Harrison Ready Mix Concrete

HARRISON READY MIX CONCRETE 331 Harrison Ready Mix Concrete, Inc. and Ricky D. Ramey and James M. Weitz Cases 9-CA- 19535-1 and 9-CA-19535-2 26 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER Upon charges filed by Ricky D Ramey and James M Weitz, both individuals, on 11 April 1983 (Charging Parties), the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 9, issued a consolidated com- plaint on 19 May 1983 against Respondent Harri- son Ready Mix Concrete, Inc The complaint al- leges that the Respondent is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act On 29 June and 6 July 1983 all parties to the proceeding executed a stipulation of facts, waived a hearing before an administrative law judge and the issuance of an administrative law judge's decision, and submitted the case to the National Labor Rela- tions Board for findings of fact, conclusions of law, and an order based on a record consisting of the charges, the complaint and answer, the formal doc- uments, and the stipulation of facts On 28 September 1983 the Board approved the parties' stipulation, ordered that the proceedings be transferred to the Board, and granted permission and set the time for the filing of briefs Thereafter, the General Counsel and the Respondent filed briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Upon the basis of the stipulation of facts, the briefs, and the entire record in this proceeding, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation with its principal office and place of business at Dry For( Road, Harrison, Ohio, is engaged in the produc- tion, sale, and distribution of ready-mix concrete During the 12 months preceding the execution of the stipulation, the Respondent's gross revenues ex- ceeded $500,000 and it sold and shipped products valued in excess of $50,000 directly to points out- side the State of Ohio The parties stipulated and we find that the Re- spondent is engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein II THE LABOR ORGANIZATION INVOLVED The parties stipulated and we find that Truck Drivers, Chauffeurs and Helpers Local Union No 100, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Facts The Union and the Respondent have been parties to successive collective-bargaining agreements cov- ering the Respondent's truckdnvers and truckdriv- ers' helpers The most recent contract between the parties extended from 1 March 1980 to 28 Febru- ary 1983 The Respondent and the Union did not reach agreement on a new contract prior to expira- tion of the existing agreement on 28 February 1983 The Respondent's employees, including the two Charging Parties herein, commenced an economic strike' on 1 March 1983 Between 1 and 8 March 1983 nine employees of the Respondent crossed the picket line and report- ed to work The Respondent assigned these em- ployees, ranked by their date of original hire, to the top nine slots on its driver seniority list 2 In ad- dition, the Respondent hired 15 permanent replace- ment drivers by 10 March 1983 These 15 replace- ments and the 9 prior employees who crossed the picket line brought the Respondent's driver seniori- ty list back to its prestrike level of 24 The Re- spondent assigned the permanent replacements to slots 10 through 24 on the driver seniority list About 14 March 1983 Charging Parties James M Weitz and Ricky D Ramey visited Respondent official Mike Jump 3 at his office to make uncondi- tional offers to return to work Jump told Weitz and Ramey that the Respondent had a full comple- ment of drivers and there were no openings avail- able at that time 4 1 The General Counsel does not contend that the union members en gaged in an unfair labor practice strike 2 Under art 31(n) of the contract that expired on 28 February 1983 the Respondent was required to distnbute work to its drivers based on se moray Seniority, in turn was based on each employee's date of hire The record does not contain any evidence of postexpiration waiver or impasse as to work distnbution Absent such evidence or agreement on a new contract, the Respondent is obligated to maintain the status quo and assign work to its drivers based on their slot on the seniority list NLRB v Katz, 369 U S 736 (1962) 3 The parties stipulate and we find that Jump, as the Respondent's gen eral manager, is a supervisor and agent of the Respondent under Sec 2(11) and (13) of the Act 4 Weitz and Ramey confirmed these offers in a certified letter to the Respondent dated 14 or 15 March 1983 272 NLRB No 47 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two vacancies became available for Weitz and Ramey on 19 March 1983 when several permanent replacements left the Respondent's employ. During the week of 21 March 1983 Respondent official Jump advised Weitz and Ramey that he expected to offer them reemployment with assignment to the 17th and 18th slots on the driver seniority list. When asked by Weitz and Ramey why they would be placed so low on the list, 5 Jump replied that he had an obligation to employees who had crossed the picket line earlier and to the experienced truck- drivers he had hired as permanent replacements. Jump also replied that the assignment placed Weitz and Ramey above replacements who lacked prior driving experience. Weitz and Ramey 6 were actu- ally reemployed by the Respondent on 25 and 30 March 1983, respectively, at the 17th and 18th slots on the list. 7 Weitz and Ramey have moved up the list since reemployment due to resignations or ter- minations. Their respective seniority positions remain below all of the employees who crossed the picket line and returned to work before them and below the permanent replacement employees who had prior cement truck driving experience. B. Contentions of the Parties The General Counsel contends that the Respond- ent violated Section 8(a)(1) and (3) of the Act 9 by refusing to reinstate the Charging Parties to their rightful place on the seniority list, based on their dates of hire, upon their return to work from the economic strike. The Respondent submits that the cyclical and seasonal nature 9 of its business gives rise to a "le- gitimate and substantial business reason" under Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), that entitles it to deny full 5 An assignment based solely on date of hire, as required by the ex- pired contract, would have placed Weitz and Ramey on the third and fourth slots of the driver seniority list ° Ramey declined reemployment on 25 March 1983 due to the low se- niority assignment, then reconsidered and returned to work on 30 March 1983 7 The parties stipulated that Weitz and Ramey have retained their original date of hire for purposes other than assignment of work The Re- spondent placed them in the 17th and 18th slots only for work assign- ment 8 The General Counsel did not allege in the complaint that the Re- spondent violated Sec 8(a)(5) of the Act Accordingly, we do not reach any unilateral change issues present in this case 9 Based on Exh E of the stipulated record we find that there was a strong correlation between a dnver's seniority, as set by date of hire, and the driver's amount of hours worked between 1 March 1982 and 28 Feb- ruary 1983 For example, we note that drivers at the top of the semonty list worked approximately 2000 hours during this period while drivers near the list's middle worked roughly 1000 hours and dnvers at the bottom of the list worked a few hundred hours, if at all, during this period We infer from this variation in hours worked among the dnvers that the Respondent's business is in fact cyclical on a daily or weekly basis We also infer that the nature of the Respondent's business, produc- tion and delivery of construction concrete, is seasonal reinstatement to returning strikers." The Respond- ent also argues that granting full reinstatement to returning economic strikers would impair its right to hire and retain permanent replacements" under NLRB v. Mackay Radio Co., 304 U.S. 333 (1938). C. Analysis and Conclusions It is now well settled that: [E]conomic strikers who unconditionally apply for reinstatement at a time when their posi- tions are filled by permanent replacements: (1) remain employees; and (2) are entitled to full reinstatement upon the departure of replace- ments unless they have in the meantime ac- quired regular and substantially equivalent em- ployment, or the employer can sustain his burden of proof that the failure to offer full re- instatement was for legitimate and substantial business reasons. Laidlaw Corp., 171 NLRB at 1369-70. See NLRB v. Cutting, Inc., 701 F.2d 659, 662 (6th Cir. 1983). The Board and the courts" have interpreted "full reinstatement" to require reinstatement with full se- niority. Community Motor Bus Co., 180 NLRB 677 (1970), enf. denied on other grounds 439 F.2d 965 (4th Cir. 1971). It is undisputed that the Respond- ent has reinstated Weitz and Ramey without full seniority. As noted above," we find that the Re- '° The cyclical or seasonal nature of an employer's business does not, in our view, dictate the extent or breadth of an employee's rights under the Act We will not deprive employees in economically volatile indus- tries of their statutory protections The nature of the Respondent's busi- ness does not excuse any denial of the Charging Parties' full reinstate- ment Accordingly, we dismiss the Respondent's defense herein under Laidlaw Corp., above, as lacking merit " The Respondent maintains that Its permanent replacements may be forced down the seniority list if economic stnkers are fully reinstated with seniority based on initial dates of hire We agree It does not follow, however, that the Respondent's right to hire and retain permanent re- placements under NLRB v Mackay Radio Go, above, is thereby threat- ened We do not equate semonty realignment with forced discharge of permanent replacements. Any reinstatement and resulting realignment will take place only when a vacancy exists due to the departure of a per- manent replacement Realignment per se does not cause discharge Nor does realignment serve to demote the permanent replacements to differ- ent or less desirable jobs At most, realignment may cause the permanent replacements to work fewer hours at the same job That outcome is solely the result of the Respondent's nonuniform aggregate hours of work for its drivers and of the Respondent's seniority-based work distri- bution practice. We do not view the Respondent's voluntary conduct, causing difficulties less severe than discharge, as unduly burdensome to Mackay rights Accordingly, we reject the Respondent's assertion that full reinstatement Interferes with the policies underlying the Act Our dis- senting colleague agrees with the Respondent In his view, the Court's holding in Mackay empowers the Respondent to grant its permanent re- placements a measure of seniority that supersedes the economic strikers' seniority We believe, with due respect, that the Court rejected the dis- sent's rationale in NLRB v Erie Resistor Carp, 373 U S 221 (1963) 12 E g, Vulcan Hart Corp v. NLRB, 718 F 2d 269 (8th Cir 1983), NLRB v. Pepsi-Cola Bottling Go, 613 F 2d 267 (10th Cir 1980), NLRB V Anvil Products, 496 F 2d 94 (5th Cir 1974) 13 See fns 10 and 11 HARRISON READY MIX CONCRETE 333 spondent has failed to sustain its burden of proof that this action was justified by substantial and le- gitimate business reasons Accordingly, we find that the Respondent's conduct is inherently de- structive of Section 7 rights and violates Section 8(a)(3) and (1) 14 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth in section III occurring in connection with its operations as described in section I have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and take certain af- firmative action to effectuate the policies of the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By denying returning strikers Weitz and Ramey their full seniority rights for the reason that they had engaged in protected strike activity, the Respondent violated and is violating Section 8(a)(3) and (1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act ORDER The National Labor Relations Board orders that the Respondent, Harrison Ready Mix Concrete, Inc , Harrison, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Denying its reinstated employees their full se- niority rights in retaliation for protected strike ac- tivity (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 14 See NLRB v Great Dane Trailers, 388 U S 26 (1967), and NLRB v Fleetwood Trailer Co, 389 U S 375 (1967) 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Restore employees Ricky D Ramey and James M Weitz to their full seniority rights and assign them to their rightful places on the driver seniority list effective retroactively to 25 March 1983 15 (b) Make Ramey and Weitz whole for any loss of earnings and other benefits suffered as a result of the discrimination against them by payment to them of a sum of money equal to the difference be- tween the amount they earned and the amount they would have earned from 25 March 1983 if they had been properly assigned to the Respond- ent's driver seniority list based on their initial date of hire Said backpay is to be calculated as pre- scribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in Harrison, Ohio, copies of the attached notice marked "Appendix "16 Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply MEMBER HUNTER, dissenting My colleagues' decision, in my view, is contrary to NLRB v Mackay Radio Co, 304 US 333 (1938) The majority's conclusion that permanent replacements must be demoted to lesser jobs in 15 We compute Ramey's loss of earnings from 25 March 1983 because he declined to return to work on that day as a result of the Respondent's failure to accord him full seniority rights upon recall As Weitz returned to work on 25 March 1983 we also compute his loss from that date " If 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 Na tional Labor Relations Board' shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD favor of returning strikers is irreconcilable with the Court's Mackay holding that an employer is not bound to discharge those hired to fill the places of strikers in order to create places for striking em- ployees who choose to return to work.1 In finding that the Respondent violated Section 8(a)(3) and (1) by failing to reinstate returning strikers Ricky D. Ramey and James M. Weitz to their former places on the Respondent's seniority roster, my colleagues rely on Laidlaw Corp., 171 NLRB 1366 (1968). There, the Board found, inter alia, that an employer's offer of employment with "less than rights accorded by full reinstatement (such as denial of seniority)" violated Section 8(a)(3) and (1) of the Act as it served to penalize an employee for concerted activity and was inher- ently destructive of employees' interests. In Laid- law, however, which involved a manufacturing company and a unit of production and maintenance employees, there was no evidence that the number of hours an employee worked varied with produc- tion needs and seniority. By contrast, the facts in this case show that the Respondent is engaged in a seasonal business in which its work needs vary from day to day. Employees essentially work "on call" and are assigned work in order of their place- ment on a work distribution list which is based on their original date of hire. The result, of course, is that those placed near the top of the list may re- ceive significantly more hours of work than those placed near the bottom. In these circumstances, where the nature of the work is such that fewer hours of work are available to those at the bottom of the list than to those at the top, bumping perma- nent replacements in favor of returning strikers ef- fectively demotes the permanent replacements to less desirable jobs. Thus, I conclude that where, as here, demotion on the roster is reassignment to a lesser, and therefore different, position with a cut in wages, the nice distinction between "discharge" and unavailability of work offers is without sub- stance. My colleagues' hollow rationale is that such an outcome is solely the result of the Respondent's "nonuniform aggregate hours of work" for its em- ployees and of the Respondent's "voluntary" se- niority-based work distribution practice. In this re- spect, I would point out that such an outcome is not so much the result of the Respondent's work policy as the result of the majority's decision, which, in effect, places the names of returning strikers above those of permanent strike replace- ments on the work assignment list. My colleagues are of course well aware, I would think, that an employer remains at liberty under the Act to con- ' The Supreme Court recently affirmed this holding in Belknap, Inc. v. Hale, 103 S Ct 3712 (1983) duct its business free of the Board's scrutiny, except where it fails one of its duties enumerated in the Act not involved here. Accordingly, I find that in this case reinstate- ment with full seniority undermines the Respond- ent's right to hire permanent replacements under Mackay Radio, supra. Further, I do not agree with my colleagues' intimation that such a conclusion is inconsistent with the Supreme Court's decision in Erie Resistor Corp., supra at fn. 11. In that case, an employer, during the course of a strike and in order to continue its operations, offered an award of 20 years' additional seniority to employees in an effort to induce strikers to return to work and to attract permanent replacements. The Board found, inter alia, that superseniority in circumstances such as these constituted an unfair labor practice, irre- spective of evidence of a specific intent to discrimi- nate against striking employees. In upholding the Board's decision, the Supreme Court stated: We have no intention of questioning the continuing vitality of the Mackay rule, but we are not prepared to extend it to the situation we have here. To do so would require us to set aside the Board's considered judgment that the Act and its underlying policy require, in the present context, giving more weight to the harm wrought by superseniority than to the in- terest of the employer in operating its plant during the strike by utilizing this particular means of attracting replacements. [Emphasis added. 373 U.S. 232.] Given this language, I would respectfully suggest to my colleagues that the Supreme Court's holding is arguably limited to the facts of Erie Resistor and does not dictate a finding that the Respondent acted unlawfully in the circumstances herein, since in the instant case the Respondent offered perma- nent replacements no superseniority, but only the jobs which the strikers abandoned. Finally, I note that the majority has ordered the names of the re- turning strikers be placed above those of employees who previously crossed the picket line to return to work. In my view, the rights of these employees are at least equal to the rights of permanent re- placements. I find that such an order penalizes those employees for exercising their Section 7 right to abandon the strike. Accordingly, I dissent. HARRISON READY MIX CONCRETE 335 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT deny any reinstated employees their full seniority rights in retaliation for protected strike activity WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL restore employees Ricky D Ramey and James M Weitz to their full seniority rights and assign them to their rightful places on our driver seniority list effective retroactively to 25 March 1983, and WE WILL make them whole for any loss of earnings and other benefits resulting from their improper assignment on the driver se- niority list less any net interim earnings, plus inter- est HARRISON READY MIX CONCRETE, INC