Kyle & Stephen, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1981

259 N.L.R.B. 731 (N.L.R.B. 1981)

KYLE & STEPHEN, INC. 731
Kyle & Stephen, Inc. and Jerry Mason. Case 15- also excepts to the Administrative Law Judge's
CA-7501 failure to find that Respondent, by Jarratt and its
December 16 1981 1attorney, Harvey Lee Hall, violated Section 8(a)(1)
ecember 1, of the Act by interrogating employees Mason and
DECISION AND ORDER Campbell about their protected concerted activi-
ties. For the reasons set forth below, we find merit
BY MEMBERS FANNING, JENKINS, AND in the General Counsel's exceptions.
ZIMMERMAN Respondent is a general contractor in Baton
On June 27, 1980, Administrative Law Judge Rouge, Louisiana. None of its employees is repre-
James L. Rose issued the attached Decision in this sented by any labor organization. State law, how-
proceeding. Thereafter, counsel for the General ever, requires that contractors pay their employees
Counsel filed exceptions and a supporting brief, "union scale" whenever the contractor is engaged
and Respondent filed a brief in support of the Ad- in work for the State. Respondent, in the past, had
ministrative Law Judge's Decision. been ordered to make restitution to employees for
Pursuant to the provisions of Section 3(b) of the failure to pay them the proper wage on state con-
National Labor Relations Act, as amended, the Na- struction jobs.
tional Labor Relations Board has delegated its au- Respondent had a contract with the State to do
thority in this proceeding to a three-member panel. construction work at Louisiana State University
The Board has considered the record and the at- (LSU). Two of Respondent's employees, Mason
tached Decision in light of the exceptions and and Campbell, felt they were not being paid the
briefs and has decided to affirm the rulings, find- correct wage rate for their work. Mason, on behalf
ings,' and conclusions of the Administrative Law of himself and Campbell, filed a complaint with the
Judge only to the extent consistent herewith. State Department of Labor. (Both Mason and
The Administrative Law Judge found, and we Campbell had received restitution for Respondent's
agree, that Respondent, through its supervisor, Jar- substandard wage payments in the past, although
ratt, did not threaten its employees in violation of there is no evidence that either of them instigated
Section 8(a)(1) of the Act. The Administrative the prior complaint.)
Law Judge also found, and we agree, that Re- Mason's complaint was that he was a carpenter
spondent, through its part owner, Harvey J. Hall, and as such was entitled to $12.45 per hour rather
did not interrogate its employees in violation of than the $10 per hour he was being paid by Re-
Section 8(aX1) of the Act. spondent for his work on the LSU job. Campbell,
The General Counsel excepts to the Administra- Mason's helper, joined in the complaint.
tive Law Judge's failure to find that Respondent On November 28, 1979, Doughty, an investiga-
violated Section 8(a)(1) of the Act by discharging tor for the State Department of Labor, came to the
employees Mason and Campbell for engaging in LSU site to interview Mason and Campbell regard-
protected concerted activity. The General Counsel ing their complaint. After introducing himself to
Jarratt, Respondent's supervisor, Doughty spoke
'The General Counsel has excepted to certain credibility findings with Mason and Campbell. After Doughty left,
made by the Administrative Law Judge. It is the Board's established Jarratt approached Mason and Campbell and asked
policy not to overrule an administrative law judge's resolutions with re- att approaced Ma and ampell and a
spect to credibility unless the clear preponderance of all of the relevant them what they had told Doughty. They said that
evidence convinces us that the resolutions are incorrect. Standard Dry they told Doughty their names, job classification,
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 re- and wage rate. Jarratt told them they would not
versing his findings. accomplish anything by their actions. In the early
Additionally, the General Counsel asserts that the Administrative Law afternoon, Jarratt and Hall, a co-owner of the
Judge's findings are a result of bias. After a careful examination of the
entire record, we are satisfied that this allegation is without merit. Company, initiated another discussion with Mason
The Administrative Law Judge, in fn. 3 of his Decision, discredited the and Campbell.
testimony of employee Jerry Mason that Respondent's part owner, The discussion
Harvey J. Hall, told Mason that he (Mason) would no longer have a job The discussion primarily concered Mason's
with the Company if he kept "complaining to the Board," based, in part, wage rate. Mason contends that he was a carpenter
on the finding that Mason's testimony was uncorroborated by that of em- and should, therefore, be paid $12.45 per hour,
ployee Harold Campbell. The Oeneral Counsel excepted to this finding ,
and we find merit in his exception. Mason's testimony on this matter was "union scale" for carpenters. Hall responded that,
corroborated by Campbell who testified that Hall stated, "If you don't although Mason was indeed a carpenter, he spent
quit complaining to the Labor Board, you no longer have a job here." about 40 percent of his time engaged in noncar-
However, since the Administrative Law Judge relied upon other factors
in crediting Hall's denial of any statement along these lines over Mason's pentry work. Therefore, Hall computed Mason's
contradictory testimony, including relative demeanor, and found that pay by averaging the rate paid to carpenters
Hall for the same reasons should be credited over Campbell, we do not
rely on Mason's and Campbell's testimony on this matter in resolving the ($12.45 per hour) with the rate paid to laborers
issue of their alleged unlawful discharge. ($7.80 per hour). Hall concluded, based on this for-
259 NLRB No. 87
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732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mula, that Mason should be paid $10 per hour. Hall The discussion between Mason, Campbell, and
continued: co-owner Hall was initiated by Hall. Neither
And Mason protested that he was a carpen- Mason nor Campbell affirmatively approached Hall
ter. And I don't recall how many times we to insist that they be paid a particular wage. Hall
went back and forth between, "but this morn- sought out Mason and Campbell to explain to them
ing you were finishing concrete." "I'm a car- how he arrived at their wage rates. When Hall re-
penter." "Yesterday you were putting up a alized that Mason and Campbell still disagreed
fence," "I'm a carpenter." And finally, when I with him on the proper wage rate, Hall discharged
decided that I wasn't getting anyplace, I said Mason because, "I don't have a job for a man who
to Mason, "I don't have a job for a man who is just a carpenter, and that wasn't the basis on
is just a carpenter, and that wasn't the basis on which you were hired. I don't have a job for you."
which you were hired. I don't have a job for Hall admittedly discharged Campbell because he
you." had discharged Mason.
He said that was the only basis on which he In other words, Hall discharged Mason and
was willing to work. Campbell for maintaining the position that was the
And I don't recall whether I said, "Well, basis of their complaint to the State Department of
you are fired," or he said, "Well, I quit," or Labor, i.e., that they were carpenters and, there-
whether we just turned our backs on each fore, should be paid as such. Contrary to the Ad-
other and just left. I don't remember. ministrative Law Judge, neither Mason nor Camp-
Hall told Campbell (Mason's helper) that there bell refused to do any work unless it was carpentry
would be no work for him now that Mason was work. Rather, in response to Hall's questioning,
not working. Regarding Campbell's termination, they simply maintained that, regardless of the exact
Hall testified, "I suppose that is firing him, yes. I work they were doing at any given moment, they
guess that would be a correct way to say it." were carpenters by trade and should, therefore, be
The Administrative Law Judge found, and we paid carpenter's wages. 4
agree, that Mason and Campbell were engaged in Based on the foregoing, we find that Hall dis-
protected concerted activity in pursuing their wage charged Mason and Campbell for pursuing a wage
claim under state law. The Administrative Law c laim under state law and concertedly adhering to
Judge further found, and we agree, that "employ- their claim before him. Accordingly, we find that
ees may present a wage claim to an employer, and Respondent unlawfully discharged Mason and
the employer may not discharge them for this Campbell in violation of Section 8(aX1) of the Act.
reason." The Administrative Law Judge conclud- The Administrative Law Judge dismissed the
ed, however, that Mason and Campbell were not complaint allegations that Respondent, through
fired for engaging in these activities. The Adminis- Jarratt, violated Section 8(a)(1) of the Act by inter-
trative Law Judge also found it unnecessary to rogating and threatening Mason and Campbell re-
decide whether Mason and Campbell were fired or garding their protected concerted activities. Spe-
quit.2 Rather, the Administrative Law Judge con- cifically, with respect to the alleged unlawful inter-
cluded that Mason was "separated" from his em- rogation, the Administrative Law Judge found Jar-
ployment because he would not work for less than ratt, a job superintendent, is at best a low-level su-
$12.45 an hour and Campbell was "separated" be- pervisor in substantially the same level as Mason,
cause, without Mason, there was no work for that his question was no more than an innocent in-
Campbell.3 quiry among individuals who work together, and
that it did not, therefore, rise to the level of unlaw-
When asked by counsel for the General Counsel if he fired Mason, ful interrogation, citing Pepsi-Cola Bottling Co. of
Harvey J. Hall, co-owner of Kyle and Stephen, Inc., answered: "Under Los Angeles. As indicated above, Supervisor Jar-
the conditions he was laying down to me, I told him I couldn't have him
work for me. I suppose that's telling him he is fired." When asked if he rett was not only present, but was introduced to
had fired Campbell, Hall answered: "I sent him home until I had a place State Department of Labor investigator Doughty
for him. I suppose that is firing him, yes." when the latter came on the jobsite to interview
Further, when Mason was asked by counsel for the General Counsel if when t latter came on the obsite t interview
he had quit his job or had intended to quit his job, Mason answered that Mason and Campbell. Not long after the interview,
he did not quit, nor did he intend to quit, adding, "I done talked to the Jarratt asked Mason and Campbell together what
man at the Labor Board. He said, under their law, they would have to
pay me backpay."
' In so finding, the Administrative Law Judge relied, in part, upon his 'We note that Hall testified that after he told Mason, "I don't have a
conclusion that Respondent was involved in an "unresolvable" dispute job for you," Mason replied, "that was the only basis on which he was
with Mason and Campbell. However, contrary to the Administrative willing to work." This testimony by Hall is, at best, ambiguous. It is
Law Judge, the conflict between Respondent and employees Mason and based on Hall's impression of Mason's intent. Further, even if such a
Campbell could be and was being resolved by the State Department of statement was made by Mason, it occurred after he had been discharged
Labor and, in any event, the record is devoid of evidence of any actual by Hall.
"refusal" to work by these employees. '211 NLRB 870, 871-872 (1974).
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arvey J. Hall, co-owner of Kyle and Stephen, Inc., answered: "Under Lo Angeles.' AS indicated above, Supervisor Jar-
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for him. I suppose that is firing him, yes."
w h e n the latter Ca e on the jobsite to intervie

he did not quit, not did he intend to quit, adding, "I done talked to the Jarratt asked ason and Campbell together what
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KYLE & STEPHEN, INC. 733
they had told Doughty and then remarked, in attorney Hall interrogated Campbell in violation of
effect, that they were not going to accomplish any- Section 8(a)(1) of the Act. We find merit in the
thing by their actions. While we agree with the General Counsel's exception.
Administrative Law Judge that Jarratt's latter Johnnie's Poultry requires that, when an employer
statement does not amount to a threat, we find has legitimate cause to inquire into matters con-
merit in the General Counsel's contention that the cerning an employee's Section 7 rights, such as in
Administrative Law Judge erred in failing to find preparing the employer's defense in an unfair labor
that Jarratt unlawfully interrogated Mason and practice proceeding, the employer must follow spe-
Campbell. cific guidelines in questioning the employee to
Unlike the situation in Pepsi-Cola, supra, the avoid incurring 8(a)(1) liability. Among other re-
questioning here did not arise during the course of quirements, an employer must tell the employee the
a lengthy informal conversation between two pas- purpose of the questions, assure the employee free-
sengers in an automobile away from the employer's dom from reprisal, and secure the employee's vol-
facility. To the contrary, Jarratts questioning came untary participation. These safeguards are designed
directly on the heels of the meeting Mason and to minimize the coercive impact of employer inter-
Campbell had with State Department of Labor rogation and, contrary to the Administrative Law
Representative Doughty and occurred at Respond- Judge's suggestions, are applicable irrespective of
ent's facility. Jarratt, having been introduced to the employer's intent to coerce, the extent of the
Doughty, was clearly aware of Doughty's identity questioning or number of employees so interrogat-
when he asked Mason and Campbell "what they ed, or the remoteness of the interrogation to the al-
told the man," and then informed them that they leged unlawful conduct. Since Harvey Lee Hall
were not going to accomplish anything by their ac- guidelines in ques-did not adhere to the required guidelines in ques-tions. In these circumstances, this inquiry was di-g C , w f t R
rectly addressed to their protected concerted activ- to Campbell fin tat on ogated Campbell in violation of Section 8(a)(1) ofity under the Act. Further, even if the proximity of the A o
Jarratt and Mason in Respondent's administrative e
hierarchy lessened the significance of Jarratt's in- THE REMEDY
quiry vis-a-vis Mason, as found by the Administra-
tive Law Judge, this reasoning falls short as to Having found that Respondent has violated the
Campbell who was only a helper. Accordingly, Act in certain respects, we shall order that it cease
since Jarratt interrogated Mason and Campbell re- and desist therefrom and take certain affirmative
garding their protected activity, we find that Re- action necessary to effectuate the policies of the
spondent violated Section 8(a)(1) of the Act.6 Act. We shall order that it offer Jerry Mason and
The Administrative Law Judge also dismissed Harold Campbell immediate and full reinstatement
the allegation that Respondent, by its attorney, to their former jobs or, if those jobs no longer
Harvey Lee Hall, violated Section 8(a)(l) of the exist, to substantially equivalent positions, without
Act by interrogating Campbell. In preparation for prejudice to their seniority or any other rights and
the hearing, attorney Hall asked Campbell if he privileges previously enjoyed, and make them
knew if Mason had been fired or quit. Campbell re- whole for any loss of earnings they may have suf-
plied that the Labor Board attorney told him he fered by reason of their unlawful discharge by Re-
was not required to talk with anyone. Hall did not spondent. Backpay with interest thereon is to be
inform Campbell that any statements he (Campbell) computed in the manner prescribed in F. W. Wool-
made would be voluntary and that no reprisals worth Company, 90 NLRB 289 (1950), and Florida
would be taken against him if he refused to answer Steel Corporation, 231 NLRB 651 (1977). 7 See, gen-
the questions. The Administrative Law Judge erally, Isis Plumbing & Heating Co., 138 NLRB 716
found that, although Hall failed to comport with (1962).
the criteria set forth in Johnnie's Poultry Co., and We shall further order Respondent to cease and
John Bishop Poultry Co., Successor, 146 NLRB 770 desist from interrogating its employees concerning
(1964), such failure was inadvertent and was not an their protected concerted activities.
attempt to circumvent the Johnnie's Poultry stand-
ards. The Administrative Law Judge further found ORDER
the attempted questioning "isolated, inconsequential P t S 1 o t al
Pursuant to Section 10(c) of the National Labor. . and of no impact on the principal allegations
of the complaint." The General Counsel excepts to Relations Act, as amended, the National Labor Re-
the Administrative Law Judge's failure to find that Member Jenkins would compute interest on the backpay due in ac-
cordance with his dissent in Olympic Medical Corporation, 250 NLRB 146
See Synadyne Corp., 228 NLRB 664 (1977). (1980).
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the atte te esti i "is late , i c se e tial t c f t N Labor
... and f no i act t e ri ci al ll ti s Rel a ns t , s e nded, t N o Lb Re-
l l t t Relations ct, as a e e , the ational abor e-
,Member Jenkins l c te interest on the backpay due in ac-
*
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations Board hereby orders that the Respondent, APPENDIX
Kyle & Stephen, Inc., Baton Rouge, Louisiana, its
officers, agents, successors, and assigns, shall: NOTICE To EMPLOYEES
1. Cease and desist from: POSTED BY ORDER OF THE
(a) Discharging or otherwise discriminating NATIONAL LABOR RELATIONS BOARD
against employees because of their protected con- An Agency of the United States Government
certed activities.
(b) Interrogating its employees concerning their After a hearing at which all sides had an opportu-
protected concerted activities. nity to present evidence and state their positions,
(c) In any like or related manner interfering the National Labor Relations Board found that we
with, restraining, or coercing employees in the ex- have violated the National Labor Relations Act, as
ercise of the rights guaranteed them under Section amended, and has ordered us to post this notice.
7 of the Act.
2. Take the following affirmative action which isWE WILL NOT discharge or otherwise dis-
deemed necessary to effectuate the policies of the criminate against employees because of their
Act: protected concerted activities.
(a) Offer Jerry Mason and Harold Campbell im- WE WILL NOT interrogate employees con-
mediate and full reinstatement to their former jobs cerning their protected concerted activities.
or, if those jobs no longer exist, to substantially WE WILL NOT in any like or related manner
equivalent positions, without prejudice to their se- interfere with, restrain, or coerce our employ-
niority or any other rights or privileges previously ees in the exercise of the rights guaranteed
enjoyed, and make them whole for any loss of ear- them under Section 7 the National Labor Re-
nigs they may have suffered by reason of their un- lations Act, as amended.
lawful discharge by Respondent in the manner set WE WILL offer Jerry Mason and Harold
forth in the section herein entitled "The Remedy." Campbell immediate and full reinstatement to
(b) Preserve and, upon request, make available to their former jobs or, if those jobs no longer
the Board or its agents, for examination and copy- exist, to substantially equivalent positions,
ing, all payroll records, social security payment re- without prejudice to their seniority or any
cords, timecards, personnel records and reports, other rights or privileges previously enjoyed.
and all other records necessary to analyze the WE WILL make Jerry Mason and Harold
amount of backpay due under the terms of this Campbell whole for any loss of earnings they
Order. may have suffered by reason of their unlawful
(c) Post at its place of business in Baton Rouge, discharges, with interest.
Louisiana, copies of the attached notice marked
"Appendix."8 Copies of said notice, on forms pro- KYLE & STEPHEN, INC.
vided by the Regional Director for Region 15,
after being duly signed by its representatives, shall DECISION
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive STATEMENT OF THE CASE
days thereafter, in conspicuous places, including all JAMES L. ROSE, Administrative Law Judge: This
places where notices to employees are customarily matter was heard before me on March 27, 1980, at Baton
posted. Reasonable steps shall be taken by Re- Rouge, Louisiana, upon the General Counsel's complaint
spondent to insure that copies of said notices are which alleged generally that on November 28, 1979,' the
not altered, defaced, or covered by any other mate- Respondent interrogated, threatened reprisals, and dis-
rial. charged two employees in violation of Section 8(aXl) of
(d) Notify the Regional Director for Region 15, the National Labor Relations Act, as amended, 29 U.S.C.
in writing, within 20 days from the date of this 151, et seq. At the hearing, the complaint was amended
Order, what s s Re n ha t n to allege also that, in preparation for the hearing of thieOrder, what steps Respondent has taken to comply matter, counsel for the Respondent unlawfully interro-
herewith. gated an employee in violation of Section 8(aXl) of the
IT IS FURTHER ORDERED that the complaint alle- Act.
gations not specifically found herein be, and they The Respondent generally denied the substantive alle-
hereby are, dismissed. gations of the complaint.
Upon the record as a whole, including my observation
In the event that this Order is enforced by a Judgment of a United f the witnesses, briefs, and arguments of counsel, I
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu- hereby mae the followig:
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."' All dates are in 1979 unless otherwise indicated.
N O T IC E T o
WE W N d ow
W E W IL L N O T
t ri i t i st e l ees because of their
.

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t h e
, e t A t t h e h e a th e
Order, what steps Responde t s1 1 ake tocomply t ll l t t, i ti t ri t i
r er, at steps espondent has taken to co ply^matter, counsel for the Respondent unlawfully interro-
( t
s
*In t t t t t i r r is e f rce by a Judg ent of a nited of the itnesses, briefs, and argu ents of counsel, I
hereb, male the <»11^.,;«r
b m a k e t h e llowin

KYLE & STEPHEN, INC. 735
FINDINGS OF FACT AND CONCLUSIONS OF LAW deficient but that he had attempted to learn what was re-
quired. He told the employees that the restaurant job
I. JURISDICTION was the largest private (e.g., nonprevailing wage) job
The Respondent is a Louisiana corporation engaged in Respondent had going and it was about to be finished,
commercial construction with its principal office in and thereafter most of the people would be working on
Baton Rouge, Louisiana. In connection with its business, prevailing wage jobs. While they might go out on a non-
the Respondent annually receives directly from points prevailing wage job, most likely further employment
outside the State of Louisiana goods and materials would be on prevailing wage jobs and he wanted them
valued in excess of $50,000, and during the 12 months to understand what he understood was required by the
preceding the issuance of the complaint herein received State's labor board.
approximately $75,000 in services performed for the For instance, the Respondent employed people as car-
United States Army at the Fort Polk Ryan Army Re- penter's helpers, a classification not recognized by the
serve Center in Leesville, Louisiana. The Respondent State. Thus, those he felt to be competent carpenters
admits, and I find, that it is an employer engaged in in- would be paid at the carpenter's wage scale but others,
terstate commerce within the meaning of Section 2(2), who theretofore had been considered carpenter's helpers,
(6), and (7) of the Act. would have to be reclassified as laborers and would be
paid accordingly-at a lesser rate. Further, according to
II. THE ALLEGED UNFAIR LABOR PRACTICES Hall's generally credible testimony, it was his under-
A. The Facts standing that he would have to pay the prevailing wage
only for the specific time an employee worked in a par-
The substance of this matter concerns a dispute be- ticular job classification. But because the Respondent
tween employee Jerry Mason and the Respondent over does relatively small jobs, all employees are called upon
the wage rate to be paid Mason. from time to time to do a variety of job functions
Mason is by trade a carpenter. Indeed, according to throughout the working day. A carpenter who would
the Respondent's vice president (and general field super- spend most of his time working as such might neverthe-
visor), Harvey J. Hall, he is an "outstanding" craftsman. less also put in some time each day as a basic laborer, a
Mason began working for the Respondent in about mid- cement finisher, an iron worker, etc.
April at a wage rate of $9 per hour. Though the precise Such was the situation with regard to Jerry Mason.
time is unclear, in early fall Mason's rate was raised to Hall testified that inasmuch as Mason did not spend more
$10 per hour; however, he felt entitled to $12.45. than about 60 percent of his working day actually doing
The Respondent is a relatively small general contrac- carpentry work, with the rest of his time being devoted
tor whose employees are not represented by any labor to tying steel rods, cement finishing, and the like, the Re-
organization nor is it a party to any collective-bargaining spondent was not required to pay the prevailing wage of
agreements. However, when the Respondent has con-agree ents. e er, e t e s t s - $12.45 per hour for each hour Mason was actually on the
tracts with the State of Louisiana then that State's pre- ob On the other hand Hall determined that it would be
vailing wage law becomes applicable, the effect of which very difficult on each working day to break out precisely
is to require the Respondent to pay employees "union very difficult on each working day to break out preciselyis to re ire the espondent to pay e ployees "union Mason was engaged in carpentry
scale." While application of the prevailing wage law t a nt time Masn was enaged in crpentr
must certainly be more complex than this, the parties work as agaistthe time hat he was performig other
job functions. Thus, Hall told Mason that he felt a flatagree that such is the effect of the law and such suffices functons Thus, Hall told Mason that he ft a fat
for purposes of this Decision. rate of $10 per hour for Mason would reasonably
In the summer and fall, the Respondent was working comply with the revailing wge requirements.
on at least two projects for the State of Louisiana both According to Mason he started on the one LSU pro-
of which involved buildings at Louisiana State Universi- ject at $9 per hour and in about 2 weeks was raised to
ty (LSU). It appears that sometime in the summer one or $10 per hour, "taking for granted" that he had been put
more of the Respondent's employees complained to the on a salary of $400 per week. This was apparently satis-
State Department of Labor that the Respondent was not factory until he was not paid $80 for I day he missed
paying the prevailing wage. There was an investigation work. This is when Mason claims he learned that he was
and the Respondent was ordered to make restitution. being paid $10 per hour although he should have been
Thus, for instance, on September 18, Harold Campbell making $12.45. Accordingly, he determined in late No-
received a check for $39.73 "in full and final satisfaction vember to press the matter with the state department of
of all sums due me with respect to a deficiency concern- labor and this in turn, inferentially, resulted in an investi-
ing the payment of prevailing wages on State project gation by that department on November 28. (Mason fur-
No. LDL 5697-alterations to John M. Parker Agricul- ther testified, unconvincingly, that he did only carpenter
ture Center judging arena for the period 7-13-79 to 9- work, though ultimately admitting that he did other job
14-79." Mason testified that he also received such a functions.)
check. (There is no indication that either Mason or On November 28, following the investigatory inter-
Campbell instigated the complaint.) view by the state labor department, Hall came to the
In late September Hall called a meeting of all of his jobsite and at that time had a discussion with Mason and
employees at the Pitt Restaurant, where they were fin- Campbell. Present also was Job Superintendent James J.
ishing a job. He told them that the department of labor Jarratt. The parties are in general agreement concerning
had checked out one of his jobs at LSU and found him the substance discussed, although the General Counsel's
.
t i i ,
.
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. e ts st i t t l t t r ili
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i t i t it ti it t rr .
ti i l r, i rl f ll ' r t r i t ll t tifi t t i i t
$ p er h o u r ; h o w ev e r ti t t l
t i l ti l ll r l tr i
t l r t t l i t l , t i i i , li
r i ti r i it rt t ll i r ini g i ili
t
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qui r R i t
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mustcerainl bemorecomlex hanthis th paries j f cti s. s, all t l s t t felt a flat
a ree t at s c is t e effect f the la and such suffices rb f $10 per h u r for ason would reasoat
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.
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is to re iret e t t l es "u n io n the amount of time ason was engaged in carpentry

h o
r ir t
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses contend that Hall interrogated Mason and I told him, "No. I been a carpenter for almost 15
Campbell concerning the investigation by the labor de- years and I expect to be paid as a carpenter. 3
partment and then threatened them. When Mason and Hall came to a parting of the ways
Principally this discussion concerned the pay of Jerry over the wages Mason was to be paid, the question then
Mason. In essence, Hall said that in the normal course of developed concerning the status of Campbell, who was
Mason's workday he did a variety of things from shovel- Mason's helper. Hall told Campbell that until he could
ing, which is laborer's work, to concrete finishing and so find another carpenter for Campbell to work with, he
on. As Hall testified: had no work for him either. Thus Campbell was off for a
time, although the record does not disclose how long.
And, Mason protested that he was a carpenter.
And, I don't recall how many times we went back B. Analysis and Concluding Findings
and forth between, "But this morning you were fin-
ishing concrete." "I'm a carpenter." "Yesterday you 1. The discharges
were putting up a fence," "I'm a carpenter." The General Counsel contends that Mason and Camp-
And, finally when I saw that I wasn't getting any bell were discharged on November 28 because they had
place I said to Mason, "I don't have a job for a man engaged in protected concerted, activity; namely, pursu-
who is just a carpenter, and that wasn't the basis on ing a wage claim under state law. While I have no doubt
which you were hired. I don't have a job for you." that Mason was engaged in activity protected under the
He said that was the only basis on which he was Act,' I conclude that he was not discharged for this
willing to work. reason.
willing to work. ,. „ ,. ... Based on the credible testimony, I believe that
And, I really don't recall whether I said, "Well, emo ent temined be se he ol
Ma son's employment was terminated because he wouldyou are fired," or he said, "Well, I quit," or wheth- M e w t b h would r fir , r e s i , ll, I it, r t - not work for less than $12.45 per hour and Hall was n-
er we just turned our backs on each other and just willing to pay more than $10.
left I don 't remember. Certainly employees may present a wage claim to an
I, ~, ..r .~.r~ .j . *employer, and the employer may not discharge them forHall's version of this discussion was substantially cor- em ye and t e m nt di tthis reason." On the other hand the employer does notroborated by the General Counsel's witness, Harold have to accede to the de and
Campbell: have to accede to their demands.
~~~~~~~~Campbell: 'I conclude that Hall did not discharge Mason because
Mr. Hall was addressing-And, when he was Mason and Campbell concertedly presented the demand
talking, it was mostly dealing with the carpenter's for a wage increase or contacted the state labor depart-
salary, most wae were going on, and Jerry Mason ment. Rather, I conclude that during the course of Hall'ssalary, most we were going on, and Jerry Mason
being a carpenter, it was mostly addressed towards rdiscussion about the prevailing wage matte with Camp-
him. bell and Mason, Mason categorically stated that he was a
carpenter and should be paid carpenter's wages for every
Now, he was telling us that when you go on hour that he was on the payroll. Hall told him that he
some jobs, you are a carpenter, some minutes you're had no work for one who was "a carpenter all the time."
tying steel and the other, pouring concrete. So, they Whether Mason was discharged or quit in the context of
average them in. this situation is more a semantic nicety than a matter of
Jerry Mason said, "I'm a carpenter all the time." substance. The crucial element here is that Mason's em-
Mr. Hall said, "Yes, you're a fine carpenter." ployment relationship with the Respondent was terminat-
Then he said to me, "You all do good work."2 ed because he and the Respondent had an unresolvable
Even Mason testified that, during this discussion, Hall dispute concerning his wage rate, Mason holding out for
stated: $12.45 an hour for all hours worked while the Respond-
ent contended that he was entitled to an average of $10
"This is my company, I'm going to run the com- an hour.6
pany the way I want to, I'm going to keep the Mason went on to testify that Hall said if he did not like the way
books the way I want to. The way I figure it, Hall was running the Company and keeping books and if he kept "corn-
Jerry," he was talking to me, "You don't do carpen- plaining to the Labor Board" he no longer had a job with the Company.
ter work one hundred percent of the time. Part of I discredit this aspect of Mason's testimony finding him to be generally
the time you tie steel, part of the time you pour not a reliable witness. Rather, I believe his recall of this, which is seem-~the time yo te tel, ar o tetmeyopur ingly crucial to the theory that he was discharged for having engaged in
concrete, part of the time you wreck forms. The protected, concerted activity, was for purposes of this litigation. This al-
way I break it down, I'm going to pay you twelve leged statement by Hall does not really fit into the generally agreed
forty-five an hour for what time I figure you do nature of the discussion between the parties. And, it was not corroborat-
ed by Campbell. Beyond that, I found Hall to be a very candid, credible
carpenter work, seven eighty for the time you are and straightforward witness and he denied any statement along these
not doing it. The way I figure it, it averages out to lines. Based on their relative demeanor, where there is a conflict, I credit
ten dollars an hour." He asked me did I agree with Hall over Mason.
^ -~~~~~~~~~~~4that. See Self Cycle & Marine Distributor Co., Inc., 237 NLRB 75 (1978);
"~~thn~~~~~~~at. "~Krispy Kreme Doughnut Corp., 245 NLRB 1053 (1979).
Hale Manufacturing Co.. Inc., 228 NLRB 10 (1977).
'The comma and quote marks are misplaced in the transcript, which is It is immaterial whether Hall's determination to pay Mason S10 an
hereby corrected as set forth, hour in fact complied with the State's prevailing wage law.
ti e, although the record does not disclose ho long.
T h e

w e r
t , ti it ; l , r -
a c l a im u n d e r s t a t e la w . h ile I h a v e n o t
t h a t M a so n w a s
e said t at as t e l asis i e s
A c t ,' I l t t t i t i
.. " , „ ., , ... „ i l ti , ll l i ed p yme was termonyed bel e that
youarefied, o hesai, Wel, qut,"orwheh- son's l t t i t l" i i ^ , ta f45 r ll s u -
not work fr les tha 1 e as
left I don't remember.wilntopymrthn$0
t i l
I, „, .r ..r j- * i- . * nemployer, or a he py ay o cr fo
roborated by the General Counsel's witness, Harold t i r . t t r t l r s t, ,av . .,ed .o .hi , *'d
Campbell: have to accede to their demands.
I
M a so n a n d
talking, it as ostly dealing ith the car e ter's
f o r a a e in c r e a se r t t t t t l r rt-
m e n t . R a t h e r t h a t '
discussion

,
i
2
i t , l i t f r
t t : . r f r ll r r il t
a n 6
- - . -.. ,.-. .. ,pany-the way I want to, I'm going t ke t _Mason went on to testify that Hall said if he did not like the way
I It, ll i t i i t m-
W O discr
*i.~ *;__ y .. i: ,,*,-,,i „_*t ,,<* »!.„ i*_ tne
the time you ie s l, p t f he time you pour ,ingly
Co O
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n a t u re o f t h e

t i t it i t t t l t
t. t, t O

H a l
l
o v e r
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th
a
t. Krispy ).
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e I $
rth,.hour
l i r t t . il a e
you are fired," r said, " ellIqui r het a ' e ploy ent as er na ed because he ould
i l l t
mploye s
ll
ll sing- rt dly
l w tl li p n
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i t r, i tl ili
t gori a l
.
i. ; *,- ,i t „ ~ l ll
l l i
th t'
a .

KYLE & STEPHEN, INC. 737
Campbell's termination (or more precisely his layoff) charged rather than having quit. Again, the matter of
similarly was not motivated by his having engaged in whether they were discharged or quit is of secondary
protected concerted activity. Rather, it was, I conclude, importance. The crucial question is that their employ-
a result of Mason's employment having been terminated ment relationship wae mutually terminated for the rea-
and the Respondent not having work for Campbell to sons noted above. For Hall to make their paychecks
do. 7 Campbell was competent only to be a carpenter's available to them on that day, while conceivably rele-
helper or laborer, although, according to Hall he was a vant, is of insubstantial weight.
very willing worker. Accordingly, I conclude that Mason and Campbell
No doubt Mason and Campbell engaged in concerted were not terminated because they engaged in concerted
activity protected under the Act when they sought to activities protected under Section 7 of the Act. Rather,
have the state labor department investigate the Respond- Mason was terminated because he refused to work for
ent, and no doubt they engaged in protected, concerted the pay the Respondent was willing to pay. Campbell
activity when they talked to that department's investiga- was terminated because following Mason's termination
tor on November 28. Nevertheless, based on the credible there was no work available for him at that time.
testimony of Hall, I conclude that these factors had no
bearing on Mason's termination. Hall had previously I will therefore recommend that the complaint insofar
concluded that Mason should be paid $10 per hour, a as it alleges the unlawful discharges of Mason and Camp-
matter which Mason protested, as he had a right to do. bell be dismissed.
But when Mason in effect announced that he would not 2
work for less than $12.45 each hour, Hall considered him T h e d terrogaton and threats
terminated which was his right. According to the undenied testimony of Campbell,
The General Counsel has suggested that Mason and when the labor department investigator came to the job-
Campbell should be credited and Hall should be discred- site on November 28, Jarratt talked to him a few minutes
ited. This I decline to do. Based primarily on their rela- and then told him that Mason was a carpenter and
tive demeanor, I found Hall to be an exceptionally Campbell was his helper. Jarratt left and the investigator
candid witness whereas I question the veracity of Mason began his interviews with Mason and Campbell. Jarratt
particularly, and to a lesser extent Campbell. then returned sometime later, and the three of them ate
Secondly, the General Counsel contends that, accord- nh eter time Jarratt undeniably asked
lunch together. At this time Jarratt undeniably asked
ing to the Respondent's own witness, Hall called hising to the Respondents own wit ess, Hall called his Campbell, "What did you tell the man?" Campbell testi-
office to have the paychecks for Campbell and Mason , a, e e m , c
fled that he said, "He asked me my name, classification,made up before noon, whereas the discussion took place d that he s He ede namon
after noon. Therefore, argues the General Counsel, Hall how much money I'm makg and whatdo I do. And
must have made up his mind to discharge these employ- then Jarratt asked Mason, who told him the same. Jarrett
ees prior to his conversation with them and therefore it said, "You are not going to accomplish anything."
would be appropriate to draw the inference that the Contrary to Campbell, who testified that Jarratt was
reason for the discharge was that the state labor depart- gone, Mason testified that, during the interviews, Jarratt
ment had been contacted. was in the area "pacing back and forth in front of us."
While it may be that no employer likes to be investi- Mason testified that after the interviews Jarratt asked
gated by a Government agency, there is no evidence in what they told the man and then stated, "You know you
this record to suggest that the Respondent in general or going to keep on talking to him, you'll get yourself in
Hall in particular had any particular animosity towards trouble. All you're going to do is get yourselves in trou-
being investigated by the state labor department or had ble."
any concern other than compliance with the prevailing While the testimony of Mason was undenied by Jar-
wage law. Secondly, since the events took place several ratt, it is in substantial and material conflict with the tes-
months prior to the hearing in this matter, a time error timony of Campbell, which necessitates resolving the
of a couple hours is not unreasonable. Further while the credibility conflict between the two General Counsel
discussion occurred after lunch, the parties involved witnesses.
could very well have eaten before noon. I therefore do Based on their relative demeanor, I conclude that
not believe that the fact that one witness testified that Campbells version is probably more truthful than
Hall called in to have the checks prepared prior to noon Mason's. And Mason's recall of this conversation, as
is critical in determining the outcome in this matter. testimony, is I believe an exag-with much of his other testimony, is I believe an exag-Again, even Campbell and Mason corroborated Hall's geration to enhance his case.
general testimony with regard to the subject matter of geraton to enhance hs casegeneral testi ony ith regard to the subject atter f I find that, following the state labor department inves-
their confrontation, in which there is no indication thatd that following the state labor department ves-
Hall had predetermined to terminate either of them. tigation, Jarratt did ask Mason and Campbell what they
Finally, the General Counsel contends that because it had told the investigator and then did say something to
is an industry practice for one who quits to wait for his the effect, "You are not going to accomplish anything."
paycheck, whereas when one is fired he gets his check I do not conclude, however, that in this conversation
that day, Mason and Cmmpbell must have been dis- Jarratt either interrogated employees in violation of Sec-
tion 8(aXl) of the Act or threatened them.
To the extent Campbell's version differs from Hall's, I credit Hall Jarratt, although the job superintendent, is at best a
again based primarily on their relative demeanor. low-level supervisor on substantially the same level as

'
t t ll
l
ti i ti ti r,
v t st t l r rt t investigate the espond- ason as ter inated because he refused to work for
t, t t i r t t , rt t t t illi t . ll
ti it t t l t t t rt t' i ti - w as t er m a ted be c a u se i M a s t er m i na t io n
. , s ere as r ilabe for i ' time.aio
ti ll
ari ti ll i l
w l i i
l i it ll t l f l i r f ason and a p-
b e be i i .
T a i a tra
ll i 2. allege int r ati
i ti l
r l l t rt t ti t r
ll l r it ll l i r - it r 28, rr tt t lk t hi a f i t s
i l ril i l
i ll pti na ly ll l r. r t
i it r I ti t it f i i i ll
rti l rl ll ti
dl , t r l l t t t, r - l t A t i l
t itne ll l B o te Reponent' i hi
ll -,* . .-- ,.,*._.offie tohavethe aychcks or Cmpbel an Masn fe t t e sai , " as e e a e, classificati ,
ade f r , r s t isc ssi t l c how h e I'm a k ing an what dolasdo."atnd
r l l ll h o w m u c h m o ne l m "^"S ^at d
l t h e n J ar r at t , t l i t sa e. Jarrett
ti f i t i t li t i ."
l ti r t
r ti ,
.
l ti ti r t

t l l 'll lf
ll rti rti i it l
i r
r ili ti i
dl r l t nti l ri l fl
ri ll i i l i
l i l . il t ibili fli r l l
i ft l , t rti i v lv itnesses.
l r ll t f . I t f i
t li t t t f t t t it t tifi t t ll' r i i r l r t t f l t
all called in t have the c cks r r ri r t s 's. ' ll i r ti n,
i riti l i t r i i t t i t i tt r. w m o h t ti , i li
i ll '
r l t ti it r r t t j t tt I fi n t ha n h a te l i
i f ti , i t "d th t ' rt t m
ll t r i tf ti , rr tt i ll t they
ll r l l i i i t i t i t
tr i t h e l i
k, r , r, ti
l r t
'To
eanor,.low-level S
w

2 .
m nd td on
at
tt
wstriae as lwn o' mnto
w a s te r m at ed be c a us ewraib if M a st te r m i na ti o n
ll
m m ak l n B
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mason.8 Jarratt's question was, I believe, an innocent in- whether he had been fired or quit. Campbell told Hall
quiry among individuals who work together and does that he had been advised he did not have to talk to
not rise to the level of unlawful interrogation. E.g., anyone and he refused not to talk to Hall. Hall then
Pepsi-Cola Bottling Co. of Los Angeles, 211 NLRB 870 wrote out and gave to Campbell a statement, which
(1974). reads in material part:
The statement, "You're not going to accomplish any-
thing," does not imply a threat of reprisal. As you know, no one with Kyle and Stephen has
Jarratt credibly testified that he, Mason, and Campbell, previously attempted to discuss the events of No-
as well as other employees, had had numerous conversa- vember 28, 1979 with you.
tions with regard to the prevailing wage rate. Jarratt tes- This will make note of the fact that you have re-
tified that it made no difference to him whether Mason fused to inform Kyle or Stephen or its attorney as
or anybody else was making $12.45 an hour or not. to your impression of the events that date and fol-
I therefore conclude that Jarratt did not interrogate or lowing. Particularly: Whether Jerry Mason was
make threats on November 28 in violation of Section fired, whether you filed any complaint, or even had
8(a)(l). a complaint, and the nature of your subsequent
It is also alleged that, during the November 28 con- treatment by Kyle or Stephen.
frontation, Hall interrogated and threatened Mason and
Campbell. There is nothing even in the testimony of Campbell further testified that at no time was he ad-
either Mason or Campbell which would indicate that vised by Hall that any statements would be voluntary or
Hall asked them any questions concerning their activity that he did not have to fear reprisals should he refuse to
with regard to talking to the state agency or that he in be interrogated.
any way threatened them should they continue to engage The General Counsel contends that the attempted in-
in such activity. terrogation of Campbell by Hall was violative of Section
I therefore conclude that the allegations with regard to 8(a)(l) of the Act, citing Johnnie's Poultry Co. and John
unlawful interrogation and threats set forth in paragraphs Bishop Poultry Co., Successor, 146 NLRB 770 (1964).
6 and 7 of the complaint should be dismissed. While it does appear that the Respondent's attorney
3. The pretrial interroga ion of Harold Campbell did not specifically comport to the criteria set forth in3. The pretrial interrogation of Harold Campbell Johnnie's Poultry, it is also clear that Hall's failure in this
At the hearing, the General Counsel amended the respect was inadvertent and that there was no attempt on
complaint to alleged that on or about March 29, 1980, by his part to circumvent the Board's Johnnie's Poultry
attorney Harvey Lee Hall, the Respondent unlawfully standards. Beyond this, the attempted interview was iso-
interrogated Campbell in violation of Section 8(a)(1) of lated, inconsequential, and occurring when it did, of no
the Act. impact on the principal allegations of the complaint.
Harvey Lee Hall is an attorney and the son of Harvey There is no evidence that any threats were made or re-
J. Hall. In his representation of the Respondent in this prisals taken following Campbell's refusal to discuss the
matter, he sought to interview employees, and specifical- matter.
ly Campbell, concerning the events set forth in the com- While the failure of counsel to conform to the John-
plaint. According to Campbell's undisputed testimony, nie's Poultry standards makes a technical violation of Sec-
Hall asked him what had happened to Jerry Mason- tion 8(a)(l), it would not serve the purposes of the Act
to issue a remedial order in this respect. Accordingly, I
There is evidence in the record to the effect that Mason had suffi- will recommend this allegation be dismissed.
cient authority set forth in Sec. 2(11) of the Act to conclude he was a [Recommended Order for dismissal omitted from pub-
Mason was. lication.]
"
i l
.
,

.

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it t t t t' tt r
3. The pretrial i t rr ti r l ll
d i d n o t i i ll t t t it i t t i
n
l)
t t t i t il t f il r f s l t f r t t e -
' '
ason- t
1Ther ill
cient authority set forth in Sec. 2(l1) of the Act to conclude he was a[Recommended Order for dismissal omitted from pub-supervisor. The Respondent, however, specifically, does not contend that
a