Arnold Ready Mix Corporation

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arnold Ready Mix Corporation and Terry L. Mont- spondent to insure that said notices are not altered, gomery. Case 14-CA-14741 defaced, or covered by any other material. "(b) Notify the Regional Director for Region 14, November 9, 1981 in writing, within 20 days from the date of this DECISION AND ORDER Order, what steps have been taken to comply here- with." BY MEMBERS FANNING, JENKINS, AND DECISION HUNTER On August 28, 1981, Administrative Law Judge STATEMENT OF THE CASE John C. Miller issued the attached Decision in this JOHN C. MILLER, Administrative Law Judge: The proceeding. Thereafter, the General Counsel filed hearing in this case was held in St. Louis, Missouri, on exceptions and a supporting brief. May 12, 1981. Respondent is alleged to have violated Pursuant to the provisions of Section 3(b) of the Section 8(a)(1) and (3) of the National Labor Relations National Labor Relations Act, as amended, the Na- Act, as amended. The 8(a)(1) allegations primarily in- volve comments that an individual had been discharged tional Labor Relations EBoard has delegated its au- for supporting the union and that he had forfeited his se- thority in this proceeding to a three-member panel. niority even though reinstated. With respect to the The Board has considered the record and the at- 8(a)(3) allegations, it is alleged that Respondent dis- tached Decision in light of the exceptions and brief charged employee Terry Montgomery and refused to re- and has decided to affirm the rulings, findings, and instate him because he engaged in union activity and/or conclusions of the Administrative Law Judge and protected concerted activity, including the filing of to adopt his recommended Order as modified workman's compensation claims against Respondent. At herein.' a hearing before me, the parties were offered the oppor- tunity to adduce evidence to support the respective posi- ORDER tions. Upon the record as a whole, including my obser- vation of the witnesses and their demeanor, I make the Pursuant to Section 10(c) of the National Labor following: Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended FINDINGS OF FACT Order of the Administrative Law Judge, as modi- I. JURISDICTION fled below, and hereby orders that the Respondent, Arnold eady Mix Corporation, Imperial, Missouri It is alleged and admitted that Respondent, Arnold its officers, agents, successors, and assigns, shall Ready Mix Corporation (Respondent) is, and was at all t ak e the action set forth in the said assigrecommende sald times material herein, a corporation duly organized and existing under the laws of the State of Missouri. Re- Order, as so modified: spondent has maintained its principal office and place of Add the following as paragraph 2: business at Highway 61-67 in Imperial, Missouri. Re- "2. Take the following affirmative action which spondent was at all times engaged in the manufacture, is necessary to effectuate the policies of the Act: sale, and distribution of ready-mixed concrete and related "(a) Post at its facility in Imperial, Missouri, products. During the fiscal year ending May 31, 1980, copies of the attached notice marked 'Appendix.'6 Respondent, in the course and conduct of its business op- Copies of said notice, on forms provided by the erations at its Imperial place of business, manufactured, Regional Director for Region 14, after being duly sold, and distributed products valued in excess of $500,000 of which products valued in excess of $50,000 signed by Respondent's representative, shall be were shipped from said place of business directly to posted by Respondent immediately upon receipt points located outside the State of Missouri. On the basis thereof, and be maintained by it for 60 consecutive of the above-admitted facts, I find that Respondent is, days thereafter, in conspicuous places, including all and was at all times material herein, an employer en- places where notices to employees are customarily gaged in commerce within the meaning of Section 2(6) posted. Reasonable steps shall be taken by Re- and (7) of the Act. Local 30, Industrial Miscellaneous Workers Union (the The General Counsel excepts solely to the Administrative Law Union) is, and has been at all times material herein, a Judge's inadvertent failure to include in his recommended Order provi- labor organization within the meaning of Section 2(5) of sions requiring Respondent to take affirmative action to remedy the vio- thc Act. lation found. We find merit in the General Counsel's exceptions and shall modify the Administrative Law Judge's recommended Order according- ly."In the11. ALLEGED UNFAIR LABOR PRACTICES e "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 A. 8(a)(1) Allegations Order of the National labor Relations Board' shall read 'Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order Paragraph 5 of the complaint alleges a number of of the National Labor Relations Board.' 8(a)(1) violations. Paragraph 5(a) of the complaint alleges 259 NLRB No. 26 ARNOLD READY MIX CORPORATION 203 that Respondent's owner, Robert Smerker, threatened an to file such grievances. I find this to be violative of Sec- employee with reprisals because employees had filed tion 8(a)(1) of the Act. grievances against Respondent pursuant to the collective- bargaining agreement in effect between Respondent and B. Section 8(a)(3) Allegations the Union. Paragraph 5(b) alleges that sometime during Section 8(a)(3) allegations are contained in paragraph 6 November 19801 Respondent's co-owner, Charles of the complaint. Paragraph 6 alleges that Respondent Smerker, Sr., told employees that another employee, discharged employee Terry Montgomery on or about who had been discharged and subsequently reinstated, December 5 because Montgomery engaged in union ac- had been discharged for advocating the Union and had tivity and/or protected concerted activity, including the forfeited his seniority when reinstated. filing of a workman's compensation claim against Re- With reference to the 8(a)(1) allegations and paragraph spondent. 5(a) of the complaint, Don Carter, union steward on the At the time of his discharge, Terry Montgomery had job at Arnold Ready Mix, testified that on October 3, he been employed by Respondent to drive a concrete truck filed a grievance with Arnold Ready Mix and that short- and to do general maintenance work since April 1978. In ly thereafter he had a conversation with Bob Smerker November 1979, Local 30, Industrial Miscellaneous about the grievance. At that time, Smerker made threats Workers Union began organizing Respondent's employ- to him, telling him that if employees kept filing griev- ees. At this time Montgomery signed a union card. He ances like this, he could always assign them to bad jobs acknowledged that he did not distribute any literature and make sure they got bad references. The grievance but stated that he had secured signed union authorization apparently concerned Respondent's use of relatives as cards from other employees.3 employees while other members of the Local were laid Counsel for the General Counsel introduced, over the off and not working. 2 Bob Smerker who testified at objections of Respondent's counsel, evidence of a prior length did not contradict Carter's testimony; in fact, he settlement involving an alleged discriminatory discharge never commented on this portion of Carter's testimony. I in November 1979. While I have admitted it, much of credit Carter to the extent that Bob Smerker made two this is background material and I am not utilizing it as a veiled threats to give employees reprisals for filing griev- basis for any findings of an unfair labor practice within ances concerning Respondent's practice of utilizing rela- the 10(b) period. To the extent that it may reflect antiun- tives as employees when other union members were out ion animus, I have considered it. In this settlement, of work. Montgomery had received a backpay settlement of $370 With respect to paragraph 5(b) of the complaint, and had been reinstated to his job. Respondent claimed Carter further testified that at a later point, sometime that this alleged discriminatory discharge was really a before December 5, 1980, he was in the drivers' room at discharge stemming from costly damage to two of Re- the plant when Charlie Smerker finished a telephone call spondent's trucks in which Montgomery was directly in- and commented to him that Terry Montgomery was volved: one incident involved a broken crankshaft and back at the Labor Board. Smerker allegedly then stated the other a burned out engine due to a leak in a radiator that Montgomery had lost his seniority when he was hose. fired the last time for trying to get the Union in. Charles With respect to the former incident, Robert Smerker Smerker denied making such comments with respect to testified that he talked with the representative of the this conversation concerning Montgomery. Smerker fur- manufacturer of that diesel engine who had informed ther testified that he was out of work because of a rup- him that the only way the crankshaft could have been ture for 3 to 4 weeks prior to December 5. Thus, in this broken was for the driver to be free wheeling, that is, situation I find it quite impossible and do not credit Cart- driving without the gears being engaged, and then sud- er's testimony that Charlie Smerker told Carter that denly engaging the transmission at a higher speed then Montgomery had lost his seniority when Respondent at- the motor was capable of taking. Montgomery testified tempted to fire him the last time for getting the Union in. that to his knowledge that was the only time they had I find, therefore, that Bob Smerker did make the com- had a crankshaft broken on that type of diesel engine. ments alleged in paragraph 5(a); namely, that in the With respect to the latter incident where the engine got event of future grievance filing, employees would re- overheated, Montgomery was driving a truck and at- ceive bad assignments and if they left they would get tempting to break in a new driver. Apparently after deli- bad references from Respondent. With respect to the vering some concrete, the truck had driven over some- latter part of the 8(a)(1) allegations which involved thing that had torn a hole in the hose and, as a result, all Montgomery, I credit Charlie Smerker and find that he the water had leaked out of the radiator. The engine did not make the statement that Montgomery had been overheated and all the water ran out, causing the entire previously discharged and had lost seniority when subse- engine to be overhauled. Although Montgomery correct- quently rehired for advocating the Union. Accordingly, I ly claimed that the pressure guage was not operational, find that Bob Smerker's response to the filing of the Robert Smerker stated that it is the responsibility of the group grievance on October 3 was to threaten that repri- driver, not the driver trainee, to make sure that the truck sals would be taken against those employees continuing has been thoroughly checked. 'All dates hereafter will refer to 1980, unless otherwise specified. ' I credit his testimony only to the extent that he got signed union 'Carter also testified that there had been a continuing conflict between cards after his discharge in November 1979 and not before this time as the Union and Respondent because of this practice. indicated in his November 16, 1979, Board affidavit. (Resp. Exh. I). 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It does appear that Montgomery had a history of im- tions. The letter also stated that several customers ex- properly handling the Company's equipment. I credit pressed concern for the safety of the employees when Robert Smerker that the crankshaft could only have Montgomery was backing the truck into the job and that been broken because of Montgomery's negligence in some customers had requested that he not be sent to driving the truck. In any event, these incidents which their jobs. occurred in 1979 and early 1980 did not trigger Montgo- Montgomery testified that while it was true that he mery's discharge on December 10, 1980. The letter of had not taken the water hose in, he claimed that he had dismissal, dated December 10, did not mention the drained his water tank and left his valves open on the broken crankshaft or the burned out engine. Consequent- night of December 5. He also acknowledged that on the ly, while they serve to exemplify Montgomery's back- same day he had backed into another truck on the plant- ground as an employee, I do not consider them signifi- site, but that no damage was caused to either vehicle. cant in determining whether his discharge was based on Montgomery also stated that to his knowledge he had re- legitimate grounds or was discriminatorily motivated. ceived no complaints from customers about his driving, Montgomery acknowledged that he was working from had never been suspended, had never been reprimanded, April 26-30 when he injured his ankle, and that he was and, except for the prior alleged discriminatory dis- off work thereafter from the period of May 1 through charge in November 1979, had never been discharged. September 5. With regard to this ankle injury on April As to the loss of 6 yards of concrete, Montgomery tes- 30, Montgomery testified that he filed a workmen's com- tified that on December 5 at 3 p.m., he was assigned to pensation claim and apparently received benefits under deliver a load (6 yards) of ready- mix concrete to Roy such claim until he received the medical release on or Holley at the "Holley" or "Sugar Creek" jobsite. The about September 5. While Respondent was not directly site was somewhere "off Highway 30, 3 or 4 miles back involved in the workmen's compensation claim other off a gravel road," and the concrete was to be used for than to verify the facts surrounding it, Respondent does the fittings of a house which was located up a hill. When ultimately pay a higher workman's compensation based Montgomery arrived at the site, he was reluctant to on the experience rating an employer gets. However, the drive onto it as it was only a dirt road up the hill. Mont- award itself is paid by workman's compensation and did gomery testified that he tried to get in touch with the not directly involve Respondent. office to see whether the jobsite had been checked out On September 5, Montgomery received a medical re- and whether he could drive onto the site. The message lease from his doctor. On September 25, he took such re- was relayed to him to go ahead and deliver the concrete. lease in to Darrell Richardson, office manager of Re- After getting Holley to sign the receipt, he attempted to spondent. Richardson said that he would accept the get his ready-mix truck up the hill. He got part way up medical release but that he had no work for Montgom- the hill and got stuck when his front wheels slid 18 ery at that time. It is not disputed that due to a fall off in inches off the roadbed. Montgomery then left with Bill the whole building industry there was less demand for Emerson, the general contractor, to call a wrecker to concrete and that where Respondent had formerly em- pull his truck free. However, it was Emerson, not Mont- ployed some 20 drivers, it was only employing some 8 to gomery, who actually placed the call. 9 drivers in late 1980. Also Richardson credibly testified Montgomery testified that when he left with Emerson, that Respondent's output in cubic yards of concrete had the drum of his truck was still turning but that when he dropped 62 percent over that of the prior year. returned it was no longer turning. The importance of this Montgomery further testified credibly that he filed a is the fact that concrete, if not continued to be mixed, grievance against Respondent on October 3 because he will set and obviously cause problems in attempting to was not being assigned to any work. There was a meet- get it out of the mixer, becoming useless to any customer ing about this grievance in the latter part of October in who wishes to use it. Montgomery attempted to get the Local 30's office and although it was presumably going drum turning again but was unsuccessful, and the entire to the second step, the grievance was apparently not re- load of concrete had to be dumped. solved. It was on December 5 that Montgomery was re- At or about 4:30 or 5 p.m., a small wrecker arrived, called to work and became involved in incidents which but was inadequate to handle the large ready-mix truck. Respondent claims led to his discharge. Approximately 1 hour later a second wrecker arrived. On December 11, Montgomery received a letter (G.C. Finally, after engaging the use of three wreckers, Mont- Exh. 2), dated December 10 from Darrell Richardson, gomery freed his truck and moved it back down the hill. Respondent's office manager, advising him that he was Montgomery returned the truck to Respondent's garage terminated. The letter contained six paragraphs in length about 9 p.m. At that time, he talked to Darrell Richard- and listed several reasons for his termination, including son and told him what had happened. He was then told three incidents which occurred on December 5. The dis- to wash out the truck and go home. missal letter stated that on December 5 Montgomery had According to the testimony of Roy Holley, whom I backed his truck into another truck; had left his truck credit, Montgomery's failure to properly deliver the con- unattended without the drum turning, resulting in the crete cost Holley about $500 to $600 for workmen who customer's refusing the material because it had started to were standing around waiting for the concrete to be set whereupon the entire load of 6 cubic yards of con- poured, and also the amount for half the load of the con- crete had to be dumped; and he had failed to drain the crete.4 Holley further stated that he did not recall wheth- truck's water tank, failed to leave the valves open, and failed to bring in the water hose as per posted instruc- Respondent paid for the other half, plus the fees for three wreckers. ARNOLD READY MIX CORPORATION 205 er the drum of the truck was turning when Montgomery day a number of loads of concrete were delivered with- left to call the wrecker, but he did indicate that there out incident to the jobsite. They did concede that be- was no necessity for Montgomery to leave his truck. On cause of a heavy rain on Sunday, they did not attempt to the Saturday following the incident, Holley went to Re- have any concrete delivered until Wednesday, until both spondent to complain about Montgomery. He told Dar- the foundation and the road had dried out. Bob Smerker rell Richardson and Charlie Smerker that Montgomery then testified that after visiting the jobsite on Monday was argumentative and was just not capable of handling morning, he and his brother Charlie decided to terminate the truck. Holley also testified that he was familar with Montgomery. In sum, in addition to Holly and Emerson, Montgomery from other jobs, and that in fact he had who were involved in the December 5 incident in which complained to Respondent about Montgomery's driving Montgomery's truck got stuck, there were three other and inability to place the truck where he wanted the contractors who expressed the views that Montgomery concrete poured on several prior occasions. was a poor driver, some of whom had requested he not There was similar testimony that several contractors be sent to their jobsites. Thus, Respondent had legitimate made similar complaints about Montgomery. Paul Harris, grounds for discharging Montgomery, which included a foundation contractor, testified credibly that he also numerous customer complaints and a poor driving had complained about Montgomery's driving on Decem- record. ber 5, with respect to an incident which occurred earlier in the day. Montgomery had delivered concrete to one Summary and Conclusions of his jobsites and in the process, because of his failure to follow Harris' instructions, had run over some of his The overwhelming weight of credible evidence estab- forms and, in fact, had jeopardized Harris' safety by lishes that Terry Montgomery was at best a marginal driving too fast. He stated that he told Respondent that employee. It appeared that he had had more than his he did not want Montgomery delivering concrete to any share of problems handling Respondent's equipment and of his jobs. that he was involved in one burned out engine and at an- Hershal Webb, a general contractor who has been other point, a broken crankshaft which resulted in a very doing business with Respondent for about 15 years, expensive repair job. Nor does there appear to be any stated that he also had complained about Montgomery to doubt that Montgomery's driving ability, while perhaps Charlie Smerker. He said that although Montgomery acceptable under a normal driving circumstance, did not eventually completed a job, he always argued with measure up to acceptable standards as far as backing up Webb about how the job should be done. As an example, ready-mix trucks and handling the trucks in difficult situ- Webb stated that on one job Montgomery did not want ations. On December 5, alone, Montgomery was in- to back between two houses, although there was a 14- volved in three incidents, a situation which raises consid- foot passageway, and wanted the contractor to wheel erable questions about his driving ability. He had backed barrels of concrete from the truck to the site of the pour. into another truck on the plant's premises, although he This, of course, would make quite a bit of additional admittedly caused no damage. On the same day, he had work for the contractor. I credit Webb that he did com- backed over some forms in attempting to deliver his con- plain on a number of occasions about Montgomery and crete on the jobsite. The third and final incident was his that he had asked that Montgomery not be sent to his getting his truck stuck in the Sugar Creek job at which jobs. Holley and Emerson were working. I conclude and find Contractor Tom Phelps testified that on one occasion that there were legitimate customer complaints about Montgomery disregarded his instruction and made too Montgomery's driving, and that in several incidences he tight a turn around the corner of a foundation. The rear had caused contractors trouble and money and endan- wheels of Montgomery's truck hung over the edge of the gered employees because of his poor driving. excavation and caved in parts of the bank while two It seems clear that Montgomery had alienated a workers were below. This resulted in a very low quality number of customers, some of whom were regular cus- concrete pour and substantial extra expense to Phelps, tomers. As Bob Smerker testified, he informed Mont- since he had to use his own equipment to keep the truck gomery at one point that there was no place he could from falling into the foundation while several of his men send him anymore because nobody wanted him on the stood around unable to work. As a result, Phelps told jobsites. While I take that to be some exaggeration, there Respondent that he did not want Montgomery back on is little doubt that Montgomery's driving ability was not any of his jobs. acceptable to Respondent's customers. Furthermore, Robert Smerker testified that the Monday after De- there are a number of other employees involved with the cember 5, 1980, incident at the Sugar Creek job, he and Union, including Don Carter, the union steward, who his brother Charlie visited the site to determine how bad filed a number of grievances and apparently had not it was since they had to deliver some additional concrete been discriminated against. Whatever friction may have there. He testified that they drove their pickup truck up existed between Montgomery and Respondent due to the hill with no difficulty. At that time he talked to Em- Montgomery's filing of grievances, I find that the moti- erson, who said he could not understand why Montgom- vating cause of Montgomery's discharge was based on ery had problems, that the conditions were not that bad, legitimate grounds, namely, customer complaints and and that Montgomery could not drive. In fact, both Montgomery's poor driving ability. Accordingly, I find Holly, the foundation contractor, and Emerson, the gen- insufficient evidence to support the allegations that eral contractor, testified that on the following Wednes- Montgomery was terminated either because of his union 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or concerted activities, or because he filed a workmen's I. Cease and desist from: compensation claim. Therefore, I recommend that the (a) Unlawfully threatening employees with reprisals complaint in this respect be dismissed. for filing grievances against Respondent in violation of Section 8(a)(1) of the Act. (b) In any like or related manner unlawfully interfering I. Respondent Arnold Ready Mix Corporation is an with, restraining, or coercing employees in the exercise employer within the meaning of Section 2(6) and (7) of of the rights guaranteed them by Section 7 of the Act. the Act. 2. Local 30, Industrial and Miscellaneous Workers APPENDIX Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. NOTICE To EMPLOYEES 3. Charles Smerker on or about October 3, 1980, POSTED BY ORDER OF THE threatened employees with reprisals, including bad work NATIONAL LABOR RELATIONS BOARD assignments and bad references if they continued to file An Agency of the United States Government grievances against Respondent. Such conduct is violative of Section 8(a)(1) of the Act. After a hearing at which all sides had an opportunity to 4. Respondent did not violate Section 8(a)(1) of the present evidence and state their positions, the National Act in any other manner. ~Act in any other manner. Labor Relations Board found that we have violated the 5. The discharge of Terry Montgomery, on December Labor Relations Act, as amended, and has or- 10, 1980, was not discriminatorily motivated, and Re- dered us to post this notins Act, as amended, and has or- spondent did not violate Section 8(a)(3) or (1) of the Act. 6. The aforesaid practices are unfair labor practices af- The National Labor Relations Act, gives you, as fecting commerce within the meaning of Section 2(6) employees, certain rights: and (7) of the Act. To engage in self-organization THE REMEDY To form, join, or help a union Having found that Respondent engaged in an unfair To bargain collectiveley through a representa- labor practice in violation of Section 8(a)(1) of the Act, I tive of your own choosing shall recommend that Respondent be ordered to cease To act together for collective bargaining or and desist from its unlawful practice. I further recom- other mutual aid or protection mend that Respondent be ordered to post an appropriate To refrain from any or all of these things. notice and take affirmative action in order to effectuate the policies of the Act. WE WILL NOT unlawfully threaten employees Upon the basis of the foregoing findings of fact, con- with reprisals for filing grievances against us. clusions of law, and the entire record, and pursuant to WE WILL NOT in any like or related manner un- Section 10(c) of the Act, I hereby recommend the issu- lawfully interfere with, restrain, or coerce employ- ance of the following: ees in the exercise of the rights guaranteed them by ORDER 5 Section 7 of the Act. The Respondent, Arnold Ready Mix Corporation, Im- ARNOLD READY Mix CORPORATION perial, Missouri, its officers, agents, successors, and as- signs, shall: s 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 find- ings, 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.