Dravo Lime Co.

DRAVO LIME COMPANY Dravo Lime Company and Local 513, Laborers International Union of North America. Case 9- CA-10736 January 12, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 19, 1977, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the Charging Party filed a reply brief to the exceptions and brief submitted by the Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Dravo Lime Company, Maysville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Admin- istrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. In affirming the Administrative Law Judge's finding that the Respondent violated Sec. 8(aXI) of the Act by granting a wage premium to its mine employees. while a representation petition was pending, in order to influence their decision as to whether they wished to be represented by a labor organization, we do not rely on his comment to the effect that "sound management" would have dictated that Respondent implement the above- mentioned wage premium at a time previous to that when it was actually instituted. In our view, it is not for the Board to substitute its judgment for that of Respondent as to what constitutes "sound management." Inasmuch as we fully agree with the Administrative Law Judge, however, that the grounds advanced by Respondent for granting the wage premium are unsupported by credible evidence, it is clear that the gratuitous comment of the Administrative Law Judge referred to above is unnecessary to support his findings. In the portion of his Decision entitled "Background" the Administrative Law Judge inadvertently erred in stating that a notice of hearing was mailed to Respondent on October 19, 1977. The notice was actually mailed on 234 NLRB No. 35 October 19, 1976. and the Administrative Law Judge's Decision is hereby amended accordingly. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present evidence, it has been found that we have violated the National Labor Relations Act in certain respects and we have been ordered to poit this notice and to carry out its terms. The National Labor Relations Act gives you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a repre- sentative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. Accordingly, we give you these assurances: WE WILL NOT announce or grant new benefits under circumstances calculated to influence em- ployees in their choice of whether or not they wish to be represented by a labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. DRAvo LIME COMPANY DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This proceeding was heard in Maysville, Kentucky, on April 12, 1977, upon an original charge filed on October 21, 1976, and a complaint issued on December 30, 1976, alleging that Respondent violated Section 8(aX3) and (1) of the Act by, on November 1, 1976, granting employees a 20-cent-per- hour underground premium in order to discourage activi- ties on behalf of the Charging Party. In its duly filed answer, Respondent denied that any unfair labor practices were committed. After close of the hearing, briefs were submitted on behalf of the General Counsel, the Charging Party, and the Respondent. Upon the entire record in the proceeding, including direct observation of the witnesses while testifying and their demeanor, and upon consideration of the posthearing briefs, I hereby make the following: 213 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation engaged in the mining and manufacture of lime and derivative products at its Maysville, Kentucky, facility, the sole location involved in this proceeding. In the course and conduct of said operations, during the 12-month period preceding issuance of the complaint, a representative period, Respondent sold and delivered goods valued in excess of $50,000 from said facility to points located outside the State of Kentucky. The complaint alleges, the answer admits, and I find that at all times material herein Respondent is, and has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and 7 of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that, at all times material herein, the Charging Party is, and has been, a labor organization as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The sole question presented is whether Respondent independently violated Section 8(a)(1) of the Act by the institution of a 20-cent-per-hour underground premium for mine employees during the course of an organization campaign.' B. Background Respondent's Maysville facility was opened in 1976 to produce thiosorbic lime.2 Two integrated operations are conducted on that site, one being an underground lime- stone mine and the other a surface plant where the lime is calcinated. Initial hiring of employees began in May 1976, 3 with mining operations commencing during that month. Production operations in the plant did not start until later in August, although some surface employees were hired to engage in preliminary operations at an earlier date. At the time of the hearing, Respondent employed 70 individuals in the underground mine, while only 30 were employed in the surface plant. It appears that union activity began in either late June or early July. The campaign was initiated by the United Steel Workers of America but, later, the International Union of Operating Engineers, Local 181, and the Charging Union also appeared on the scene. On October 7, 1976, Local 181, filed a petition in Case 9-RC-11733, seeking all hourly The complaint also alleges that this conduct constituted a violation of Sec. 8(a)(3). This allegation is purely cumulative in that it would have no effect upon the remedy. Indeed its only effect is to burden the administrative process at a time when that system is already overtaxed. Despite my expression of such views at the hearing, in his brief the General Counsel again urges that an 8(a)(3) violation be found in this instance. He correctly observes that the Board has in certain decisions adopted such a course. However, those instances are isolated and run counter to the overwhelming and predominant practice whereby any such violations are redressed through Sec. 8(aXI) only. This practice eliminates useless decisional verbiage and dialogue in getting down to the business of deciding and employees at the Maysville facility, including underground and surface employees. Subsequently the Charging Union intervened, and pursuant to a notice of hearing mailed on October 19, 1977, said intervention was communicated to the Respondent. On November 8, 1976, the Respondent, by letter, formally notified the employees, inter alia, that effective November 1, 1976, all underground employees would receive a 20-cent hourly premium, a differential not part of the established terms and conditions of employment. C. Concluding Findings The premium for underground employees was an- nounced and granted while a petition seeking representa- tion of Respondent's mine and surface employees was pending. As such, under established Board policy, the onus was upon the Respondent to dissociate the increase from any desire to influence employees concerning the organiza- tion campaign. 4 The Respondent asserts that this burden was met through testimony generally to the effect that implementation of the underground premium was studied, planned, and decided upon in advance of Respondent's knowledge of union activity, that it was justified by legitimate business purposes, and that it was announced and granted at a time corresponding to its declared policy of reviewing existing wage structures at 6-month intervals. The defense rests entirely upon parol testimony offered through witnesses actively engaged at management eche- lons. Although uncontroverted, the salient aspects of this testimony related to matters occurring within the inner walls of management, was somewhat subjective, and did not involve matters susceptible to counterproof. My disbe- lief of the testimony that the decision to effect the change was made in advance of union activity, in the circum- stances, attests conclusively to the merit in the 8(aXl) allegation involved here. The key witness offered by Respondent was William S. Brown, Respondent's vice president of production engi- neering. Brown, who at all times held immediate operating responsibility for the Maysville facility, testified extensively concerning the considerations entering the development of the initial personnel package, which was devised to meet the needs of the Maysville work force. According to Brown, that facility, both in its underground and surface operation, utilized advanced technology requiring a highly skilled work force, and the paramount objective of com- pensatory aspects of its personnel program was to secure qualified applicants, to train them in skilled positions, and to maintain employees in the positions for which they were trained. To accomplish this, according to Brown, it was necessary "to establish a fringe package and a wage providing an effective and complete remedy for unfair labor practices, while dispensing with the need for meaningless additional factual development and rationalization, which fail to contribute to the establishment of precedent of general value to the administration of the Act. In my judgment, it is unnecessary to pass upon the 8(aX3) allegation in this complaint. 2 Said product is used in the scrubbing of noxious gases emanating from utility power plants, a process fostered by the national 'clean air" policy. 3 All dates refer to 1976, unless otherwise indicated. 4 See Arrow Elastic Corporation, 230 NLRB 110 (1977), and Essex International, Inc., 216 NLRB 575, 576 (1975). 214 DRAVO LIME COMPANY package equal to or better than that in the area in which we were working in order to attract and keep highly skilled people." Brown goes on to relate that, in formulating the initial wage and benefit structure, a review was conducted of area patterns, in order that Respondent might establish a program slightly in excess of that which prevailed in the labor market. The initial benefit package, effective May 1, 1976, provided for shift differentials, but made no provision for a similar premium covering underground work. The wage structure itself established six wage areas to which classifi- cations were assigned, without differentiating between surface and underground jobs. Although Brown afforded no direct testimony to this effect, the record strongly suggests that, in developing the initial wage and benefit program, Respondent's representa- tives considered and rejected payment of a separate underground premium as part of its benefit structure. Thus, Brown himself conceded that underground premi- ums were not uncommon in the mining industry. Also admitted was the fact that benefits at the Black River Mining Company, the nearest similar operation to the Maysville facility, were considered during these initial deliberations. Brown knew that said firm paid an under- ground premium. Another of Respondent's witnesses, Robert Stoughton, who was possessed of considerable experience in mining operations, testified that "it is standard procedure in most underground operations to have an incentive program of some nature." In these circumstances, it is difficult to imagine that the omission of an underground premium from the original benefit pack- age could have occurred without close consideration. That this benefit was deliberately deleted is enforced by other unchallenged evidence. Thus, in June, only a few weeks after mining operations began, Respondent learned of rumblings among underground employees concerning the absence of an underground premium. Apparently the underground employees had learned that employees of contractors working in the initial construction stages had received an extra $1 per hour for working underground. Employee Jay Markins testified that, about a month after the commencement of mine operations, he overheard a conversation between Respondent's personnel manager, Richard Oesterling, and a fellow mine employee, John Arrowsmith. According to Markins, Arrowsmith asked Oesterling about "hole" pay, and Oesterling replied "no . . .there wouldn't be any hole pay." According to Mar- kins, Oesterling went on to argue that surface employees occupy hazardous positions, and that "hole" pay was part of the package deal originally received. Arrowsmith con- firms that such a conversation occurred, indicating that Oesterling, in stating that there would be no hole pay, explained that such a benefit had already been figured into the original wage package. Another employee called by the General Counsel, Roger Botkins, testified that in late July or early August, at a meeting with Oesterling and David Kruhn, Respondent's works manager, Kruhn asked the several employees attending what "bitches and gripes" they 5 Arrowsmith also testified to a meeting on June 25 at the conclusion of which he asked Oesterling why he did not make reference to the "hole" pay issue. Oesterling replied. "1 was waiting on you to bring it up. had. According to Botkins, with corroboration from em- ployee Thomas Taylor, Botkins then asked about the absence of "hole" pay, claiming that, like the construction workers, Respondent's underground employees should receive a Sl-per-hour premium because of the hazardous conditions. Kruhn indicated that the employees would not have "hole" pay because it was just as dangerous on top of the ground as it was underground, and further that "hole" pay had already been figured into the base salary of the underground workers.5 Neither Oesterling nor Kruhn testified. Based on the credited testimony of Botkins, Arrowsmith, and Taylor, I find that, early in the operations of a mine, Respondent's officials learned of employee dissatisfaction because of the absence of an underground premium and, rather than hold out any possibility that this aspect of the wage structure might be revised, they discouraged all such hopes by indicating that such a premium had been considered in establishing the initial wages, while supporting the justifica- tion for that practice by alluding to arguments founded upon the assertion that hazardous conditions existed for surface workers as well. There can be no question that the steadfast adherence to and defense of the initial wage formula advanced by Oesterling and Kruhn were reversed through the grant of premium pay later in November. However, it is Respon- dent's position that the latter action was pursuant to a decision made prior to its acquisition of knowledge that union activity existed in the plant. Brown was the sole individual called by Respondent who was involved directly in deliberations concerning this dramatic reversal in wage policy. According to Brown, he first learned of union activity when he received a copy of the representation petition which had been filed on October 7.6 In defense of the timing of the reversal of pay policy, Brown relates that during "early" operations in the mine it was observed that the underground environment was not good. Working conditions were cramped and hazardous, which resulted in several accidents. Brown asserts that this created "unrest" among the underground employees, which was reflected in requests to transfer from under- ground to surface jobs. Termination of this bidding pattern was desired because movement of manpower between classifications entailed wasted training and a loss of skills. Thus, according to Brown, in July and August he specifi- cally considered implementation of an underground premi- um. He claims that in August surveys were conducted among the plant people to determine the impact upon their morale of such a premium for coworkers in the mine. Finally, Brown asserts that "in late September" it was determined to apply an underground premium, but that once it was determined to grant such a premium, it was necessary to seek approval from higher officials of the Company, and that this approval was obtained in early October. Respondent sought to confirm segments of Brown's account through two other witnesses, Bob Stoughton and William May. May, the plant superintendent, had no 6 It is noted that I do not agree with the assertion in the Charging Party's brief that this phase of Brown's testimony failed to reflect a denial of union activity prior to October 7. 215 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responsibility for underground operations. He testified that, in "early" August, he received instructions from Rob Main 7 and Dick Oesterling to canvass plant employees as to their feelings concerning an underground premium and that he immediately did so.8 Stoughton was hired on October 16 as mine manager. He testified that during separate preemployment interviews with Brown and Kruhn, the latest of which occurred on or about September 15, he was informed that the Company would install an underground premium 9 Aside from testimony of Stoughton and May, itself dubious, no other evidence was adduced to corroborate Brown. Furthermore, despite testimony by the latter that he spent only half of his time in Maysville,10 and his assertions that the decision to grant the increase occurred against a background of evaluation, planning, and surveys, not a single document was produced to confirm that underground pay was the subject of formal management communication prior to the filing of the representation petition." Brown himself was not an impressive witness. He revealed a propensity to ramble in generalities, but to evade when pressed, and his testimony that the grant of underground pay was not influenced by organization activity is deemed unreliable. I am convinced that the reversal of the initial wage policy evident from the grant of an underground premium was prompted only after the unrest among employees had manifested itself through the filing of a representation petition. Brown directed the planning leading to promulgation of the initial wage package. During the formulation of that policy, Brown, while surely aware of the hazards to be encountered in mining operations,12 and with knowledge that Black River and other mining ventures paid a premium for such work, nonetheless, either consciously decided or adopted recommendations that omitted a special wage offset for employees to be confronted with these problems. It is claimed by Respondent that this was a "mistake," and that its correction was firmly foretold before it learned of union activity. Other evidence lends weight to the view that Brown and other management representatives grudgingly resisted any such change and assumed a defensive posture towards the initial benefit package during the period prior to the filing of the petition. This is evident from the flat statements of 7 Rob Main's status with Respondent is not defined on the record. 5 None of the plant employees who were the object of this alleged survey were called. Brown, who did not impress me as an individual inclined toward the haphazard, testified that this survey was initiated pursuant to his direction. When one considers the purpose of this survey in relation to when it occurred, curiosity is aroused. Brown relates that plant production did not commence until late August or early September. and from May's testimony the survey was conducted when only 7 of the 30 surface employees, who were engaged at the time of startup, were employed. It is fair to assume that such a survey would offer a useful barometer only if aimed at achieving a fair sample of reactions by surface employees. Since any new underground premium would not be effected until November 1, the failure to defer the survey for 2 weeks to that end is in character with other illogical aspects of the defense. H I was not impressed with Stoughton's demeanor. Furthermore, his testimony seemed improbable when weighed against other evidence offered by Respondent. Thus, Brown testified that he did not receive approval for the new benefit until October I. In addition, the testimony of Nick Logan, who since October II had been a maintenance supervisor in the mine, was Oesterling and Kruhn that there would be no "hole" pay, and to their efforts to counter employee complaints by arguing that surface jobs were also hazardous.13 Along this same line is the content of a document which is in evidence as Respondent's Exhibit 6. Brown testified that this document was prepared-as part of the reevalua- tion of the initial wage policy-to evaluate that package with prevailing and future benefits at Black River Mining Company. It was prepared in July at Respondent's Pitts- burgh headquarters. Though the employee dissatisfaction over the premium had not emerged at that time, and though surface production operations had not yet com- menced, this document was forwarded to Maysville man- agement on August 10, the date it bears. The analysis embodied therein totally ignores the disparate practices concerning the overtime premium existing between the two firms, and utilizes composite benefit values which reflect the economic advantage of Respondent's initial wage and fringe package over that of Black River Mining. The statistical study embodied therein is fuel for the argument against, rather than for, addition of special new benefits limited to underground workers.' 4 Also questionable is the fact that Respondent, according to Brown's account, elected to give primacy to its 6-month benefit review policy over effective and immediate solution of the problems presented by mine-to-surface transfers. The underground premium is not the equivalent of an upward revision in wage rates. Unlike the latter, such a benefit is not complicated by cost-of-living factors and rates paid by other employers competing in the same labor market, the shifting nature of which would lend justifica- tion to a target date for implementation. Underground premiums are either deemed necessary or not. Respondent spurned this concept initially. Yet, according to Brown, environmental conditions in the mine, detected after startup, prompted a change in this policy. However, on cross-examination, he conceded that safety innovations had eliminated these hazardous conditions by the fall of the year. Thus, it is the sense of his testimony that, as of November 1, the mine environment had reached a safety level on parity with what had been anticipated before May 1976 when "hole" pay was eliminated from the initial wage package. The picture presented is that Respondent, rather than solve the real problem by at least announcing its intentions, deferred until the underlying cause, apart from to the effect that he did not learn that "hole" incentive pay would be granted until late October. It strikes me as unlikely that Stoughton, a mere applicant for employment, would have received such hard information in September at the time when the decision to grant the benefit had not reached its final stages. '0 Brown is based at Respondent's headquarters in Pittsburgh, Pennsyl- vania. I" The record does contain an internal memo from Oesterling to Brown, dated June 4, which mentions the need for upward revisions in base rates and refers to Black River Mining, but is devoid of any direct or implied reference to underground premiums. See G.C. Exh. 2. 12 Brown conceded that, regardless of the degree to which safety measures are invoked, accidents in underground operations are never totally avoided. 13 Brown admitted that, in late June, he discussed the employee demands for "hole" pay with Oesterling. 14 Somewhat incomprehensible is the testimony of Brown that this document played "a large part" in the decision to grant the underground premium. 216 DRAVO LIME COMPANY employee morale, had been corrected by other manage- ment actions. Sound management would dictate otherwise. Furthermore, Brown claimed that he decided to grant the underground premium in September. At that time, the bulk of the surface work force had been engaged for only a few weeks. Apparently the only dissatisfaction with working conditions centered on the "hole" pay issue raised by the larger group of underground workers. Brown knew this in September, and he was also mindful of the possibility that transfers from the mine, and the inefficiencies created thereby, would continue until premium pay was granted or announced.15 Neither course was taken. On the contrary, mine employees were not even alerted to the possibility that their demands for "hole" pay would be considered and, as I interprete the testimony of Nick Logan, a witness for the Respondent, a decision, if made, to grant the new benefit was enshrouded with secrecy. Brown's account of the evolution of the "hole" pay benefit did not have a ring of truth.16 The belated adoption of an underground premium occurred during the pendency of an election petition, and at a time after unrest among mine employees over its absence had become common knowledge. The under- ground work force at the time of the hearing consisted of 70 workers while that on the surface numbered only 30. It is fair to assume that this ratio held firm in November 1976. Quite obviously, dissatisfaction among the mine employees would have substantial bearing upon disposition of any question concerning representation. My rejection, as incredible, of the testimonial basis for Respondent's de- fense, including the assertion that a decision to grant the benefit was made prior to the filing of the petition, leads inescapably to the conclusion that the reversal in wage policy prompting announcement of the new premium was predicated upon both an awareness that the discontent among underground workers might well have inspired the union activity, and a desire to neutralize any such move- ment by resolving the grievance suspected of having given impetus thereto. Accordingly, I find that Respondent, by granting the underground premium to influence employee choice on the representation issue, violated Section 8(aX1) of the Act. 1s According to Resp. Exh. 3, of the underground employees who were awarded surface jobs, three filled positions first posted for bidding on or after September 24. 16is Employees were notified that underground premiums would be granted by letter dated November 8. Although this letter also informed as to increases in general wage levels, no explanation is offered for the delayed announcement of benefits which were deemed effective earlier on Novem- ber I. '7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. THE REMEDY Having found that Respondent committed the aforesaid unfair labor practice, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER17 The Respondent, Dravo Lime Company, Maysville, Kentucky, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Announcing and granting new benefits to employees under conditions calculated to influence employees in the exercise of their rights to choose freely whether or not they wish to be represented by a labor organization. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Post at its Maysville, Kentucky, facility copies of the attached notice marked "Appendix." 1 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's autho- rized representative, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. conclusions, and recommended Order herein shall, as provided in Sec. 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. "I 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." 217