Jefferson Ready Mix And Material, Inc.

JEFFERSON READY MIX 977 Jefferson Ready Mix and Material, Inc. and Con- struction, Building Material, Ice and Coal, Laundry and Dry Cleaning, Meat and Food Products Drivers, Helpers, Warehousemen, Yardmen, Salesmen and Allied Workers Local Union No. 682, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Cases 14- CA-18525 and 14-RC-10120 13 July 1987 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 11 March 1987 Administrative Law Judge Marvin Roth issued the attached decision. The Charging Party Union filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- Member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions as modified,' and to adopt the recom- mended Order, as modified.2 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. CERTIFICATION OF REPRESENTATIVE It is certified that a majority of the valid ballots have been cast for Congress of Independent Unions and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit: In adopting the judge's finding that the Respondent did not, as al- leged, violate Sec 8(a)(1) of the Act by Supervisor Clifford Jefferson's questioning of employee Walter King about King's union activities, we have examined this issue on the ments and, considering King's testimony, we conclude, based on Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), and Rossmore House, 269 NLRB 1176 (1984), that no violation occurred in the circumstances here. Thus, we find it unnecessary to pass on the judge's comment in fn. 9 of his decision about the Respondent's failure to call Supervisor Lave11 Eggleston as a corroborating witness or his refer- ence to O'Dovero Construction, 264 NLRB 751 fn 1 (1982). 2 Regarding the election held m Case 14-RC-10120, the judge recom- mended in his Order that a "certification of results" be issued. The tally of ballots from that election shows, however, that the Congress of Inde- pendent Unions received a majority of the ballots cast Accordingly, we shall issue a Certification of Representative to the Congress of Independ- ent Unions in the stipulated unit All drivers employed by the Employer at its St. Louis, Missouri facility, EXCLUDING office clerical and professional employees, guards and supervisors as defined in the Act, and all other employees. Michael T Jamison, Esq., for the General Counsel. James N. Foster, Jr., Esq., and Timothy .1. Sarsfield, Esq., of St. Louis, Missouri, for the Respondent Employer. R. Richard Davis Esq., of Alton, Illinois, for Intervenor Congress of Independent Unions. DECISION STATEMENT OF THE CASE MARVIN Rom, Administrative Law Judge. These consolidated cases were heard at St. Louis, Missouri, on 23 January 1987. The charge was filed on 21 July 1986 by Construction, Building Material, Ice and Coal, Laun- dry and Dry Cleaning, Meat and Food Products Drivers, Helpers, Warehousemen, Yardmen, Salesmen and Allied Workers Local Union No. 682, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America (Teamster).' The com- plaint, which issued on 3 September and was amended on 28 November, alleges that Jefferson Ready Mix and Material, Inc. (Respondent or the Company) violated Section 8(a)(1) of the National Labor Relations Act. The gravamen of the complaint is that the Company alleged- ly engaged in unlawful threats and interrogations. The Company's answer denies the commission of the alleged unfair labor practices. Congress of Independent Unions (CIU) is the incum- bent collective-bargaining representative of the Compa- ny's driver employees at its St. Louis, Missouri facility. Pursuant to a petition filed on 2 July by Teamsters and a Stipulation for Certification Upon Consent Election ap- proved by the Regional Director on 29 July, an election was conducted on 22 August among employees of the Company in the following appropriate unit: All drivers employed by the Company at its St. Louis, Missouri, facility, EXCLUDING office, cler- ical and professional employees, guards and supervi- sors as defmed in the Act, and all other employees. The tally of ballots showed that, of approximately 19 eli- gible voters, 4 voted for Teamsters, 11 for CIU, and 3 against both unions. One challenged ballot was insuffi- cient in number to affect the results of the election. Teamsters filed timely objections to the election, num- bered 1 through 7, but subsequently withdraw Objection 6. On 9 September the Regional Director issued his Report and Recommendation on Objections, overruling Objection 7, but finding that Objections 1 through 5, to- gether with evidence of such conduct that is also alleged in the complaint, raised substantial and material questions 1 All dates herein are in 1986 unless otherwise indicated. 284 NLRB No. 107 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of fact that could best be resolved by a hearing. 2 The Regional Director ordered that the unfair labor practice and representation cases be consolidated for the purposes of hearing, ruling, and decision by an administrative law judge and that, after decision by a judge, the representa- tion case be transferred to and continued before the Board. All parties were afforded full opportunity to partici- pate, to present relevant evidence, to argue orally, and to file briefs. On the entire record in this case, 3 and from my observation of the demeanor of the witnesses, and having considered the briefs submitted by the General Counsel and the Company, I make the following FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Company, a corporation with an office and place of business in St. Louis, Missouri, is engaged in the non- retail truck transportation and sale of ready mix concrete and dry materials. In the operation of its business, the Company annually purchases products and materials valued in excess of $50,000 directly from points outside of Missouri. I fmd, as the Company admits, that it is an employer engaged in commerce with the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters and CIU are each labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION A. The Facts Ed Jefferson, the Company's sole owner, is a Black, self-made businessman who is proud of his accomplish- ments. In July 1986, the Company had about 25 employ- ees, of whom about 20 were Black, including some mem- bers of Jefferson's family. Jefferson had an informal rela- tionship with his employees. He frequently joined them in afterwork drinking and conversation sessions, in which he sometimes discussed his own business prob- lems. As Jefferson testified: "I might talk too much to my men." Jefferson paid his drivers $1 per hour above the prevailing Teamsters wage scale. However, at least some of the employees were dissatisfied with the Compa- ny's health insurance plan, and this dissatisfaction gener- ated some support for a Teamsters organizational cam- paign. On the evening of 16 July, when the election was pending, Teamsters held a meeting at the home of 2 Subsequently, the Regional Director declined to proceed on par. 5A of the complaint, which covered the same subject matter as Objection 3, and amended out the allegation Therefore, I overruled Objection 3 at the hearing See Times Square Store Corp., 79 NLRB 361, 365 (1948), Martinohuh Ship Repair Go, 111 NLRB 761, 762 (1955). Teamsters was not present at the hearing, and consequently there was no offer of proof in support of Objection 3. 3 Certain errors in the transcnpt are noted and corrected. former driver Dwayne Rogers. 4 The meeting was no secret; indeed, driver Walter King, who was presented as a General Counsel witness, testified that that afternoon, shortly after leaving work, a group of drivers talked about the meeting in a conversation that included Jeffer- son's son, Supervisor Clifford Jefferson. King told Clif- ford Jefferson that he was going to the meeting. 3 King and driver Clifford Driscoll went together to the meet- ing. They returned to the area of the plant about 10 p.m., in order for King to pick up his car. They saw Jefferson talking and drinking with two employees across the street from the company plant and went over to join them. Jefferson was obviously not sober. 6 Jefferson asked King and Driscoll how the meeting went. 7 They then talked about the meeting and the Teamsters. King said that Teamsters had its good points and bad points. He said that the Company's wages were good, but that the Company's insurer was slow in paying medical and hospital bills. Jefferson disagreed, arguing that the insur- er paid for his wife's hospitalization. Jefferson then com- mented that he could not understand why the Black em- ployees went against him, referring to them as "niggers" who were trying to stab him in the back. (King and Driscoll are white.)3 At this point King left the conver- sation for about 5 minutes. He testified that when he re- turned, Driscoll was telling Jefferson that Teamsters said there was no way that Jefferson could close down legal- ly. King testified that Jefferson answered Driscoll as fol- lows: Jefferson said that he did not have to close down, that all he had to do was stop paying his vendors and they would shut him down. Jefferson said that he did not need "all this hassle" and that he was well off enough to retire. He said that he would sign with Teamsters, "that was no problem," but that the problem was with the Teamsters "health and welfare," that "once they get ahold of a Company they own them and he could not close down because once they got ahold of it, he would be paying them for the rest of his life." Jefferson referred 4 The Union's charge alleged in part that on 10 July the Company dm- crimmatonly discharged Rogers. The Regional Director declined to pro-. ceed on this allegation 5 Unless otherwise indicated, "Jefferson" refers to owner Ed Jefferson. Jefferson testified that he learned about the pending meeting, evidently on the previous evening, when driver Leonard Roberts called him at his home to say that Rogers told him he had better come to the meeting, becuase the Teamsters were going to shut down the Company However Roberts, who was also presented as a company witness, testified that he told Jefferson that Rogers said he would lose his job if he did attend the meeting Roberts testified that he asked Jefferson what he should do, whereupon Jefferson answered, "Well why don't you just go ahead down to the meeting, cause all the other guys are going to be there." I credit Roberts Both Roberts and Jefferson testified that the meeting was a matter of common knowledge 6 King initially testified that they were drinking, but subsequently testi- fied that he did not see any drinking. However Driscoll, who was also presented as a General Counsel witness, testified that Jefferson and one of the employees were drinking and that Jefferson was obviously intoxi- cated. Jefferson also testified that he was drinking. 7 King and Driscoll testified that Jefferson specifically referred to the meeting Jefferson testified that he may have asked how did "it" go. Even if Jefferson did not use the word "meeting," it is evident from their ensuing conversation that all present understood that Jefferson was refer- ring to the Teamsters meeting. 8 The General Counsel does not contend that this remark was unlaw- ful JEFFERSON READY MIX 979 to other firms that allegedly could not close down, de- spite being in debt, for this reason. He went on to elabo- rate, but King did not understand everything he said. Driscoll testified that he did not tell Jefferson that Team- sters said the Company could never shut down. Howev- er, he did testify that Jefferson said the Teamsters would not be able to close him down, that if he was to close down it would be his creditors' that would close him down, and that all he would have to do would be to not pay his bills. Driscoll did not explain how the subject came up. Jefferson, the only other witness concerning the conversation, denied that he threatened to close the plant if Teamsters were elected. Jefferson testified that he told the employees that he did not know how he could survive more expense, and that the Teamsters Cen- tral States health and welfare and pension funds would increase his expenses. He argued, by way of illustration, that if an employee worked only 4 hours in 1 week, he would still have to contribute $61 to the funds for that employee. Jefferson reminded the employees that he could not receive concrete from his suppliers if he did not pay his bills within 90 days, that this happened on occasions in the past, and that if his suppliers shut him off he would be out of business. Jefferson testified that on several occasions in the past he has said, "I do not have to go through this," and that he may have made such a remark in the 16 July conversation. On examina- tion of the testimony of the witness it is evident that there is no real conflict or inconsistency between the versions of King and Jefferson (Driscoll's description was too sparse to have significant probative value). I credit the testimony of King, and I also credit Jefferson's testimony concerning his additional remarks. King testified that the following day (17 July), as he was reporting in to work, Supervisor Clifford Jefferson (Ed's son) asked him, "how did it go last night?" King answered that it was a normal sales pitch, that they give you the good points and try to sell you the Union. Clif- ford Jefferson asked him what he thought about it, and King answered that it had its good points and its bad points. According to King, Supervisor Lave11 Eggleston then remarked to Jefferson, "I told you they wouldn't tell you anything." Clifford Jefferson testified that he did not question King or any other employee about the meeting, or discuss the meeting with King, or question King about any union activities. Jefferson testified that he was aware of the pending meeting, that the employees talked about the meeting the previous day in his pres- ence, but that he did not ask any questions and walked away from the conversation because he did not wish to become involved. No other witnesses were presented concerning this matter. King quit his job in September and was not employed by the Company at the time of the present hearing. I am not persuaded that King's testi- mony concerning this incident is more credible than Clif- ford Jefferson'S denia1.9 Therefore, I find that the Gener- 9 No adverse inference may be drawn from the Company's failure to call Supervisor Eggleston as a witness O'Dovero Construction, Inc., 264 NLRB 751 fn. 1(1982) al Counsel has not met its burden of proof on this matter, and that the corresponding Teamsters Objection 2 (alleg- ing interrogation by Clifford Jefferson) should be over- ruled. Driver Driscoll testified that on the morning of 17 July he and three other drivers, including Leonard Rob- erts, were standing outside the plant, waiting to report for work, when Ed Jefferson came over to them. Dris- coll testified that Jefferson asked them whether, if he de- cided to go Teamsters, they would take a cut in pay to $8.50 per hour, as was paid under Teamsters contracts at other plants that he named. Driscoll was then making $13.91 per hour. Driscoll testified that one of the em- ployees, Kevin Porter, asked about showup time, but that he did not recall any other response by the employ- ees. Jefferson replied that the employees had it better than at other places. Jefferson testified that he came over to the employees and asked Porter (who had previously left the Company and then returned) why he came back if he was doing so well. Jefferson testified that he re- ferred to a contract recently negotiated by Teamsters under which the employees were paid $8.50 per hour and asked "If I could negotiate a contract like that with the Teamsters, would you fellows be willing to take a out?" Jefferson testified that he did not say that he would cut their pay. Driscoll and Jefferson were the only witnesses presented concerning this conversation. Roberts, although called as a company witness, was not questioned about the matter. There is no significant in- consistency between the testimony of Driscoll and Jeffer- son. I find that their testimony together reflects the sub- gance of the conversation. B. Analysis and Concluding Findings The General Counsel contends that on 16 July Ed Jef- ferson "threatened employees with plant closure should the employees select [Teamsters] to represent them," and on 17 July "threatened employees with lower wages if the employees selected [Teamsters] to represent them." I do not agree. Driscoll did not, in his provocative remark to Jefferson, expressly or impliedly indicate under what conditions or for what reason or reasons, if any, Jeffer- son could not shut down legally; and Jefferson in his re- sponse likewise did not indicate under what conditions or for what reasons he might fail to pay his bills. Dris- coll simply made an erroneous statement, namely, that there was no legal way that Jefferson could go out of business, and Jefferson corrected him. Therefore Jeffer- son's response, standing alone, does not furnish a basis for finding that Jefferson threatened to close the plant if the employees voted for Teamsters. Fox Vacumm & Par- affin Service, 171 NLRB 421 (1968). The context of Jef- ferson's remark, including the overall course of the con- versation, also fails to demonstrate such a threat. Jeffer- son never said or implied that he would close rather than recognize the Teamsters. Indeed he expressly stated that he would sign with the Teamsters and "that was no problem." However, Jefferson stated and explained, in objective terms and on the basis of objective factors, that he did not think he could afford the cost of the Team- sters health and welfare program. Even if Jefferson had 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD said that he would go out of business rather than incur the cost of that program (which he did not), such a state- ment would not be unlawful. It is not unlawful for an employer to explain in objective terms that he cannot afford certain union terms and conditions and that he might have to go out of business, lay off employees, or take other economic action rather than accept such terms and conditions, so long as the employer does not express- ly or impliedly equate such drastic action with unioniza- tion itself. See NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969); B.F. Goodrich Footware Co., 201 NLRB 353, 354 (1973); Ohio New & Rebuilt Parts, Inc., 267 NLRB 420, 421 (1983), affd. 760 F.2d 1443 (6th Cir. 1985). The General Counsel's second allegation fares no better. Jefferson posed a question; he did not make a threat. In light of the ensuing discussion, it is evident, as the Company points out in its brief (p. 14) that Jefferson was simply posing a rhetorical question, preliminary to his argument, based on objective comparison with other firms, that his employees enjoyed more favorable wages than empioyees under Teamsters contracts, and that the employees so understood. It is not unlawful for an em- ployer, even in this fashion, to compare his wages and working conditions with those at unionized plants or (as in the present case) with conditions at plants represented by the Union presently seeking recognition. Commodores Point Corp., 258 NLRB 1081, 1093 (1981), affd. 705 F.2d 1537 (11th Cir. 1983); John W. Galbreath & Co., 266 NLRB 96 (1983). This leaves the General Counsel's remaining allegation that Jefferson unlawfully interrogated employees when he asked King and Driscoll how the meeting went. Under the standards set forth in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel & Employees v. NLRB, 760 F.2d 1006 (9th Cir. 1985), Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), and Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964), cited with approval in Ross- more House at fn. 20, Jefferson did not engage in unlaw- ful interrogation. In the context of Jefferson's conversa- tions with his employees, it is evident that Jefferson's question was simply one remark in an ongoing dialogue between management and employees concerning the pros and cons of Teamsters unionization. The employees had freely and openly discussed their interest in Teamsters in the presence of Clifford Jefferson and King told him that he was going to the Teamsters' meeting that night. After the meeting King and Driscoll went over to Jefferson and joined in conversation with him, although they had no obligation to do so. Their action was virtually an in- vitation to discuss Teamsters, as the meeting was obvi- ously foremost in everyone's mind, and the employees were accustomed to free and open discussion with Jeffer- son. Jefferson's generalized question was obviously what it turned out to be, namely an opening to a discussion of the pros and cons of Teamsters representation. Jefferson knew that King and Driscoll had come from the meeting and plainly was not seeking information on which to base taking action against individual employees. King and Driscoll were not only truthful in their replies, but they obviously recognized the question for what it was, i.e., an invitation to a free and open discussion of the merits of Teamsters representation. Jefferson obviously did not want Teamsters representation, as demonstrated by his remark about the Black employees. However, for the reasons discussed, Jefferson did not make any threat of reprisal of promises of benefits. Rather he confined his remarks to lawful argument. Jefferson was of course at the top of the management hierarchy in that he was the company owner. However, the alleged interrogation oc- curred in a highly informal atmosphere, specifically, an afterwork session of drinking and conversation, outside the plant premises, in which the employees voluntarily participated. Moreover, the employees were accustomed to such informal conversations with Jefferson. In sum, the circumstances and the fact of Jefferson's question weigh against finding a violation. Therefore, I find that Jefferson did not unlawfully interrogate his employees. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Company has not engaged in the unfair labor practices alleged in the complaint. 4. The Union's objections to the election on 22 August 1986 are without merit. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed10 ORDER It is recommended that the complaint be dismissed, that the Union's objections to the election be overruled, and that a certification of results of election issue. 10 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of die Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses