The Union Quarries Co.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union Quarries Company and International Union of District 50, United Mine Workers of America. Case 8-CA-5256 June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 21, 1969, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner' s Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at a hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, The Union Quarries Company, Van Wert, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'As the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case adequately present the issues and the positions of the parties, the Respondent's request for oral argument is denied. The Trial Examiner inadvertently used the word "unaware" to describe Superintendent Taylor's knowledge of Landrum's and Waldron's organizational activities. Accordingly, the word "unaware" is changed to the word "aware" at p. 3, 1 6, of the Trial Examiner's Decision TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Trial Examiner: This case was tried before me at Van Wert, Ohio, on March 7, 1969. It was initiated by a charge filed on December 2, 1968, and a complaint issued on January 10, 1969, alleging that the Respondent, The Union Quarries Company, had violated Section 8(a)(1) and (3) of the Act by the discharge of Paul Landrum and the layoff of Ray Waldron on or about November 23, 1968, and November 30, 1968, respectively.' Briefly stated, the complaint alleges that the Respondent discriminated against Landrum and Waldron by reason of their activity in behalf of International Union of District 50, United Mine Workers of America, herein called the Union. On the other hand, the Respondent contends that Landrum was discharged for excessive absenteeism, a condition which had been chronic with him throughout his employment, and that Waldron was laid off by reason of seasonal operations at the quarry. At the hearing, all parties were represented by counsel or a representative, and were afforded full opportunity to adduce evidence bearing upon the issues . Subsequent to the hearing, the General Counsel and the Respondent, on April 7, filed helpful briefs which have been carefully considered. Upon the entire record in this proceeding and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation, with its principal office and place of business at Van Wert, Ohio, is engaged in the business of road construction and quarrying . Annually, in the course and conduct of its operations, it receives sand and other construction materials valued in excess of $50,000 directly from points located outside the State of Ohio . The 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. H. THE LABOR ORGANIZATION INVOLVED International Union of District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Sequence of Events Although the Respondent conducts both road construction and quarrying operations, essentially the two are separate and distinct. The road construction operations are seasonal, being affected by weather conditions; on the other hand, the quarrying operations are conducted on a year-round basis with relatively little fluctuation in employment. At the times here material, the Respondent employed approximately 12 employees in the quarry operation, and on occasion some of the road construction employees would for short periods perform work within the quarry proper. In the past years there have been some efforts made at organizing the quarry employees, without success. Late in October employees Landrum and Waldron, while at the VFW hall in Van Wert, had a discussion with Messrs. Timko and Campbell, representatives of the Union, who were at the hall conducting a union meeting . Later in the month, approximately October 31, Landrum and Waldron attended another meeting of the Union at the VFW hall and on that occasion signed union cards and each obtained a supply of blank cards for the purpose of circulating them among their fellow workers. In all, Landrum and Waldron in the period from the first of 'Unless otherwise indicated all dates refer to the year 1968. 177 NLRB No. 66 THE UNION QUARRIES COMPANY November until November 13 signed up six quarry employees. Superintendent William Taylor, who also was the uncle of Landrum, was aware of the union activity of Landrum and Waldron. According to Landrum , when he had a conversation on November 12 with his Uncle Bill, the latter in response to Landrum's statement that he was going to try to sign up employees told him "not to do it on company time, but during noon hour," which Landrum did. At about this time the quarry crew, with the exception of Waldron and Charles Mace, the two most junior employees, received a 10-cent increase in wages. In a discussion with Superintendent Taylor, Waldron was told by Taylor that he "might as well forget about the Union, because they weren' t going for it now, because the guys got their dime raise. Just forget it and let it go." Superintendent Taylor testified that he knew of the union activity being conducted at the plant and that his nephew Landrum and Waldron "were working on it." The Respondent contends that its principal officials, Wiley Sauls, the president, and Vondale Taylor, vice president and general manager, as well as the Foreman Ned Jay, were unaware of any union activities being conducted in the Respondent's operations prior to the decision to terminate Landrum and to lay off Waldron. Admittedly, Superintendent Taylor was unaware of the two employees' activity, but he testified that he found no occasion to impart this information to any one else in management. Upon a consideration of the total circumstances, I am persuaded that the Respondent, not only in the person of Superintendent Taylor but with respect to other officials as well, was aware of the union activity of the two employees. This is a small operation, consisting of about 12 employees, of whom eight (including Landrum and Waldron) signed union cards in the space of approximately 2 weeks . The Respondent's office at the quarry contains space occupied by Vondale Taylor, the general manager, who is there a majority of his working time and makes periodic visits to the actual quarrying operations. Superintendent Taylor's remarks to Waldron, on the occasion when the 10-cent raise was discussed by them, plainly indicate that the Respondent linked the raise with the Union' s organizational campaign, Taylor telling Waldron that in view of the raise he should forget about attempting to organize the property. Considering the smallness of the plant and the foregoing testimony , I infer and find that the Respondent had knowledge of the union activities of Landrum and Waldron.' B. The Termination of Landrum and Waldron Landrum was employed on April 10, 1967, having been hired by his uncle, General Manager Vondale Taylor, and assigned to work under his other uncle, Superintendent William Taylor. At the time of his termination he was running a frontend loader; he had also driven a haul unit delivering stone to the crusher. So far as appears, Landrum was not excluded from the 10-cent hourly wage increase given shortly before his termination. On November 13, at approximately noon, Landrum left his employment to go on his annual deer hunting trip. The `See Berger Polishing. Inc., 147 NLRB 21; The Bin-Dicator Company, 143 NLRB 964; see also Fassetts Bakery, 147 NLRB 515; Square Binding and Rule Co . 146 NLRB 206; F. W. Woolworth v. N.L.R. B., 121 F.2d 658, 660 (C.A. 2); and N.L.R.B. v. Radcliffe at al., d/b/a Homedale Tractor A Equipment Company, 211 F.2d 309, 315 (C.A. 9), cert. denied 348 U.S. 833. 465 testimony is uncontradicted that he had received permission from Superintendent Taylor to go on this trip, with the understanding that he would return on Monday, November 25. On Saturday, November 23, Superintendent Taylor told employee Waldron that he, Waldron, was being laid off at the end of the following week and that in addition Landrum was being fired. Waldron found Landrum at a bowling alley and informed him of this. That evening Landrum went to the home of Superintendnet Taylor to verify the information he had obtained from Waldron. According to Landrum, Superintendent Taylor confirmed his termination but gave no reason for the discharge. Landrum testified that the superintendent told him "they just told me to fire you and gave me no reason." On the other hand, Superintendent Taylor testified that he told Landrum that he was being discharged "due to the fact that he missed 54 days from work." President Sauls testified that Landrum's work record had been poor since the time he first came to work and that "we had talked with Mr. Landrum from time to time, concerning his deficiencies. President Sauls further testified that he had asked Superintendent Taylor to talk to Landrum about his record in an effort to get him to help himself and had also told General Manager Taylor and Foreman Jay to try to straighten Landrum out. President Sauls testified that he heard from General Manager Taylor or someone else that Landrum was going to take 3 weeks off to go deer hunting, which prompted Sauls to question how Landrum could afford to do this "with his past history" without getting permission from General Manager Taylor. According to the testimony of Sauls, General Manager Taylor and Jay, Landrum's alleged unexcused absences from work and been the topic of discussion for several months. Finally, on November 16, the three of them at a meeting decided to terminate Landrum because of his work record. However, it appears from the testimony of these individuals that none of them checked with anyone to determine whether Landrum had been given permission for the deer hunt. Superintendent Taylor testified that he had given Landrum permission. Nor does it appear that time records were examined on this occasion to ascertain the nature of Landrum's absences. General Manager Taylor testified that Superintendent Taylor did keep a time book at the quarry office and that the book was there on November 16 but that no one checked it because he, General Manager Taylor, "wouldn't see the reason to." On the other hand, Foreman Jay testified that he looked at Superintendent Taylor's payroll book and at the record of other employees during this November 16 meeting. The Respondent submitted a compilation of Landrum's absences during the period of his employment. Although Superintendent Taylor testified he had been told by others in management that Landrum had missed 54 days of work, the compilation in fact shows that he had, from April 1967 to November 1968, missed 42 days. There is no way to determine from the figures submitted by the Respondent whether these were unexcused absences. Landrum testified positively that his absences had been excused and also pointed out that early in his employment (as is borne out by the Respondent's compilation) he had been absent a number of days over a period of approximately 6 weeks due to treatment for hives in his joints. Moreover, the figures submitted by the Respondent do not take into account the fact that 10 working days in November 1967 are accounted for by the fact that Landrum was absent on his annual deer hunt with 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permission. Landrum testified that he had never been cautioned or warned about his absences and there is no direct testimony to the contrary. I credit Landrum in this regard. A comparison of Landrum's absences in the 2 years shows that in the 8-month period that he was employed in 1967 he had 20 days of absence exclusive of the 10 days he spent deer hunting, as contrasted with 17 days of absences in the year 1968 prior to his termination. Moreover, Landrum received a bonus of $50 in 1967 and, as stated above, was not excluded from the 10-cent hourly wage increase granted shortly before his termination. There is no evidence from which a comparison of Landrum's record with regard to absences can be made with that of any other employee. Waldron went to work September 7 at the solicitation of Superintendent, Taylor who told him that there was an opening for an operator of a Euclid. When he reported for work Superintendent Taylor explained the company benefits and pointed out that although the hourly rate was not as high as enjoyed by the road crew, the work in the quarry was steady and that there was no seasonal layoff of the pit crew. Superintendent Taylor admitted that at the time he hired Waldron in September it was his intention to keep him on as a permanent employee. On November 23, a Saturday, Superintendent Taylor asked Waldron if he could find another job. When Waldron asked the reason for the inquiry, he was told that he was being laid off at the end of the following week . Taylor told Waldron that he was under instruction to let two employees go by December 2 and that these were Landrum and himself. Superintendent Taylor stated that he did not know the reason . Although Taylor used the terms "layoff" during the termination interview, it is evident that Waldron was in fact being discharged because, according to Waldron's uncontradicted and credited testimony, Taylor told him "you might as well take it as you're fired, because they won't call you back." The Respondent seeks to justify Waldron's "layoff" on the basis that there was a cutback in production occasioned by seasonal considerations . Upon analysis, there appears to be little basis for this contention. In the first place, the Respondent endeavored to maintain steady employment at the pit in contrast to the situation with respect to the road crew. No supporting data is contained in the record to indicate that in past years there had been a seasonal fluctuation in man hours worked in the quarry. It further appears that after Landrum and Waldron were terminated one or two employees from the road crew were brought into the pit to work at least on a part-time basis. I conclude upon a consideration of all the evidence that the record does not warrant sustaining the contention of Respondent that seasonal considerations prompted the termination of Waldron. C. Conclusions Upon all the evidence I am persuaded that the Respondent was well aware of the efforts of Landrum and Waldron early in November in signing up employees, and that it sought to counter their activity by granting employees a 10-cent wage increase . I further conclude that the Respondent seized upon Landrum's record of absences, which are not shown to have been unexcused in any regard, and his departure on a hunting trip with permission, as a pretext for ridding itself of him. I think the inference is warranted that General Manager Taylor and Superintendent Taylor, his uncles, were tolerant of his absences which at least in a number of instances were occasioned by physical ailment, but that President Sauls, upon learning of Landrum's union activity, determined that an apparently plausible reason should be found to terminate him. In the case of Waldron, he too was known to be active in the union activity and was marked for termination. The attempted justification on seasonal grounds in his case is woefully weak, particularly considering the fact that the uncontradicted evidence is that after his termination one or two road crew employees were brought into the pit to perform work similar to that performed by Waldron and also by Landrum. Had there been a history of seasonal fluctuation in the Respondent's pit crew it would have been a simple matter for the Respondent to have produced records establishing that fact rather than the vague and generalized testimony of Respondent's officials. On balance, I conclude and find that in terminating Landrum and Waldron the Respondent did so for discriminatory reasons, thereby violating Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found to constitute unfair labor practices as set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(3) and (1) of the Act, I shall recommend that the Respondent cease and desist therefrom and take affirmative action in order to effectuate the policies of the Act. Since I have found that the Respondent discriminatorily terminated Paul Landrum and Ray Waldron, I shall recommend that the Respondent offer each of them immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered from the date of the discriminatory termination to the date of the Respondent's offer of reinstatement. The backpay shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that the Respondent preserve and upon request, make available to the Board, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act, I shall recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: THE UNION QUARRIES COMPANY 467 CONCLUSIONS OF LAW 1. The Union Quarries Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union of District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act by terminating Paul Landrum on November 23, 1968, and by terminating Ray Waldron on November 30, 1968. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent, The Union Quarries Company, Van Wert, Ohio, and its agents, officers, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of International Union of District 50, United Mine Workers of America, or any other labor organization, by discriminatorily discharging any of its employees or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-mentioned Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Paul Landrum and Ray Waldron immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth above in the section entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against them. (b) Notify the said Paul Landrum and Ray Waldron if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (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 and pertinent to compute the amount of backpay due. (d) Post at its place of business in Van Wert, Ohio, copies of the attached notice marked "Appendix."' Copies of said notice, on forms to be provided by the Regional Director for Region 8, after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith. 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 8, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: This notice is posted pursuant to a Recommended Order of the Trial Examiner, issued after a trial in which both sides had the opportunity to present evidence. The Trial Examiner found that we violated the National Labor Relations Act and has ordered us to inform our employees of their rights. The Act gives all employees these rights: To organize themselves. To form, join, or help unions. To bargain as a group through a representative of their own choosing. To act together for collective bargaining or other mutual aid or protection. To refuse to do any and all of these things. We assure all of our employees that: WE WILL NOT do anything that interferes with these rights. WE WILL NOT discharge employees because they selected the Union as their collective-bargaining representative or acted on its behalf. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under the Act. WE WILL make whole Paul Landrum and Ray Waldron for any loss of earnings they may have suffered by reason of their discriminatory discharge. WE WILL offer Paul Landrum and Ray Waldron immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. WE WILL notify Paul Landrum and Ray Waldron if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Universal Military Training and Service Act, as This notice must remain posted for 60 consecutive days amended, after discharge from the Armed Forces. from the date of posting and must not be altered, defaced, or covered by any other material. THE UNION QUARRIES If employees have any question concerning this notice COMPANY or compliance with its provisions they may communicate (Employer) directly with the Board' s Regional Office, 1695 Federal Dated By Office Building 1240 East Ninth Street, Cleveland, Ohio (Representative) (Title) 44199, Telephone 522-3715.