. He testified that "I cannot use a man
in the yard as a guard or clerical position when he belongs
to l.ocal 106." that Respondent "had just laid off three
roofer's helpers." that "I had no work for [Cabell] as a roof-
er's helper," and that "I couldn't keep him in the position
he was in under the existing contract." Girvin acknowl-
edged in his testimony. however, that Cabell had never in-
dicated that he wanted to be a roofer's helper and that
Cabell told him at the time of his discharge that he wanted
to remain in Respondent's employ as a yardman. The fur-
ther explanation advanced by Girvin was that, because the
agreement between Respondent and Local 106 excludes
1156
INDl'S'Rl\l. C'ONI RAC(TORS, IN('
from the bargaining unit clerical. guard. and other emprlo-
ees not directly and actually engaged in construction work.
"1 either had to dismiss Mr. ('abell . since I had dismissed
other roofer's helpers, or I had to work him as a ardmlan.
which was contrary to I.ocal 106's agreemtnent."
6. The reinstatement
Approxinmatel six weeks after the discharge. and fillos-
ing service of the complaint herein. Respondent offered
Cabell unconditional reinstatement in his former position at
the rate of pay and terms and conditions of employment
existing prior to the termination. Cahell accepted the offer
and was thereupon reinstated in Respondent's employ as
yardman at the roofing department storage yard.
C. Conclusions a.s to ltl!fir lahor Pralrce¥s
1. As to the discharge
It is clear from the evidence that Cabell was peremptorily
discharged by Respondent as a direct result of his hazing
joined Local 106. In determining whether a violation of
Section 8(a)(3) of the Act has occurred, the critical question
is whether the employer has discouraged membership in a
labor organization by its discriminatory action. It is well
settled that a specific antiunion purpose need not he proved
where a natural consequence of an employer's action is
such discouragement. The Radio Officers Union of the Corm-
mercial Telegraphers Union, A4F. I 1.H. Bull Steamship
Company], v. N.L.R.B., 347 U.S. 17 (1954). Respondent's
discharge of Cabell within hours of his having joined ocal
106 would clearly have the direct and immediate effect of
discouraging membership in the labor organization and
would constitute the very kind of discrimination prohibited
by Section 8(a)(3) of the Act, unless Respondent can estab-
lish that its action was otherwise justified. Respondent ad-
vances two grounds of defense against the allegation that
the discharge constituted an unfair labor practice:
(1) the work Cabell was hired to do was outside the
coverage of the collective-bargaining agreement be-
tween Respondent and Local No. 106; Respondent
had no work for Cabell under the coverage of the
agreement within which he brought himself by joining
the union; therefore, Respondent was justified in dis-
charging him; and
(2) the duties that Cabell performed constituted
guard duties; Section 9(b)(3) of the Act precludes the
Board from certifying a bargaining unit which in-
cludes, together with other employees, any individual
employed as a guard to enforce against employees and
other persons rules to protect property of an employer:
therefore Resp'ndent would have violated the Act by
keeping in its employ a person whom under the Act
the union involved could not represent.
I concluded that there is no validity to either of Respon-
dent's contentions.
With respect to the contention that by joining Local No.
106 Cabell had reclassified himself as a roofer's helper and
presumably bestowed upon himself a raise. neither the facts
of the instant case nor the applicable law sustain Respon-
dent's position. First, there is no evidence whatever that
Cabell or the union officials indicated to Respondent that
because ('abell had joined the union he was entitled to be
classified as a roofer's helper or to obtain the higher wage
rates paid by Respondent to employees in that category.
(iirvin conceded on cross-examination that Cabell had nev-
er indicated a desire to be a roofer's helper and stated that
he 'just assumed" that Cabell wanted to become a roofer's
helper from the fact that Cabell joined Local No. 106. It is
also clear that Cabell did not request a raise in pay in con-
nection with his action in joining the Union. Cabell. in his
testimony on this point which I credit, stated that he did
not join the union with the expectation that he would be
entitled to a raise as a result of doing so. Although Respon-
dent's counsel cross-examined Cabell and the union offi-
cials. no evidence was adduced that any of these individuals
had infoirmed Respondent that an increase in Cabell's
wages was expected following his joining the Union.
In any event, Respondent was not required by the terms
of its agreement with Local No. 106 to accept any claim
that Cahell might make for a status other than yardman.
The instant case falls within the holding of Herb Arthur.
Inc., dr/h/a (ustom Carpet Installations, 225 NLRB 1036
(1976). in which the Board held unlawful the discharge of
an employee, who was originally not included in the bar-
gaining unit, upon his joining the Union. In Herb Arthur,
the employer argued that the employee, by joining the
Union, conferred upon himself a raise to union scale for
doing nonunit work. Since the employer refused to pay
such a rate, he terminated the employee. Here, Respondent
refused to permit Cabell to remain in his classification as
yardman because he joined the Union, despite Cabell's de-
sire and willingness to do so. Although Cabell indicated
that he did not think that his joining the Union would give
him an automatic raise, it is clear that Girvin felt that Cab-
ell had joined the Union in order to get a raise. When Cab-
ell dispelled the notion that he expected or sought more
money, Respondent lost even the economic justification for
the discharge, leaving only the discriminatory reason, the
fact that Cabell had joined the Union.
Respondent attempts to distinguish the instant case from
Herb Arthur on the ground that there was a specific exclu-
sion of Cabell's work from the coverage of Respondent's
collective-bargaining agreement with Local No. 106,2
whereas in Herb Arthur there was no such specific exclu-
sion. Respondent does not explain how this distinction
would make any difference in applying the provisions of the
Act. The collective-bargaining agreement in Herb Arthur
applied specifically to the work of installing and repairing
carpets. Under the principle of inclusio unius est exclusio
alterius, all other carpet work, including the work of carpet
cleaning which was performed by the charging party in that
case, would be excluded from the coverage of the collective-
bargaining agreement. Indeed. both the decision of the Ad-
ministrative Law Judge and the decision of the Board in
Herb Arthur noted that all parties to the case agreed that
the work of the charging party was outside the scope of the
2 The collectie-hbargaining agreement excludes from such bargaining unit
"all office. clerical. surervisor. guard. execu(ie. and other emplosees not
directly and actualls engaged n construction work."
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement. Since there is no essential
difference between the status of the charging party in Herb
Arthur and the status of Cabell, the rationale of Herb Ar-
thur is therefore applicable to the instant case.
I turn now to Respondent's contention that Cabell was
performing guard duties and that Respondent would have
been violating the Act by keeping Cabell in its employ after
he joined the Roofers Union. The threshold question is
whether Cabell was in fact performing guard duties and
was therefore a guard within the meaning of Section 9(b)(3)
of the Act. Although both Cabell and Girvin testified that
in the hiring interview Girvin indicated that it was part of
Cabell's job to prevent theft of supplies, this alone did not
constitute Cabell a guard within the meaning of Section
9(b)(3). An examination of the totality of Cabell's duties
must be made to determine whether the essentials of a
guard's duties were involved. No evidence was adduced by
Respondent showing that Cabell had the customary indicia
of one performing guard duties. Cabell wore no uniform,
carried no arms, was not deputized, and was not authorized
to arrest anyone. Rather than performing the duties charac-
teristic of a guard, Cabell, according to the evidence, per-
formed principally clerical and maintenance functions at
Respondent's storage yard. The evidence is undisputed that
virtually all of Cabell's time was occupied in performing the
clerical and maintenance functions rather than duties typi-
cal of a guard.3 The title "yardman" itself, which Respon-
dent used to refer to Cabell's position, further supports the
conclusions that Cabell was not actually a guard. What Re-
spondent primarily desired was that its premises and mate-
rials be secure. It achieved this objective merely by having
Cabell present in the storage yard performing the above
described clerical and maintenance duties and locking the
gate to the yard at the end of the day. While Cabell was
directed by Girvin to see that materials were charged in and
out, this does not transform him into a guard anymore than
would similar directions to a librarian or to a clerk in the
parts department of an automobile repair shop. The mere
presence of such employees at their respective duty stations
could be expected to reduce thefts or unexplained disap-
pearances of property but would not constitute them
guards.
Cabell's alleged security duties do not rise even to the
level of the functions considered by the Board in Sears Roe-
buck and Co., 157 NLRB 32 (1966), and which nevertheless
were held not to constitute the employees as guards within
the meaning of Section 9(bX3) of the Act. In that case the
employer contended that seven powerhouse employees at
its Kansas City mail order catalogue plant were guards
within the meaning of Section 9(bX3). These employees had
taken comprehensive examinations and had obtained li-
censes from the city to operate powerhouse equipment. In
addition to checking guages, the condition of the fire in the
boiler, and the functioning of auxiliaries and of the air
pump which controlled the main building's sprinkler sys-
tem, the powerhouse employees were required to report
each hour of the ADT alarm system, to be responsible for
$200,000 of merchandise stored in the powerhouse, and to
3 See sec. III. B, 2. par. 2, supra.
keep unauthorized persons out of the powerhouse. The
Board held that this evidence did not establish that the
powerhouse employees were employed as guards, but
rather that they were engaged predominantly in power-
house work, with additional duties resembling only inciden-
tall' those of a watchman or guard. See also Sherwin-Wid-
liaris Co., 173 NLRB 316 (1968). Admittedly. Cabell was
under a specific direction to report to Respondent any
thefts or untoward occurrences relating to its property at
the storage yard. However, his duty in this regard does not
by itself constitute him a guard within the meaning of the
Act. Girvin stated during his testimony that he "naturally
assumed that any loyal employee would report theft." In
similar circumstances the Board stated: "We are satisfied,
on review of the record, that the Cincinnati checkers per-
form duties ordinarily associated with a clerical checking
function and protect the Employer's property solely as an
incident to such duties; and that any duties the checkers
have to report untoward occurrences are shared by all of
the Employer's employees." Pepsi-Cola Bottling Compatn of
Cincinnati 189 NLRB 105, fn. 1 (1971).
I am aware of one decision of the Board in which the
status under Section 9(b)(3) of the Act of employees with
the job title of "yardman" was in issue. In that case, New
England Tank Cleaning Cornpany, 161 NLRB 1474 (1966),
the facts were somewhat analogous to the case at hand. The
yardmen worked a 40-hour week on weekdays, and at such
times performed non-guard functions. such as janitorial,
maintenance, loading, and unloading.4 On Saturdays, Sun-
days, and holidays, when the yard was closed, the yardmen,
on a rotational basis, worked as guards. On the average,
each yardman worked three guards shifts per month, re-
ceiving overtime rates for this work. The Board noted that
the time spent in guard duties by the yardmen was about 13
percent of their total work time. In the circumstances of
that case, the Board declined to hold that the yardmen were
guards within the meaning of Section 9(b)(3).
Based on all the evidence concerning the work performed
by Cabell and the precedents referred to above, I conclude
that Cabell was not a guard within the meaning of Section
9(b)(3) of the Act when he was performing his duties as a
yardman in Respondent's storage yard prior to his dis-
charge.
Assuming arguendo that Cabell was a guard within the
meaning of Section 9(b)(3) of the Act, it would still be nec-
essary to determine whether his discharge was justified. Re-
spondent contends that its continued employment as a
guard of a person who had joined Local 106 would be in
violation of the Act. It cites the following language of Sec-
tion 9(b)(3) as relevant to this contention:
[The Board shall not] decide that any unit is appropri-
ate for [collective bargainingl purposes if it includes,
together with other employees, any individual em-
ployed as a guard to enforce against employees and
other persons rules to protect property of the employer
I note that that decision indicates that while the yardmen were perform-
ing these functions two admitted guards were on the premises. I do not
believe, however, that this additional fact diminishes the applicability of that
case as further authority for the proposition that Cabell's duties were not
those of a guard.
I 1158
INDUSTRIAL CONTRACTORS INC.
or to protect the safety of persons on the employer's
premises ....
Respondent's reliance on this provision is misplaced, how-
ever. Section 9(b)(3) operates as a restriction upon the
Board's authority in connection with representation elec-
tions. It is not a restriction upon an employer or employees.
The Sixth Circuit has specifically rejected the argument
that guards may not join a labor organization which also
represents nonguard employees of the same employer and
that an employer would therefore be justified in discharging
a guard because of such membership. In N. L. R. B. v. White
Superior Division, White Motor Corporation, 404 F.2d 1100.
1103 (1968), the court said:
At first glance this argument has some appeal, but
unfortunately for respondent, Congress chose to ac-
commodate the interests of guards and employers in a
different manner. Indeed, adoption of respondent's po-
sition is foreclosed by the legislative history of §9(b)(3).
The House version of the Taft-Hartley Act would have
supported respondent's position by classifying guards
as "supervisors," thereby removing them from the pro-
tection of the Act. However, the Senate version the
present §9(b)(3)-was the resolution which finally
emerged from conference. H.R. No. 510, 80th Cong..
Ist Sess. (1947).
Thus, we think it is clear that §9(b)(3) does not oper-
ate to prevent guard employees from joining a labor
organization, and this principle extends to labor or-
ganizations which also represent nonguard employees.
Indeed, the real significance of §9(b)3) is the restric-
tions which it imposes on the Board. Specifically.
§9(bX3) provides two things: (I) the Board may not
determine that a unit is appropriate for purposes of
collective bargaining if the unit includes both guards
and nonguards; and (2) the Board may not certify a
union as bargaining agent for guards if that union rep-
resents both guards and nonguards.
If guard employees do join a union which also repre-
sents nonguards, their membership is not unlawful,
and in fact an employer may, if it wishes, recognize
such a union for purposes of collective bargaining.
Since membership by guard employees in a union
which also represents nonguards is not unlawful, it
would be an unfair labor practice for an employer to
take discriminatory action against guard employees on
account of such membership. (Footnotes omitted.)
Accord, N.L.R.B. v. Bel-Air Mart, Inc., 497 F.2d 322 (4th
Cir. 1974).
On the basis of the foregoing analysis of the evidence and
applicable law, I find that Respondent's discharge of Cabell
violated Section 8(aX)() and (aX3) of the Act.
2. As to the alleged threats of discharge
The complaint alleges that Girvin and Lehman threat-
ened Cabell with discharge if he joined the union and that
Respondent thereby violated Section 8(a)(1) and (3) of the
Act. It is elementary that a threat to discharge an employee
if he joins a labor organization is violative of Section 8(a)( )
of the Act.
It is not disputed that Girvin and Lehman told union
representatives Williams and Smith that Cabell would lose
his job if he joined Local No. 106. Shortly before Septem-
ber 29, 1978. Smith, while attempting to reach Cabell by
telephone, was put through to Girvin. When Girvin learned
that Smith was called Cabell in response to an inquiry Cab-
ell had made about union membership, he told Smith that it
Cabell joined the Union, he would "have to let him go."
Testimony as to this statement was given by Smith, and
Respondent made no attempt to refute it. Similarly. Wil-
liams and Smith testified that Lehman, on September 29.
1978, stated that Cabell would lose his job as a result of
joining the Union. Lehman admitted that he had done this.
Although these statements were not made directly to Cab-
ell,. they were made to persons who would reasonably be
expected to inform Cabell of them. In these circumstances,
Respondent is deemed to have used the union officials as a
conduit for the transmission of the threats to Cabell. Ac-
cordingly, I find that the Respondent thereby violated Sec-
tion 8(a)(1) of the Act.
3. As to the alleged prohibition against communicating
with union employees
The complaint alleges that Respondent violated Section
8(a)(I) and (3) of the Act when Girvin in the course of
hiring Cabell instructed Cabell not to communicate with
union employees.
Cabell testified that Girvin told him "not to get too famil-
iar with ... any of the guys there, that one of the reasons he
was going to hire me was because no one knew me there
.... And to keep things hush-hush." Cabell interpreted this
to mean that he was to avoid any discussions with other
employees that might result in "Well, you know, anybody
finding out anything abhout me, and, you know. I guess the
rate of pay that I was going to make."
Standing alone, Girvin's direction to Cabell not to get too
familiar with the other employees and to keep things "hush-
hush" might be susceptible to two interpretations: Cabell's
interpretation that he was to refrain from discussing his
wage rate with other employees or the interpretation that
since Cabell's duty was to maintain careful inventory con-
trols he should maintain a certain degree of reserve in order
to render more effective the performance of his functions.
However. Girvin's remarks to Cabell at the time of his dis-
charge indicate that Cabell's interpretation was correct.
Cabell testified that Girvin told him that if he had needed
more money he should have come to Girvin. Girvin did not
deny that he made this statement. I conclude from all the
evidence relating to this issue that Girvin did not want Cab-
ell to learn from discussions with the other employees, all of
whom were union members, that he was receiving a lower
rate of pay. and that this was the reason underlying Gir-
vin's instruction not to get too familiar with the other em-
ployees and to keep things "hush-hush." The court, enforc-
ing a Board order in Jeannette Corporation. 217 NLRB 653
(1975), which found a similar rule unlawful, remarked:
"Dissatisfaction due to low wages is the grist on which con-
certed activity feeds. Discord generated by what employees
view as unjustified wage differentials also provides the
I1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sinew for persistent concerted action." 532 F.2d 916, 919
(3d Cir. 1976).
Girvin's instruction to Cabell constituted a violation by
Respondent of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPO)N
COMMERCE
The activities of Respondent set forth in section III
above, occurring in connection with the operations of Re-
spondent described in section I above. have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening or obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having concluded that Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and take action to make John Cabell
whole for any loss that he may have suffered as a result of'
the discrimination against him, in accordance with the for-
mula set forth in F. W. Woolworth Cornpur v,. 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977). 5
Upon the foregoing findings of fact, conclusions of law.
and the entire record in this matter, and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER6
The Respondent, Industrial Contractors, Inc.. Evansville.
Indiana, shall:
1. Cease and desist from:
'The General Counsel has asked for interest to be set at 9 percent per
annum. As this request was made for the first time in this proceeding in the
General Counsel's brief, thus denying Respondent an opportunity for reply.
and as the issue is also now pending before the Board, I decline to make any
recommendation concerning it.
'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.
(a) hreatening employees with discharge or other repri-
sals if they join or remain members of Local No. 106.
United Slate, Tile and Composition Roofers, Damp and
Waterproof Workers Association, or any other labor or-
ganization.
(b) Prohibiting nonunion employees from communicat-
ing with union employees.
(c) Discharging or otherwise discriminating against any
employee because of his interest in, membership in, or ac-
tivity on behalf of Local No. 106. or any other labor organi-
zation.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them b section 7 of the Act.
2. Take the following affirmative action:
(a) Make John Cabell whole, pursuant to the provisions
referred to in section V above, for any losses he may have
suffered as a result of his discharge by Respondent:
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records. timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of' this recommended Order.
(c) Post at its Evansville, Indiana, facilities copies of the
attached notice marked "Appendix."' Copies of said notice
on forms provided by the Regional Director for Region 25,
after being duly signed by its authorized representative.
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 insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 25, in writ-
ing within 20 days of the date of this Order, what steps
Respondent has taken to comply herewith.
The allegations in the complaint not specifically found
herein are dismissed.
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order o he
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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