Custom Carpet Installations

National Labor Relations Board - Board Decisions

Aug 24, 1976

225 N.L.R.B. 1036 (N.L.R.B. 1976)

1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herb Arthur, Inc. d /b/a Custom Carpet Installations
and David Goodlet. Case 25-CA-6761
August 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On June 17, 1975, Administrative Law Judge Mil-
ton Janus issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and the Respondent
filed a brief in answer to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The General Counsel, in its exceptions to the Deci-
sion of the Administrative Law Judge recommending
that the complaint be dismissed in its entirety, con-
tends that the Respondent discriminatorily dis-
charged David Goodlet, the Charging Party, in viola-
tion of Section 8(a)(3) and (1) of the Act, and
unlawfully interrogated certain employees about
their union activity, as well as the union activity of
other employees, in violation of Section 8(a)(1) of the
Act. Our review of the record and the credited testi-
mony convinces us that the General Counsel's excep-
tions have merit.
The events leading up to Goodlet's termination on
December 4, 1974, are undisputed.'
Respondent's business is the installing, repairing,
and cleaning of carpets. Respondent is signatory to a
collective-bargaining agreement between the Indiana
Floor Coverers Employers Association and the
Union which covers the work of installing and re-
pairing carpets, as well as cleaning up after a job has
been completed.2 The collective-bargaining agree-
ment provides for an apprenticeship training pro-
gram and establishes the guidelines under which ap-
prentices are chosen and then become journeyman
installers.' Thus, all of Respondent's employees in-
' All dates are in 1974, unless otherwise indicated
2 The Union is the Carpenters District Council of Central and Western
Indiana of the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and its affiliated Local Union 2793
3 The collective-bargaining agreement is effective October I. 1973, to Oc-
tober 1, 1975 The relevant contractual provisions are found in article V of
the collective-bargaining agreement and in a document entitled "Carpentry
volved with the installation and repair of carpets are
either apprentice or journeymen installers who are
members of the Union and are covered by the collec-
tive-bargaining agreement.
Carpet cleaning work, as all parties conceded, is
not covered by the collective-bargaining agreement.
Goodlet, who was not a union member, was hired as
a carpet cleaner on March 1, 1973. At that time, the
head of the two-man carpet cleaning crew was also
not a member of the Union. However, in mid-July
1974, Bill Charles, a journeyman installer, became
chief of the carpet cleaning crew, and he was paid
union scale wages for cleaning carpets. Other instal-
lers were assigned on a part-time basis to cleaning
carpets and they were also paid union scale wages for
this work. Thus, in addition to the warehouseman,
whose status is not in question here, Goodlet was the
only other nonunion employee. Goodlet received
$2.85 an hour as compared to the starting wage of
$4.53 an hour for apprentice installers.
Goodlet often accompanied Charles, who also
continued to work as a journeyman installer, on car-
pet installation or repair assignments and, as a result,
assisted the installers in their work. As found by the
Administrative Law Judge, Goodlet did a total of 45
hours of one installer's work in a 6-month period at
the cleaner's rate of $2.85 per hour. Goodlet spoke to
Arthur, Respondent's president and owner, about
this on several occasions during the 2 to 3 months
prior to his termination. He complained that he had
not been given wage increases, that he was laid off
when employees who were union members with less
seniority were not affected by the layoffs, and that
the other employees were unhappy about his working
with them because they violated a trade rule prohib-
iting union and nonunion employees from working
together.4 Sometime in September or October, Good-
let informed Arthur he was considering joining the
Union. At that time, Arthur said that he would not
advise it and that since he owned the business he
could do whatever he wanted with his employees.
Arthur then admonished Goodlet that he would lose
his fob if he joined the Union.
At the December 3 union meeting, Goodlet, who
Apprenticeship Standards" which was written to augment article V of the
collective-bargaining agreement The agreement provides for a joint appren-
ticeship committee which is composed equally of management and labor
representatives and is responsible for establishing appropriate apprentice-
ship standards Both the Respondent and the Union agreed "to abide by the
approved certified standards and rule of the Joint Apprentice Committee"
Under the terms of the "Carpentry Apprenticeship Standards" document, a
joint committee determines the qualifications for apprentices, regulates the
number of applicants, and approves the applicants for training When an
applicant is approved, the new apprentice and joint committee, acting as an
em4ployer's agent, sign an apprentice agreement
Goodlet was not alone in complaining to Arthur about the fact he
worked with union employees As the shop steward and union president,
John Carter on at least two occasions told Arthur it was not right for union
and nonunion employees to work together
225 NLRB No. 150
CUSTOM CARPET INSTALLATIONS 1037
had contacted John Carter, president of the Local,
earlier about joining the Union, was inducted into
the Union and issued a union book and card. At the
start of the workday on December 4, Goodlet in-
formed Arthur he had joined the Union. Although
Goodlet was allowed to work that day, the Adminis-
trative Law Judge found that Arthur "told Goodlet
in effect that he had no further work for him." Good-
let testified that Arthur told him that "he had made a
big mistake and that he no longer worked at Custom
Carpet." We find that Goodlet was discharged on the
morning of December 4, immediately after he noti-
fied the Respondent that he had joined the Union,
and that Goodlet has not been reinstated since that
day.'
The Respondent justified Goodlet's discharge on
the ground that Goodlet, upon joining the Union,
was immediately entitled to apprentice scale wages
which the Respondent refused to pay for carpet
cleaning work, and therefore Goodlet's services were
no longer needed. Moreover, Respondent asserted
that the manner in which Goodlet became an ap-
prentice circumvented the provisions of the collec-
tive-bargaining agreement for apprenticeship train-
ing and hence the Respondent was unwilling to allow
the Union to violate the collective-bargaining agree-
ment in this manner. It is undisputed that Goodlet
did not apply for apprentice training and that he was
not certified by the joint committee which adminis-
ters the training program at any time.
In dismissing the 8(a)(3) allegation, the Adminis-
trative Law Judge accepted Respondent's defense
and concluded that "Arthur decided to dispense with
Goodlet's services . . . only because Goodlet had
made it impossible to remain employed at his old
rate of $2.85 an hour." The Administrative Law
Judge reasoned that Goodlet, by joining the Union,
had reclassified himself as an apprentice, without
adhering to the necessary procedures, and had be-
5 Throughout the hearing , the Respondent maintained that it did not dis-
charge Goodlet , but had merely told him that he was laid off We find that
the record evidence establishes that Goodlet was in fact terminated In addi-
tion to the findings of the Administrative Law Judge and the fact that
Goodlet has not worked for Respondent since his discharge , the credited
testimony of John Carter revealed that during a morning conversation with
Arthur on December 4, Arthur stated " this would be Goodlet's last day and
that Carter had cost him his job by talking him into Joining " However, we
note that even without the conclusive evidence of termination, Respon-
dent 's contention that he laid off Goodlet has little significance in view of
our holding in The Colonial Press, Inc, 204 NLRB 852 (1973) There, we
held "that the General Counsel's failure to prove that [ the employee 's] ter-
mination was a discharge is insignificant , so long as the record establishes
that the motivation for the termination was discriminatory within the mean-
ing of Section 8(a)(3) " We also noted that the remedy is the same regardless
of the "characterization of the termination as either a discharge or a lay-
off " The critical question is whether or not the ending of Goodlet's work
was discriminatory Since we find above that Goodlet's termination was
indeed discriminatory within the meaning of Sec 8 (a)(3), Respondent's con-
tention has no bearing on our disposition of this case
stowed upon himself a raise, all of which was done
without Respondent's approval and in disregard of
the collective-bargaining agreement.
Unlike the Administrative Law Judge, we do not
accept Respondent's defense. Respondent was not
contractually obligated to accept Goodlet's status as
an apprentice, if in fact he was one, merely on the
Union's say-so. Nor is there any indication that this
conferral of apprenticeship status would have result-
ed in a change in Goodlet's job functions which in-
volved nonunit work. The carpet cleaning function
performed by Goodlet was recognized by the parties
as being work of a type which is outside the purview
of the collective-bargaining agreement. Thus, neither
the Union nor Goodlet could in fact increase his
wages for doing a nonunit job merely by making him
a union member if in fact he were eligible for mem-
bership.
The critical question in determining whether a vio-
lation of Section 8(a)(3) has occurred is whether the
employer has encouraged or discouraged member-
ship in a labor organization by its discriminatory ac-
tion. It is well settled that a specific antiunion pur-
pose need not be proved where a natural
consequence of an employer's action is such encour-
agement or discouragement.' We find that the Re-
spondent's discharge of Goodlet upon learning that
he had joined the Union had the direct and immedi-
ate effect of discouraging membership in that labor
organization. The express terms of the Act forbid this
very kind of discrimination and therefore we find
that Respondent violated Section 8(a)(3) of the Act.
We also find, in disagreement with the Adminis-
trative Law Judge, that the Respondent violated Sec-
tion 8(a)(1) of the Act when it interrogated John Car-
ter on two occasions about his union activities and
the union activities of other employees. The Admin-
istrative Law Judge treated as credited the testimony
of Carter who related the substance of the two con-
versations.
The first interrogation occurred at approximately
10 o'clock on the morning of December 4, when Ar-
thur approached Carter who was working alongside
five other employees at a shopping center project.
Arthur asked Carter why he had talked Goodlet into
joining the Union. Carter replied, in part, that it was
one way of solving the problem of union and non-
union employees working together. At this time, Ar-
thur said that "that was Dave's last day" and that if
Carter had talked him into it, Carter had just cost
him his job.
The second conversation took place the next eve-
ning in the parking lot, again in front of six or seven
6 The Radio Officer's Union of the Commercial Telegraphers Union, AFL
[A H Bull Steamship Company] v N L R B, 347 U S 17 (1954)
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Arthur asked Carter "what did you mean
talking Dave into the union" to which Carter replied
"what makes you think I had anything to do with
that boy joining the union?" Arthur then declared
that "nobody was going to tell him how to run his
business." Carter then asserted that "he thought Cus-
tom Carpet was a union shop." Apparently, the heat-
ed conversation continued for some time.
We cannot agree with the Administrative Law
Judge's determination that Arthur's interrogations
merely amounted to a complaint over the manner in
which Goodlet became an apprentice or an admon-
ishment that Arthur would not deal with Goodlet as
a union member under those circumstances. These
conversations, occurring soon after the discriminato-
ry discharge of which the employees were well aware,
constituted direct interrogations about the union ac-
tivities of Carter and Goodlet, and could only result
in a direct and immediate intimidation of Carter and
the other employees who witnessed such employer
questioning about their interests or activities on be-
half of the Union.
This is precisely the type of coercive action on the
part of employers which employees are protected
from by Section 8(a)(1) of the Act. Accordingly, we
find that the Respondent engaged in coercive inter-
rogations of employees in violation of the employees'
Section 7 rights and thereby violated Section 8(a)(l)
of the Act.
REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent has discharged
David Goodlet on December 4, 1974, and has since
failed and refused to reinstate him, because of his
union activities, in violation of Section 8(a)(3) and
(1) of the Act, we shall order the Respondent to offer
him immediate and full reinstatement to his former
position, or, if such position no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and to
make him whole for any loss of pay he may have
suffered as a result of his discharge by payment to
him of a sum of money equal to that which he would
have earned as wages, from the date of reinstate-
ment, less his net earnings during such period, in ac-
cordance with the formula prescribed in F. W Wool-
worth Company, 90 NLRB 289 (1950), together with
interest at the rate of 6 percent per annum to be
added to such backpay, such interest to be computed
in accordance with the formula prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Having further found that the Respondent has
coercively interrogated John Carter, shop steward
and president of Local 2793 in front of other employ-
ees, concerning his union activities, as well as the
union activities of others, we shall order that it cease
and desist therefrom and post the appropriate no-
tice.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 3 of the
Administrative Law Judge's Conclusions of Law:
"3. By discharging David Goodlet on December
4, 1974, for his union activities, the Respondent has
engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act."
2. Add the following paragraph:
"4. By coercively interrogating John Carter, shop
steward and president of Local Union 2793, in front
of other employees, about his union activities, as well
as the union activities of others, the Respondent has
engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Herb Arthur, Inc. d/b/a Custom Carpet Installa-
tions, Indianapolis, Indiana, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
union membership, activities, or sympathies.
(b) Discouraging membership in the Carpenters
District Council of Central and Western Indiana of
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and its affiliated Local Union
2793, or any other labor organization, by discharging
or otherwise discriminating against any employee
with respect to hire, tenure, or any other term or con-
dition of employment.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to reinstate David Goodlet to his former
position or, if such position no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(b) Make him whole for any loss of earnings he
CUSTOM CARPET INSTALLATIONS
may have suffered by reason of the unlawful action
taken against him in the manner set forth in the sec-
tion of this Decision entitled "Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business copies of the at-
tached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director
for Region 25, after being duly signed by Respon-
dent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in the
Carpenters District Council of Central and
Western Indiana of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO,
and its affiliated Local Union 2793, or any other
organization, by discharging employees or
otherwise discriminating against them because
of their union activities.
WE WILL NOT interrogate employees about
their own union activities, nor those of any other
employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the Act.
WE WILL offer to David Goodlet immediate,
full, and unconditional reinstatement to his for-
1039
mer position or, if such job no longer exists, to a
substantially equivalent position, without preju-
dice to his seniority or other rights and privileges
previously enjoyed by him, and WE WILL pay him
for any loss of pay he may have suffered as a
result of his being laid off on December 4, 1974,
with interest at 6 percent per annum.
HERB ARTHUR, INC. d/b/a CUSTOM CARPET
INSTALLATIONS
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: The General
Counsel issued his complaint in this proceeding on January
31, 1975, after a charge filed on December 16, 1974. The
complaint alleges that Herb Arthur, Inc. d/b/a Custom
Carpet Installations,' herein the Respondent, discharged
David Goodlet on or about December 4, 1974, and has
refused to reinstate him since that date because he joined
Carpenters District Council of Central and Western Indi-
ana of the United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, and its affiliated Local Union 2793
(referred to herein as the Union). The complaint also alleg-
es that Herbert Arthur, an officer and agent of Respon-
dent, interrogated certain of its employees on December 4
and 5, 1974, concerning their own and other employees'
union membership, activities, and desires. Section 8(a)(3)
and (1) of the Act are thereby said to have been violated.
I held a hearing in this matter on April 2 and 3, 1975, at
Indianapolis, Indiana, at which all parties were repre-
sented. Thereafter, the General Counsel and the Respon-
dent filed briefs which I have duly considered. Upon the
entire record in the case, including my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is an Indiana corporation with its office and
principal place of business at Indianapolis, Indiana, where
it is engaged in carpet installation. During 1974, Respon-
dent purchased and received at its establishment goods and
materials valued in excess of $50,000 directly from sup-
pliers located in the State of Indiana, which in turn pur-
chased these goods and materials directly from sources
outside that State. During the same year, Respondent sold
goods and materials and performed services, valued in ex-
cess of $50,000 for various firms located in Indiana, each of
which, during the same year, purchased and caused to be
shipped to their places of business in Indiana directly from
points outside that State good and materials valued in ex-
cess of $50,000, and had a gross volume of sales which
The complaint was issued against Custom Carpets Installation, Inc , but
at the opening of the hearing the General Counsel moved to amend it to
show the correct name of Respondent, as it now appears
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceeded $500,000 . Respondent admits, and I find , that it
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
Ii. THE LABOR ORGANIZATION INVOLVED
Carpenters District Council of Central and Western In-
diana of the United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO, and its affiliated Local Union
2793, are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background
Respondent is signatory to a bargaining agreement be-
tween Indianapolis Floor Coverers Employers Association
Inc., and the Union, effective October 1, 1973, to October
1, 1975. (G.C. Exh. 2.) Article I of the agreement defines
the term "employee" (those represented by the Union as
their exclusive bargaining representative) as employees or
apprentices performing certain kinds of work, which for
the purposes of this case, includes the installation and re-
pair of carpet and the removal of old material to be re-
placed by carpet. The agreement contains a union-security
clause, sets out wages, hours, and fringe benefits, and con-
tains other provisions commonly found in bargaining
agreements in the construction industry. Article V of the
agreement, entitled "Apprentices," provides (a) for a joint
apprenticeship committee consisting of employer and em-
ployee representatives, selected by the parties to formulate
standards of apprenticeship; prescribes (b) percentages of
the journeyman rate for each of the 4 years of apprentice-
ship; and contains (c) a statement of intent by the parties
that all indentured apprentices shall undergo training from
September through May, with classes to begin September
1973.
General Counsel's Exhibit 7 is entitled "Carpentry Ap-
prenticeship Standards," by which the parties to the above
bargaining agreement establish a joint committee for ad-
ministration of the apprentice program Among the speci-
fied duties of the joint committee are to determine the need
for apprentices in the locality; to establish minimum stan-
dards of education and experience and to pass on the qual-
ifications of persons applying for apprenticeship; to regu-
late all apprentices; and to act as Employer's agent and
indenture apprentices under the prescribed standards.
Goodlet's Termination
During the last half of 1974, all but two of Respondent's
manual employees were journeymen carpet installers or
apprentices who were members of the Union. The two
whose work, it is agreed, was not covered by the agreement
and who were therefore not required to be members of the
Union were a warehouseman, whose status is not in ques-
tion here, and David Goodlet, the Charging Party, who
worked as a carpet cleaner.2 Goodlet's rate of pay was
$2.85 per hour, while the established rate of pay for a first
year apprentice, at 60 percent of the journeymen's rate,
was $4.53 per hour
On December 3, 1974, Goodlet applied for and was ac-
cepted into membership in Local 2793, the Carpet Layers
Local affiliated with the District Council, to which all Re-
spondent's installers and apprentices belonged. The next
day, December 4, Goodlet informed Arthur, president of
Respondent, that he hadjoined the Union. Arthur told him
that he could work that day at the apprentice rate of $4 53
At the end of the day, Arthur told Goodlet in effect that he
had no further work for him, and Goodlet has not worked
since for Respondent. It is clear from the testimony of Ar-
thur and of John Carter, a journeyman installer employed
by Respondent, as well as the shop steward and president
of Local 2793, that they both understood the bargaining
agreement as requiring that all work performed by Good-
let, including carpet cleaning, once he became a union
member, would have to be paid for at the rate of a first
year apprentice, $4.53 per hour.
Contentions of the Parties as to the Termination
The General Counsel argues that Arthur discharged
Goodlet on December 4 because he had joined the Union,
and has thereby violated Section 8(a)(3). Respondent's
principal defense is that it had no need for Goodlet's serv-
ices if it had to pay him $4.53 per hour for cleaning work,
and that it had no need for another apprentice to perform
services covered by the bargaining agreement . Further-
more, it contends that the Union's acceptance of Goodlet
into membership was an attempt to bypass the apprentice-
ship standards, in disregard of the bargaining agreement
and the joint apprentice committee.
Additional Facts
The General Counsel offered evidence to prove that
Goodlet had in the last 6 months of his employment done
some work within the Union's jurisdiction, and that the
union members had complained to Goodlet and among
themselves that they might be subject to fine, under the
Union's trade rules, for working with nonunion men. The
purpose for introducing this evidence was presumably to
show that Arthur knew that Goodlet had done some work
as an installer's helper, was determined to use Goodlet at
his $2.85 rate in any way he wanted, and then decided to
discharge him when, by joining the Union, he gained its
support for giving himself a raise and reclassification to
apprentice status.
Goodlet testified as to what noncleaning work he had
done in the 6 months before his discharge It amounted in
total to 52 hours of work, which he described as helping in
repairing or installing carpet. However, 7 of these 52 hours
occurred on December 4, his last day of work, when Ar-
thur assigned him to an installation crew working in a
irunister's home in South Indianapolis, since he had to pay
2 Whether Goodlet also did some work occasionally for Respondent Respondent's president, Arthur, knew of it are questions to be resolved
which might arguably be within the Union's craft jurisdiction, and whether later
CUSTOM CARPET INSTALLATIONS 1041
him the apprentice rate of $4.53 per hour anyway. Sub-
tracting these 7 hours, Goodlet, by his own estimate,
worked a total of 45 hours in a 6-month period as an
installer's helper at the cleaner's rate of $2.85 per hour.
What this work consisted of is unclear, except that Goodlet
did not claim that he worked with the tools of the trade.
Presumably, as a helper he moved furniture, carried mate-
rial for the installers, and did cleanup work such as vacu-
uming.
Goodlet performed his regular work as a carpet cleaner
as part of a two-man crew. In the first part of 1974, his
crew chief was an employee named Hansen, who was not a
member of the Union and who worked exclusively in
cleaning. Hansen left in mid-year, and his duties as crew
chief were taken over by Bill Charles, an installer and
union member. Charles was paid the union rate as an in-
staller even on cleaning work,' but was available to do
carpet installation and repair work whenever it was con-
venient for Arthur to assign him such work. Since Charles
and Goodlet went out together on cleaning jobs, it hap-
pened that, when Charles was transferred to carpet work,
he would often be accompanied by Goodlet. On some of
these occasions, according to Arthur, Goodlet might have
assisted Charles and other installers in their work. Arthur
denied knowing that Goodlet had worked as an installer,
but since he may have been making a distinction between
an installer and a helper, his answer is somewhat ambigu-
ous. I think it is likely that Arthur, who made the job as-
signments, realized that occasionally Goodlet was being
paid even when he was not on a cleaning assignment.
Even if Arthur knew that Goodlet had spent 45 hours in
noncleaning work during the past 6 months, it would still
be irrelevant, in my opinion, to the issue of why Goodlet
was terminated. But since the General Counsel evidently
regards it as an essential part of his case, I will set out what
additional evidence there is on the point. In any event, it is
bound up with other more relevant matters, such as
Goodlet's quest for a raise and the opinion of the union
employees that it was contrary to the Union's trade rules
for nonunion men to work on the same job with them.
In the 2 or 3 months before his termination, Goodlet
talked to Arthur a few times about a raise, about being laid
off when employees with less seniority were retained, and
about complaints from union members that his working
with them was a violation of the Union's trade rules. Ar-
thur refused to give him a raise and told him that he did
not acquire seniority under the contract, but that the union
men did. Goodlet said he had asked Arthur in one of their
conversations what Arthur thought of his joining the
Union, and that Arthur said he wouldn't advise it. Goodlet
said he then told Arthur (as Carter, the president of the
Local had advised him to do) that he couldn't be fired for
joining, and that Arthur had then said that if he joined he
would lose hisjob. Carter testified that Goodlet had report-
3 Arthur testified that, when his Company worked for a general contrac-
tor who was obligated by a union agreement to use only union labor, he
would have to assign whatever cleaning work had to be done to a union
member Charles was also paid the union rate on other cleaning work be-
cause of the Union's position that an installer was entitled to the journey-
man rate for all the work he did
ed back to him on Arthur's reaction to his query about
joining the Union, and had told him that Arthur said he
wouldn't have union personnel doing cleaning work for
him, and that Goodlet would probably lose his job if he
went on trying to join the Union.
There is some further evidence bearing on what Arthur
knew about Goodlet working with union members. Shortly
after Hansen, the former cleaning crew chief, quit and had
been replaced by Bill Charles, Carter said he told Arthur it
wasn't right for union and nonunion employees to be
working together. According to Carter, Arthur told him he
had never had any problems over cleaning, and that he
would continue his practice because cleaning work was not
covered by their contract. In a later conversation, Carter
said he had again complained about Goodlet working with
union personnel on jobs, and that Arthur had said he had
not known about it, and, if Goodlet was working with
union men, it was only to fill out a day.
To conclude on this point, Carter was complaining that
Goodlet, as a nonunion employee, should not work on any
carpet installation or repair job, while Arthur was main-
taining that, since cleaning work was not covered by the
contract, he would use his cleaning employees as he saw fit.
I find that Arthur knew that Goodlet had done a minimal
amount of noncleaning work while in the company of
union employees. If Carter and his fellow union employees
thought this was in violation of the bargaining agreement
or of the Union's trade rules, they could have protested to
Arthur, insisting that Goodlet be limited to cleaning work
exclusively. Instead, by encouraging Goodlet to join the
Union, without being properly indentured as an appren-
tice, they sought to force Arthur into paying Goodlet the
higher apprentice rate for work which was not included
within the coverage of their bargaining unit or of the agree-
ment.
Although it is generally accepted that a Union may ad-
mit anyone it chooses into membership, the apprenticeship
provisions in the bargaining agreement between Respon-
dent and the Union must be considered in determining
why Arthur objected to Goodlet's admission into the
Union as an apprentice. The agreement (G.C. Exh. 2) pro-
vides, in article V, for the establishment of a point appren-
ticeship committee consisting of employer and employee
representatives, and for the signatory parties "to abide by
the approved certified standards and rule of the Joint Ap-
prentice Committee." The document received in evidence
as General Counsel's Exhibit 7, entitled "Carpentry Ap-
prenticeship Standards" provides that the point committee
shall consist of no less than six members with equal repre-
sentation of employers and the District Council. Among its
duties are to determine the needs for apprentices in the
locality; to establish minimum standards of eduction and
experience for apprentices and to pass on the qualifications
of persons applying for apprenticeship; to register all ap-
prentices with the proper registration agency, and to act as
Employer's Agent in indenturing apprentices under the
standards. Section 6 of the standards provides that as ap-
prentice openings occur, responding candidates will be
evaluated as to meeting basic qualification requirements,
and that those satisfying these basic requirements are to be
given a series of tests, after which they are to be inter-
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viewed by the joint committee. When approved for admis-
sion into the training program, the apprentice is to sign an
apprenticeship agreement, which must also be signed and
approved by the joint committee acting as Employer's
agent . The apprenticeship agreement does not obligate the
Employer's agent actually to employ the apprentice, but to
use its best efforts to keep him continuously employed
None of these provisions were observed when Local
2793 admitted Goodlet into membership on December 3,
purportedly as an apprentice. The coordinator of the train-
ing program, established by the joint committee, testified
that 16 floor covering apprentices were currently enrolled
in the program, he had had no calls for additional appren-
tices from employers signatory to the agreement, carpet
cleaning is not part of the apprentice training procedure,
and Goodlet was not, to his knowledge, enrolled in the
apprentice program. Goodlet in fact had not applied to the
joint committee to be enrolled as an apprentice, nor could
he have satisfied one of its basic requirements, that of high
school graduation or its equivalency. Arthur and Carter
were both members of the joint committee and knew that
Goodlet had not been accepted into the apprenticeship
program which that committee administered. Arthur also
testified that at least three journeymen or apprentices had
left his employ in the past year because of lack of work,
and that he had hired no one to replace them.
Concluding Findings as to Goodlet
The General Counsel's case for finding a violation of
Section 8(a)(3) with respect to Goodlet has a surface plau-
sibility which arises from the admitted fact that he was
terminated when Arthur was told that he had joined the
Union. Although the sequence of events points to a dis-
criminatory discharge, the true reason for the discharge
cannot be inferred from the timing itself. The facts, which
are virtually undisputed, are that Goodlet was admitted
into the Union as an apprentice without the approval of
the joint committee and without any undertaking by an
employer to employ and train him on the job as an appren-
tice, as an apprentice he became immediately entitled to a
rate of $4.53 per hour for all work he performed, including
cleaning; and Arthur did not need an apprentice either for
work covered by the contract, or for cleaning, which was
not covered by the contract. Furthermore , it is clear that
Goodlet was not even eligible to become an apprentice,
and had not applied in the manner prescribed by the point
committee.
In these circumstances, I am satisfied that Arthur decid-
ed to dispense with Goodlet's services, not because he had
joined the Union or because Arthur had any animus
against the Union, but only because Goodlet had made it
impossible to remain employed at his old rate of $2.85 per
hour Goodlet had a right, of course, to join the Union and
have it bargain for him to obtain a raise for his cleaning
work, but he could not, simply by joining, reclassify him-
self into a union apprentice without the consent of his em-
ployer or the joint committee, and thereby force his em-
ployer to accept his self-bestowed status and the raise it
automatically conferred on him. I shall therefore recom-
mend dismissal of the 8(a)(3) allegations of the complaint.
The 8(a)(1) Allegations
Paragraph 5(b) of the complaint alleges that, on Decem-
ber 4 and 5, Arthur unlawfully interrogated employees
concerning their union membership, activities, and desires.
Carter testified that he had a conversation with Arthur
at a company job at a shopping center the morning of
December 4, when Arthur asked him why he had talked
Goodlet into joining the Union. Carter said he answered
that it would solve the problem of having union and non-
union employees working together, at which Arthur told
him that this would be Goodlet's last day, and that Carter
had cost him his job by talking him into joining.
The next evening, in a parking lot, Arthur again asked
Carter what he meant by taking Goodlet into the Union,
and after some exchange, Arthur said, according to Carter,
that nobody was going to tell him how to run his business.
Carter then said he thought Custom Carpet was a union
shop, at which Arthur told him not to mess with it because
it couldn't be touched.
Arthur admitted that he had questioned Carter on De-
cember 4 about his getting Goodlet into the Union, and
that Carter had said that had the Union not taken him in it
would have discriminated against him 4 Arthur's recollec-
tion about a conversation with Carter on December 5 in
the parking lot is vague, except that he thought he would
have asked Carter how he had gotten Goodlet into the
Union.
What this amounts to, even accepting Carter's versions
of the two conversations as credible, is that Arthur was
concerned about how and why Goodlet had been accepted
into the Union. Arthur and Carter were both members of
the joint committee which passed on all apprenticeship ap-
plications, and Arthur knew that he had not requested the
committee to assign him an apprentice, and that Goodlet
had not even applied to the committee to be enrolled as
one. Arthur's inquiry in effect was how Carter had man-
aged to enroll Goodlet as a union member in complete
disregard for the joint committee and its standards for ap-
prentices.
I find that Arthur's questions of Carter would not tend
to intimidate or coerce him or the other employees in their
interest or activities on behalf of the Union. They were
rather in the nature of a complaint and warning to Carter
that the Union's acceptance of Goodlet into membership
could not force him to use Goodlet as an apprentice or to
pay him the apprentice's rate of pay for cleaning work. I
shall therefore recommend dismissal of the 8(a)(1) allega-
tions and of the entire complaint.
CONCLUSIONS OF LAW
1. Herb Arthur, Inc. d/b/a Custom Carpet Installations,
is an employer engaged in commerce and in activities af-
° What Carter probably had in mind, as his own testimony shows, is that
Goodlet could be accepted into the Union as an apprentice, despite his lack
of qualifications and his failure to apply to the point committee, because
another individual, not identified except as being a member of a minority,
had been recently accepted as an apprentice under an affirmative action
plan
CUSTOM CARPET INSTALLATIONS 1043
fecting commerce within the meaning of Section 2(6) and Union 2793 , is a labor organization within the meaning of
(7) of the Act. Section 2(5) of the Act.
2. Carpenters District Council of Central and Western 3. The Respondent has not engaged in any unfair labor
Indiana of the United Brotherhood of Carpenters and practices alleged in the complaint.
Joiners of America, AFL-CIO , and its affiliated Local [Recommended Order for dismissal omitted from publi-
cation.]