ABC Concrete Co.

National Labor Relations Board - Board Decisions

Dec 19, 1977

233 N.L.R.B. 1298 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James R. McCaffrey and Edward A. Cook, A
Partnership, d/b/a ABC Concrete Company and
Kenneth R. Carl and Truck Drivers, Chauffeurs,
and Helpers Local No. 100, an affiliate of
International Brotherhood of Teamsters, Chauff-
eurs, Warehousemen and Helpers of America,
Petitioner. Cases 9-CA-10754 and 9-RC-11759
December 19, 1977
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On July 20, 1977, Administrative Law Judge Anne
F. Schlezinger issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge, to modify the remedy so that interest is
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977),2 and to adopt her
recommended Order, as modified herein.3
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 as
modified below and hereby orders that the Respon-
dent, James R. McCaffrey and Edward A. Cook, A
Partnership, d/b/a ABC Concrete Company, West-
chester, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
Insert the following as paragraph l(b):
"(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act."
DIRECTION
It is hereby directed that, as part of the investiga-
tion in Case 9-RC-11759 to ascertain a representa-
tive for the purpose of collective bargaining with the
Respondent Employer, the Regional Director for
Region 9 shall, pursuant to the Board's Rules and
Regulations and within 10 days from the date of this
Decision, open and count the ballots of Michael
233 NLRB No. 184
Brinck, Kenneth R. Carl, Joe Jasper, Darrell A.
Kasson, Terry L. Mayes, George F. Rickers, William
A. Watters, and James Wheeler. Thereafter, the
Regional Director shall prepare and cause to be
served on the parties a revised tally of ballots and
thereafter issue the appropriate certification. Case 9-
RC-11759 is hereby remanded to the Regional
Director for Region 9 for the purpose of carrying out
the Board's direction herein.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
3 The Administrative Law Judge inadvertently failed to conform her
recommended Order with her findings. we shall therefore correct her
recommended Order accordingly.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon a charge and an amended charge filed respectively
on October 27 and November 24, 1976,' by Kenneth R.
Carl, an individual, referred to herein as the Charging
Party or Carl, the General Counsel, by the Regional
Director for Region 9, issued a complaint and notice of
hearing on December I. The complaint alleges in substance
that James R. McCaffrey and Edward A. Cook, d/b/a
ABC Concrete Company, referred to herein respectively as
McCaffrey, Cook, and Respondent, discharged eight
named employees on or about October 26 because of their
protected concerted activities, and at all times thereafter
failed and refused to reinstate them because of their
membership in and activities on behalf of, and to
discourage membership in, Truck Drivers, Chauffeurs, and
Helpers Local No. 100, an affiliate of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, and has
thereby discriminated in regard to the hire and tenure of
employment of its employees in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
Respondent, in its answer duly filed, admits some of the
factual allegations of the complaint, but denies that it has
committed the alleged unfair labor practices.
On December 17, pursuant to a Stipulation for Certifica-
tion Upon Consent Election, an election by secret ballot
was conducted among certain employees of Respondent to
determine whether or not they desired to be represented,
for the purposes of collective bargaining, by the Union. On
December 30, the Regional Director issued a report on
election, challenged ballots, order directing hearing, order
consolidating cases, order transferring cases to the Board,
and notice of hearing, in which he directed that the issues
raised by challenges to 16 ballots in Case 9-RC-11759 be
consolidated with Case 9-CA-10754, that the Administra-
I All dates hereinafter refer to 1976 unless otherwise indicated.
1298
ABC CONCRETE COMPANY
tive Law Judge designated to conduct the hearing prepare
and cause to be served on the parties a Decision containing
resolutions of the credibility of witnesses, findings of fact,
and recommendations as to the disposition of the said
issues, that thereafter the above-entitled cases be trans-
ferred to and continued before the Board, and that the
provisions of Sections 102.46 and 102.69(f) of the Board's
Rules and Regulations shall govern the filing of exceptions.
Pursuant to due notice, a hearing was held before me at
Cincinnati, Ohio, on February 24, 25, and March 2, 1977.
All the parties appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce relevant evidence. Counsel for
the General Counsel made an opening statement at the
beginning of the hearing. Counsel for Respondent made an
opening statement before putting on Respondent's witness-
es. The parties waived closing argument. Subsequent to the
hearing, on or about March 28, 1977, the General Counsel
and Respondent filed briefs which have been duly
considered.
Upon the entire record in this proceeding and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a partnership, is engaged in the business of
manufacturing and delivering ready-mixed concrete at its
plant in Westchester, Ohio. Respondent began its opera-
tions in February. Since that date, a representative period,
Respondent has purchased goods valued in excess of
$50,000 from firms in Ohio, which in turn purchased those
goods from outside the State of Ohio and caused them to
be shipped directly to their respective locations in Ohio.
Respondent's gross revenues exceed $500,000 annually.
The complaint alleges, Respondent in its answer admits,
and I find, that Respondent is, and at all times material
herein has been, an employer as defined in Section 2(2) of
the Act, engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
I find, as the complaint alleges and Respondent in its
answer admits, that the Union is, and at all times material
herein has been, a labor organization within the meaning of
Section 2(5) of the Act.
11I. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues herein are (1) whether Respondent, on
October 26, discharged Michael Brinck, Kenneth R. Carl,
Joe Jasper, Darrell A. Kasson, Terry L. Mayes, George F.
Rickers, William A. Watters, and James Wheeler because
they engaged in protected concerted activities, or whether
they were discharged for cause, went on strike, or quit their
2 Pursuant to a request of counsel for Respondent acquiesced in by
counsel for the General Counsel, witnesses for the General Counsel
including the alleged discriminatees were sequestered before as well as after
jobs; (2) whether Respondent, on and after October 26,
refused to reinstate them because of their membership in
and activities on behalf of the Union and to discourage
membership in the Union, or because they had quit or by
their conduct forfeited their jobs; and (3) whether they
engaged in an economic or unfair labor practice strike,
when the strike began.
The General Counsel called as witnesses Brinck, Carl,
Jasper, Kasson, Mayes, Rickers, Watters, and Wheeler,
who are named in the complaint as the alleged discrimina-
tees, and James Meyer and Marshall Tucker, union
business agents. Respondent called as witnesses McCaffrey
and Cook, who, Respondent's answer admits, were at all
times material herein partners in Respondent, acting as its
agents and supervisors within the meaning of Section 2(1 1)
of the Act. 2
B. Respondent's Operations
Both McCaffrey and Cook had worked for other
employers at times with some of the employees here
involved, most of whom they had known for years and
some of whom were personal friends. When McCaffrey
and Cook, while on layoff status from their jobs, were
considering formation of their own enterprise, they offered
Jasper an opportunity to join them, but after some
discussion he declined. The partnership was established,
with personal and borrowed moneys, in February. Some of
the individuals here involved helped put up Respondent's
buildings without pay before employees were hired. The
business improved from month to month, and was very
good for a period beginning in August.
Cook and McCaffrey were members of the Union
holding withdrawal cards. Some of the employees were also
members of the same or a different local, and some were
also on withdrawal cards while others were current
members. Meyer, a business agent of Local 100, the Union
here involved, had been a friend for many years of both
Cook and McCaffrey. He testified that the wage rates in
the area contract were very high, and that he had agreed
that this contract would be inapplicable to Respondent in
the early stage of its operations.
The work hours of the employees varied considerably
depending upon the orders to be filled. When there were no
orders to deliver, the men could go home or do building or
yard work. They worked long hours on some days, and
were paid time and a half for work over 40 hours a week.
Jasper and Brinck generally reported to work at 7 a.m., the
others at 7:30, unless notified otherwise by Respondent.
Mayes and Rickers were frequently late, but their tardiness
was tolerated as they were admittedly good workers.
Respondent admitted that all eight of the employees here
involved were good workers. Both partners worked on
various jobs with the men.
Wheeler, who was a mechanic as well as a driver, was
hired at $5 an hour, the highest rate of any of the
employees. Others were hired at $4 or $4.50. Carl, who was
hired at $4, testified that McCaffrey said he could pay only
$4 then and promised him $5 when able to pay it, but he
they testified. McCaffrey and Cook remained in the hearing room
throughout the hearing.
1299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had never asked about a raise. Jasper was hired by
McCaffrey at $4 with a promise of $5 when the business
could pay it. He asked for a raise shortly after he began
and went to $4.50. He testified that he asked several times
for the $5 he had been promised but never received it, and
that he had also been promised 50 cents a yard on sales he
made but did not get it. Brinck testified that he asked
McCaffrey for a raise a few months after he began
working, was told to get in his truck and start it, and never
asked again. After the business had improved, Wheeler and
Jasper asked for raises. McCaffrey told them there was not
enough experience yet to raise wages, and that he preferred
to and would pay a bonus in good months and at
Christmas. The men received a bonus in September.
In October some of the employees began to discuss
among themselves trying to obtain a wage increase. They
later talked to Wheeler about the possibility of obtaining
equal pay for all the drivers at his rate of $5. Wheeler
became a leader in the group discussing this matter. The
men also talked about requesting overtime pay for work
over 8 hours a day as they very often worked long days
when they did not work over 40 hours a week. Cook
testified that he saw the men frequently huddling with
Wheeler near Wheeler's truck for a period of a few weeks
in October.
Wheeler drew up a handwritten document dated October
25, stating that the undersigned wished to be represented
by a union organization, which he signed and had
notarized. He then obtained the signatures of the other
drivers during the evening of October 25, most of them at a
restaurant. That evening Watters, Mayes, and Kasson had
worked with Cook until about 8:15, and Brinck had
worked with McCaffrey until about 8:45. None of them
said anything to Cook or McCaffrey about the petition,
which was never presented to Respondent. Wheeler told
some of the men, when obtaining their signatures to the
petition on October 25, that they would try to have a
meeting with Respondent the next morning. It was difficult
for the men to arrange meetings as they worked irregular
hours and spent some of their time out on the trucks.
C. Events of October 26
I. Testimony of the General Counsel's witnesses
a. Conversations in the office
On the morning of October 26, all the employees had
arrived at work by 7:30 except Mayes and Rickers. Those
present discussed trying to have a meeting that morning.
They concluded that Mayes and Rickers were coming late,
decided they would go to the office without them, and did
so between 7:30 and 7:45. There was some variance in the
descriptions by these employees of what occurred, but the
substance of their testimony as to what each of them said
or heard was in basic agreement. A synthesis of their
testimony as to the events of October 26 is as follows.
As Jasper and Brinck were the first to arrive at work,
Jasper's truck was in position to be loaded and Brinck's
truck was next in line, but no concrete had been loaded yet
in either one when the six men walked into the office. Cook
was in the office. McCaffrey was in an inner office
speaking on the telephone. Cook asked what the men
wanted, and Jasper replied that they wanted to talk to him.
When Cook asked what about, no one answered right
away. Watters then spoke up and said they wanted equal
pay and overtime for work over 8 hours a day. Cook
commented that Jasper and Carl sold concrete and were
more experienced and faster workers than Watters, but
Watters replied that he did the same amount and kind of
work.
Watters, Carl, Brinck, Kasson, and Wheeler testified that
Cook asked who was the "instigator," then said he knew it
was Wheeler as he had seen the men huddled around
Wheeler, and that Watters said there was no instigator,
they were there as a group. Jasper testified first that Cook
asked "Who is the instigator or steward of the bunch?";
that Carl said "Nobody is a steward. We are all in this
together"; that Cook then said to Wheeler, "Jim, you must
be the instigator because all of the men have been talking
to you and have been around you"; and that Wheeler
replied, "There is no instigator. We are all together." Jasper
later maintained, on cross-examination, that "instigator," a
word with which he was unfamiliar, was the term used by
Cook, not steward, a word with which he was familiar.
Cook asked Brinck if he was with the others, and Brinck
said he was. Cook then went into the inner office and told
McCaffrey, who had completed his telephone conversa-
tion, that the men wanted more money or would not work.
McCaffrey told Cook to send them home. Cook told the
men that, as McCaffrey said, they were to go home. The
men left the office. While the men denied that any of them
told Cook they would not work unless they got more
money, none of them disputed what Cook told McCaffrey.
b. Cook's conversations with Mayes and Rickers
As the men walked out of the office with some muttering
among themselves, Carl said they should stay calm, drive
their cars off Respondent's premises, and obtain union
representation. The men drove out to a road in front of
Respondent's premises. About that time Mayes and
Rickers arrived and were told what happened. Cook at this
time came out of the office, approached the group, and
asked if Mayes quit with the rest. Mayes said he did not
quit but was going along with the group. Cook then asked
Kickers what he was going to do, and Rickers also said he
was with the group.
As Cook turned to walk back to the office, Rickers spoke
to him. During their conversation, Cook said it was just like
the men to wait until Respondent was busy to pull a stunt
like this and try to put on a squeeze for more money.
Rickers said they were not pulling a stunt to put
Respondent out of business and would haul concrete for
Respondent that day if they could talk later. Cook
responded that he would close down before he would take
back any of the men. When Rickers repeated that they just
wanted a meeting, Cook said that he knew what kind of
people they were, that they would ask for $10 today and
$20 tomorrow, and, again, that he would close down before
taking back any of these men. Cook then went back to the
office.
1300
ABC CONCRETE COMPANY
c. Inquiries as to status
In the meantime Carl left the group to telephone the
Board office and found it was not open yet. He later
telephoned again and returned to report that he was told
they should go in and ask Respondent what their status
was. As they went toward the office, McCaffrey got out of
the truck he had been driving, and they asked him about
their status. He replied that whatever Cook said went for
him as he and Cook were partners. As they approached the
office, Cook came out, said they were no longer welcome
there, and told them to get off the property. Carl said they
had to know what their status was. Most of the group
testified that Cook merely repeated that they were to get off
the property, but Brinck and Mayes testified that Cook
also, in reply to Carl's question, said they had all quit as far
as he was concerned. The men went back out to the road.
Carl testified that he reported to the Board what occurred
when the men tried to ascertain their status and was told to
file a charge. Later that day Carl and Jasper went to the
Board office and filed a charge.
d. Union representation
About the time Carl left the group to telephone the
Board, Rickers left to telephone the Union. Meyer, a union
business agent, arrived that morning just after the men had
asked McCaffrey and Cook about their status. The men
told Meyer what had happened. He obtained signed union
cards from all eight, and then went to the office. McCaffrey
was out on a truck but Cook and McCaffrey's wife, both of
whom Meyer had known for many years, were in the
office. Meyer testified that both were upset about what had
occurred; that during the discussion he said all the men
had signed union cards; that Cook stated there was no way
Respondent could go Union or pay the union rates; that he
responded he was not asking that but wanted to work
things out; and that Cook said they had to wait and talk to
McCaffrey. Meyer went out and reported to the men what
was said. He told them that Cook was angry, and that he
would go in again when McCaffrey returned.
When Meyer did so, he told McCaffrey he represented
the men, and they should work things out. He testified that
McCaffrey said the employees were not good union men
but, as Meyer knew, McCaffrey and Cook were; that he
was "hot" and in no mood to talk but was going home to
get a gun; that he would not take back these men, some of
whom were close friends, after what they did; and that he
could not pay the wages in the area contract. Meyer said he
was not talking about those wage rates, and was not going
to do anything to hurt a friend's business. He gave
McCaffrey his card and suggested McCaffrey call after
cooling down. Meyer reported back to the men, and
warned them to stay out of McCaffrey's way as McCaffrey
was "hot" and was getting his gun. Meyer also told them he
was going to file the cards with the Board for an election.
He showed them how to make picket signs and left.
McCaffrey called Meyer that night and said he had
decided not to take the men back. Meyer asked McCaffrey
to call again if he changed his mind, and offered to discuss
the matter at any time, including at night or during the
weekend. Meyer took strike signs out to the men the next
morning. He and Tucker, another business agent, went to
the office to ask if the partners had changed their minds or
would try to resolve the issues. Meyer testified that both
partners said they were better union members than the
employees were, that there was no way they would take the
men back, that they would not discuss a union contract or
anything else, and that McCaffrey also said he had a gun
and the men should stay out of his way.
On October 29, Meyer sent McCaffrey a telegram and a
confirmatory letter stating that the Union offered to end
the strike and the strikers offered to return to work
unconditionally, and asking to be notified when they could
return to work. No reply was received. Meyer and Tucker
made another visit to Respondent and asked Cook to take
the men back, but Cook refused. McCaffrey was out on a
job. Meyer went out to the job, asked the same question,
and got the same refusal.
The men admittedly never before October 26 discussed
the equal pay matter with Respondent, requested in
advance a meeting for such discussion, or designated a
spokesman for the group. They had made no plans as to
what they would do if Respondent refused to talk to them
because, as Watters testified, they assumed Cook would get
angry but would talk. It was stipulated at the hearing that
the men never took a strike vote. The men likewise had
never discussed the wage issue with the Union prior to
going to the office, or requested union authorization to
strike. The employees maintained that none of the men
told Respondent on October 26 that they quit their jobs,
that they did not insist Cook discuss and work out matters
then, and that none of them said they would not work until
that was done or unless they were given more money.
Brinck, who was 21 years old, testified that he told the
others before they went to the office that he would walk out
if Respondent refused to talk to the group, but that he did
not hear anyone else talk about walking out. Jasper
testified that he did not hear Brinck say he would walk out
if they did not get a raise; that none of them wanted to
walk out or strike or quit; that they wanted to work, and
just wanted to talk about the pay; that, if they had talked,
they would not have walked away but would have kept on
working; and that they would have worked that day if told
they could talk another time. Mayes also testified that he
did not hear anyone say they would either get a raise or
walk out, that they discussed only wanting to talk, not what
they would do, and that he did not understand why the
men had been told to go home when they just wanted to
talk.
2. Testimony of Respondent's witnesses
a. McCaffrey
McCaffrey testified that Jasper's truck was being loaded,
and Brinck's truck was next in line to be loaded, at the time
the men walked into the office; that it is industry practice
for the men to stay at their trucks when they are being
loaded; that, although engaged in a telephone conversation
in which he was at times engrossed, he saw the men walk
into the outer office and "I guess I might have probably
been shocked or whatever you'd say, and I heard Joe
Jasper say to Ed Cook, 'The boys are not going to work
1301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until you and Jim talk to them about more money.' I heard
that. I heard Ed ask Joe, 'Are you with them?' And he
asked Mike Brinck the same thing . . . and both of them
said, 'Yes' and in the process of taking down an order and
talking to customers, I heard brief things such as: I heard,
'steward,' and 'Jim Wheeler.' . .by the time I hung up the
phone, Ed came to me and said, 'These guys aren't going to
work until we meet their demands.' I told Ed . . 'We can't
afford more money; let them go.' . . . that's what I said
and I would almost - I swear, is word for word, to the best
of my knowledge - it's word for word." McCaffrey also
testified that he told Cook to let them go in a voice loud
enough for the group to hear, and that Cook then told the
group, "Boys, you heard it; take off."
McCaffrey testified, on cross-examination, that he heard
"steward" mentioned by Cook and heard Wheeler's name
mentioned, but did not hear the word "instigator"; that "I
really didn't hear anything that Ed said"; and that he heard
Watters mention something "to the effect of, equal pay."
McCaffrey also asserted that this was a very busy time, that
he would have been glad to agree to talk at another time
but the men did not ask to do so, that he did not order
them to leave but left it up to them if they wanted to quit,
and that "when they left, we assumed that they had quit."
McCaffrey also maintained that he could not tell the men
he would talk later because he understood they demanded
discussion right then of their wage demands or they would
not work; because he had previously talked to some of
them when they sought wage increases and "thought that I
had the problem resolved with bonuses and Christmas gifts
. . ."; and because, in his experience as a union man,
negotiations did not take place without prearrangement at
7:30 in the morning.
McCaffrey had his wife come in to handle the telephone,
told her to call the unemployment office for drivers, and
delivered a load of concrete in Jasper's truck. He testified
that he was getting ready to leave with a second load when
the men came back, that Carl asked if they could talk, and
that he said he was too busy to talk and agreed with
whatever Cook said.
McCaffrey testified that, when he later returned to the
office and saw Meyer, he told Meyer he could not talk then
because he was "hot" and excited and very busy; that
Meyer followed him into the office, where he saw his wife
in tears; that she said Meyer "told her that, 'He didn't want
this thing to go to the garbage way' "; that this was a
common term in the Teamsters Union and he knew, when
anyone from the Union used that phrase, it was intimida-
tion; that he told Meyer he was "hot" and he was, and "I
probably told Jim at this time that, 'I would get a gun and
we would not get our backs to the wall.' . . . I don't recall
saying that I would be the aggressor and that I would shoot
anybody. I did tell Jim, 'Not to have the men standing in
the middle of the driveway trying to stop me or my drivers'
and I, and I was truthfully - I was visibly upset."
McCaffrey also told Meyer to tell the men to stay out of his
way or he would run over them.
McCaffrey explained that, while these men were good
employees before this incident, some had worked without
pay to help build the plant, and it made no difference to
him that the men had signed union cards, he would not talk
to the Union about them because he was convinced they
had quit their jobs. He also asserted that their conduct on
October 26 had caused business losses. Respondent hired
three replacements on October 27, and hired a full
complement of replacements in the next few weeks.
b. Cook
Cook testified that Jasper's truck was being loaded with
concrete, which requires the driver to stay with his truck,
when Jasper and the others walked in; that Jasper said
"These boys aren't going to work unless we talk wages with
them"; that "I asked him, 'Are you with them men?' And
he answered 'Yes' and I asked Mike Brinck, 'Are you with
those men?' And he answered 'Yes'; that "I asked who the
steward was and pointed at Jim Wheeler and asked if he
was the steward and then, Buzz [Watters] spoke up and
says, 'No, we're all in it together.' Buzz said that he wanted
time and a half - not time and a half - he wanted equal
pay for all of the men, and as I turned, Joe says, 'All I want
is [a] 5(0 an hour raise.' " Cook testified at various points
that the men demanded $5; that no one mentioned a
specific dollar amount but he figured $5 was the demand
because "they wanted equal pay and the highest man there
was $5.00"; and that Jasper, who was making $4.50, said he
wanted a 50-cent raise to $5 after Watters asked about
equal pay and just as he, Cook, turned to talk to
McCaffrey.
Cook testified that he told the men to wait, and walked
over to McCaffrey; that, after McCaffrey finished the
telephone conversation, he said, "These guys wouldn't -
they're not going to work until we discuss their wages with
them"; that McCaffrey "said that, 'We couldn't afford it
and we'd have to just let them go.' So I turned around and
said, 'You heard it; hit it' "; and that the men then all
turned around and left. Cook admitted that he did not
offer to talk to the men at another time.
Cook testified that, when the men "went out and left the
premises ... I considered that they had quit. That was their
choice and they could have went and started their trucks
and went to work or they could have did what they did....
they all walked off of the job and we couldn't afford to give
them no raise. We had orders to get out and we had
nobody - you know, we had no time to discuss anything."
Cook also testified that, when he saw Mayes and Rickers
arrive, he went out to inquire "if they were afraid to come
in the gate or, you know, what their case was"; that he
asked Mayes, "Did you quit with the other men?" but
Mayes did not answer; that he asked Rickers "If he was
with the rest of the men," and he replied, "I guess so; I'm a
driver"; and that he then turned again to Mayes who,
"after hesitating a while, he says, 'I guess so.' " Cook
testified further that, as he was walking back to the office,
Rickers followed and "said that he wanted to know if we
couldn't just talk about it and he said that all he wanted
was time after, you know, for eight hours a day work"; that
he told Rickers, "If we meet their demands this morning
for $5.00 an hour, tomorrow, they'd want $10.00 an hour";
and that he walked off with no further conversation.
Cook testified that some of the men came back to the
office later, that he was very busy and "I'm naturally
nervous and everything when that happens and they come
1302
ABC CONCRETE COMPANY
in the office and . . . Wheeler asked, 'What's our status?'
And I said, 'As far as I'm concerned; you quit your jobs.'
Then they walked out the door.... They could have, at
that point, told us that they didn't quit and they'd go to
work, but there was never a word mentioned then, you
know, that they was willing to come back to work."
With regard to Meyer's visits, Cook testified that he and
McCaffrey had known Meyer a long time but he "was
really surprised to see him because we've had no involve-
ment with the union as long as we'd been in business"; that
McCaffrey's wife asked what Meyer was doing there, and
Meyer said the men called him in; that she asked what time
they called, and Meyer said he did not know; that Meyer
"said that he could sign up with a $5.00 an hour contract so
that it wouldn't hurt us and he says, 'I'd rather see it done
that way than the garbage way' "; that to him this meant
"just about the dirtiest route you can take. I'm a teamster
member and I know what violence there has been in strikes
and that - it just ain't the way that you go in and talk to
people"; and that, knowing Meyer, he understood that was
what was meant. Cook maintained that he was not
motivated in any way by the men having obtained union
representation as he knew most of them were union
members when hired.
Cook testified, on cross-examination, that he used the
word "steward" in the office, although the men were not
represented by a union then to his knowledge, because it is
a common term among union men and he was talking to
union men; that no one mentioned "instigator" that he
knew of; and that he designated Wheeler because he had
seen all the men huddling around Wheeler in the past few
weeks. Cook also testified that he told McCaffrey "that
'The men wasn't going to go to work until we talked to
them about wages,' and I'm pretty sure that I said, 'meet
their demands' "; that he did not state to McCaffrey what
the demands were because "I imagine that he heard it
because we were all in one little group there; you know";
that when McCaffrey said "Let them go," that "means that
they quit their jobs if they want to quit because we can't
afford to give them a raise"; that he did not think it meant
to fire them and did not mean that to him; that he told the
men "You heard it, take off," and they did; and that "They
should have taken off and started their trucks." Cook
testified further that, during his separate talk with Rickers,
he said the men were putting him in a bind; that,
concerning whether Rickers said that was not the intention
of the men, "he could have; I wouldn't know ... I don't
recall"; that Rickers "said he wanted to talk. He never said
he'd haul it"; and that he was not willing to talk then to
Rickers or the rest of the men.
3. Testimony of Tucker
On the last day of the hearing, counsel for the General
Counsel stated that he intended to recall Meyer as a
rebuttal witness but, as Meyer had not appeared, called
Tucker instead. Tucker testified that he has been a member
of the Teamsters Union since 1940 and a business agent of
Local 100 about 13 years; that he went to Respondent's
office on two occasions with Meyer; that he did not hear
anyone say the "garbage way" either time; and that he had
never used that phrase or heard anyone else use it prior to
the hearing.
Concluding Findings
The eight employees impressed me as candid and
straightforward witnesses, trying to recall what they said
and heard during the discussions here in issue. While there
were some variances in their respective versions of the
relevant events, I am convinced these variance were due to
some in the group having heard certain remarks while
others did not, and to some having better memories than
others, and not to an attempt to fabricate their descriptions
of what occurred. The two union business agents likewise
appeared to be frank and believable witnesses. I found
McCaffrey and Cook, on the other hand, hesitant, evasive,
and unconvincing witnesses. On the basis, therefore, of my
observation of the demeanor of the witnesses, the inherent
probability of the testimony in all the relevant circumstanc-
es, and the entire record, I credit the testimony of the eight
employees and the two union business agents where it is in
conflict with that of McCaffrey and Cook.
On the basis of the credited testimony, of admissions
made in the testimony of Respondent's witnesses, and of
the record in its entirety, I find that the six employees went
into the office on October 26 to request an opportunity to
talk about wages and overtime pay, and did so, and that
they had no intention, and expressed none, of quitting or
refusing to work unless this request was immediately
granted. McCaffrey and Cook were nevertheless admitted-
ly angry at this group attempt to obtain increased earnings.
I do not credit the testimony of Cook that he asked who
was the "steward" of the group, of McCaffrey that he
heard the word "steward," or of both that there was no
reference to "instigator." Cook, after checking with
McCaffrey, and with no indication they would talk at
another time, ordered the men to leave. I find that, whether
McCaffrey told Cook to let them go, or Cook told the men
to go home, to hit it, or to take off, the phrase used was
intended by McCaffrey and Cook, and was understood by
the six men, to be an order to leave because they were
terminated.3 McCaffrey and Cook maintained that the
men were given the option of getting in their trucks and
going to work, but they did not tell the men so. And the
men did not, as Respondent contends, quit their jobs or go
on strike at that time. They did not intend to quit or state
they were quitting, and they were summarily terminated
before they took or even contemplated any strike action.4
Moreover, when Cook went out to talk to Mayes and
Rickers, the late arrivals, about what they were going to do,
he was told by each that he was with the group. I find that
in these conversations, Mayes also told Cook he had not
quit his job but was with the group, and Rickers told Cook
the men would go to work if Cook would agree to talk at
another time. Cook stated to Rickers, however, that he and
McCaffrey were determined that they would close down
before they would take back any of these men. McCaffrey
3 Hale Manufacturing Co., Inc.. 228 NLRB 10(1977).
1303
4 Hale Manufacturing Co., Inc., supra.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Cook did not offer to take the men back when the
group went in a little later to ask about their status. In
addition, Meyer made several requests, beginning the same
day, for reinstatement of the eight men, but McCaffrey and
Cook refused to take back any of these men.
Accordingly, on the basis of the record as a whole, I find
that the group of six employees went into Respondent's
office to ask only for discussion of an increase in wage and
overtime rates, that this was action for their mutual aid and
protection, and that it constituted concerted activity
protected by Section 7 of the Act.5 The two employees who
arrived late joined with the other six in this activity. I find
further that this group action did not lose its character as
protected concerted activity because the employees were
an unrepresented group with no established grievance or
bargaining procedures, no articulated plan, and no desig-
nated spokesman; because they made no advance arrange-
ment for a discussion with Respondent; because their
action of a few minutes' duration took place during
working hours; or because their conduct, occurring at a
time when Respondent was very busy, "brought inconve-
nience and economic loss" to Respondent. 6
I find also that the employees did not say or indicate by
their conduct that they were quitting; that Respondent
could not, by saying they quit, convert their attempt to
discuss pay rates into a quitting of their jobs; and that there
is no reasonable basis in the evidence for Respondent to
maintain that they had, irrevocably, quit their jobs.7 I find,
on the contrary, that both partners were angry about the
group's request when they thought they had settled all
wage demands by the bonus program, summarily dis-
charged the six employees in retaliation for their protected
concerted activity, and, a few minutes later, when Cook
ascertained that Mayes and Rickers were part of the group,
terminated their employment as well. Respondent thereaf-
ter rejected all requests for reinstatement, including
requests made on the same day, and proceeded beginning
the next day to hire replacements. I find, therefore, on all
the relevant evidence, that Respondent discharged the
eight employees because they engaged in protected con-
certed activities, in violation of Section 8(a)(l) of the Act.8
I find further that, although McCaffrey and Cook were
longtime members of the Union, they were firmly opposed
to any representation of their employees by the Union at
this early stage of the partnership operation. They so
indicated to Meyer, the union business agent, when he
urged reinstatement of the men and assured the partners he
would not take any action in representing these employees
to hurt the operation. On the basis of the credited
testimony of Tucker, a union business agent, and all the
I N.LR.B. v. Washington Aluminum Company, Inc., 370 U.S. 9 (1962); B
& P Motor Express Incorporated v. N.L.R.B., 413 F.2d 1021 (C.A. 7, 1969);
Toledo Commutator Company, 180 NLRB 973 (1970); Hale Manufacturing
Co., Inc., supra; Dawson Cabinet Company, Inc., 228 NLRB 290 (1977).
6 N.L.R.B. v. A. Lasaponara & Sons, Inc., a wholly owned subsidiary of
ERE Industries, Inc. and ERE Industries, Inc., 541 F.2d 992 (C.A. 2, 1976);
United Merchants and Manufacturers, Inc. v. N.LR.B., 554 F.2d 1276 (C.A.
4, May 9, 1977); Westmont Tractor Company, 173 NLRB 1188 (1968);
Newbery Energy Corporation, Industrial Division, 227 NLRB 436 (1976);
Methodist Hospital of Kentucky, Inc., 227 NLRB 1392 (1977).
7 B & P Motor Express Incorporated, 171 NLRB 1289, 1293 (1968), enfd.413 F.2d 1021, supra; Toledo Commutator Company, supra at 977; Sibilio's
Golden Grill, Inc., 227 NLRB 1688 (1977); Hale Manufacturing Co., Inc.,
supra.
relevant circumstances, I do not credit the testimony of
McCaffrey and Cook that Meyer told McCaffrey's wife
that, unless agreement was reached on his proposal, the
Union would go the "garbage way," or that this was a well-
known phrase used by Meyer and other union agents as a
threat of violence. I find, on the evidence in its entirety,
that Respondent refused to reinstate the men at Meyer's
request, after all eight had designated the Union as their
representative, because it was unwilling to grant the union
representative status even to the limited extent proposed by
Meyer.9 Respondent has presented no convincing or
probative evidence of business justification for refusing to
take back these admittedly good employees and instead
hiring new employees.' 0 I find, therefore, that Respondent
failed and refused to reinstate the eight employees on and
after October 26, 1976, because of their membership in and
activities on behalf of the Union and to discourage
membership in the Union, in violation of Section 8(a)(3)
and (1) of the Act." I find further that these employees,
who went on strike to protest their discriminatory discharg-
es and Respondent's refusals to reinstate them, were
engaging in an unfair labor practice strike. 2
Accordingly, I find, in conclusion, that Respondent
discharged the eight employees on October 26, because
they engaged in protected concerted activities, and, on
October 26 and at all times thereafter, failed and refused to
reinstate them because of their membership in and
activities on behalf of the Union and to discourage
membership in the Union, and thereby discriminated in
regard to the hire and tenure of employment of these
employees in violation of Section 8(aX 1) and (3) of the Act.
Respondent's motions to dismiss the complaint in whole or
in part, made in its answer at the hearing and in its brief,
are therefore hereby denied.
IV. THE CHALLENGED BALLOTS
The Regional Director consolidated with the instant
complaint case the issues raised by challenged ballots in
Case 9-RC-11759, and directed that the Administrative
Law Judge prepare and cause to be served upon the parties
a Decision containing resolutions of credibility of witness-
es, findings of fact, and recommendations as to the
disposition of said issues, that thereafter these cases be
transferred to and continued before the Board, and that the
provisions of Section 102.46 and 102.69(f) of the Board's
Rules and Regulations govern the filing of exceptions.
The Regional Director's Report on Challenged Ballots
shows that the election results were, of approximately 18
eligible voters, 16 ballots were cast and challenged, and
refers for resolution in this proceeding the issues raised by
s B & P Motor Express Incorporated. supra; Toledo Commutator Company,
supra; Swearingen Aviation Corporation, 227 NLRB 228 (1976); Hale
Manufacturing Co., Inc., supra.
9 The Howard P. Foley Company, 229 NLRB 1167(1967).
1O The Laidlaw Corporation v. N.L.R.B., 414 F.2d 99 (C.A. 7, 1969);
Methodist Hospital of Kentucky, Inc., supra.
II San Isabel Electric Services, Inc., 225 NLRB 1073 (1976); Jimmy Dean
Meat Company Inc. of Texas, 227 NLRB 1012 (1977); Methodist Hospital of
Kentucky, Inc., supra.
12 Hijos de Ricardo Vela, Inc., 194 NLRB 377 (1971). Vela Distributing
Corp., enfd. 475 F.2d 58 (C.A. I, 1973); Michael Muldoon Elder, d/b/a
Vorpal Galleries, 227 NLRB 446 (1976); Jimmy Dean Meat Company, supra.
1304
ABC CONCRETE COMPANY
the challenged ballots which were sufficient in number to
affect the results of the election.' 3 The report states that the
ballots of Brinck, Carl, Jasper, Kasson, Mayes, Rickers,
Watters, and Wheeler were challenged by the Respondent
Employer on the ground that they were no longer
employees, whereas the Petitioner Union contended that
they were discharged because of their protected concerted
activity and/or union activity, and thereafter engaged in an
unfair labor practice strike, and were therefore eligible to
vote. The report also states that the ballots of Micahel
Casey, James Frazier, Richard Neighbors, Norman Pritt,
Dennis Simpson, Richard Stath, John Walker, and Richard
Watkins were challenged by the Petitioner Union, which
contended that they were replacements for the unfair labor
practice strikers. The report points out that the Board has
long held that replacements for unfair labor practice
strikers are not eligible to vote.
I have found above, based on credibility resolutions, the
relevant facts, and the record as a whole, that the eight
individuals whose ballots were challenged by the Respon-
dent Employer were discriminatorily discharged on Octo-
ber 26, and were thereafter denied reinstatement, in
violation of Section 8(a)(1) and (3) of the Act, and that,
following their discharges, they engaged in an unfair labor
practice strike. I find, therefore, that all eight were eligible
to vote in the election. 4
I find further that the eight individuals whose ballots
were challenged by the Petitioner Union were replacements
for the discriminatorily discharged employees who after
their discharges engaged in an unfair labor practice strike,
and that all eight were therefore ineligible to vote in the
election.' 5
I recommend, accordingly, that the challenges to the
ballots of the eight replacement employees be sustained,
that the ballots of the eight employees who engaged in an
unfair labor practice strike following their discriminatory
discharges be opened and counted, and that the Regional
Director thereafter prepare and cause to be served on the
parties a revised tally of ballots based upon this count.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
VI. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(l) and (3)
13 The collective-bargaining unit stipulated by the parties to be
appropriate is comprised of all truckdrivers. mechanics, and yardmen,
excluding all office clerical employees, professional employees, all other
employees, and all guards and supervisors as defined in the Act.
14 Akron Convalescent Care, Inc. d/b/a Fairlawvn Chateau and W d D
Enterprises, Inc., 221 NLRB 81, 91 (1975).
i5 Tampa Sand& Material Companv, 137 NI.RB 1549 (1962).
is N.L.R.B. v. Express Publishing Company, 312 U.S. 426. 437 (1941);
of the Act, I find that it is necessary that Respondent be
ordered to cease and desist from the unfair labor practices
found and from in any other manner infringing upon its
employees' Section 7 rights,' 6 and to take certain affirma-
tive action designed to effectuate the policies of the Act.
As I have found that Respondent terminated Brinck,
Carl, Jasper, Kasson, Mayes, Rickers, Watters, and
Wheeler on October 26 because they engaged in protected
concerted activities, and thereafter failed and refused to
reinstate them because of their membership in and
activities on behalf of the Union and to discourage
membership in the Union, in violation of Section 8(aXl)
and (3) of the Act, I shall recommend that Respondent be
ordered to offer each of these employees reinstatement to
his former job, or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and to make each of
these employees whole for any loss of pay suffered as a
result of the discrimination against him, with backpay
computed on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).17
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. Respondent James R. McCaffrey and Edward A.
Cook, A Partnership, d/b/a ABC Concrete Company, is
an employer as defined in Section 2(2) of the Act, engaged
in commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the Act.
2. Truck Drivers, Chauffeurs, and Helpers Local No.
100, an affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization as defined in Section 2(5) of the Act.
3. By terminating Brinck, Carl, Jasper, Kasson, Mayes,
Rickers, Watters, and Wheeler on October 26, because they
engaged in protected concerted activities, and by failing
and refusing at all times thereafter to reinstate these
employees because of their membership in and activities on
behalf of the Union and in order to discourage member-
ship in the Union, Respondent has discriminated against
employees in regard to their hire and tenure of employ-
ment, and has thereby engaged in unfair labor practices in
violation of Section 8(a)( 1) and (3) of the Act.
The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
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:
N.LR.B. v. Entwistle Manufacturing Company. 120 F.2d 532, 536 (C.A. 4,
1941).
17 The remedy necessary to effectuate the policies of the Act would, in
the present circumstances, be identical whether Respondent's conduct is
found to be violative of Sec. 8(aXI) or (3) of the Act. See Hijos de Ricardo
Vela, Inc., supra at 383; Howard Manufacturing Company, Inc., 227 NLRB
1858 (1977).
1305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 18
The Respondent, James R. McCaffrey and Edward A.
Cook, A Partnership, d/b/a ABC Concrete Company,
Westchester, Ohio, its officers, agents, successors, and
assigns, shall:
i. Cease and desist from:
(a) Terminating or otherwise discriminating against
employees in regard to their hire or tenure of employment
because they engaged in protected concerted activities or
because of their membership in or activities on behalf of, or
to discourage membership in, Truck Drivers, Chauffeurs,
and Helpers Local No. 100, an affiliate of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Brinck, Carl, Jasper, Kasson, Mayes, Rickers,
Watters, and Wheeler immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges.
(b) Make Brinck, Carl, Jasper, Kasson, Mayes, Rickers,
Watters, and Wheeler whole for any losses of pay each of
them may have suffered as a result of the Respondent's
discrimination against him, in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of this recommended Order.
(d) Post at its place of business in Westchester, Ohio,
copies of the attached notice marked "Appendix." 9
Copies of the notice, on forms provided by the Regional
Director for Region 9, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS HEREBY DIRECTED that, as part of his investigation in
Case 9-RC-11759 to ascertain representatives for the
purpose of collective bargaining with the Respondent
Employer, the Regional Director for Region 9 shall,
pursuant to the Board's Rules and Regulations, sustain the
challenges to the ballots of Casey, Frazier, Neighbors, Pritt,
Simpson, Stath, Walker, and Watkins; open and count the
ballots of Brinck, Carl, Jasper, Kasson, Mayes, Rickers,
Watters, and Wheeler; and thereafter prepare and cause to
be served on the parties a revised tally of ballots, including
therein the count of the opened ballots.
is 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.
Is 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate or otherwise discriminate
against employees in regard to their hire or tenure of
employment because they engage in protected concert-
ed activities or because of their membership in or
activities on behalf of, or to discourage membership in,
Truck Drivers, Chauffeurs, and Helpers Local No. 100,
an affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL offer the following named employees
immediate and full reinstatement to their former jobs,
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniori-
ty or other rights and privileges, and WE WILL make
them whole for any losses of pay each of them may
have suffered as a result of the discrimination against
him:
Michael Brinck Terry L. Mayes
Kenneth R. Carl George F. Rickers
Joe Jasper William A. Watters
Darrell A. Kasson James Wheeler
JAMES R. MCCAFFREY AND
EDWARD A. COOK, A
PARTNERSHIP, D/B/A ABC
CONCRETE COMPANY
1306