Lone Star Industries, Inc.

LONE STAR INDUSTRIES, INC. 351 Lone Star Industries, Inc. and United Cement, Lime & Gypsum Workers International Union , AFL-CIO. Case 16-CA-4351 February 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 22, 1971, Trial Examiner Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. 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. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tned pursuant to due notice on August 5, 1971, at Dallas, Texas. The charge was filed on May 11, 1971. The complaint in this matter was issued on June 14, 1971. The issue in this case is whether or not Respondent discriminatorily discharged James O. Bailey on May 10, 1971, in violation of Section 8(a)(3) and (1) of the Act. All parties were afforded full opportunity to participate in the proceeding, and the General Counsel and Respondent filed briefs which have been considered. Upon the entire record in the case and from my observa- tion of witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER' Lone Star Industries, Inc., the Respondent, is now, and has been at all times material herein, a corporation duly organ- ized under and existing by virtue of the laws of the State of Maine, and is engaged in the production and distribution of ready-mix concrete at its Dallas , Texas, plant. During the preceding 12 months , which period is representative of all times material herein, Respondent, in the course and conduct of its business operations , sold and distributed products valued in excess of $500,000. During the same period of time, Respondent received goods and raw materials valued in ex- cess of $50,000 directly from States of the United States other than the State of Texas. Based upon the foregoing, and as conceded by the Re- spondent, it is concluded and found that the Respondent is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED' United Cement, Lime & Gypsum Workers International Union, AFL-CIO, the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. It is so concluded and found. III THE UNFAIR LABOR PRACTICES A. Preliminary Issues' Supervisory Status At all times material herein, the following named individu- als occupied the positions set forth opposite their respective names, and have been, and are now, agents of Respondent, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act. Russell Cashion Production Superintendent John Routh Production Manager B. Alleged Threat of Loss of Employment The General Counsel alleges in his complaint, and the Respondent denies (1) that David Collins is a supervisor within the meaning of the Act, and (2) that David Collins did threaten employees with loss of employment because of their union activity on or about May 3, 1971. The General Counsel presented testimony through witness Walker as to the alleged threat. Assuming Collins to be a supervisor, such testimony (by Walker) does not reveal facts that constitute a threat within the meaning of Section 8(a)(1) of the Act. I therefore find it unnecessary to resolve the question as to whether Collins is a supervisor within the meaning of the Act. Walker testified to the alleged incident concerning remarks by Collins as is revealed by the following excerpts from his credited testimony. A. He said, "Well, John," says, "I guess you're about ready for a long vacation," because at the time, they had another guy up there to take my place. Q. What did he say in regard to the union? A. He told me, he talked to me about the union, too. He said, "Boy, you better wake up. You think that un- ion's going to pay for the siding on your house? You think it's going to pay for your new car you bought? You think it's going to put that food in them kids' stomachs?" He said, "They ain't going to do that for you." And my answer to him was, "Well, I don't know." I The facts are based upon the pleadings and admissions therein. 195 NLRB. No. 69 The facts are based upon the pleadings and admissions therein The facts are based upon the pleadings and admissions therein 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. It was before I went on vacation . I went on vaca- tion the second and third week in June . It was before I went on vacation. Considering the foregoing, I conclude and find that the facts do not reveal that the reference to a "long vacation" is with respect to such being caused by Respondent on account of the Union. Rather, it appears that Walker was about to go on vacation, the employee to work in his place during such time was available, and the reference to vacation was in such context. The other comments about the Union do not reveal a threat of company action but a statement of contention as to what the "Union " would do for the employee. The tes- timony in total context does not reveal a threat of reprisal, even assuming that Collins is a supervisor. Accordingly, it is recommended that the allegation of violative conduct in such regard be dismissed. C. The Alleged Discriminatory Discharge The General Counsel contends that the Respondent dis- criminatorily discharged James O. Bailey on May 10, 1971, because of his union activities and desires. The Respondent denies that it discriminatorily discharged Bailey, contends that the evidence is insufficient to so establish , and contends that Bailey was discharged for cause. James 0. Bailey was initially employed by the Respondent on March 19, 1969. Bailey worked thereafter until November 4, 1969, when he voluntarily terminated his employment in order to take a better job. In early 1969 the Stoneworkers engaged in an organizing campaign among Respondent 's employees. Bailey signed a union card and attended some union meetings . Bailey did not solicit others to sign union cards but made no attempt to hide the fact that he supported the Union. There is no evidence, however, to show that the Respondent knew of Bailey 's union activities or desires . However, at the time of the National Labor Relations Board election in connection with such un- ion campaign, a union official mentioned Bailey as a person who could serve as an observer for it . Thus the facts would reveal that there existed a basis for Respondent to believe that Bailey was for the Union at the time of the Stoneworkers campaign.' Bailey applied for work again with the Respondent on March 13 , 1970, and reported to work on March 16, 1970. Bailey's wage rate was higher on returning to work because a general wage increase had been granted in the meantime. Bailey returned to work under his old supervisor, Mr. Cash- ion The facts reveal that union activity commenced at Re- spondent around the middle of February 1971. The overall facts reveal that Bailey participated in initiating a desire to contact the Union and secure representation cards, in solicit- ing employees to sign cards, and in turning the cards over to the Union; he acted as a union observer at the NLRB repre- sentation election and as a union committeeman . Bailey did not attempt to keep his activities a secret. Thus around the middle of February 1971, four or five employees (including Bailey) discussed the desire to have a union. Shortly thereafter, representation cards were secured from the Union by Bailey and the others . Thereafter Bailey, or Bailey and other employees , passed out approximately 30 ° The fact that a union designates a person as an observer does not establish such person to be a union supporter However, it would appear reasonable to believe that the union would select someone for such position whose views were sympathetic to the union cards to drivers in the drivers' room at plant 12.5 The majority of these drivers signed the union cards. Later Bailey, or Bailey and others, passed out union cards to other drivers. In all, cards were passed out to approximately 43 drivers. During the aforesaid union activity there was no attempt at secrecy on the part of Bailey. Later Bailey turned the union representation cards over to the Union. A representation petition was filed by the Union in Case 16-RC-56646 on February 23, 1971. A stipulated consent agreement for an NLRB election was executed on March 12, 1971. Thereafter the NLRB representation elec- tion was held on April 16, 1971. Following the NLRB elec- tion, the National Labor Relations Board's certification of the Union as collective-bargaining representative was issued on April 26, 1971. After Bailey turned the representation cards over to the Union, there were union meetings for the employees. These meetings occurred approximately once a week until the April 16, 1971, NLRB election. During this time the Respondent opposed the Union by mailing literature to employees, by posting literature on its bulletin boards, and by expressions of its views at company employee meetings. The facts are clear that the Respondent -opposed the Union by lawful means and expression. Bailey served as a union observer at the NLRB representa- tion election on April 16, 1971. Sometime after the election, Bailey was elected as a committeeman. His duties were to assist the Union in the negotiations for a contract with Re- spondent. He, in fact, engaged in such duties during the ensuing contract negotiations. I find it proper to comment at this point with respect to General Counsel's contention at the trial as to evidence relat- ing to "following" or "harassment" of employees after the election as having bearing on Respondent's animus. First, with respect to such evidence as was offered as regards "fol- lowing" or "harassment," the evidence only would reveal a possibility of "speculation" as to whether an employee had been followed, or would reveal a basis for legitimate company interest in checking on the employees at work. As to some of the testimony, allegedly relating to "follow- ing" or "harassment," I sustained an objection thereto at the trial on this matter. There was no contention that such evi- dence, purportedly offered as "background," would reveal in and of itself Respondent's union animus. Rather, the conten- tion was that an inference should be drawn that the "follow- ing" or "harassment" would be shown to be because of the employees' union activities since such "following" or "harassment" occurred after the NLRB election. The Gen- eral Counsel conceded at one point that if this were so, the conduct would be violative of Section 8(a)(1). At another point, the General Counsel appeared to concede that such evidence was not strong enough to support an 8(a)(1) finding. The matter was not alleged as conduct violative of Section 8(a)(1). It is noted that the General Counsel has the right to exercise discretion in the issuance of complaints or matter alleged. However, if issues are litigated, the Board has the authority to determine whether a remedy should be imposed where violative conduct has occurred. The General Counsel may waive such remedy if permitted to do so. The litigation of such an issue without formal complaint amendment would in effect allow the General Counsel to do indirectly what he, in his discretion, has not done directly. It is sound discretion, under such circumstances, to require formal amendment of complaints as to allege conduct allegedly violative of Section 8(a)(1) so as to insure full due process and notice. Consider- Respondent has approximately 50 drivers The petition concerned Respondent's employees involved herein LONE STAR INDUSTRIES, INC. 353 ing the contentions and description of proposed evidence, it is hard to believe that such evidence (if not strong enough to warrant an 8(a)(1) finding) would be of value in determining the motivation in this case. Nevertheless, on reconsideration of such ruling sustaining objection to such evidence without formal amendment of the complaint to allege such conduct as violative of Section 8(a)(1), I decided, to insure a full record with respect to all contentions, to reopen the hearing to allow receipt of further evidence as to the "following" and "harassment" contention of the General Counsel. I issued an order on September 16, 1971, to such effect. Respondent appealed such order and the Board on October 14, 1971, reversed my order of September 16, 1971. In effect the Board affirmed the ruling at the trial sustaining the objection to receipt of such evidence because the contended conduct was not alleged as being violative of Section 8(a)(1). Essentially, the question of receipt of such evidence is one of discretion. Further, considering the evidence submitted with respect to the "following" and "harassment" issue and the evidence of legitimate company concern set forth by General Counsel's own witness, it is hard to believe that further evidence of "following" and "harassment" would warrant an inference of improper conduct merely because it followed the event of the election. It is noted that this is essentially the contention for the finding of such inference. Considering the foregoing, I conclude and find that the evidence relating to "following" or "harassment" does not reveal improper union animus on the part of the Respondent. The Events of May 10, 1971' The salient facts concerning the events of May 10, 1971, may be summarized as follows: 1. Bailey delivered a truck load of concrete to a jobsite at the Texas Stadium on May 10, 1971, shortly after 8:15 a.m. 2. The architect of the stadium employed an independent testing company to inspect cement of the Respondent deliv- ered at such jobsite 3. On May 10, 1971, Ronald A. Ellerbee, an employee of Texas Testing Laboratories, was working and did the inspec- tion of the cement delivered by Bailey. 4. It was ascertained that the cement delivered by Bailey, circa 8:15 a.m. on May 10, 1971, was too dry. 5. Bailey was asked by Ellerbee to add more water to the cement mix and did so from the truck 6 Bailey suggested that Ellerbee call Respondent's hatch- ing plant (located a near distance to the jobsite) and have water added at the batching site so as to save time. 7. Ellerbee asked Bailey to call Pete Dozzi at the batching plant and have water added to the mixture.' 8. Bailey unsuccessfully attempted to make radio contact with Dozzi and then related the same to Ellerbee. Bailey told Ellerbee that he would try to contact Dozzi by radio when he left the inside of the stadium. 9. Ellerbee became angry and stated "Well, that's the way with you union blisters."9 ' The facts are based upon a composite of the credited aspects of the testimony of Bailey, Ashmore, Ellerbee, Dozzi, Cashion, Collins, and Routh ' I discredit Ellerbee's testimony to the effect that Bailey refused to do so and used profane and derogatory remarks about Dozzi Total testimony of Dozzi, Ashmore, and Bailey was to the effect that there was no ill feeling between Bailey and Dozzi Further, Ashmore's and Bailey's testimony had more of a ring of truth in their versions of what occurred at this point than did Ellerbee's I credit Bailey's and Ashmore's testimony over Ellerbee's on this point I credit Bailey's testimony to such effect I discredit Ellerbee's dental 10. Bailey attempted to call the batching plant (plant 17) from his truck after he left the inside of the stadium. " He was unable to transmit the message requested and finally trans- mitted it to plant 12 for referral to plant 17. 11. Ellerbee left the jobsite and drove to the hatching plant (plant 17) and made the request to Dozzi that additional water be added to the mixture at the batching plant. 12. Ellerbee asked Dozzi if he had been having trouble with Bailey, told Dozzi that he had tried to get Bailey to transmit his request by radio, and told Dozzi that Bailey had said that he was not going to talk to Dozzi and that Bailey had in effect described Dozzi as that "scabby --- ---."" 13. Dozzi, from the batching plant (plant 17), telephoned Plant Superintendent Cashion and related Ellerbee 's request that more water be added to the cement mixture, related that Bailey had been requested by Ellerbee to radio such request to Dozzi, and related that Bailey had refused to make such call and commented "Why don't you get that scabby --- --- at the plant to add the water?" 14. After the above-referred to telephone call, Dozzi, Eller- bee, and Cashion heard a radio call made by Bailey to plant 12.12 15. Cashion reported Dozzi's report to Production Manager Routh. Routh told Cashion to go to see Ellerbee and see what had happened. Routh also told Cashion to get a statement from Ellerbee as to what had happened. 16. Cashion went to see Ellerbee and was told by Ellerbee that Bailey had refused to transmit a requested radio message to the batching plant that more water be added to the mixture and that Bailey had referred to Dozzi as that "scabby --- ...... 17. Cashion reported his findings and information as to his conversation with Ellerbee. 18. Routh told Cashion to get in touch with Bailey, to bring him into the plant , and to terminate Bailey. 19. Cashion called Bailey into his office around 11:30 a.m. Cashion told Bailey in effect that he was discharging him because of failure to comply with Ellerbee's request to radio in for more water to be added and because Bailey had used the language, previously described herein, about Dozzi. Cashion told Bailey that this degraded and derated the Com- pany before other companies. Bailey engaged in dialogue as to his version of events con- cerning the failure to radio for water to be added, and denied that he had talked to Dozzi or made the remarks about Dozzi." Bailey asked Cashion why Cashion hadn't come to him to find out what had occurred. Cashion told Bailey that he did not really think that Bailey had done what he was accused of, that he (Cashion) had a job to do, that he didn't know what action to take, that he had checked with Plant thereof Ashmore's testimony revealed that he either did not hear this aspect of the incident, perhaps because of noise, or did not notice the same It suffices to say that Bailey's testimonial demeanor and the logical consistency of all of the facts persuade me that he should be believed over Ellerbee as to this incident. 1o The radios on the trucks had trouble transmitting from the inside of the stadium on this day " The words are not set forth in this decision although explicitly testified to For such need as may be they are incorporated by reference herein as being the same words set forth in the transcript of this proceeding at p. 149, 1 15 It suffices to say herein that they are vulgar in nature " Cashion in his timing of events so places the hearing of Bailey's radio message Dozzi placed the timing of hearing Bailey's radio message to plant 12 at an earlier time I am convinced that Dozzi was confused in his tes- timony to this point I find Cashion's testimony more reliable, so credit, and so find " Bailey's testimony does not have specific reference to having told Cash- ion that he had not made the derogatory remarks about Dozzi A composite of the testimony of Bailey and Cashion and a logical inference therefrom does so reveal that such denial was made 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manager John Routh and with Bobby Brown as to what to do, that they had told him to discharge Bailey , and that this was what he was doing. 20. Plant Manager Routh credibly testified to receiving a call from Cashion about the Ellerbee-Bailey incident, to in- structing Cashion to talk to Ellerbee to confirm the facts, to receiving a further report from Cashion confirming that Ell- erbee stated that Bailey had refused to make a requested radio call to have water added to the cement at the batching plant and that Bailey had used derogatory reference to Dozzi. Routh credibly testified to reaching a conclusion that Bailey should be terminated and to instructing Cashion to such effect. Routh credibly testified to a company policy of insisting on courteous and cooperative drivers in their relationship to customers and that abusive language by a driver would not be tolerated insofar as it related to customers and contacts with customers. Considering all of the foregoing , I am persuaded that the evidence is not sufficient to establish that the Respondent discriminatorily discharged Bailey on May 10 , 1971, in viola- tion of Section 8(a)(1) and (3) of the Act . The General Coun- sel's case essentially reveals that Bailey was a known union adherent and that a suspicion of discrimination exists because the investigation of the circumstances of discharge was not extensive or full. It is conceded in effect that Respondent did not desire to have its employees represented by a union . On the other hand, there is no evidence to reveal Respondent's propensity to engage in illegal conduct to further its desires. Whether Bailey in fact made derogatory remarks concern- ing Dozzi is not the issue in this case . The question is whether Respondent was discriminatorily motivated in its discharge of Bailey. I am persuaded that Respondent believed that Bailey had made the alleged derogatory remarks . The failure to engage in a full and due process type investigation by Respondent is a factor to consider in determining Respond- ent's motivation. Failure, to do so when the information be- ing furnished is from a customer, however, is not sufficient enough to reveal discriminatory motivation in and of itself. In sum, the totality of the evidence is not sufficient to reveal that Respondent discriminatorily discharged Bailey on May 10, 1971, in violation of Section 8(a)(1) and (3) of the Act. I so conclude and find. CONCLUSIONS OF LAW 1. Lone Star Industries, Inc., the Respondent , is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Cement, Lime & Gypsum Workers International Union, AFL-CIO, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in conduct , as alleged, violative of Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact , Conclusions of Law, and the entire record, I hereby issue the following recom- mended:" ORDER That the complaint in this matter be dismissed in its en- tirety. " In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes.