Independent Gravel Co.

INDEPENDENT GRAVEL CO. Independent Gravel Company and Stanley L. Mathis. Case 17-CA-6992 December 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On July 12, 1976, Administrative Law Judge Irwin H. Socoloff issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 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 brief, and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 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, Independent Gravel Company, Webb City, Missouri, 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 Administrative 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 credibility 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. 2 In par. 1(b) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner," rather than the broad injunctive language, "in any other manner," which the Board traditionally provides in cases involving serous 8(a)(3) discrimination conduct. See N.LR B. v. Entwistle Mfg Co, 180 F.2d 532, 536 (C.A. 4, 1941); Electrical Fittings Corporation, a'subsidiary off-T-E Imperial Corporation, 216 NLRB 1076 (1975). Accordingly, -we shall modify the recommended Order to require the Respondent to cease and desist from in any other manner infringing upon employee rights. This change is also made in the-revised notice. APPENDIX 39 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against our employees because of their union activities or sympathies. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer reinstatement to Stanley L. Mathis, Jackie Inman, and John Bildeau to their former positions or, if such positions no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, and make them whole for any- losses they may have suffered as a result of our discrimi- nation against them. All of our employees are free to become or remain members of Teamsters Local Union No. 823, or any other labor organization of their choosing. INDEPENDENT GRAVEL COMPANY DECISION STATEMENT OF THE CASE IRwIN H. SocoLoFF, Administrative Law Judge: Upon a charge filed on February 25, 1976, by Stanley L. Mathis, an individual, against Independent Gravel Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint dated April 12,1976, alleging violations by Respondent of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respondent's answer to the complaint denies the allegations of statutory violations. Pursuant to notice, hearing was held before me in Joplin, Missouri, on May 18, 1976, at which the General Counsel and Respondent were represented by counsel. Upon the entire record in this case, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a corporation engaged in the manufacture of gravel and related products at its Webb City, Missouri, plant. In the course and conduct of its business at said plant, Respondent annually purchases goods and materials valued in excess of $50,000 directly from sources located outside the State of Missouri, and annually sells goods and materials valued in excess of $50,000 directly to customers 227 NLRB No. 7 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD located outside the State of Missouri . I find that Respon- dent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local Union No. 823, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The General Counsel contends that Respondent dis- charged or "laid off" employees Mathis, Inman, and Bildeau, on February 2, 1976, as a result of the union activities of those employees. Respondent asserts that its actions in that regard were economically motivated-. Also at issue is whether Respondent, by its supervisor, Hatfield, created the impression of surveillance of a February 1, 1976, union meeting. An initial organization meeting of Respondent's employ- ees was held on Sunday, February 1, 1976, at the "Joint- and-a-Half," a local tavern. Respondent's truckdrivers, Stanley Mathis, John Bildeau, and Jackie Inman, attended. Also present at the meeting were truckdrivers Boles and Slankard, the latter serving as a principal spokesman.' On the following morning, February 2, 1976, Respondent laid off some 12 employees. Among the truckdrivers, Mathis, Bildeau, Inman, and Slankard2 were selected for layoff, while Ritz, Daniels, and Moss were retained. Boles was also retained on that date, but left his employment some weeks later. The drivers laid off were the least senior employees in the truckdriving department. B. Surveillance The Joint-and-a-Half is located alongside the road normally traveled by -Plant Manager Hatfield in commut- ing between his residence and the plant. Although the February 1 meeting occurred on a Sunday, Hatfield was seen on that day, driving a company truck, on the road adjoining the tavern parking lot. Thus, employees Bildeau and Mathis observed Hatfield at 1 p.m., heading north toward the plant,. Employee Turner testified that he saw Hatfield driving south- at 1:05 p.m. Inman spotted Hatfield at 1:30 p.m., heading south. Hatfield testified that he made two trips to the plant that day, along his normal route, causing him to pass the Joint- and-a-Half. Thus, a sand mill was undergoing repair at the plant on that Sunday, and Hatfield briefly checked on the progress of the work in the early morning and, again, at or about noon. Although Hatfield was evasive and inconsis- tent in other portions of his testimony, I credit the foregoing uncontradicted explanation of his travels on February 1. That account is consistent with the further testimony of Bildeau, Mathis, Inman, and Turner that Hatfield, when observed, was driving at a normal speed and exhibited neither awareness of, nor concern with, employee presence at the tavern. While Hatfield testified that he made his second trip to the plant at or "about noon," and Bildeau and Mathis observed him driving in that direction at 1 p.m., the inconsistency is not overwhelming, showing, at most, that Hatfield may have been mistaken with respect to the precise time of his trip. The timing of the return trip, as observed by Inman some 30 minutes later, coincides with Hatfield's testimony that he stayed at the plant for a short while before beginning the 3-mile trip back home. I am thus of the view that employee Turner, in testifying that he saw Hatfield driving south (toward his home) at 1:05 p.m., was mistaken. I think it's more likely that Turner observed the same return trip seen by Inman at 1:30 p.m. Accordingly, I find that, on February 1, 1976, Hatfield was neither engaged in surveillance, nor attempting to create the impression that employee union activity was under surveil- lance. I conclude that the allegation that Respondent violated Section 8(a)(1) in that regard must be dismissed. C. The Discharges As noted, Mathis, Bildeau, and Inman were laid off or discharged by Hatfield on the following morning, February 2, 1976, allegedly for lack of work. Other employees, including Slankard, were laid off for the same reason. For the reasons detailed below, I find that, while Respondent had ample economic justification for its actions, the motivating consideration for the layoff of the truckdrivers was not economic, but, rather, their attendance at the union meeting on the preceding day. Respondent's business has, traditionally, been subject to seasonal variations. The winter months are the slowest and the amount of available work normally increases in the spring. In the past, Respondent has resorted to winter layoffs of its nontruckdriver employees. However, Hatfield, whose decision it was to lay off the truckdrivers on February 2, conceded on cross-examination that, in the 22 years he has worked for Respondent, truckdrivers had never before been laid off for lack of work. Rather, when necessary, it was Respondent's practice to utilize the truckdrivers for "odd jobs" and make-work, rather than to lay them off. Indeed, consistent with this longstanding practice, Hatfield, in response to employee inquiries in January on the subject of layoffs, told, nontruckdrivers: "I don't know, but if things don't pick up we are going to have to do something." On the other hand, he assured the truckdrivers that there would be no layoff. The layoff of February 2 was sudden, without prior warning, and effective immediately. While General Coun- sel's witnesses did not substantially dispute Hatfield's assertion that Respondent's actions were justified bylack of work, this does not explain Respondent's sudden departure from its longstanding practice of retaining its truckdrivers during slack periods. Hatfield, in his testimony, suggested that the 1976 economic slump was more severe than that i Respondent's remaining ttuckdnvers, Ritz, Moss, and Daniels, were not earlier been transferred to the sand null department, certain of Respondent's in attendance. records reflect that Slankard was still a truckdnver on February 2 The 2 While Respondent adduced testimony to the effect that Slankard had conflict need not be resolved herein. INDEPENDENT GRAVEL CO. which occurred in 1975. This suggestion is not supported by sales volume records, or other reliable proof.3 Hatfield initially testified that he first heard about the February 1 union meeting a day or two later, and that he was unaware of that event on the morning of February 2 when he effectuated the layoffs.-He also testified that he never learned the identity.of the employees who attended the meeting. However, Hatfield later conceded that, when he learned through the "grapevine" that the meeting had occurred, he was also informed of the names of the employees who attended. Hatfield's own testimony, that he learned of the meeting a day or two after it occurred, permits the inference that he was aware of-it on the morning of February 2. In light of all the circumstances, I so infer. Hatfield's further testimony, denying specific knowledge as of the morning of February 2, is not credited. Perhaps most damaging to Respondent's case is the undisputed fact that, within 8 days of the truckdriver layoff, Respondent hired another truckdriver, one Fred Luttrell. Luttrell was a recent retiree and, according to Hatfield, was rehired upon request, pursuant to Respondent's policy of rehiring retirees who desire to come back to work. Accord- ing to Hatfield, "I made work for him as a past employee." I am satisfied that Respondent did, in fact, have a policy of accepting retirees who desired to return to work.4 Indeed, in hiring Luttrell during a slack period, and allowing him to perform odd jobs and "make-work," Respondent acted in a manner perfectly consistent with its policy of at least 20 years; namely, to make work for truckdrivers rather than lay them off during slow periods. That policy was effectively reannounced to the truckdrivers several weeks before February 2, when Hatfield assured them that there would be no layoff that winter. The only breach in adherence to this policy occurred on February 2, 1976, when three truckdrivers, who attended a union meeting the day before, were abruptly laid off. In view of my finding that, at the time of the layoffs, Respondent had knowledge of the union meeting and of the identity of those who attended, its sudden one-time abandonment of a policy adhered to for at least 20 years is adequately explained in only one manner; namely, as an action in reprisal for the union activities of the laidoff drivers. The suddeness of the event, its timing, the absence of satisfactory explanation, and Respondent's subsequent action with respect to Luttrell justify the conclusion, even in the absence of specific evidence of union animus prior to February 2, that Respondent, in laying off Inman, Mathis, and Bildeau, acted in response to their attendance at the February 1 meeting. Accordingly, I fmd that the Respon- dent laid off those employees in violation of Section 8(a)(3) of the Act.5 3 Respondent did place in evidence certain comparative data with respect to total hours worked by various employee classifications in 1976 and earlier years. That document does not reveal the number of employees in each classification for the respective years, and, in some years, reflects vacation time as hours worked Moreover, according to the testimony of Richard Norton, Respondent's office manager, Respondent's use of truckdnvers in other departments, during slack periods in prior years, is shown on Respondent's records as hours worked in the truckdnvmg department. 4 Hatfield was unable to recall any other instance in which a retiree was rehired at a time when other employees were on layoff status. 5 1 have assigned no weight to the fact that, subsequent to the filing of the CONCLUSIONS OF LAW 41 1. Respondent, Independent Gravel Company, is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters Local Union No. 823 is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By discharging Stanley L. Mathis, Jackie Inman, and John Bildeau because they engaged in union activities, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices have a close, intimate, and substantial effect on interstate commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate Section 8(a)(l) of-the Act by creating the impression of surveillance of employees' union activities. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom, and that it be required to take certain affirmative actions designed to effectuate the purposes and policies of the Act. The recommended Order shall provide that Respondent, inter alia, offer reinstatement to Mathis, Inman, and Bildeau to their former or substantially equivalent positions, and make them whole for loss of earnings as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER6 Respondent, Independent Gravel Company, Webb City, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminating against employees because of their union activities and sympathies. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exer',ise of their rights protected by Section 7 of the Act. 2. Take the following affirmative actions necessary to effectuate the policies of the Act: (a) Offer to Stanley L. Mathis, Jackie Inman, and John Bildeau immediate and full reinstatement to their former positions or, in the event their former positions no longer exist, to substantially equivalent employment, without prejudice to their seniority or other rights previously charge in the instant matter, Respondent reinstated Mathis and Inman. Likewise, that evidence will not be considered in fashioning a recommended remedy, but, rather, its impact will be left for analysis during the compliance period. 6 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, 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. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enjoyed, and make them whole for any loss of pay or other benefits suffered by them by reason of the discrimination found, in the manner described above in the section entitled " Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to analyze the amount of backpay due under the terms of this recommended order. (c) Post at Respondent's place of business at Webb City, Missouri, copies of the attached notice marked "Appen- dix." 7 Copies of said notice, on forms provided by Regional 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment Director for Region 17, after being duly signed by a representative of Respondent, shall be posted immediately upon receipt thereof, and shall be maintained by the_ Respondent for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily placed. Reasonable steps shall-be taken by' the Respondent to insure that said- notices are not altered, defaced, or covered over by any other material. (d) Notify the Regional 'Director for, Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."