Charles Carter & Co.

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