Allegany Aggregates

National Labor Relations Board - Board Decisions

Jul 21, 1993

311 N.L.R.B. 1165 (N.L.R.B. 1993)

1165
311 NLRB No. 149
ALLEGANY AGGREGATES
1 To the extent that the Respondent’s exceptions take issue with
the judge’s failure to find that the employees would have been laid
off for lawful reasons by a date certain subsequent to April 16, 1992,
we find that these exceptions raise issues which are best resolved at
the compliance stage of these proceedings.
2 Mattingly had been CQ Services’ labor relations representative
when the employees worked there. The employees sought the meet-
ing in order to find out what role their union activities played in the
layoff.
3 Contrary to the Respondent, the Board does not apply a different
standard in the case of ‘‘outsiders,’’ such as local citizens, public of-
ficials, or customers. While the nature and extent of the alleged
agent’s relationship to the alleged principal is, of course, relevant to
the agency inquiry, the legal standard to be applied remains the
same. To the extent that Westward Ho Hotel, 251 NLRB 1199, 1207
fn. 13 (1980), and Byrds Mfg. Corp., 140 NLRB 147, 155 (1962),
can be read to suggest that a different standard is applicable in the
case of ‘‘outsiders,’’ those cases are overruled.
4 In this regard, Mattingly told Wycoff that it was up to him (Mat-
tingly) whether Wycoff would get the full amount of his pay, and
that he had decided to give Wycoff the money because Wycoff had
come to the meeting and apologized for criticizing Mattingly on a
prior occasion. Significantly, the Respondent admits that it thereby
unlawfully promised—and subsequently granted—a benefit to
Wycoff. There is no evidence that the admitted unlawful promise
Continued
Allegany Aggregates, Inc. and International Union
of Operating Engineers, Local 37, AFL–CIO.
Case 5–CA–22666
July 21, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 22, 1992, Administrative Law Judge
Michael O. Miller issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a brief in reply.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
The Respondent operates the Bedrock stone quarry
in Flintstone, Maryland. Prior to December 1991, the
Respondent managed operations at the quarry, but the
production and maintenance workers were employed
by CQ Services, Inc. At that time, CQ Services had
recognized the Union as the employees’ representative
and the parties had negotiated a collective-bargaining
agreement. In December 1991, the Respondent accept-
ed applications from the employees and became their
employer.
The Respondent has excepted, inter alia, to the
judge’s finding that it violated Section 8(a)(1) of the
Act when its agent, Thomas Mattingly, made certain
coercive statements at a meeting of unit employees on
April 23, 1992. This meeting took place at the employ-
ees’ request2 and occurred 7 days after the Respondent
received a request for recognition from the Union, un-
lawfully interrogated employees to determine whether
they supported the Union, and implemented a mass
layoff of all unit employees.
In this regard, the complaint alleges, the judge
found, and the Respondent does not dispute that during
the course of that meeting Mattingly angrily cursed
and screamed at the employees, told them that the Re-
spondent and the Union had the money to fight each
other, but the employees would starve if they persisted
in their organizational efforts, solicited the employees
to revoke their authorization cards, advised them that
any collective bargaining would be futile, and prom-
ised and granted a benefit to employee Michael
Wycoff. While the Respondent does not dispute these
findings, and admits that it unlawfully promised and
granted a benefit to Wycoff through Mattingly’s ac-
tion, it contends that Mattingly was not its agent when
he made the other coercive statements set forth above.
For the reasons that follow, we find no merit to this
contention.
In determining whether a person is acting as the
agent of another, the Board applies the common law
principles of agency as set forth in the Restatement 2d
of Agency. See Dentech Corp., 294 NLRB 924 (1989);
Service Employees Local 87 (West Bay Maintenance),
291 NLRB 82 (1988).3 Thus, agency may be estab-
lished, inter alia, under the doctrine of apparent author-
ity, when the principal’s manifestations to a third party
supply a reasonable basis for the third party to believe
that the principal has authorized the alleged agent to
do the acts in question. Id. As the Board observed in
West Bay Maintenance, ‘‘either the principal must in-
tend to cause the third person to believe that the agent
is authorized to act for him, or the principal should re-
alize that this conduct [the manifestation] is likely to
create such belief.’’ 291 NLRB at 83.
Applying these principles to this case, we agree with
the judge that Mattingly was the Respondent’s agent
with respect to the coercive statements described
above. In this regard, we rely particularly on the fol-
lowing facts: (1) initially, the Respondent’s president,
Ronald Matovcik, jointly agreed with Mattingly to
meet with the employees, knowing that the employees
had called Mattingly in order to set up the meeting and
that the Respondent’s layoff and labor dispute were the
intended subjects of the meeting, and Matovcik subse-
quently decided not to attend on advice of counsel but
knowing that Mattingly was going to proceed with the
meeting concerning the Respondent’s labor relations in
any event, Matovcik expressly asked Mattingly to
apologize to the employees on his behalf for his ab-
sence; (2) Matovcik also delegated Mattingly to tell
employee Michael Wycoff to go to the quarry to pick
up his paycheck and that a scheduled deduction to
repay a loan owed by Wycoff would not be made;4 (3)
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was conveyed by anyone other than Mattingly, and the Respondent
does not dispute that Wycoff was paid in accordance with Mat-
tingly’s promise.
5 Mattingly also continued to maintain an asphalt plant on the
quarry premises.
1 All dates hereinafter are 1992 unless otherwise specified.
2 NLRB Rules and Regulations, Sec. 102.20.
3 Additionally, Mattingly, through companies which he controlled,
was one of Respondent’s most important customers. Mattingly con-
tinues to maintain an asphalt plant at the Bedrock Quarry, close to
its source of raw materials.
4 The unit, admitted to be appropriate for the purposes of collec-
tive bargaining within the meaning of Sec. 9(b) of the Act, consists
Matovcik had remained silent when employees pre-
viously expressed in his presence a belief that Mat-
tingly was a part owner of the Bedrock quarry;5 and
(4) although Matovcik was at least aware that Mat-
tingly had ‘‘spoken of his view’’ with regard to the
employees’ union efforts, he never disavowed Mat-
tingly’s remarks or attempted to express his own views
in contradistinction to those of Mattingly.
Under these circumstances, we agree with the judge
that Mattingly was the Respondent’s agent with respect
to all of the coercive remarks set forth above. We also
agree with the judge, for the reasons stated by him,
that Mattingly’s statement that he was expressing his
own views does not negate his status as the Respond-
ent’s agent, in light of all of the above and Mattingly’s
other statements, and actions, which were inconsistent
with that disclaimer.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Allegany Aggregates, Inc.,
Flintstone, Maryland, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Steven Sokolow, Esq., for the General Counsel.
Leonard Cohen, Esq. and Reid Bowman, Esq., for the Re-
spondent.
John Singleton, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Baltimore, Maryland, on October 23, 1992,
based on an unfair labor practice charge filed on April 17,
1992, by International Union of Operating Engineers, Local
37, AFL–CIO (the Union) and a complaint issued by the Re-
gional Director for Region 5 of the National Labor Relations
Board (the Board) on June 1, 1992, as amended on July 1,
1992.1 The complaint alleges that Allegany Aggregates, Inc.
(Respondent) interfered with, restrained, and coerced em-
ployees in the exercise of their Section 7 rights,
discriminatorily accelerated employee layoffs, and failed and
refused to bargain with the Union as the exclusive represent-
ative of its employees in an appropriate unit, in violation of
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act (the Act).
At the hearing, Respondent withdrew its answer to the ex-
tent that certain allegations in the amended complaint had
been denied, expressly stating that it would not contest those
allegations. General Counsel also withdrew certain allega-
tions. The parties additionally entered into a stipulation con-
cerning certain facts and the transcript of the hearing on this
matter before the United States District Court for the District
of Maryland, under Section 10(j) of the Act was received in
evidence.
On the entire record, and after considering the briefs filed
by General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS PRELIMINARY
CONCLUSIONS OF LAW
The Respondent is a Maryland corporation, engaged in the
operation of a stone quarry in Flintstone, Maryland, known
as the Bedrock Quarry. In the course and conduct of its busi-
ness operations, the Respondent annually sells and ships
products, goods, and materials which are valued in excess of
$50,000 from the Bedrock Quarry facility directly to points
located outside the State of Maryland. The complaint alleges,
Respondent admits, and I find and conclude that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
Pursuant to the stipulation of facts and the undenied, and
therefore admitted,2 allegations of the complaint, I find as
follows:
CQ Services, Inc. was the employer of the production and
maintenance employees at the Bedrock Quarry throughout
1991. During 1991 and 1992, Respondent managed that
quarry. In December 1991, Respondent’s president, Ronald
Matovcik, and J. Thomas Mattingly, CQ’s labor relations
representative,3 met with the CQ employees and told them
that Respondent would become their employer as of January
1, 1992. On or about that date, Respondent accepted applica-
tions from the former CQ employees and became their em-
ployer.
On April 8, Respondent’s seven unit employees, Larry P.
Broadwater, Earl L. Emeric Jr., Charles Grabenstein, Law-
rence A. Keller, Thomas E. Martin, Randy H. Wright, and
Michael L. Wycoff, signed authorization cards designating
the Union as their collective-bargaining agent. Also signing
those cards were Gary Emerick and David R. Landis, who
had worked at the Bedrock Quarry in 1991 on the CQ Serv-
ices payroll. The cards had been solicited by Wycoff and
Keller.
Respondent received a request that it bargain collectively
with the Union as the exclusive representative of its the bar-
gaining unit employees on April 16, 1992.4 Prior to receipt
1167ALLEGANY AGGREGATES
of: All production and maintenance employees employed by Re-
spondent at its Bedrock (Martin’s Mountain), Flintstone, Maryland
quarry, but excluding office clerical employees, guards and super-
visors.
5 The testimony indicates that Mattingly angrily cursed and
screamed at the employees and told them that while both manage-
ment and the Union had the money to fight each other, the employ-
ees would starve if they persisted in their organizational efforts. He
directed them to an attorney for the preparation of revocations of
their authorization cards and offered to advance them the attorney’s
retainer. He also told them that the employer was only required to
bargain in good faith, could offer them $4.75 per hour and, if they
refused to accept that, could replace them. The promise and grant
of benefit allegation derives from Matovcik’s instructions to Mat-
tingly with regard to Wycoff’s paycheck. According to Wycoff, Mat-
tingly told him that the decision as to whether or not he would get
this money was left to Mattingly; Mattingly told Wycoff he could
get the funds because Wycoff had come to the meeting and apolo-
gized for a remark critical of Mattingly which Wycoff had made at
an earlier meeting. It also appears that Mattingly told the employees
that he was not speaking for Respondent.
of this request, Respondent had been unaware that any of its
employees, or the former production and maintenance em-
ployees of CQ Services, Inc. had signed authorization cards.
On receipt of the bargaining request, Matovcik asked Re-
spondent’s vice president of marketing, J. Robert Smith (an
admitted supervisor for, and agent of, Respondent within the
meaning of Sec. 2(11) and (13) of the Act) to determine
whether the Union’s claim to represent its seven employees
was true. Smith and another supervisor gathered all the em-
ployees together and asked them if they had all signed union
cards. The employees confirmed that they had. The results of
the interrogation were reported back to Matovcik.
On that same date, Respondent accelerated an already
planned layoff of the seven named unit employees. Respond-
ent admits that the accelerated layoffs were motivated by the
employees’ membership in, support of, and assistance to the
Union and was intended to discourage them from engaging
in such activities.
On April 22, Matovcik met with Mattingly in the latter’s
office in Cumberland, Maryland. In Matovcik’s presence,
Mattingly received a telephone call from Thomas Martin, one
of the laid-off employees. Martin requested a meeting be-
tween those employees and Matovcik and Mattingly. Mat-
tingly discussed the request with Matovcik and told
Matovcik that the employees probably wanted to talk with
them about the layoff and the part their union activities had
in it. Matovcik agreed to meet with the employees for such
a discussion and, in his presence, Mattingly told Martin that
they would meet with the employees. A meeting was sched-
uled for the following day.
After he had agreed to the meeting, Matovcik was advised
by his attorney that he should not attend the meeting. He in-
formed Mattingly and asked that Mattingly convey his re-
grets to the employees for his absence. Matovcik also told
Mattingly that when he saw laid-off employee Michael
Wycoff at the meeting, he should tell Wycoff to go to the
quarry to pick up a check. Matovcik wrote out the amount
of that check on a piece of paper, which he gave to Mat-
tingly. The check was to be for the full amount of Wycoff’s
earnings, without any immediate deduction for a loan earlier
made by Matovcik to Wycoff. If the loan had been deducted
as scheduled, Wycoff would have received virtually no
money in this final check following the layoff.
All the unit employees attended the April 23 meeting.
Contrary to their expectations, Matovcik did not attend. He
stayed away on the advice of counsel and that reason for his
absence was related to the employees by Mattingly. Mat-
tingly, erroneously believed by the employees to hold a mi-
nority interest in Respondent, addressed the employees. As
stated in the language of the complaint, uncontested by Re-
spondent, he:
(a) Threatened employees with loss of employment
by telling them, in an effort to dissuade them from sup-
porting the Union, that ‘‘they would not eat.’’
(b) Solicited employees to revoke the authorization
cards they signed for the Union.
(c) Advised employees that any collective bargaining
would be futile.
(d) Promised and granted a benefit to an employee
in order to dissuade him from supporting the Union.5
Following this meeting, four of the laid-off employees,
Earl Emeric, Thomas Martin, Randy Wright, and Michael
Wycoff, along with Gary Emerick and David Landis, met
with the attorney to whom Mattingly had referred them.
Those six employees signed documents revoking their au-
thorization cards and stating that they no longer wished to
be represented by the Union.
On April 24, Mattingly and Matovcik discussed what had
transpired at Mattingly’s meeting with the employees. The
record contains few details of this conversation. Mattingly
told Matovcik that he had extended Matovcik’s regrets for
not attending, had discussed the labor problems at the Bed-
rock Quarry, and ‘‘had spoken of his point of view’’ with
respect to them. Matovcik never disavowed any of Mat-
tingly’s statements.
Randy Wright and Thomas Martin were recalled about
May 18. Earl Emeric and Lawrence Broadwater were re-
called about May 26, at which time Gary Emerick was hired
into the unit. The remaining three unit employees, Michael
Wycoff, Lawrence Keller, and Charles Grabenstein have not
been recalled.
From April 16 and until ordered to do so by Judge Garvis
of the United States District Court for the District of Mary-
land, on October 5, Respondent failed and refused to bargain
with the Union as the exclusive collective-bargaining rep-
resentative of the unit. The Union repeated its request to bar-
gain on October 8 and a first bargaining session was held on
October 15 with at least one additional meeting scheduled
thereafter.
B. Analysis
1. Mattingly’s agency status
In order to hold the Employer responsible for Mattingly’s
conduct, it is necessary that he be found to have been Re-
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I reject Respondent’s contention that the Board applies a different
and exclusive test to determine responsibility for the acts of out-
siders, a test requiring that the alleged agent be under the direction
and control of the employer or that the conduct be ratified by the
employer. See Westward Ho Hotel, 251 NLRB 1199, 1207 fn. 13
(1980), and cases cited there. Such a requirement would be at odds
with the plain language of Sec. 2(13), as quoted in the text here.
Moreover, the Board and the courts continue to find responsibility
where the employer has cloaked an outsider with apparent authority.
See, for example, Color Tech Corp., 286 NLRB 476, 486 (1987),
and Idaho Falls Consolidated Hospitals v. NLRB, 731 F.2d 1384,
1387 (9th Cir. 1984) (‘‘An employer may be held responsible for
anyone acting as its agent if employees could reasonably believe that
the agent was speaking for the employer.’’)
7 Dentech Corp., 294 NLRB 924, 925–926 (1989), quoting from
Service Employees Local 87 (West Bay), 291 NLRB 82, 83 (1988).
8 Dentech, supra at 926; Haynes Industries, 232 NLRB 1092,
1099–1100 (1977). While Matovcik’s failure to disavow Mattingly’s
statements, in light of what the record shows he knew of them, adds
weight to the conclusion of apparent authority, I deem that the lack
of evidence establishing his knowledge of the specifics of what took
place precludes a finding of ratification. I further find that to reach
the conclusion that Matovcik expressly authorized Mattingly’s
threats, as suggested by the General Counsel, would require an im-
permissible piling of inference upon inference. Diagnostic Center
Hospital Corp., 228 NLRB 1215, 1216 (1977).
spondent’s agent, under either the doctrine of apparent au-
thority or ratification.6 As the Board has stated:7
Section 2(13) of the Act provides that:
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question of
whether the specific acts performed were actually au-
thorized or subsequently ratified shall not be control-
ling.
. . . .
Apparent authority is created through a manifesta-
tion by the principal to a third party that supplies a
reasonable basis for the latter to believe that the prin-
cipal has authorized the alleged agent to do the acts
in question. . . . Thus, either the principal must in-
tend to cause the third person to believe that the
agent is authorized to act for him, or the principal
should realize that this conduct is likely to create
such belief. Restatement 2d, Agency § 27 (1958,
Comment). Two conditions, therefore, must be satis-
fied before apparent authority is deemed created: (1)
there must be some manifestation by the principal to
a third party, and (2) the third party must believe
that the extent of the authority granted to the agent
encompasses the contemplated activity. Id. at § 8.
On the other hand, ratification is defined as ‘‘the
affirmance by a person of a prior act that did not
bind him but which was done or professedly done on
his account, whereby the act, as to some or all per-
sons, is given effect as if originally authorized by
him.’’ Id. at § 82. Section 83 defines ‘‘affirmance’’
as either (a) a manifestation of an election by one on
whose account an unauthorized act has been done to
treat the act as authorized, or (b) conduct by him jus-
tifiable only if there were such an election. Finally,
Section 94 states that ‘‘[a]n affirmance of an unau-
thorized transaction can be inferred from a failure to
repudiate it.’’
Here, as in Dentech, I find that application of the doctrine
of apparent authority requires a finding of Respondent’s re-
sponsibility for Mattingly’s conduct. The following facts,
known to Matovcik or brought about by him, would have
lead the employees to believe that Mattingly was speaking
on his behalf: (1) Mattingly was a significant customer of the
Respondent, maintaining an asphalt plant on the site of the
Bedrock Aura. Thus, Respondent was dependent upon Mat-
tingly’s business and good will. (2) The employees believed
that Mattingly was a part owner of the Bedrock Quarry; that
belief had been expressed in Matovcik’s presence and was
not disputed. (3) Mattingly had participated with Matovcik in
the meeting when Matovcik went from being the manager of
the quarry on CQ’s behalf to employer of the Bedrock Quar-
ry employees. (4) Most significantly, Matovcik jointly agreed
with Mattingly to meet with the employees on April 23,
knowing that the layoff and labor dispute were the intended
subjects of that meeting. (5) When Matovcik was advised by
counsel not to attend that meeting, he was put on notice of
the risk of improper statements but did nothing to caution
Mattingly to avoid threats and other prohibited conduct.
Rather, he delegated Mattingly to apologize for his absence
and to convey a message to one employee about his pay-
check. Essentially, he let Mattingly go to speak in his stead.
(6) Matovcik expressly authorized Mattingly to offer Wycoff
an extension of his loan (this message gave rise to the undis-
puted promise and grant of benefit). (7) With some knowl-
edge of what had transpired at that meeting, Matovcik took
no steps to disavow anything Mattingly had said.8
Respondent relies, in part, on uncontradicted testimony to
the effect that Mattingly told the employees that he was
speaking on his own or expressing his own views. Where,
however, such statements are accompanied by inconsistent
statements or actions, they carry little weight in negating ap-
parent authority. Dentech, supra at 927. Here, Mattingly in-
consistently acted as a conduit for Matovcik’s messages. Ad-
ditionally, he told the employees that they did not need a
union because ‘‘they had an open door policy, if we had a
problem, we should come to them and talk to them,’’ imply-
ing that he was allied with Matovcik in dealing with the em-
ployees and their problems. Further, his anger at the employ-
ees’ desire for union representation was inconsistent with
that of an outsider and conveyed the impression that he was
personally affected by it.
2. A bargaining order remedy
The parties have agreed to a bargaining order remedy in
this matter, whether or not Mattingly’s conduct is attributed
to Respondent. The complaint alleges, and Respondent by
withdrawing its answer as stated on the record before me,
has admitted that its unfair labor practices were:
so serious and substantial in character that the possibil-
ity of erasing the effects of these unfair labor practices
and of conducting a fair election by the use of tradi-
tional remedies is slight, and the employees’ sentiments
regarding representation, having been expressed through
authorization cards, would, on balance, be protected
1169ALLEGANY AGGREGATES
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 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
Continued
better by issuance of a bargaining order than by tradi-
tional remedies alone.
I agree. They were of a type likely to undermine the
Union’s majority and preclude the conduct of a free election.
Thus, I note that even absent Mattingly’s conduct, every
member of this small unit was interrogated and suffered an
accelerated layoff. Moreover, the extent of Respondent’s op-
position to the exercise of their statutory rights was vividly
demonstrated to them by the alacrity with which Respondent
acted. The interrogation, which confirmed their union activ-
ity, and layoffs followed immediately upon receipt of the
Union’s demand for recognition. The appropriate remedy for
such violations is a bargaining order. NLRB v. Gissel Pack-
ing Co., 395 U.S. 575, 610–616 (1969). Color Tech Corp.,
supra at 476–477.
Moreover, I have found Respondent responsible for Mat-
tingly’s conduct of April 23. That conduct, consisting of
threats, solicitation of repudiations of their support for the
Union, and the promise and grant of a benefit, was totally
effective in destroying employee support for the Union. All
of the foregoing, I find, precludes the possibility of a fair
election even after the passage of time and the application
of traditional remedies. The employees’ expression of sup-
port for the Union, as demonstrated by the valid authoriza-
tion cards each of them executed, will be better protected by
a bargaining order than by a direction of an election. See
Color Tech Corp., supra at 477.
CONCLUSIONS OF LAW
1. By interrogating employees concerning their support for
the Union, threatening employees with loss of employment
in an effort to dissuade them from supporting the Union, so-
liciting employees to revoke authorization cards signed for
the Union, advising employees that any collective bargaining
would be futile, and by promising and granting a benefit to
an employee in order to dissuade him from supporting the
Union, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
2. By discriminatorily accelerating the layoff of employees
because they joined, supported, or assisted the Union, the
Respondent has violated Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
3. By failing and refusing to bargain with the Union as the
exclusive collective-bargaining representative of the employ-
ees in a unit appropriate for the purposes of collective bar-
gaining since on or about April 15, 1992, the Respondent has
violated Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily accelerated the
layoff of employees, it must make them whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
As set forth above, Respondent must recognize and bar-
gain with the Union as the exclusive collective-bargaining
representative of its employees in the appropriate unit.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Allegany Aggregates, Inc., Flintstone,
Maryland, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their support for
the Union, threatening employees with loss of employment
in an effort to dissuade them from supporting the Union, so-
liciting employees to revoke authorization cards signed for
the Union, advising employees that any collective bargaining
would be futile, and promising and granting benefits to em-
ployees in order to dissuade them from supporting the Union.
(b) Discriminatorily accelerating the layoff of employees
because they joined, supported, or assisted the Union.
(c) Failing and refusing to bargain with the Union as the
exclusive collective-bargaining representative of the employ-
ees in a unit appropriate for the purposes of collective bar-
gaining since on or about April 16, 1992.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All production and maintenance employees employed
by Respondent at its Bedrock (Martin’s Mountain),
Flintstone, Maryland quarry, but excluding office cler-
ical employees, guards and supervisors.
(b) Make Larry P. Broadwater, Earl L. Emeric Jr., Charles
Grabenstein, Lawrence A. Keller, Thomas E. Martin, Randy
H. Wright, and Michael L. Wycoff whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the decision.
(c) Preserve and, on 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
amount of backpay due under the terms of this Order.
(d) Post at its facility in Flintstone, Maryland, copies of
the attached notice marked ’’Appendix.’’10 Copies of the no-
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.’’
tice, on forms provided by the Regional Director for Region
5, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable 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.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interrogate employees concerning their sup-
port for the Union, threaten employees with loss of employ-
ment in an effort to dissuade them from supporting the
Union, solicit employees to revoke authorization cards signed
for the Union, advise employees that any collective bar-
gaining would be futile, or promise and grant benefits to em-
ployees in order to dissuade them from supporting the Union.
WE WILL NOT discriminatorily accelerate the layoff of em-
ployees because they joined, supported, or assisted the
Union.
WE WILL NOT fail and refuse to bargain with the Union
as the exclusive collective-bargaining representative of the
employees in the unit appropriate for the purposes of collec-
tive bargaining.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and condi-
tions of employment for our employees in the following bar-
gaining unit:
All production and maintenance employees employed
by Respondent at its Bedrock (Martin’s Mountain),
Flintstone, Maryland quarry, but excluding office cler-
ical employees, guards and supervisors.
WE WILL make Larry P. Broadwater, Earl L. Emeric Jr.,
Charles Grabenstein, Lawrence A. Keller, Thomas E. Martin,
Randy H. Wright, and Michael L. Wycoff whole for any loss
of earnings and other benefits resulting from the discrimina-
tion against them, less any net interim earnings, plus interest.
ALLEGANY AGGREGATES, INC.