Local 463, Cement Workers

LOCAL 463, CEMENT WORKERS Local 463, United Cement, Lime and Gypsum Work- ers, International Union, AFL-CIO, and Trinity Concrete Products Company, Inc. Case 16-CB-538 May 28, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On August 18, 1970,1 a hearing was held before Trial Examiner Henry L. Jalette in the above-entitled pro- ceeding. After the General Counsel presented his case- in-chief and rested, Respondent moved to dismiss the complaint. In expectation that the Trial Examiner would dismiss the complaint, the General Counsel on August 27 filed a Motion for Reconsideration. On Sep- tember 14, the Trial Examiner issued an Order Grant- ing Motion To Dismiss in which he denied the General Counsel's Motion for Reconsideration and granted Re- spondent's motion to dismiss the complaint in its en- tirety on the grounds that the threat of physical vio- lence attributed to Respondent's agent was too isolated to warrant a cease-and-desist order and that the then pending arbitration proceeding over the discharge of Respondent's agent because of the alleged threat would tend to remedy the alleged unfair labor practice. On December 18, the Board ordered that the case be remanded for " . . . a full and complete hearing on the substantive merits of the complaint's allegations with appropriate findings, conclusions and recommenda- tions by the Trial Examiner ... " Subsequently, on March 12, 1971, Trial Examiner Henry J. Jalette issued his Decision in the proceeding, finding that Respondent had not engaged in unfair la- bor practices within the meaning of the Act and recom- mending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' All dates unless otherwise stated are in 1970 Member Jenkins concurs in the result, not because the alleged threat incident was "isolated," but because on the evidence before us there is 567 ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint herein be, and it hereby is, dismissed in its en- tirety. substantial doubt that the "threat" was either made or taken seriously by either party TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Trial Examiner: The complaint in this case was issued on June 19, 1970,' pursuant to an original and a first amended charge filed by Trinity Concrete Products Company, Inc. on May 19 and June 19, respectively. The complaint alleges that the above-captioned Respondent vi- olated Section 8(b)(1)(A) of the Act by the conduct of job steward L. T. Coleman in orally threatening employees of the Company with bodily harm and property damage if they did not become members of Respondent. All of the allegations of the complaint were admitted except the allegation that Cole- man had threatened employees. On August 18, a hearing was held in Dallas, Texas, at which General Counsel presented one witness in support of the allegations of the complaint. After the testimony of this witness, Respondent moved to dismiss the complaint. By written order dated September 14, I granted the motion to dismiss. Thereafter, General Counsel filed a request for re- view and on December 18 the Board issued an order granting review and remanding the proceeding to the Regional Direc- tor for further hearing. The only grounds given for granting the request were that "In the opinion of the Board, the issues herein are such that a full and complete hearing on the sub- stantive merits of the complaint's allegations with appropri- ate findings, conclusions, and recommendations by the Trial Examiner are warranted." On March 3, 1971, I appeared at Dallas for the purpose of conducting further hearing in accordance with a notice of hearing issued by the Regional Director for Region 16. The notice of hearing had originally scheduled the matter for 10 a.m. March 2, 1971, but on Friday, February 26, 1971, the matter had been rescheduled to March 3, 1971, at 2 p.m Formal notice of the rescheduling of the hearing was given by telegram to all the parties, but Respondent did not appear at the scheduled time. Counsel for General Counsel tele- phoned counsel for Respondent and learned that the tele- graphic message had been garbled and Respondent was not aware that the hearing was at 2:00 p.m., March 3.' In order to avoid further delay and unnecessary expense, Counsel for General Counsel advised me that Counsel for Respondent had advised him of its willingness to waive further hearing provided that General Counsel offered into evidence a copy of an arbitrator's decision relating to the subject matter of the complaint and provided further that it was stipulated that had Respondent received proper notice its agent, L. T. Cole- man, would have been called to testify and to deny having made the threats attributed to him. Acting on these represen- All dates appearing hereinafter refer to 1970 unless otherwise mdicatea The telegraphic notice should have read that the hearing was being postponed from March 2, 1971, to March 3, 1971 at 2 p in , at the same location The telegram received by Respondent stated that the hearing was being postponed "from March 2, 1971, at 2.00 p m at the same location" leaving out the fact that the hearing was to be rescheduled for March 3 190 NLRB No. 112 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tations of General Counsel, with the concurrence of the Charging Party, I accepted the stipulation and the hearing was closed. Upon the entire record, including my observation of the sole witness to testify, I make the following:' FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Trinity Concrete Products Company, Inc., is a corporation duly organized under and existing by virtue of the laws of the State of Texas, with its principal office and a plant at Dallas, Texas. At all times material herein, it has been continuously engaged in the manufacture and distribution of concrete pro- ducts, and during the 12-month period preceding issuance of complaint, in the course and conduct of its business opera- tions, it purchased and received goods and materials valued in excess of $50,000 at its Dallas plant directly from States of the United States other than the State of Texas. II THE LABOR ORGANIZATION INVOLVED Local 463, United Cement, Lime and Gypsum Workers International Union, AFL-CIO, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent was certified as representative of the em- ployees of the Employer in 1966. On July 25, 1968, the em- ployees of the Employer went on a strike which continued through the third week of June 1969, at which time the parties signed a collective-bargaining agreement which was in effect at the time of the hearing. Ynez Escobar is a storeroom attendant employed by the Employer who started working for the Employer during the strike and who crossed the picket line during the strike. Ad- mittedly, no one gave him any trouble and in the period following the strike no one threatened him. This was the case until May 12, on which occasion L. T. Coleman, a job stew- ard and admittedly an agent of the Respondent within the meaning of Section 2(13) of the Act, came into the storeroom where Escobar was working and asked Escobar if he was ready to join the Union. Escobar told him no, perhaps later, and Coleman then said: And then he told me I could meet with an accident, somebody could poison my coffee or burn my house, he knows where I live, or mess up my car, or like that. I told him I wasn't afraid of him, so he went around the build- ing, around the back door, and threw a piece of rope on my neck and told me to watch it, that's a snake. I told him to get out of there. That's all. That's all we talk about. On the following day, the Employer suspended Coleman pending completion of its investigation of the incident and subsequently discharged him. Coleman filed a grievance and the matter was subsequently brought to arbitration on Sep- tember 10. On October 31, the arbitrator issued an opinion in which he concluded that the Employer did not have dust cause for discharging Coleman. In so doing, the arbitrator stated as follows: ' Counsel for the General Counsel and Counsel for the Charging Party waived the right to file brief It is difficult for the Arbitrator to see how the above conduct as testified to by Mr. Escobar can properly be considered as constituting threats of intimidation and coercion in violation of the Agreement and the Company Rules and Regulations. Only Escobar and Grievant were at the location in question at the time. Mr. Escobar by his own admission was not frightened by such state- ments or indications. He did not feel it necessary to report the incident to the Company immediately but instead initially only told a friend that he did not like what was said. After that, by Mr. Escobar's own tes- timony, it was over insofar as he was concerned. Mr. Jim Bales, the Production Superintendent, then called Mr. Escobar to the office about the incident after at least a day or two had elapsed. As admitted by the Company, rough talk and re- strained horseplay are common in the prestress beam production operation. The testimony of Mr. Escobar established that there was much "fooling around" and that he also engaged in the "horseplay." He testified that at times they would get nasty with each other as when he and Mr. Coleman would hurl certain personal epi- thets at each other. Seemingly this was done without any permanent effect on the other. Of further significance here is the fact that Mr. Escobar came to work at the plant two months before the end of a ten-month strike, and that he came to work through picket lines without ever having been threatened in any way about anything. B. Analysis and Conclusions In my order granting motion to dismiss, I had assumed that the testimony of Escobar as to the threats made by Coleman was credible (as, of course, I was required to do on a motion to dismiss). Nevertheless, I had granted the motion to dismiss, because in my opinion no useful purpose would have been served by the issuance of a cease and desist order in this case. In reaching this conclusion, I had noted the absence of any 8(b)(1)(A) conduct during the course of a lengthy strike maintained by the Respondent, the fact that Escobar had been hired during the strike and crossed the picket line without incident, and that he had worked for several months without any threats being uttered. Addition- ally, I had noted that this Respondent had no history of prior unfair labor practices except for an 8(b)(4) charge arising out of the strike of the Employer which had been resolved by a formal settlement agreement Considering these circum- stances, plus the fact that the threat had been made by a minor official of Respondent (that is, a job steward), and that it involved one employee in a work force of 175, it appeared to me that no useful purpose would be served by issuance of an order in this case. An additional reason for granting the motion to dismiss was the fact that at the time of the original hearing the issue of Coleman's discharge was awaiting an arbitration hearing and it appeared to me that the issue presented for decision both by me and the arbitrator was to be one of credibility. It appeared to me that had I denied the motion to dismiss and required the Respondent to proceed by presenting Coleman to testify and had I made a credibility determination as be- tween him and Escobar it would only have muddied the situation for the arbitrator whichever way I decided. It ap- peared to me neither the interest of the public nor the func- tioning of collective bargaining would be enhanced by further prosecution of this matter. As I have pointed out above, the Board granted the Gen- eral Counsel's request for review and reversed my ruling. Having now closed the hearing, still without the testimony of Coleman, but with a stipulation of a denial had he been LOCAL 463, CEMENT WORKERS 569 called, I find that the threats were made as described by Escobar. Escobar appeared to me to be a truthful witness and I can see no reason why he would have wanted to fabricate testimony against Coleman. I therefore reject the stipulated denial. As a result of this conclusion I am now left in the same posture I was in when General Counsel first rested his case. For the reasons given earlier (i.e., the fact that Escobar worked during the strike and for several months thereafter without incident, that the threat by Coleman represents an isolated incident in a plant of 175 employees and was made by a minor agent of Respondent, and that Respondent has no history of prior 8(b)(1)(A) conduct) I am still of the opinion that this isolated incident of Coleman's threats does not war- rant issuance of a remedial order. An additional reason for so concluding is that it is evident that Escobar did not believe that Coleman was serious. He admitted he was not frightened, he even told Coleman ' ... I wasn't afraid of him." He didn't bother to report the matter to the Employer, but he told a friend who did report it, and the Employer instituted an investigation . Escobar's reaction to Coleman's remarks is understandable . He admit- ted that the plant is a pretty rough place to work and that he and Coleman have engaged in name calling in the past (there is no indication that such name calling related to Escobar's lack of union membership) and horseplay is not uncommon. Even in the incident complained of, Coleman's throwing of a piece of rope on Escobar's neck with the words " ... watch it, that's a snake" smacks of horseplay. Under all the circumstances, therefore, I do not believe issuance of a remedial order in this case is warranted and I shall recommend dismissal of the complaint. CONCLUSIONS OF LAW 1. Trinity Concrete Products Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 463, United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Respondent herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. The conduct of Respondent herein does not warrant issuance of a remedial order. RECOMMENDED ORDER The complaint herein should be, and it hereby is, dis- missed. ORDER GRANTING MOTION TO DISMISS STATEMENT OF THE CASE HENRY L. JALETTE, Trial Examiner: The complaint in this case was issued on June 19, 1970, pursuant to an original and a first amended charge filed by Trinity Concrete Products Company, Inc., by Attorney Richard A. Gump, on May 19 and June 19, respectively. The complaint alleges that the above-captioned Respondent violated Section 8(b)(1)(A) of the Act by the conduct of Job Steward L. T. Coleman in orally threatening employees of the Company with bodily harm and property damage if they did not become members of Respondent. All of the allegations of the complaint were admitted except the allegation that Coleman had threatened employees. On August 18, 1970, a hearing was held in Dallas, Texas General Counsel's case-in-chief consisted in the testimony of one witness, Ynez Escobar. After cross-examination of this witness, Respondent moved to dismiss the complaint on the ground that Escobar had not authorized the filing of the charge by Attorney Richard A. Gump. This was an insuffi- cient ground for dismissal,' but for reasons set forth below it appeared to me that further proceedings would not effectuate the policies of the Act, and I advised the parties that I would grant the Motion to Dismiss unless prior to August 30, 1970, Attorney Gump submitted a withdrawl request to me for approval. By letter dated August 26 , Attorney Gump has advised that the Company declines to withdraw the charge. On August 27, I received a motion for reconsideration from the General Counsel requesting that I reconsider my decision to dismiss on the ground that the threat of physical violence attributed to Respondent 's agent was too serious to be characterized as inconsequential, and that a pending arbi- tration proceeding over the discharge of Job Steward Cole- man because of the alleged threat would not remedy the unfair labor practice . The Motion for Reconsideration is hereby denied and the Motion to Dismiss is granted for the following reasons: The complaint is based on one incident on May 12, 1970. According to Ynez Escobar, a storeroom attendant , on that day while he was working Coleman came into the storeroom and asked him if he was ready to loin the Union. Escobar told him no, perhaps later, and Coleman then said: And then he told me I could meet with an accident, somebody could poison my coffee or burn up my house, he knows where I live, or mess up my car , or like that. I told him I wasn 't afraid of him, so he went around the building, around the back door, and throw a piece of rope on my neck and told me to watch it, that's a snake. I told him to get out of there, that 's all. That's all we talk about. Respondent was certified as the representative of the em- ployees of the Company in 1966 . On July 25, 1968, the em- ployees of the Company went on a strike which continued through the third week of June 1969, at which time the parties signed a collective-bargaining agreement which was in effect at the time of the hearing. There is no contention that during this lengthy strike Re- spondent engaged in any 8 (b)(1)(A) conduct. Escobar, who was hired during the strike and who crossed the picket line, admitted that no one gave him any trouble during the strike, and in the period following the strike he attributed no threats to anyone except Coleman on May 12, 1970. Counsel for the General Counsel stated that as far as he knew the Board's records indicated no prior unfair labor practices by this Re- spondent except for an 8(b)(4) charge arising out of the strike of the Company which had been resolved by a formal settle- ment agreement. Under these circumstances, including the fact that the threat was attributed to a minor official of Re- spondent (that is, ajob steward) and it involved one employee in a work force of 175, 2 the incident is too isolated to warrant a cease and desist order, and no useful purpose would be served by issuance of such an order in this case . International Ladies' Garment Workers Union , AFL-CIO, 130 NLRB 614. There is yet another reason for dismissing the complaint in this case. The record indicates that L. T. Coleman was dis- charged as a result of the threats attributed to him by Esco- bar. The issue of his discharge was processed through the grievance procedure and the parties have agreed to go to arbitration , and the matter was scheduled for hearing at the ' On the face of the charge, the "Full Name of Party Filing Charge" appeared as Richard A Gump, Attorney, with no indication on whose behalf he was acting Escobar's testimony made it clear that Gump was not acting on his behalf, but suggested that Gump was acting on behalf of the Company Since the close of hearing, a letter to me from Attorney Gump, with copies to all parties, has confirmed that the Charging Party is the Company, and that Attorney Gump was acting on its behalf ' This figure is taken from the charge 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time of the hearing herein. The principal issue before the arbitrator will be to decide whether Coleman did in fact threaten Escobar, as Escobar claimed. This is an issue of credibility, and it appears to me that had I heard Coleman's testimony and made a credibility determination as between him and Escobar, it would only have muddied the situation for the arbitrator whichever way I decided. To what avail? To issue a cease and desist order? General Counsel contends that the arbitration proceeding will not remedy the unfair labor practice alleged. That is technically correct. Yet, if Coleman is adjudged by the arbitrator to have threatened Escobar, his discharge will stand or the arbitrator will order a lesser pen- alty. In either event, the employees of the Company will know that they may not be restrained or coerced with impunity and that they are free to refrain from joining the Union. In my judgment, neither the interests of the public nor the function- ing of collective bargaining would be enhanced by further prosecution of this matter CONCLUSIONS OF LAW 1. Trinity Concrete Products Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 463, United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Respondent herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. It would not effectuate the purposes of the Act to con- duct further proceedings herein. It is hereby ordered, pursuant to Section 102.25 and 102.35(h) of the Board's Rules and Regulations, Series 8, as amended, that Respondent's Motion to Dismiss the Com- plaint be granted and that the Complaint be dismissed in its entirety