Acme Construction Co, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1967

168 N.L.R.B. 916 (N.L.R.B. 1967)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Acme Construction Company, Inc. and Chauffeurs,
Teamsters and Helpers Local Union No. 175, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs , Warehousmen and Helpers of
America . Case 9-CA-4266
December 15, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 19, 1967, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
case, finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the National Labor
Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that Respondent Acme Construction Com-
pany, Inc., Skelton, West Virginia, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
ARTHUR M. GOLDBERG, Trial Examiner: Upon a
charge filed on May 2, 1967,1 by Chauffeurs, Teamsters
and Helpers Local Union No. 175, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein called
the Teamsters or the Charging Party) the complaint
herein issued on July 27. The complaint alleged that
Acme Construction Company, Inc. (herein called Acme
' Unless otherwise noted all dates herein were in 1967
or the Respondent) had suggested to employees that they
bargain directly with Respondent, promised employees
wage increases, suggested that employees form a com-
pany-dominated union , and had interrogated employees
concerning union activity. Respondent's conduct was al-
leged to have violated Section 8(a)(1) of the National
Labor Relations Act, as amended (herein called the Act).
Respondent denied all the material allegations of the com-
plaint.
All parties participated in the hearing in Beckley, West
Virginia, on September 26, and were afforded full oppor-
tunity to be heard, to introduce evidence, to examine and
cross-examine witnesses, to present oral argument, and
to file briefs. Oral argument was waived and briefs were
filed by Respondent and the General Counsel. Respond-
ent's motion to dismiss the complaint, on which I
reserved ruling, is disposed of in accordance with my
findings below.
Upon the entire record in the case, my reading of the
briefs, and from my observation of the witnesses and-their
demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I find
that Acme Construction Company, Inc., is a West Vir-
ginia corporation engaged in the manufacture and sale at
wholesale of ready-mix concrete and blacktop and also
performs road work at and from its Skelton, West Vir-
ginia, operation. During a representative 12-month period
Respondent, in the course and conduct of its business,
had a direct inflow of goods and supplies in interstate
commerce valued in excess of $50,000, which were
shipped to its Skelton plant from points outside the State
of West Virginia.
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and meets the
Board's standards for asserting jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Local Union No.
175, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, is and has been at all times material herein a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The labor relations history
On September 27, 1963, District 50, United Mine
Workers of America, on behalf of its Local Union 14509,
entered into a collective-bargaining agreement with
Respondent. That contract excluded from its coverage
"engineering, clerical employees, timekeepers, superin-
tendents, assistant superintendents, general foremen and
supervisors in charge of any classes of labor." The agree-
168 NLRB No. 121
ACME CONSTRUCTION COMPANY, INC.
merit made membership in the Union a condition of em-
ployment for all employees covered by its terms and
further provided for a checkoff of the dues of union mem-
bers. The collective-bargaining agreement expired on
September 30, 1966.
The Teamsters filed a petition on July 12, 1966, seek-
ing a Board-conducted representation election among
Respondent's employees.2 The United Mine Workers in-
tervened in the representation proceeding. The Regional
Director's Decision and Direction of Election issued on
September 28, 1966. Among other things the Regional
Director found that Buster A. DeHart, dispatcher, Ernest
Lee Spencer, road foreman, and Everett Shumate, plant
and yard foreman, were supervisors within the meaning
of Section 2(11) of the Act.
Acme's request for review filed with the Board on Oc-
tober 5, 1966, was denied on October 20, 1966.
To the time of the hearing in this proceeding the elec-
tion had not been held due to the refusal of Respondent to
supply, though subpenaed to do so, the list of employee
names and addresses as directed by the Decision and
Direction of Election pursuant to the Board's decision in
Excelsior Underwear, Inc., 156 NLRB 1236.3
Since April 26 and to the time of the hearing herein,
employees of Respondent have been on strike.
2. Acme's operations
Respondent supplies blacktop (asphalt) and ready-
mixed cement at wholesale and bids on paving jobs with
those materials as well. There are at least three buildings
at Respondent's plant site, an office building, a garage,
which is about 25 yards from the offices, and the blacktop
plant, which is located "a couple or three blocks" from
the office building.4
The blacktop plant is closed during the winter months
and, while operating, is serviced by two empoyees, the
blacktop operator and a laborer. Everett Shumate spends
a part of his working day at the plant. During the winter
the operator and laborer are laid off. There are no offices
in the plant.
Acme operates a number of trucks, as many as 14 mix-
ers having been in use in recent years. To service this
equipment Respondent maintains a garage in which two
mechanics are employed full time. As well, Shumate is in
the garage during the working day.
Acme President Doris Francesa, Secretary-Treasurer
Theodore W. Anderson, and Plant Superintendent Mar-
tin have their offices in the office building. Bids for paving
jobs are prepared by Anderson and Francesa, with An-
derson going out to jobsites to estimate the requirements.
Road crews on the paving jobs are under the direction of
Ernest Spencer and, while on the job, these crews are
visited by Anderson and Martin.
' Case 9-RC-6903.
' See N.L.R.B. v. Hanes Hosiery Division, 384 F.2d 188 (C.A. 4),
"Disclosure to the union of their names and addresses is not an inter-
ference with the employees' right to organize as guaranteed by Section
8(a)(1) of the Act, 29 U.S.C. 158 (a)(1). In truth it is an assist to this end."
4 Testimony of Acme President Doris Francesa.
5 While an individual 's supervisory or nonsupervisory status depends
on his authority as shown by the evidence, his title or designation may
properly be given some weight in resolving the matter . The Madison
Courier, Inc., 162 NLRB 550; Vitro Laboratories, Division of Vitro Cor-
poration ofAmerica, 140 NLRB 790, 802, 804.
917
B. The Supervisory Status of Everett Shumate
The sole issue of substance raised in this proceeding
was the supervisory status of Shumate. If, as contended
by General Counsel, Shumate is a supervisor within the
meaning of the Act then Respondent is responsible for
certain of his acts. On the other hand, if Shumate is not
possessed of the attributes of supervisory authority, then
no remedial order may be based on his actions.
Shumate, an employee of Respondent for 21 years, is
a skilled mechanic. For at least 15 years Shumate has
been designated as foreman and the employees were told
of his designations In October 1966 Respondent posted
a notice over the timeclock listing the Company's chain
of command. After the three corporate officers, the plant
manager, and the dispatcher, the names of Spencer and
Shumate were listed as foremen.
Anderson, Acme's secretary-treasurer, testified that he
met each morning with Shumate and Spencer at which
time the work to be done that day was outlined.
Thereafter, Anderson expected Shumate and Spencer to
see that the other employees got that work done and ex-
pected the other employees to follow the orders given to
them by the foremen. In Anderson's absence he depends
on Shumate to give orders. [M]ost of the time when
[Anderson's] not there . . . it's just routine carrying out
the job." If employees were improperly performing their
assignments the foremen were empowered to correct the
men. However, the foremen had to turn to Anderson to
enforce their directions that an employee correct his er-
rors.
Though most employees punched the timeclock Shu-
mate did not. His pay was computed on the basis of a
fluctuating workweek while all but one of the yard, plant,
and garage employees were paid an hourly wage.6
Shumate worked or was on vacation with pay 52 weeks
out of the year while the blacktop plant operator and the
laborer were laid off during the winter when the plant
closed down.
As noted, under the terms of the collective-bargaining
agreement between Respondent and the United Mine
Workers "supervisors in charge of any classes of labor"
were excluded from contract coverage. Further, all em-
ployees covered by the agreement were required to be
members of the United Mine Workers and were subject
to dues checkoff. However, Shumate was not a member
of that Union and dues were not deducted from his, pay.
Employee Lacey Welch, laborer in the blacktop plant,
testified that when he was hired by Bibb, the former plant
superintendent now deceased, he was told to go to the
plant where Shumate would show Welch what to do on
the job. When overtime was to be worked Welch was so
advised by Shumate. Similarly, when Welch was to go
home early it was Shumate who told him to leave.
6 Under a fluctuating workweek an employee is salaried. The actual
hours worked in any week are divided into the salary to determine an
hourly rate for that week and one half that hourly rate is added to the sa-
lary for each overtime hour worked. See Overnight Motor Transportation
Co. Y. Missel, 316 U.S. 572. Other than Shumate, five Acme employees
were paid on the basis of a fluctuating workweek; two office employees;
Spencer, the other foreman ; the dispatcher ; and one mechanic employed
in the garage . I do not find that the inclusion of the mechanic in this group
blunts the distinction created by paying those listed a salary while all other
employees are hourly rated. See Northern Virginia Steel Corp. v.
N.L.R.B., 300 F.2d 168, 172 (C.A. 4).
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Welch explained that he would report to the plant each
day but could not clock in until told to do so by Shumate.
On some mornings Shumate would tell Welch there was
no work for the day and to go home. Other days Welch
waited for hours before Shumate told him to clock in for
the day. At times Shumate told Welch to leave his work
at the blacktop plant and to drive a truck, empty the
asphalt tank, or do other jobs around the yard. When
Welch failed to maintain the proper heat in the plant fur-
nace Shumate directed him to adjust the heat level.
Employee Lawrence Davis, whose tenure with Acme
exceeds that of Shumate, testified that Shumate had told
him to work overtime and has moved him from job to job
in the yard. Davis agreed that he is not put to work every
day he reports to Respondent. On days when there is no
work Davis was told by Shumate to go home and Shu-
mate has sent word to Davis when he is to report back to
work.
Employee McNeal testified that he brought gripes
about his work to Shumate. Employee Voiers, a mixer
truckdriver, stated that from time to time Anderson
would tell him to drive a dump truck instead. However,
it was Shumate who told Voiers which truck to drive. On
one occasion Shumate reprimanded Voiers for failure to
properly check the transmission of his truck, saying if
Voiers could not take proper care of the equipment Shu-
mate would get someone who could.
Welch and Davis testified that Francesa, Anderson,
and Plant Superintendent Martin spent little time in the
yard. The three supervisors came into the yard in-
frequently and for brief periods of time. All employee wit-
nesses testified that they understood Shumate to be a su-
pervisor.
Anderson, Respondent's only witness, testified that he
assigned the duties of the individual employees and that
Shumate did not have authority to hire or fire, to lay off or
to recall from layoff, to promote or otherwise reward or
discipline an employee. Shumate can recommend that
Anderson hire or fire an employee. However, Anderson
testified, other employees can make such recommenda-
tion and do so "every day." Anderson stated that it was
he who determined the employees to be laid off and that
such employees were recalled to work by a call from
Francesa, himself, or an office employee.
Other than their conclusionary denials that Shumate is
a supervisor, the description of his duties as testified to by
Francesa and Anderson is not in substantial conflict with
the picture painted by the employee witnesses.? Where
Anderson's testimony conflicts with that of Davis, for ex-
ample, who said it was Shumate who called him back to
work, or that of Welch and Davis that Anderson spent lit-
tle time in the yard, I do not credit Anderson whose
testimony was elicited by leading questions. Moreover,
the testimony of the several employee witnesses was mu-
tually corroborative.
All things considered, I find that Shumate's duties
place him within the definition of a supervisor under the
Act." In reaching this determination I particularly note
Francesa was called as an adverse witness by General Counsel.
Section 2(11) of the Act spelling out the definition of a supervisor "is
to be interpreted in the disjunctive ... and the possession of any one of
the authorities listed .. places the employee invested with this authority
in the supervisory class. " Ohio Power Company v N.L.R B, 176 F.2d
385, 387 (C.A. 6), cert. denied 338 U.S 899.
5 Unlike the memorandum addressed only to those named in it in
Anderson's testimony that Shumate is expected to see
that other employees accomplish the work outlined at
Anderson's regular morning meetings with the two
foremen and that the employees are expected to follow
Shumate's orders. I find that Shumate responsibly
directed other employees in the performance of their
work assignments. Corrie Corporation of Charleston v.
N.L.R.B., 375 F.2d 149, 155 (C.A. 4); N.L.R.B. v.
Greenfield Components Corporation, 317 F.2d 85, 88
(C.A. '1); Nitro Super Market, Inc., 161 NLRB 505.
Though his finding did not "finally and conclusively"
resolve for the purpose of this proceeding the issue of
Shumate's supervisory status, I accord "persuasive
relevance" to the Regional Director's determination in
the prior representation proceeding that Shumate was a
supervisor who exercised independent judgment in
directing the work of individuals under him. Security
Guard Service, Inc., 154 NLRB 8, 10-13, enfd. 384 F.2d
143 (C.A. 5); N.L.R.B. v. Rish Equipment Company,
359 F.2d 391, 392 (C.A. 4). Like the Regional Director
I find that Shumate was possessed of other indicia of su-
pervisory status. Among those were: attendance at regu-
lar morning meetings with Anderson and Spencer at
which the work for the day was outlined ( N.L.R.B. v.
Bonnie Enterprises, Inc., 341 F.2d 712, 715 (C.A. 4);
N.L.R.B. v. Southern Airways Company, 290 F.2d 519,
524 (C.A. 5); N.L.R.B. v. Greenfield Components Corp.,
supra); employees had been told Shumate was a super-
visor and they regarded him as their supervisor (Keener
Rubber, Inc. v. N.L.R.B., 326 F.2d 968, 970 (C.A. 6),
cert. denied 377 U.S. 934; N.L.R.B. v. Greenfield Com-
ponents Corp., supra); 9 Shumate reprimanded Voiers for
failing to properly maintain his truck and reprimanded
Welch for maintaining an improper heat level in the plant
furnace (N.L.R.B. v. Ertel Manufacturing Corporation,
352 F.2d 916, 918 (C.A. 7), cert. denied 383 U.S. 945);
Shumate does not punch the timeclock as do other em-
ployees and is paid a salary based on a fluctuating work-
week rather than an hourly wage ( Corrie Corporation of
Charleston v. N.L.R.B., supra); Shumate was not
required to join the Mine Workers under the union-shop
clause in the contract between Respondent and that
Union ( MacCollum Paper Co., Inc., 155 NLRB 900,
906, enfd. 367 F.2d 761 (C.A. 7)); assignment by Shu-
mate to Davis of equipment to be used and transferring
Welch and Davis from job to job in the yard (N.L..R.B.
v. Mt. Clemens Metal Products Company, 287 F.2d 790,
791 (C.A. 6)); and, Shumate recommended that action be
taken by Anderson when employees failed to carry out
the foreman's instructions (N.L.R.B. v. Roselon
Southern, Inc., 382 F.2d 245 (C.A. 6)).
C. Interrogation, Promise of Benefit, and Encourage-
ment to Form a Company Union
Employee John McNeal testified that in mid-
November 1966 Shumate asked if the employees had
held any union meetings. After McNeal replied that they
General Tire & Rubber Company Chemical Plastics Division, 149 N LRB
474, 477, cited by Respondent , the notice listing Shumate as a foreman
was communicated to the employees with Anderson 's approval by posting
at the timeclock used each day by the employees to record their time, and
represented to the employees Acme's "regular straight line" chain of com-
mand.
ACME CONSTRUCTION COMPANY, INC.
had not done so as yet, Shumate suggested that the em-
ployees get together and see Francesa and Anderson.
Shumate said the employees would receive a raise and
could have "a little union of [their] own." The foreman
characterized the Teamsters as being too big a union for
Acme.
In January, Shumate again asked McNeal if any union
meetings had taken place and what the employees
planned to do about the Union. McNeal replied that he
didn't know what would be done, but that a meeting
would be held soon. Shumate suggested that the men take
the "deal" he had suggested before, there would be no
loss of work and everything would operate better.
Several days later Shumate again asked what the men
had decided concerning the Union. McNeal replied that
he would go along with the majority of the men,
whichever way they went on the union question. Shumate
told McNeal that the Teamsters would ruin Acme. Again
urging that the men go directly to Francesa and Ander-
son, Shumate said they could "fix up a little contract" and
eliminate the need for a union. McNeal demurred, saying
that a union was needed to keep things straight at Acme.
Employee Donald Voiers testified that in April, Shu-
mate asked him why the employees wanted the Team-
sters to represent them. Voiers replied that Respondent
had not treated the men well but if run "right" there was
no need for a union at Acme. Shumate told Voiers that
the Teamsters would put the Company out of business.
Respondent put on no defense relating to Shumate's
statements to the employees. McNeal and Voiers
testified in a credible manner and neither witness by
demeanor nor by any inconsistency in the testimony of-
fered gave me reason to discredit his unrebutted
testimony. Accordingly, I find that Shumate, a supervisor
within the meaning of the Act, whose status as a super-
visor was made known by Respondent to all the em-
ployees, interrogated employees concerning their own
and the union adherence of other employees, promised
the employees benefit if they would abandon the Union
and deal directly with Respondent, and urged the em-
ployees to form a company union . By this conduct
Respondent violated Section 8(a)(1) of the Act. General
Automation Manufacturing, Incorporated, 167 NLRB
66; Abex Corporation -Engineered Products Divi-
sion, 162 NLRB 328; Colo. Well Service, Inc., 163
NLRB 707.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities set forth in section III , above,
occurring in connection with its operation as set forth in
section I , above, have a close , intimate , and substantial
relation 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.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend that it cease and desist therefrom and take
10 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
919
certain affirmative action designed to effectuate the poli-
cies of the Act.
I cannot agree with Respondent 's contention raised in
its brief, "that, under the circumstances of this case, ef-
fectuation of the policies of the Act [does not require] the
issuance of a remedial order ." Cf. M. C. Inc., d/bla Poca
Super Market, 164 NLRB 1080 . Shumate's unlawful ac-
tivities directed against the Union did not balance out
prior illegal action in its behalf as did the actions of the su-
pervisor in M. C. Inc., supra. Moreover, in this case
Acme did not "[manifest] a completely neutral attitude
towards the employees ' union organization" (M. C. Inc.,
supra ), a strike followed close on the heels of Shumate's
last threat and for a year resolution of the question con-
cerning representation has been thwarted by Respond-
ent's rejection of the statutory scheme.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Acme Construction Company , Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union
No. 175 , affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America, is a labor organization within the meaning of the
Act.
3. By engaging in certain described conduct referred
to hereinabove in section III, C, Respondent interfered
with , restrained, and coerced its employees in the exer-
cise of rights guaranteed to them in Section 7 of the Act,
and thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
The Respondent , Acme Construction Company, Inc.,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from interrogating employees
about their union sympathy and activity and that of fellow
employees ; promising employees benefit if they would
bypass the Union and deal directly with the Employer;
urging the employees to form a company union ; or in any
like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
by the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:.
(a) Post at its Skelton, West Virginia, installation, co-
pies of the attached notice marked "Appendix.X10 Copies
of said notice , on forms provided by the Regional
Director for Region 9, after being duly signed by the
Respondent's authorize representative , shall be posted by
the Respondent , immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
(b) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith."
i' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT question employees about their
union activity and sympathy or the union activity and
sympathy of other employees.
WE WILL NOT urge our employees to form a com-
pany union.
WE WILL NOT promise benefit to our employees if
they will bypass the Union and deal directly with the
Company.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of the right to self-organization, to bargain col-
lectively through representatives of their own choos-
ing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Art, or
to refrain from any and all such activities, except to
the extent that such right may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act, as amended.
Dated By
ACME CONSTRUC-
TION COMPANY, INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material,
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building , 550 Main Street, Cincinnati,
Ohio 45202, Telephone 684-3686.