Humboldt Readymix, Inc.

HUMBOLDT READYMIX, INC. Humboldt Readymix, Inc. and Acey A. Brickey. Case 20-CA-11191 March 16, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On November 2, 1976, Administrative Law Judge David G. Heilbrun 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 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, findings, 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, Humboldt Readymix, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I We do not, however, find it necessary to rely on his conclusion that the apparent minority position of the Union, regardless of whether the Respondent recalled Bnckey, militates significantly against finding that the failure to recall him was unlawful. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Winnemucca, Nevada, on August 24, 1976, based upon a first amended charge in the underlying complaint issued May 28, 1976, alleging that Humboldt Readymix, Inc., herein called Respondent, violated Section 8(a)(1) and (3) of the Act by interrogating employees about their interest in or activities on behalf of Teamsters Local i All date references hereafter in July through December are 1975; those in January through June are 1976. 2 Respondent corporation engages in supplying transit mix concrete and related products to building and construction industry users, annually selling materials valued in excess of $50,000 to Max Riggs Construction Company of Las Vegas, Nevada, which itself annually purchases and receives noncapital goods valued at $75,000 directly from sources outside Nevada. I find Respondent is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, and the Union a labor organization within the meaning of Sec. 2(5). This finding obviates treatment of other 228 NLRB No. 74 733 533, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, called the Union; by threatening to so terminate employees ; and by discrimi- natorily, or because he engaged in other protected concerted activities, so refusing to recall and/or rehire Acey A. Brickey since on or about March 1, 1976. Upon the entire record in this case , my observation of the witnesses and upon consideration of posthearing briefs, I make the following: FINDINGS OF FACT' AND RESULTANT CONCLUSIONS OF LAW In July certain employees importuned truckdriver Brick- ey respecting unionization.2 He contacted the Union, obtained authorization cards, attended meetings conducted by organizers, and successfully solicited support from among Respondent's 10 employees at the time. A represen- tation petition was eventually filed, notice of which was received by Respondent's former part owner and president, Joseph (Gene) Baum, on September 25. Lucy Lee, former bookkeeper and general office employee, credibly testified that she gave Baum this material as an item of incoming business mail that date, heard him react by stating the business was too small to be unionized and later say that he would await the opportunity to "dismiss all that signed." On September 25 Baum went into the work area near quitting time where several employees were grouped together. Brickey testified they were working on disfunc- tioning rivet guns as Baum approached, called him a "Union prick" and stated he needn't appear for work next day unless called. Drivers Norris (Hap) Swope and Ralph Van derVeen, both present at the time, confirmed the substance of these utterances. Baum concedes he made unthinking remarks toward a vexatious group, with particular advice to Brickey that he work only when needed since now "play[ing]" union.3 Driver Michael Aboud credibly testified that on September 26 Baum, in the presence of Respondent's other former part owner and Corporate Officer John Dufurrena, informed him that practices would be different because of employees playing union with future work to be oncall when needed. Driver Roger Armstrong credibly testified that about September 26 Baum questioned whether he had signed a union card, and upon an affirmative response coupled with Arm- strong's advice he would soon quit called this "chickensh- it." Swope and Van derVeen also credibly testified that about this time Dufurrena asked them individually about signing, which each admitted. In October proceedings on the representation petition were concluded by its withdrawal.4 On December 24 Brickey and driver James Brotherton were laid off for potential bases of jurisdiction under the Board's retail, nonretail, and national defense standards. 3 On September 26 Bnckey arrived for work as usual but left after an hour of "standing around" upon not receiving any delivery or other assignment from Dispatcher Foreman (and batch plant operator) Johnson Smith. Brickey was later paid m full for the day at behest of a union representative. 4 Respondent is party to a "limited" agreement with the Union requiring scale wages and assignment only of union members to readymix concrete delivery on AGC (Associated General Contractors) jobs. Baum understood (Continued) 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated lack of business. Over ensuing months Respondent operated with four employees,5 grossing less than $5,000 and $10,000 during January and February, respectively. Around late February Jerry Miller applied for work of any kind, claiming urgent need of employment. He was hired as a laborer and assigned cleanup and helpout tasks around Respondent's premises. Shortly afterward Brother- ton was rehired as a driver following a short delay during which he was first unavailable upon contact by Baum. Around mid-April Miller was briefly trained in driving skills and frequently assigned thereafter to deliver concrete. Since layoff in December, Brickey has not requested reemployment with Respondent (other than by initiation of this case) .6 General Counsel contends that Respondent deliberately failed to recall (or rehire) Brickey because of his strong identification with the organizing drive and its strident opposition to becoming a fully unionized employer. Respondent's defense is that Brickey, during the 2 years of his employment, had been excessively talkative, offensive to fellow employees and critical of customer personnel. Resolution of the issue posed by these contentions requires first an assessment of witness credibility. Lee was most impressive; offering plausible balanced testimony. From this it is accepted that Baum expressed angry dismay over the Union's petition in September, uttered a threat to discharge card signers and habitually found fault with most employees. Lee also provides a basis to believe, as I do, that although intrashop animosities were typical, the personality of Brickey was known as a singularly overbear- ing one. Larry Nulph, foreman with Sheppard Construc- tion Co., established convincingly that Brickey was given to exasperatingly gratuitous comment concerning how delivered concrete should be handled and that he (Nulph) voiced complaints about this trait to Baum, Dufurrena, and Smith. I find Armstrong, Aboud, Swope, and Van derVeen adequately credible, and believe they accurately recalled utterances of Baum and Dufurrena which establish coercive interrogation and threats as alleged.? Least plausible are Baum, Dufurrena, and Brickey, each of whom were evasive or inclined to shade true facts. On the chief issue of inferred discrimination, I believe Brickey had not been warned about his traits and that Respondent's owners, principally Baum as general operating manager, were conscious that Brickey was detrimental to customer this agreement was a bar to further representation proceedings until 1977 and its existence caused withdrawal of the petition. The agreement had application primarily to deliveries made for a major highway job near Battle Mountain, Nevada, during times material to this case s Van derVeen had been discharged in October for general driving ineptitude and backing his transit mix truck into a car. fi Around February Brickey engaged in a locally publicized campaign for election as county commissioner, an office ordinarily requiring attendance at 2 day long Thursday meetings per month. He also worked sporadically for Murdock Farms as a driver On May 31 Baum and Dufurrena conveyed their interest in Respondent to T. G. Sheppard and family in a transaction leaving sellers responsible for corporate liability incurred prior to that date. Respondent argues in its brief that incidents during September are untimely raised within the meaning of Sec. 10(b). The original charge filed March 16 addressed only Brickey's December 24 layoff plus printed phraseology tantamount to a generalized 8(a)(l) allegation The first amended charge, coextensive in point of time with issuance of complaint, hao express thrust only respecting the claimed refusal to recall I reject Respondent's contention since factual matters here are all broadly related to the originating charge Lubank Co, et a!, 175 NLRB 213 (1969); Evergreen relations, with this aggravation alleviating during the exceptionally slack winter season of early 1976. The question is whether Respondent's failure to solicit Brickey's return to work around early March was, in part at least, discriminatorily bottomed. I first observe that Baum's reaction in September was pronouncedly hostile, and that notwithstanding effort to characterize the union matter as closed it was, contrarily, still viable at least respecting the organizer's persistence in calling on Baum during January .8 There are several indicators weakly giving direction to the contending theories. General Counsel relies largely on the notion that past tolerance of personal foibles makes suspect the overlooking of Brickey in March. Lee could recall no instance of ever receiving a customer complaint against him. Further, and considering Baum's testimony that experienced drivers were difficult to obtain in the Winnemucca vicinity, it would seem natural to again utilize one concededly adept in performance of basic occupational tasks. On the other hand Baum's obvious chagrin had dissipated during relatively normal fall months, conduct violative of Section 8(axl) was actually confined to several days following receipt of the petition and there was some implication of Brickey gravitating into entirely unrelated endeavor.9 The point is extremely close. Respondent displayed impermissible animus and Baum was shown not to be so free of the Union as he would want it to appear. He definitely associated Brickey to this prospect, and at all times harbored ill-disguised opposition. While a systematic recall policy may not be shown, it is at least established that Respondent sought out Brotherton under circumstances in which Brickey'spossible availability to work again for Respondent required only barest effort toward ascertainment. But in the end a burden of proof must be satisfied; a prima facie case presented. There was conflict of personality present, with Baum openly disdain- ful of Brickey's somewhat querulous nature. Spontaneous altruism cannot be excluded as an influence in hiring Miller, and his eagerly compliant disposition would not be lost on an employer of ordinary awareness. Most signifi- cantly, considerable time passed from Baum's "upset" September phase. Readily a strong suspicion may exist that he long harbored unlawful intent, manifesting it through deliberate shunning of Brickey in spring.'° However more is necessary to connect together various factual compo- nents of the evidence into a reasonably inferable element of Convalescent Home, Inc., 209 NLRB 990 (1974) (citing National Licorice Co. v. N L R.B., 309 U.S. 350,369 (1940)). 8 This aspect had limited factual development. The Union appears to have pressed Respondent on Brickey's behalf, in a context of possibly resurrecting organizational objectives. The terms and significance of the "limited" AGC agreement are known only fragmentarily Notwithstanding presumable error of law, Baum has not been shown as unreasonably believing this agreement insulated Respondent until 1977 from formal creation of an exclusively represented bargaining unit for all employees involved in its main operations 9 I give no weight to the incident of concrete poured in a berm on Ray Mills' premises, since this matter is wholly remote and inconclusive on the issue of Bnckey's competence iU I have carefully weighed Baum's verbalism that he would seize some chance to retaliate against union adherents . I conclude that, while said aloud, such predilection was not in fact operative over 5 months later Furthermore, General Counsel's overall 8(a)(3) theory is undercut upon consideration of Lee's testimony that Baum considered "the [Union] workers in a minority" following late September quitting by Armstrong and HUMBOLDT READYMIX, INC. 735 prohibited motivation. I decline this assessment, determin- ing instead that within the realistic range of unconvention- ality permitted employers, acting as they do through human agents, a course of dynamics other than any based in part on Brickey's union or protected concerted activities resulted in Respondent's continuing failure to reemploy him. Accordingly, I render conclusions of law that Respon- dent, by interrogating employees about their interest in or activities on behalf of the Union and by threatening to so terminate employees, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act; but has not violated the Act in any respect other than as specifically found. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. Aboud, since this left Respondent in no worse apparent tactical position at the time than had it recalled Bnckey the following March. 11 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. 12 In the event that the Board's 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."" Respondent, Humboldt Readymix, Inc., Winnemucca, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their interest in or activities on behalf of Teamsters Local 533, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) Threatening to terminate employees because of their interest in or activities on behalf of Teamsters Local 533. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its Winnemucca, Nevada, facility copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Reasonable APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees about their interest in or activities on behalf of Teamsters Local 533, International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT threaten to terminate employees because of their interest in or activities on behalf of Teamsters Local 533. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights protected by the National Labor Relations Act. HUMBOLDT READYMIX, INC.