Kyle & Stephen, Inc.

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 KYLE & STEPHEN, INC. 731 Kyle f 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, 1981lattorney, Harvey Lee Hall, violated Section 8(a)(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 e v e r , 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 T work for t h e State. Respondent, in the past, had ministrative Law Judge's Decision. b e e n ordered to make restitution to employees for Pursuant to the provisions of Section 3(b) of the fa il u r e 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)(l) 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(aX() 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)(l) 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 an-art armar'if Masnn and ramnrvll and atker policy not to overrule an administrative law judge's resolutions with re- Jarratt approached MaSOn and Campbell and asked 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 54 (1950), enfd. 188 F.2d 362 (3d Cir. , B .. . ,j ,. .,. i.. . 1951). We have carefully examined the record and rind 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 Judges 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, * _*_ _i - _.-i i „- ,„ Harvey J. Hall, told Mason that he (Mason) would no longer have a job T h e diSCUSSiOn primarily concemed 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 rinding that Mason's testimony was uncorroborated by that of em- and should, therefore, be paid $12.45 per hour, ployee Harold Campbell. The General Counsel excepted to this finding 11 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 ajob here." a b o u t 4 0 percent o f h is tim e e n gaged in n o n c a r- 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 AC i. \ *i. t1- j. *-i * l-.- 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 KYLE & STEPHEN, INC. 731 Kyle f 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, 1981lattorney, Harvey Lee Hall, violated Section 8(a)(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 e v e r , 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. b e e n 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)(l) 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(aX() 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)(l) 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 an-art armarheH Masnn and ramnrvll and atker policy not to overrule an administrative law judge's resolutions with re- Jarratt approached MaSOn and Campbell and asked 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 54 (1950), enfd. 188 F.2d 362 (3d Cir. , B .. . ,j ,. .,. i.. . 1951). We have carefully examined the record and rind 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 Judges 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, * _*_ _i - _.-i i „- ,„ Harvey J. Hall, told Mason that he (Mason) would no longer have a job T h e diSCUSSiOn primarily concemed 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 General Counsel excepted to this finding 11 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 ajob here." a b o u t 4 0 percent o f h is tim e e n gaged in n o n c a r- 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 AC i. \ *i. t1- j. *-i * l-.- 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 KYLE & STEPHEN, INC. 731 Kyle f 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, 1981lattorney, Harvey Lee Hall, violated Section 8(a)(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 e v e r' 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. b e e n 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)(l) 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(aX() 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)(l) 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 an-att armarheH Masnn and ramnrvll and atker policy not to overrule an administrative law judge's resolutions with re- Jarratt approached MaSOn and Campbell and asked 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 54 (1950), enfd. 188 F.2d 362 (3d Cir. , B .. . ,j ,. .,. i.. . 1951). We have carefully examined the record and rind 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 Judges 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, * _*_ _i - _.-i i „- ,„ Harvey J. Hall, told Mason that he (Mason) would no longer have a job T h e diSCUSSiOn primarily concemed 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 General Counsel excepted to this finding 11 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 ajob here." a b o u t 4 0 percent o f h is tim e e n gaged in n o n c a r- 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 AC i. \ *i. t1- « *-i * l-.- 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. 87 732 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). 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 in sist th a t they b e 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- h o w h e 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 H all admittedly discharged Campbell because he you."-had discharged Mason. He said that was the only basis on which he I n 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, b a sis 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 b e ll ref u sed to d o a n y w o r k u n le ss it w a s carpentry would be no work for him now that Mason was w o r k. R ath e r , in r e sp o n se to H a ll'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 w o r k they were doing at any given moment, they guess that would be a correct way to say it." w e r e 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 B ase d o n th e foregoing, we find that Hall dis- protected concerted activity in pursuing their wage c h arged 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- t h e ir c laim b e fo r e 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- T h e 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)(l) 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 th a t h is 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 Lo 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." w h e n the latter Came on the jobsite to interview Further, when Mason was asked by counsel for the General Counsel if 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, not 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 pan, upon his We note that Hall testified that after he told Mason, "1 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). 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 in sist 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- h o w h e 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 H all admittedly discharged Campbell because he you."-had discharged Mason. He said that was the only basis on which he I n 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, b a sis 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 b e ll ref u sed to d o a n y w o r k u n le ss it w a s carpentry would be no work for him now that Mason was w o r k. R ath e r , in r e sp o n se to H a ll'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 w o r k th e y were doing at any given moment, they guess that would be a correct way to say it." w e r e 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 B ase d o n th e foregoing, we find that Hall dis- protected concerted activity in pursuing their wage c h arged 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- t h e ir c laim b e fo r e 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- T h e 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)(l) 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 th a t h is 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 Lo 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." w h e n the latter Came on the jobsite to interview Further, when Mason was asked by counsel for the General Counsel if 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, not 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 pan, upon his We note that Hall testified that after he told Mason, "1 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). 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 in sist 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- h o w h e 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 H all admittedly discharged Campbell because he you."-had discharged Mason. He said that was the only basis on which he I n 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, b a sis 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 b e ll ref u sed to d o a n y w o r k u n le ss it w a s carpentry would be no work for him now that Mason was w o r k. R ath e r , in r e sp o n se to H a ll'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 w o r k th e y were doing at any given moment, they guess that would be a correct way to say it." w e r e 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 B ase d o n th e foregoing, we find that Hall dis- protected concerted activity in pursuing their wage c h arged 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- t h e ir c laim b e fo r e 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- T h e 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)(l) 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 th a t h is 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 Lo 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." w h e n the latter Came on the jobsite to interview Further, when Mason was asked by counsel for the General Counsel if 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, not 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 pan, upon his We note that Hall testified that after he told Mason, "1 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). 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 o gated Campbell in violation of Section 8(a)(1) of ity 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). 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)(l) 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)(l) 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 lee u l c t S H L were not going to accomplish anything by their ac- d guidelines in ques- tions. In these circumstances, this inquiry was di- tn C w f ta R interro- rectly addressed to their protected concerted activ- gated Campbell in that Sespondent of ity under the Act. Further, even if the proximity of the Act. Jarratt and Mason in Respondent's administrative 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)(l) of the Act.' 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 1c of t N Labor ... and of no impact on the principal allegations R el a ns t , s e nded, t N o Lb Re- of the complaint." The General Counsel excepts toRelations 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). 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)(l) 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)(l) 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 lee u l c t S H L were not going to accomplish anything by their ac- d guidelines in ques- tions. In these circumstances, this inquiry was di- tn C w f ta R interro- rectly addressed to their protected concerted activ- gated Campbell in that Sespondent of ity under the Act. Further, even if the proximity of the Act. Jarratt and Mason in Respondent's administrative 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)(l) of the Act.' 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 1c of t N Labor ... and of no impact on the principal allegations R el a ns t , s e nded, t N o Lb Re- of the complaint." The General Counsel excepts toRelations 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). 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)(l) 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)(l) 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 lee u l c t S H L were not going to accomplish anything by their ac- d guidelines in ques- tions. In these circumstances, this inquiry was di- tn C w f ta R interro- rectly addressed to their protected concerted activ- gated Campbell in that Sespondent of ity under the Act. Further, even if the proximity of the Act. Jarratt and Mason in Respondent's administrative 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)(l) of the Act.' 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 1c of t N Labor ... and of no impact on the principal allegations R el a ns t , s e nded, t N o Lb Re- of the complaint." The General Counsel excepts toRelations 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). 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 thie Order, 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. 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: N O TIC E T o 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. WE W N d ow 2. Take the following affirmative action which is W E W ILL N O T 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."" 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(aX() of (d) Notify the Regional Director for Region 15, t h e National Labor Relations Act, as amended, 29 U.S.C. in writing, within 20 days from the date of this 151, et seq. A t t h e h earing, th e complaint was amended Order, what steps Respondent has1 1 taken tocomply to allege also that, in preparation for the hearing of thie Order, what steps Respondent has taken to comply^matter, counsel for the Respondent unlawfully interro- herewith. gated an employee in violation of Section 8(a(l) 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 of the witnesses, briefs, and arguments of counsel, I States Court of Appeals, the words in the notice reading "Posted by hereb, male the <»11^.,;«r Order of the National Labor Relations Board" shall read "Posted Pursu- heby m ak e t h e following: 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. 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: N O TIC E T o 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. WE W N d ow 2. Take the following affirmative action which is W E W ILL N O T 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."" 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(aX() of (d) Notify the Regional Director for Region 15, t h e National Labor Relations Act, as amended, 29 U.S.C. in writing, within 20 days from the date of this 151, et seq. A t t h e h earing, th e complaint was amended Order, what steps Respondent has1 1 taken tocomply to allege also that, in preparation for the hearing of thie Order, what steps Respondent has taken to comply^matter, counsel for the Respondent unlawfully interro- herewith. gated an employee in violation of Section 8(a(l) 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 of the witnesses, briefs, and arguments of counsel, I States Court of Appeals, the words in the notice reading "Posted by hereb, male the <»11^.,;«r Order of the National Labor Relations Board" shall read "Posted Pursu- heby m ak e t h e following: 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. 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: N O TIC E T o 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. WE W N d ow 2. Take the following affirmative action which is W E W ILL N O T 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."" 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(aX() of (d) Notify the Regional Director for Region 15, t h e National Labor Relations Act, as amended, 29 U.S.C. in writing, within 20 days from the date of this 151, et seq. A t t h e h earing, th e complaint was amended Order, what steps Respondent has1 1 taken tocomply to allege also that, in preparation for the hearing of thie Order, what steps Respondent has taken to comply^matter, counsel for the Respondent unlawfully interro- herewith. gated an employee in violation of Section 8(a(l) 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 of the witnesses, briefs, and arguments of counsel, I States Court of Appeals, the words in the notice reading "Posted by hereb, male the <»11^.,;«r Order of the National Labor Relations Board" shall read "Posted Pursu- heby m ak e t h e following: 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. 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- agreements. However, when the Respondent has con- $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 precisely is to require the Respondent to pay employees "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 flat agree 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 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 I. 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 p er h o u r ; h o w ev e r, 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- $12.45 per hour for each hour Mason was actually on the tracts with the State of Louisiana then that State's pre- job. 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 requir e the Respondent to pay employees "union t Mason was engaged in carpentry scale." While application of the prevailing wage law w a a th tm ta h w pr other must certainly be more complex than this, the parties w o k a gmth mehth a efrm te mustcerainl bemorecomlex hanthis th paries job functions. Thus, Hall told Mason that he felt a flat agree that such is the effect of the law and such suffices rb f $10 per h u r for Mason would reasoat for purposes of this Decision. ra t e o f w 10 pt h o u r fo r M as o n w o ul e l r e asonably In the summer and fall, the Respondent was working co m ^ w i h t h e Prevailing wage 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 1 day he missed paying the prevailing wage. There was an investigation w o rk. T h is is w h en M aso n 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 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 I. 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 p er h o u r ; h o w ev e r, 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- $12.45 per hour for each hour Mason was actually on the tracts with the State of Louisiana then that State's pre- job. 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 re quirethe R esp o ndent to pa y em p lo y e es "u n io n the amount of time Mason was engaged in carpentry scale." While application of the prevailing wage law w a a th tm ta h w pr other must certainly be more complex than this, the parties w o k a gmth mehth a efrm te mustcerainl bemorecomlex hanthis th paries job functions. Thus, Hall told Mason that he felt a flat agree that such is the effect of the law and such suffices rb f $10 per h u r for Mason would reasoat for purposes of this Decision. ra t e o f w 10 pt h o u r fo r M as o n w o ul e l r e asonably In the summer and fall, the Respondent was working co m ^ w i h t h e Prevailing wage 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 h o ur, "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 1 day he missed paying the prevailing wage. There was an investigation w o rk. T h is is w h en M aso n 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 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 I. 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 p er h o u r ; h o w ev e r, 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- $12.45 per hour for each hour Mason was actually on the tracts with the State of Louisiana then that State's pre- job. 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 requi r e the Respondent to pa y em p lo y e es "u n io n the amount of time Mason was engaged in carpentry scale." While application of the prevailing wage law w a a th tm ta h w pr other must certainly be more complex than this, the parties w o k a gmth mehth a efrm te mustcerainl bemorecomlex hanthis th paries job functions. Thus, Hall told Mason that he felt a flat agree that such is the effect of the law and such suffices rb f $10 per h u r for Mason would reasoat for purposes of this Decision. ra t e o f w 10 pt h o u r fo r M as o n w o ul e l r e asonably In the summer and fall, the Respondent was working co m ^ w i h t h e Prevailing wage 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 h o ur, "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 1 day he missed paying the prevailing wage. There was an investigation w o rk. T h is is w h en M aso n 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 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 would you are fired," or he said, "Well, I quit," or wheth- M e w t b h would you are fired," or he said, "Well, I quit," or wheth- not work for less than $12.45 per hour and Hall was un- 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 for Hall's version of this discussion was substantially cor- em ye and t e m nt di t this reason." On the other hand the employer does not roborated 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's salary, most we were going on, and Jerry Mason being a carpenter, it was mostly addressed towards rdiscussion about the prevailing wage matter 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. 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. T h e 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 w e re 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 c l a im u n d e r s t a t e la w . Wh ile I h a v e n o doubt which you were hired. I don't have a job for you." t h a t M a so n w a s engaged in activity protected under the He said that was the only basis on which he was A c t,' I conclude that he was not discharged for this willing to work. reason. .. " , . ,. „ , ., , . ... „ Based on the credible testimony, I believe that And, I really don't recall whether I said, "Well, ed poyme was termonyed belhe that youarefied, o hesai, Wel, qut,"orwheh- Mason's employment was terminated because he would you are fired," or he said, "Well, I quit, or wheth- ^ no wor fo , les ta f45 per our and Hall was un- er we just turned our backs on each other and just not work fr les than 1 e as left I don't remember.wilntopymrthn$0 Certainly employees may present a wage claim to an I, „, . r ..r j- * i- . ** nemployer, and the employer may not discharge them for Hall's version of this discussion was substantially cor- emor a the epy may no dcr t fo roborated by the General Counsel's witness, Harold this reason." On the other hand the employer does not roborated by the General Counsel's witness, Harold , ,av .o .,ed .o .hi , *'d Campbell: have to accede to their demands. I conclude that Hall did not discharge Mason because Mr. Hall was addressing-And, when he was M a so n a n d Campbell concertedly presented the demand talking, it was mostly dealing with the carpenter's f o r a wage in c r e a se or contacted the state labor depart- salary, most we were going on, and Jerry Mason m e n t . R a t h e r, I conclude t h a t during the course of Hall's being a carpenter, it was mostly addressed towards discussion about the prevailing wage matter 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- a n hour.6 pany the way I want to, I'm going to keep the - - . -.. ,.-. .. , 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 books the way I want to. The way I figure It, Hall was running the Company and keeping books and if he kept "com- 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 Idiscredit this aspect of Mason's testimony finding him to be generally *i.~ *;__ y .. ti: ,,*,-,,i „_*t ,,<* »!.„ ti*_ you ot a reliable witness. Rather, I believe his recall of this, which is seem- the time you tie steel, part of the time you pour ,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 n a t u re o f t h e 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 H a ll o v e r Mason. _L. -»' See Self Cycle it Marine Distributor Co.. Inc., 237 NLRB 75 (1978); th a t. 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 I It is immaterial whether Hall's determination to pay Mason $10 an hereby corrected as set forth,.hour in fact complied with the State's prevailing wage law. 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. T h e 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 M a so n was engaged in activity protected under the He said that was the only basis on which he was A c t,' I conclude that he was not discharged for this willing to work. reason. .. " , . ,. „ , ., , . ... „ Based on the credible testimony, I believe that And, I really don't recall whether I said, "Well, ed poyme was termonyed belhe that you are fired," or he said, "WellIquit,"orwheth- Mason's employment was terminated because he would er we just turned our backs on each other and just not work fr les than 1 e as left I don't remember.wilntopymrthn$0 Certainly employees may present a wage claim to an I, „, . r ..r j- * i- . ** nemployer, and the employer may not discharge them for Hall's version of this discussion was substantially cor- emor a employe may no dis t fo roborated by the General Counsel's witness, Harold this reason." On the other hand the employer does not roborated by the General Counsel's witness, Harold , ,av .o .,ed .o .hi , *'d Campbell: have to accede to their demands. I conclude that Hall did not discharge Mason because Mr. Hall was addressing-And, when he was M a so n an d Campbell concertedly presented the demand talking, it was mostly dealing with the carpenter's f o r a wage in c r e ase or contacted the state labor depart- salary, most we were going on, and Jerry Mason m e nt . R at h er, I conclude that during the course of Hall's being a carpenter, it was mostly addressed towards discussion about the prevailing wage matter 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- a n hour.6 pany the way I want to, I'm going to keep the - - . -.. ,... .. , 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 books the way I want to. The way I figure It, Hall was running the Company and keeping books and if he kept "com- 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 Idiscredit this aspect of Mason's testimony finding him to be generally *i.~ *;__ y .. ti: ,,*,-,,i „_*t „<* »!.„ ti*_ you ~ ot a reliable witness. Rather, I believe his recall of this, which is seem- the time you tie steel, part of the time you pour ,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 n a t u re o f t h e 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 H a ll o v e r Mason. th. -t' See Self Cycle it Marine Distributor Co.. Inc., 237 NLRB 75 (1978); that. 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 I It is immaterial whether Hall's determination to pay Mason $10 an hereby corrected as set forth,.hour in fact complied with the State's prevailing wage law. 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. T h e 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 M a so n was engaged in activity protected under the He said that was the only basis on which he was A c t,' I conclude that he was not discharged for this willing to work. reason. .. " , . ,. „ , ., , . ... „ Based on the credible testimony, I believe that And, I really don't recall whether I said, "Well, ed poyme was termonyed belhe that youarefied, o hesai, Wel, qut,"orwheh- Mason's employment was terminated because he would you are fired," or he said, "Well, I quit, or wheth- ^ no wor fo s tha f1 45 per our and Hall was un- er we just turned our backs on each other and just not work fr les than 1 e as left I don't remember.wilntopymrthn$0 Certainly employees may present a wage claim to an I, „, . r ..r j- * i- . ** nemployer, and the employer may not discharge them for Hall's version of this discussion was substantially cor- emor a employe may no dis t fo roborated by the General Counsel's witness, Harold this reason." On the other hand the employer does not roborated by the General Counsel's witness, Harold , ,av .o .,ed .o .hi , *'d Campbell: have to accede to their demands. I conclude that Hall did not discharge Mason because Mr. Hall was addressing-And, when he was M a so n an d Campbell concertedly presented the demand talking, it was mostly dealing with the carpenter's f o r a wage in c r e ase or contacted the state labor depart- salary, most we were going on, and Jerry Mason m e nt . R at h er, I conclude that during the course of Hall's being a carpenter, it was mostly addressed towards discussion about the prevailing wage matter 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- a n hour.6 pany the way I want to, I'm going to keep the - - . -.. ,... .. , 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 books the way I want to. The way I figure It, Hall was running the Company and keeping books and if he kept "com- 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 Idiscredit this aspect of Mason's testimony finding him to be generally *i.~ *;__ y .. ti: ,,*,-,,i „_*t „<* »!.„ ti*_ you ~ ot a reliable witness. Rather, I believe his recall of this, which is seem- the time you tie steel, part of the time you pour ,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 n a t u re o f t h e 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 H a ll o v e r Mason. _L. -»' See Self Cycle it Marine Distributor Co.. Inc., 237 NLRB 75 (1978); that. 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 I It is immaterial whether Hall's determination to pay Mason $10 an hereby corrected as set forth,.hour in fact complied with the State's prevailing wage law. 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 his ing to the Respondents own witness, 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 case general testimony with regard to the subject matter of 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 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.' 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- w as t er m a ted be c a u se i M a s t er m i na t io n tor on November 28. Nevertheless, based on the credible ths ere wasno wrk avilabe for him at that' time.aio testimony of Hall, I conclude that these factors had no bearing on Mason's termination. Hall had previously I w ill 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. b ell be dismissed. But when Mason in effect announced that he would not 2 T a i a tra work for less than $12.45 each hour, Hall considered him2. T h e alleged interrogation 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- l t A t Ja undeniably asked ing to the Respondent s own witness, Hall called his B ing o te Reponent' ow winess Hal caledhis Campbell, "What did you tell the man?" Campbell testi- office to have the paychecks for Campbell and Mason -,* . .-- ,.,*._. offie tohavethe aychcks or Cmpbel an Masn fed that he said, "He asked me my name, classification, made up before noon, whereas the discussion took place h ow h e I'm a k ing an what dolasdo."atnd after noon. Therefore, argues the General Counsel, Hall h o w m u c h m o ne y l m "^"S and ^at do I do. And must have made up his mind to discharge these employ- t h e n J ar r at t 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 Campbell's 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. w m o h testimony, is I believe an exag- Again, even Campbell and Mason corroborated Hall's g to e general testimony with regard to the subject matter of I fi n t ha n g h e s a t e l d inves their confrontation, in which there is no indication that "d th at' following the state labor department mves- Hall had predetermined to terminate either of them. tfgation, 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 t h e 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 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.' 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- w as t er m a ted be c a u se i M a s t er m i na t io n tor on November 28. Nevertheless, based on the credible ths ere wasno wrk avilabe for him at that' time.aio testimony of Hall, I conclude that these factors had no bearing on Mason's termination. Hall had previously I w ill 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 T a i a tra work for less than $12.45 each hour, Hall considered him 2 . T h e alleged interrogation 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- l t A t Ja undeniably asked ing to the Respondent s own witness, Hall called his B ing o te Reponent' ow winess Hal caledhis Campbell, "What did you tell the man?" Campbell testi- office to have the paychecks for Campbell and Mason -,* . .-- ,.,*._. offie tohavethe aychcks or Cmpbel an Masn fed that he said, "He asked me my name, classification, made up before noon, whereas the discussion took place h ow h e I'm m a k in a n d wh atd on after noon. Therefore, argues the General Counsel, Hall h o w m u c h m o ne y l m "^"S and what do I do. And must have made up his mind to discharge these employ- t h e n 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 Campbell's 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. w m o h testimony, is I believe an exag- Again, even Campbell and Mason corroborated Hall's g to e general testimony with regard to the subject matter of I fi n t ha n g h e s a t e l d inves their confrontation, in which there is no indication that "d th at' following the state labor department mves- Hall had predetermined to terminate either of them. tfgation, 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 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.' 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- wstriae eas olwn ao' emnto tor on November 28. Nevertheless, based on the credible w a s te r m e at ed be c a us e nwraib if M at s tht te r m i na ti o n testimony of Hall, I conclude that these factors had no bearing on Mason's termination. Hall had previously I w ill 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 T a i a tra work for less than $12.45 each hour, Hall considered him2. T h e alleged interrogation 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- l t A t Ja undeniably asked ing to the Respondent s own witness, Hall called his B ing o te Reponent' ow winess Hal caledhis Campbell, "What did you tell the man?" Campbell testi- office to have the paychecks for Campbell and Mason -,* . .-- ,.,*._. offie tohavethe aychcks or Cmpbel an Masn fed that he said, "He asked me my name, classification, made up before noon, whereas the discussion took place h ow h e I'm m a k in a n d wh atd on after noon. Therefore, argues the General Counsel, Hall h o w m u c h m o ne y l m m ak l n B and what do I do. And must have made up his mind to discharge these employ- t h e n 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 Campbell's 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. w m o h testimony, is I believe an exag- Again, even Campbell and Mason corroborated Hall's g to e general testimony with regard to the subject matter of I fi n t ha n g h e s a t e l d inves their confrontation, in which there is no indication that "d th at' following the state labor department mves- Hall had predetermined to terminate either of them. tfgation, 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 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 interrogation of Harold Campbell did not specifically comport to the criteria set forth in 3. 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.] 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mason." 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 interrogation of Harold Campbell d i d n o t specifically comport to the criteria set forth in 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 pan 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)(l) 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 1There 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(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 Mason was. lication.] 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mason." 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 interrogation of Harold Campbell d i d n o t specifically comport to the criteria set forth in 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 pan 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)(l) 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 1There 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(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 Mason was. lication.] 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mason." 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 interrogation of Harold Campbell d i d n o t specifically comport to the criteria set forth in 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 pan 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)(l) 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 1There 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(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 Mason was. lication.]