Anderson Cottonwood Concrete Products

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 1090 (N.L.R.B. 1979)

I)( ECISIONS OF NAI I()NAI. I ABOR REI.AIO()NS BOAR[)
Anderson Cottonwood Concrete Products, Inc. and
General Teamsters and Warehousemen, Local No.
137, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
Anderson Cottonwood Concrete Products, Inc. and
General Teamsters and Warehousemen, Local No.
137, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica; Operating Engineers Local No. 3, International
Union of Operating Engineers, AFL-CIO, Joint
Petitioners. Cases 20 CA 13898 and 20 RC 14603
December 14, 1979
DECISION AND ORDER
BY MFMBFRS JENKINS, MURPHY, AND TRUELSDALE
On February 2. 1979, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in answer to Respondent's exceptions and
in support of the Administrative Law Judge's Deci-
sion.
Pursuant to the provisions of Section 3(6) of the
National Labor Relations Act, as amended, the Na-
tional abor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
Contrary to our dissenting colleague, we think the
record evidence and the reasonable inferences to be
drawn therefrom fully support the Administrative
Law Judge's conclusion that Respondent's involve-
ment in the "picture-taking" incident 2 days before
the election violated Section 8(a)(l) of the Act.
In brief, the Administrative Law Judge found that
Respondent violated Section 8(a)(1) on February 20,
1978, when dispatcher Villavicencio told employee
Barstow that Respondent would close or cut back if
the Union got in; on March 8 when Villavicencio told
employee Harrison that Respondent would "prob-
ably have to cut back" if the Union won; and on an
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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. Stlndard Dry' Wall Products, Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
occasion a week or so before the July 7 election when
Respondent's owner, John Murphy, told employee
Harlan a union victory would cause the sale or clos-
ing of the business.
The Administrative Law Judge found an additional
violation of Section 8(a)( I) when, 2 days before the
election, an appraiser. accompanied by Murphy.
spent a full morning at the plant taking pictures of
the trucks and other equipment. In so finding, the
Administrative Law Judge relied on the following
factors: (I) the timing of the appraisal. (2) the suspi-
cious circumstances surrounding the appraisal proce-
dure itself; and (3) the fact that Respondent had
threatened previously to close down or cut back by
selling off trucks.
Our colleague, in declining to find the picture-tak-
ing incident violative of' Section 8(a)( I). contends that
the July 7 date of the appraisal was selected by the
appraiser "apparently for his own personal conve-
nience." She also speculates that there is no basis for
suspicion, despite the extremely informal appraisal
procedures.
At the outset, we note that Respondent failed to
show any pressing business need to explain why the
appraisal in question had to be conducted prior to the
election date. Indeed, even if the appraiser selected
the particular date of the appraisal, it was Respondent
who contacted the appraiser in May to arrange the
picture-taking session. Yet, as the Administrative
Law Judge pointed out, as late as the hearing in this
proceeding (some 4 months afier the picture-taking
incident), no written appraisal had been delivered to
Murphy. And without such a written appraisal, the
loan which Murphy claims made the picture taking
necessary could not be secured. Moreover, as the Ad-
ministrative Law Judge also pointed out, of necessit)
Respondent was well aware of the probable coercive
impact of the appraiser's preelection visit since, as our
colleague concedes, it had on several occasions
threatened employees with sale of the plant or cut-
backs in the number of trucks in the event of a union
victory.
Finally, our colleague overlooks or ignores the fact
that Murphy personally accompanied the appraiser
on his rounds of the plant and was questioned by at
least one employee about the significance of the pic-
ture-taking. Murphy's failure to dispel the employee's
expressed concern over the incident by a clear and
precise statement speaks volumes about his motives.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
246 NLRB No. 172
1090
ANDERSON COTTONWOOD CONCRETE PRODUCTS
ders that the Respondent. Anderson Cottonwood
Concrete Products, Inc., Cottonwood, California, its
officers, agents. successors, and assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held on
June 7, 1978, in Case 20 RC-14603 be, and it hereby
is, set aside and that a new election be conducted.
[Direction of Second Election2 omitted from publi-
cation.]
MEMBIR MURPHY, dissenting in part:
I agree with my colleagues and the Administrative
Law Judge that on February 20, 1978, and on March
8, prior to the filing of the petition in Case 20-RC
14603, and in late May, during the critical preelection
period, Respondent violated Section 8(a)(l) of the
Act by threatening employees with plant closure and/
or reduction in work if the Union won the election. I
do not agree with their finding, however, that the
June 5 "picture-taking" incident was also unlawful
and in violation of Section 8(a)(1) of the Act.
The facts relevant to the picture-taking incident are
as follows: Respondent's president, John Murphy,
testified without contradiction that pursuant to cer-
tain new rules established by the California State Wa-
ter Control Board in late 1977 Respondent was re-
quired to install and to have operational by October,
some new antipollution equipment. According to the
timetable set by the State, construction on the project
was to begin sometime in April.4
In an effort to begin compliance with the State's
requirements, in early May Murphy contacted An-
toine Le Conge. manager of the Shasta County Bank
in Cottonwood, California, to see about getting a loan
with which to finance the purchase and installation of
the antipollution equipment.' Thereafter, by letter
dated May 12, Le Conge informed Murphy that "an
updated appraisal" was needed on Respondent's
property in order to "establish a value for the purpose
of securing a loan in the amount ... discussed."
Pursuant to the bank's instructions Murphy, either
that same day or the following day, contacted Tom
Straughn, an appraiser with whom Murphy had had
many prior business dealings, and asked him if he
could perform such an appraisal, to which Straughn
agreed. While no date was set for the appraisal, some-
time in late May Straughn called Murphy and in-
formed him that he (Straughn) would be at Respon-
dent's premises on June 5 to perform the appraisal.
Murphy agreed.
2 [Excelsior footnote omitted from publication.]
'All dates herein are in 1978 unless otherwise indicated.
'Respondent was subsequently given an extension of time until sometime
in 1979 in which to complete the installation of its antipollution equipment.
Murphy frequently did business with Shasta County Bank through Le
Conge
On June 5, Straughn, accompanied by Murphy.,
photographed all of Respondent's equipment, includ-
ing trucks. According to employee William Barstow.
at one point during the photographing Straughn
asked Barstow about the condition of his truck.
About an hour or two later, Barstow. concerned that
Straughn might be an insurance investigator investi-
gating the condition of his truck, asked Murphy what
it was all about, and Murphy replied that Straughn
"was an estimator, looking at the equipment."' Upon
completion of the appraisal Straughn gave Murphy
"a ballpark figure" which was followed 2 or 3 days
later by a more refined estimate. Shortly thereafter.
Murphy orally informed the bank of the appraisal.7
My colleagues. in their efforts to bolster and give
credence to the Administrative Law Judge's rather
dubious finding that the above incident was unlawful,
have conveniently chosen to ignore certain essential
facts which would militate against such a finding.
have engaged in speculation, and have revised the
facts to fit their conclusion. First, they have chosen to
ignore the fact that the appraisal was performed at
the bank's request, and that it was Straughn, and not
Murphy, who selected the June 5 appraisal date, ap-
parently for his own personal convenience. Second.
their assertion that the timing of the appraisal was
unexplained is itself inaccurate and amounts to pure
speculation. Rather, the fact shown on this record
that Respondent had originally been required to be-
gin construction on its antipollution equipment by
April, and to have it operational by October, affords
a reasonable basis for concluding that Respondent
was merely attempting to comply with the State's re-
quirement when it allowed the appraisal to be per-
formed prior to the June 7 election date.8 Thus, con-
trary to my colleagues, I find nothing improper in the
fact that the appraisal was performed prior to the
election.
Finally, my colleagues erroneously claim that Mur-
phy failed to dispel Barstow's "expressed concern
over the incident by a clear and precise statement"
and they conclude that Murphy's failure to do so
"speaks volumes about his motives." However. these
6 The Administrative Law Judge discredited Barsto.'s testimony that
Murphy further stated that he was getting nd of the older trucks. Rather, he
credited Murphy's version that, while no such statement was made at that
time. Murphy did tell a mechanic. in Barstow's presence sometime in March,
that he would have to get nd of two of the older trucks if he was to get two
new ones. At that time, Respondent was negotiating for the purchase of two
new trucks.
'The Shasta County Bank, a well as four other lending institutions to
which Murphy orally submitted the appraisal, already had an appraisal on
file which merely needed updating.
I The General Counsel argues that no written appraisal was given, al-
though required for the loan. But, as noted above. Respondent subsequently
obtained an extension of time in which to begin construction of the project.
thus explaining why Respondent had submitted only oral, and not wntten,
appraisals to various banks which, as indicated, alreadN had written apprais-
als on file
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"facts" are not supported by the record. As appears
from my summary of the facts, supra, it is clear from
Murphy's credited version of this incident that Bar-
stow's only concern dealt with the possibility that
Straughn might be an insurance investigator. Thus.
when questioned by Barstow as to Straughn's iden-
tity, Murphy truthfully replied that Straughn was an
appraiser, thereby allaying any doubt Barstow may
have had concerning Straughn's identity or the pur-
pose of his visit. Given these facts, it is impossible to
justify a finding that Murphy failed to dispel any fear
Barstow may have had concerning the incident or to
discern an unlawful motive from Murphy's remarks.
Accordingly, for the reasons stated, I would not find
the picture-taking incident to be unlawful.
Notwithstanding my finding herein, I nevertheless
join my colleagues and the Administrative Law Judge
in finding that the election should be set aside since
the remaining violation occurring during the critical
period--a threat of plant closure-was of sufficiently
serious nature as to reasonably have affected the em-
ployees' freedom of choice in the election. Accord-
ingly, the June 7 election should be set aside and a
new one conducted.
APPENDIX
NOTICE To EMPLOYEES
PosTED BY ORDER OF THE
NA'IONAIL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT threaten employees with plant
closure or a reduction in operations if they select
Teamsters Local 137 and Operating Engineers
Local 3 to represent them.
WI Wll.l. NOT reinforce prior threats to close
or reduce our operations if our employees select
said Unions to represent them, by having pic-
tures taken of our trucks and other equipment in
the presence of employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed in Section 7 of
the Act.
ANDERSON COTTONWOOD CONCRETE PROD-
UCTS, IN('.
DECISION
STATEMENT OF THtE CASE
RI(CHARD D. TAPI.ITZ, Administrative Law Judge: These
consolidated cases were heard at Redding. California, on
October 3 and 4, 1978. The charge and amended charge in
Case 20 CA 13898 were filed, respectively, on June 16 and
July 21, 1978, by General Teamsters and Warehousemen,
Local No. 137, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America. herein
called Teamsters Local 137. The complaint, which issued
on July 24, 1978, alleges that Anderson Cottonwood Con-
crete Products. Inc.. herein called Respondent or the Em-
ployer, violated Section 8(a)( ) of the National Labor Rela-
tions Act, as amended.
On April 24. 1978, Teamsters Local 137 and Operating
Engineers, Local No. 3, International Union of Operating
Engineers, AFI. CIO. herein called Operating Engineers
Local 3 (Teamsters ocal 137 and Operating Engineers l.o-
cal 3 are jointly referred to herein as the Union), jointly
filed a petition for an election in Case 20 RC- 14603. Pursu-
ant to a Stipulation for Certification upon Consent Election
approved by the Regional Director for Region 20 on May
22, 1978, an election by secret ballot was conducted on
June 7 1978, among the employees of the Employer in an
agreed-upon appropriate bargaining unit.' The tally of bal-
lots which was served upon the parties immediately follow-
ing the election showed that, of approximately 19 eligible
voters, 18 cast ballots of which 7 were for the Union, 8 were
against the Union, and 3 were challenged. The challenged
ballots were sufficient in number to affect the results of the
election and on June 12, 1978, the Union filed timely objec-
tions to the election. The Regional Director for Region 20
caused an investigation of the objections and challenged
ballots to be made and, thereafter, on June 25, 1978, issued
and served on the parties a Report on Objections and notice
of hearing. In her report the Regional Director recommend-
ed to the Board that the Union's Objections I and 2 be
overruled, that the challenges to the ballots of Wayne Nor-
cross and Leslie Whitehurst be sustained, and that the chal-
lenge to the ballot of Kenneth Nelson be overruled. She
concluded that the issues raised with respect to Objection 3
(an allegation that the Employer prevented an eligible voter
from voting on the day of the election), and on additional
matters (that Respondent through its president. Murphy,
told an employee that the Employer would go out of busi-
ness if the Union prevailed in the election, and that Re-
spondent created the fear of such a cessation of business by
taking pictures of capital equipment shortly before the elec-
tion), might best be resolved at a hearing. The Regional
Director concluded that upon final disposition of Objec-
tions I and 2 and the challenged ballots Case 20 RC- 14603
and Case 20-CA-13898 would be consolidated. No excep-
tions to the Regional Director's report were filed by any of
the parties within the time provided, and on August 18,
1978, the Board adopted the Regional Director's recom-
mendations as contained in her report. The Board ordered
that the Union's Objections I and 2 and the challenge to
the ballot of Kenneth Nelson be overruled and that the
challenges to the ballots of Wayne Norcross and Leslie
Whitehurst be sustained. The Board found that it was un-
necessary to direct that the ballot of K. Nelson be opened
and counted, as it was no longer determinative. In conclu-
sion, the Board ordered that the issues raised with respect
I The bargaining unit was: "All drivers, mechanics, mechanics' helpers,
welders, laborers. equipment operators, crusher plant operators and batch
plant operators: excluding all other employees, office clerical employees,
guards and supervisors as defined In the Act."
1092
ANDERSON COTTONWOOD CONC(REEF PRODUCTS
to the Union's Objection 3 and the additional matters be
processed pursuant to the Regional Director's report. On
September 13, 1978. the Regional Director issued an order
consolidating cases and notice of hearing, in which she
found that matters alleged in the Union's Objection 3 and
the other matters were substantially similar to conduct al-
leged to constitute unfair labor practices in the complaint
issued in Case 20 CA- 13898. She ordered that Cases 20
CA-13898 and 20 RC-14603 he consolidated for the pur-
poses of hearing.
Issues
The primary issues are:
(I) Whether Respondent violated Section 8(a (1) of the
Act by telling employees and causing employees to believe
that it would curtail its business or terminate its operation if
they selected the Union to represent them.
(2) Whether the Company engaged in conduct which
prevented a fair election and whether the election should be
set aside.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, the Employer, and the Union.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS O() FACI
I. IHE BUSINESS OF RLSP()NI)NI
Respondent, a California corporation with its principal
place of business in Cottonwood, California, is engaged in
the wholesale sale of ready-mix concrete, and sand and
gravel. During the year immediately preceding issuance of
complaint Respondent purchased and received goods and
materials valued in excess of $50,000 directly from points
outside California. Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. TIE L.ABOR ORGANIZATIONS INVOLlVE)
Teamsters Local 137 and Operating Engineers Local 3
are and each is a labor organization within the meaning of
Section 2(5) of the Act.
III. IIlE ALLEGiEI) UNF:AIR lABOR PRA(T r( IS
A. Background
Respondent sells and delivers concrete and other prod-
ucts from a plant located in Cottonwood California. In
July 1974 John Murphy, president of Respondent. pur-
chased the business from a previous employer. His dis-
patcher is Karl Villavicencio. 2 Respondent does not recog-
2 Villavicencio hires and fires emplosees Respondenl admits and I find
nize any union as the representative of its employees. When
Murphy took over the operation of the business in 1974 two
of the employees of the previous employer stayed on and
worked for Respondent. One of them was William Harland.
In early February 1978 the Union began an organiza-
tional campaign among Respondent's employees. A union
meeting was scheduled for February 13, 1978. Shortly be-
fore the meeting employee Chris Harrison told Villavicen-
cio about the scheduled meeting. On February 13 Murphy
and Villavicencio hand-delivered an antiunion letter' to all
the employees at their homes.
The Union filed a petition for an election on April 24,
1978. and the election was held on June 7, 1978.
B. The Alleged Unlasjfil Remarkls Made to Emnplotees
I. Harland
William Harland has been a member of Operating Engi-
neers ocal 3 since 1962. He is still employed by Respon-
dent and has worked for Respondent and its predecessor for
16 years. When Murphy took over the business in 1974
Respondent saw to it that Harland's pension rights with the
Operating Engineers were continued by paying benefits to
the fund on Harland's behalf.
In the latter part of May 1978, about a week or 10 days
before the June 7 election, Harland and Murphy had a
conversation on company premises concerning the contri-
butions that were being made on behalf of Harland to the
Operating Engineers' pension fund. In the course of that
conversation Murphy told Harland that if the Union won
the upcoming election he (Murphy) would not be able to
compete with the people uptown because of the distance he
had to travel. and that he would probably have to sell out
and close up.'
2. Barstow
William Barstow worked for Respondent from December
1976 to August 24, 1978. He was discharged shortly after he
told Respondent that he had put in an application for em-
ployment with another company.
On or about February 20, 1978. Barstow had a conversa-
tion with Villavicencio in Villavicencio's office. During the
that Murphy and Villavicencio are supervisors within the meaning of the
Act.
'The complaint does not allege that anything in the letter violated the
Act, and the General Counsel stated that he was introducing the letter in
esidence not to establish a violation by the letter. but to establish times and
dates.
'This finding is based on the testimony of Harland. Murphy acknowl-
edged that he had a conversation with Harland at that time, but his sersion
was substantially different. According to the testimony of Murphy, Harland
raised the topic of the Union by saying that he would be glad when the
union "b.s." was oser. and that he did not think anything was going to come
of it: and Murphy replied by saying that he would be just as glad and that if
It did go union it was going to be tougher to compete in Redding. Ilarland
was a vers believable witness. He is still working for Respondent, and he is
particularly vulnerable because Respondent is soluntanl) pasing pension
benefits on his behalf it would not be in his personal interest toi testify in a
manner that would antagonize Respondent. As is set forth in more detail
below with regard to the picture-taking incident and other matters, SMurphy
was not alwa\s candid in his testimony. As between Ha;lrland and Murphy, I
credit larland
1093
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of that conversation Villavicencio told Barstow that
if the Union got in Murphy would either close the plant
down or would scale it down so that only three or four
trucks would be needed.5
3. Michael Harrison
Michael Harrison was employed by Respondent from
November 1976 until June 8, 1978, when he was discharged
because he had an accident. Michael Harrison testified that
both Murphy and Villavicencio spoke to him about what
would happen if the Union won the election. However, his
testimony was so confused and internally contradictory that
it is difficult to use it as a basis for firm factual findings. The
difficulty may well be traced to nervousness rather than an
attempt to cloud the facts, but the result is that little of the
testimony can be used as probative evidence. When asked
whether he had occasion during February 1978 to talk to
Villavicencio concerning what the Employer would do if
the Union won the election, he answered, "no, no that I can
say without a doubt." Later in his testimony he averred that
in February Villavicencio told him in the presence of a
number of employees that the Company would be reduced
to four trucks if the Union became the bargaining repre-
sentative, and that on other occasions Villavicencio said
that the trucks would be sold off. In an affidavit he gave to
the General Counsel he made no mention of Villavicencio
telling him that the trucks would be sold if the Union came
in. He testified that during the second week of May 1978 he
asked Murphy about job security because he was thinking
of buying a house, and that Murphy told him that if he had
not signed a union card he should not have any problem.
When further examined by the attorney for the Petitioner
he expanded on that testimony and averred that in addition
Murphy told him that, if the Union were voted in, he was
going to reduce the fleet to four trucks and sell the rest of
them. On redirect counsel for the General Counsel had Mi-
chael Harrison repeat his testimony concerning the May
meeting with Murphy. He again left out any mention of
Murphy's reference to the reduction of the fleet or the sale
of trucks. When prodded by the counsel for the General
Counsel he averred that he did not remember anything else
about the conversation. When shown his affidavit he
averred that Murphy did talk about reducing the force to
four trucks if the Union were voted in.
Murphy and Villavicencio, in effect, denied that they
made the remarks attributed to them by Michael Harrison.
In view of Michael Harrison's unconvincing demeanor and
the inconsistencies in his testimony, I am unable to credit
'This finding is based on the testimony of Barstow. Villavicencio in his
testimony denied that the conversation took place. Barstow was very clear
and specific in his testimony, and his demeanor was such as to inspire confi-
dence. In an affidavit that he gave to the General Counsel during the inves-
tigation of the case he averred that Villavicencio told him that if the Union
came in Murphy would scale that plant down, and that there would be
drivers eliminated. That affidavit did not mention the close of the plant. Both
the testimony at the hearing and the affidavit indicated that Villavicencio
spoke about a loss of jobs if the Union were voted in. I believe that the
testimony at the hearing was a more complete version of the conversation
than was set forth in the affidavit, and I do not believe that Barstow was
manufacturing new material at the hearing. In addition, it is noted that
Villavicencio's remarks to Barstow about closing were similar to those made
by Murphy to Harland. I credit Barstow and do not credit Villavicencio.
his testimony in the face of those denials. However, Villavi-
cencio did admit that there was one conversation with Mi-
chael Harrison in which a cutback due to the Union was
mentioned. Villavicencio credibly testified to the following
incident: On March 8, 1978, Michael Harrison told Villavi-
cencio that he was concerned about whether he would be
able to purchase a house if the plant went union. Michael
Harrison asked Villavicencio whether he would be able to
hold down his job if the plant went union. Villavicencio
answered that he did not see why not and there was no
reason why it should injure Harrison's job. Villavicencio
also said, "My opinion, if the plant went union, we would
have to cut back probably a little bit. We wouldn't be able
to compete in Redding now."
4. Chris Harrison
Chris Harrison was employed by Respondent from April
1976 until April 1978, when he quit.
Chris Harrison testified to the following: In early Febru-
ary 1978, before the union organizational drive began, he
had a conversation with Murphy in the company yard.
Murphy said that he had heard that Chris Harrison would
like to go union. Harrison answered that it was not the idea
of going union, but he would like to see some sort of retire-
ment. During the conversation Murphy said that he could
sell the mixers and just run dry materials at the plant and
make a good living. Murphy spoke of the existing working
conditions and said that if Harrison did not like it he could
go down the road. About the first of March, Harrison asked
Villavicencio on the telephone how the thing was going
with the Union. Villavicencio replied that, if the employees
went union, Murphy would go union, but he would cut the
fleet back to four or five trucks and deliver to the Anderson
and Cottonwood area only. Sometime between then and
the date of the election Murphy told Harrison that the
Union caused him to go out of business in San Diego.
Chris Harrison testified to the above matters on direct
examination. When examined by the Union he added a
new time; he averred that on the day of the election, shortly
after the ballots were tallied, Murphy told him that if the
Union had won they would have closed down.
Murphy and Villavicencio denied that they made the re-
marks attributed to them by Chris Harrison.
Chris Harrison credibly testified that he gave an affidavit
to the General Counsel. After Harrison testified on direct
examination, Respondent made a timely request for his af-
fidavit. While not denying that the affidavit had been taken,
counsel for the General Counsel stated on the record that
she had never seen the affidavit, that after searching her
files she was unable to find an affidavit, and that the Board
agent who had allegedly taken the affidavit had no clear
recollection of it. Harrison credibly testified that he did not
have a copy of his own. Counsel for Respondent moved to
quash the testimony of Chris Harrison. I reserved ruling on
the motion in order to give the parties an opportunity to
brief the question. Counsel for Respondent then undertook
cross-examination upon my assurance that such cross-ex-
amination would not constitute a waiver of his right to the
affidavit, and that both the direct and cross-examination
would be stricken if the motion were later granted. In her
post-trial brief, counsel for the General Counsel cites
1094
ANDERSON COTTIONWOOD) CONCRETE PRODUCTS
N. L. R. B, v. Seine and line Fi.shrmen 's Union of Son Pedro,
etc., 374 F.2d 974 (9th Cir. 1967), cert. denied 389 U.S. 913.
In that case 10 witnesses testified that they had given signed
statements either to the General Counsel or to the Charging
Party. The court held:
. . .the attorneys for the general counsel and for the
charging party, in response to questioning by counsel
for respondents, repeatedly stated that they had thor-
oughly searched their records and had been unable to
find any statements other than those which they had
already handed over. [Footnote omitted.I Where state-
ments have been lost or destroyed in good faith the
testimony of the witnesses concerned need not be
struck. See Killian v. United States. 368 U.S. 23 1. 239
243: United States v. Tomaiolo, 317 F.2d 324, 327 328
(2d Cir. 1963). cert. denied 375 U.S. 856 (1963).
That case appears to be controlling in the instant situation.
I therefore deny Respondent's motion to strike the testi-
mony of Chris Harrison. However, as Respondent did not
have an opportunity to examine Harrison's affidavit, it is
appropriate to scrutinize Harrison's testimony with particu-
lar care.
Harrison's demeanor on the stand was convincing. Htow-
ever, as is set forth in detail below, I believe that he was less
than candid in testifying about the circumstances which
kept him from voting. I also find it difficult to believe that
Murphy would have gratuitously remarked after the Com-
pany won the election that if the Union had won he would
have closed down. After the election was over Murphy
would have had nothing to gain by that remark, and his
denial of it was credible. Harrison did not testify concern-
ing that remark in his direct examination by the General
Counsel and added it only when questioned by the Union.
As I have serious reservations concerning Chris Harrison's
credibility, I do not credit him where his testimony is con-
tradicted by Murphy and Villavicencio.
5. Analysis and conclusions
A week or 10 days before the June 7. 1978, election. Mur-
phy told Harland that, if the Union won the uncoming elec-
tion, he (Murphy) would not be able to compete with the
people uptown because of the distance he had to travel, and
that he would probably have to sell out and close up. About
Febraury 20, 1978, Villavicencio told Barstow that, if the
Union got in. Murphy would either close the plant down or
would scale it down so that only three on four trucks would
be needed. Both of those remarks went beyond permissible
prediction and constituted threats that employees would
lose employment if they selected a union to represent them.
On March 8 Villavicencio told Michael Harrison that Har-
rison's job would not be in jeopardy if the Union came in,
but he also said that if the plant went union it would prob-
ably have to cut back a hit, and they would not he able to
compete in Redding. In the context of the other remarks
make by Murphy and Villavicencio. that statement also
constitued a threat that some employees would lose em-
ployment if the employees selected the Union to represent
them.
In \N..RB. v. Giscl Pc itiv Co.. Inc.. 395 lU.S. 575.
618 620. (1969),. the United States Supreme Court drew
the line between permissible predictions and unlawful
threats as follows:
... an employer is free to communicate to his employ-
ees any of his general views about unionism or any of
his specific views about a particular union, so long as
the communications do not contain a "threat of repri-
sal or force or promise of benefit." He may even make
a prediction as to the precise effect he believes union-
ization will have on his company. In such a case, how-
ever, the prediction must be carefully phrased on the
basis of objective fact to convey an employer's belief as
to demonstrably probable consequences beyond his
control or to convey a management decision already
arrived at to close the plant in case of unionization. See
Textile Workers v. Darlington lMfg. Co., 380 U.S. 263.
274, n. 20 (1965). If there is any implication that an
employer may or may not take action solely on his
own initiative for reasons unrelated to economic neces-
sities and know only to him, the statement is no longer
a reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and
coercion, and as such without the protection of the
First Amendment. We therefore agree with the court
below that "[cjonveyance of the employer's belief, even
though sincere, that unionization will or may result in
the closing of the plant is not a statement of fact un-
less, which is most improbable, the eventuality of clos-
ing is capable of proof." 397 F.2d 157, 160. As stated
elsewhere, an employer is free only to tell "what he
reasonably believes will be the likely economic conse-
quences of unionization that are outside his control,"
and not "threats of economic reprisal to be taken sole-
ly' on his own volition." '.L.R.B. v. River Togs, Inc..
382 F.2d 198, 202 (2d Cir. 1967).
Murphy and Villavicencio made their remarks concerning
what could happen if the Union won the election before the
Union had any bargaining rights and before the Union
made any bargaining demands. They could not know what
the outcome of future bargaining might be. Their remarks
to the effect that employees would lose their jobs if they
selected the Union to represent them were impermissible
threats of economic reprisal to be taken solely on Respon-
dent's own volition. As such they violated Section 8(a)( 1 ) of
the Act.
C. The Picture-Taking Incident
Thomas Straughn buys and sells new and used trucks
and other business equipment. He had bought and sold
equipment for Murphy on many occasions. Several weeks
before the June 7. 1978, election, Murphy called Straughn
and asked him to come to the plant to appraise all his
equipment. On June 5. 1978. 2 days betore the election,
Straughn spent the entire morning at the plant appraising
everything at the plant. including the rolling stock and fixed
machinery. In the process of his appraisal he took pictures
of the trucks and machinery. There was nothing surrepti-
' See also fitnoer ft,ue Indus.ri,. In, . 233 N IRB 164 (1977): Jinrn-
Rwhardi( ,,. In, 210 N.RB 802 (1974). enld 527 1 2d 803 i).(' Cir. 1975)
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tious about his picture-taking, and a number of employees
saw him doing it. He was accompanied on his rounds by
Murphy. Michael Harrison and William Harland observed
Straughn taking pictures, but they did not talk to Murphy
about it. Straughn took a picture of Barstow's truck and
asked Barstow about the condition of the truck. Straughn
had never before taken pictures of Respondent's trucks. An
hour or so later Barstow asked Murphy what it was all
about, and Murphy said that an estimator was looking at
the equipment.'
Murphy testified that he needed an appraisal in order to
apply for a bank loan, and that the loan was needed to pay
for certain pollution abatement equipment that he was re-
quired to purchase. Murphy may well have needed the ap-
praisal and eeded the loan. However, the timing of the
picture-taking is suspect. After threatening to reduce or
close the plant if the Union won the election. Murphy's
action in having a picture-taking appraisal of all the equip-
ment just 2 days before the election must have been viewed
by the employees as a reaffirmation of those threats. Mur-
phy must be held responsible for the reasonably anticipated
consequences of his actions. No proof of union animus or
coercive intent or effect is necessary for a finding of an
8(a)(l) violation where the employer engages in conduct
which, it may reasonably be said, interferes with the free
exercise of employee rights under the Act. Dotver Garage 11.
Inc., 237 NLRB 1015 (1978).? Respondent has not shown
that there was any compelling need to take the pictures or
have the appraisal immediately before the election. The en-
tire appraisal procedure was extremely' informal. Straughn
received no compensation for making the appraisal. He
made an oral report to Murphy, and as of the date of the
hearing (some 4 months after the appraisal was made), he
still had not submitted a written appraisal to Murphy. A
written appraisal would have been required before a loan
could have been made.
In the light of the prior threats, I find that the picture-
taking on June 5. 1978, constituted an implied threat to sell
equipment or close the plant if the employees selected the
Union to represent them, and as such it violated Section
8(a)(l) of the Act.
D. The Allegation That Respondent Prevented Chris
Harrison From Voting
The election was conducted on June 7 between 4 and 6
p.m. On June 7, Chris Harrison ended his workday and
7 Barstow testified that, in addition to the mention of an estimator. Mur-
phy said that he was going to get rid of some of the older trucks. There wais
no mention of the older trucks in Barstow's affidavit. Murphy, in his testi-
mony, acknowledged telling Barstow that the man taking the pictures was an
appraiser. but he denied saying anything about getting rid of some old
trucks. Murphy did acknowledge that he may have spoken about getting rid
of old trucks at'another time. Barstow may have confused the two incidents.
and I believe that Murphy's recollection as to this incident was more accu-
rate than Barstow's.
As the Board held in Hanes Hosierv, Inc., 219 NLRB 338 (1975):
We long have recognized that the test of interference, restraint, and
coercion under Section 8(a}( I) of the Act does not turn on Respondent's
motive, courtesy, or gentleness. or on whether the coercion succeeded or
failed. the test is whether Respondent has engaged in conduct which
reasonably tends to interfere with the free exercise of employee rights
under the Act.
punched out at 3 p.m. He went back on the clock and left
the plant for an additional concrete delivery at 3:45 or 3:50
p.m. Though there was a great deal of conflicting testimony
with regard to that incident, there was agreement on certain
matters. Chris Harrison was returning to the plant when
Murphy contacted him on the radio telephone about 5:40
p.m. At that time Harrison was about 5 miles from the
plant. Murphy told Harrison to hurry up and try to make it
because he wanted everyone to have a chance to vote. Har-
rison replied that he thought he could make it. Murphy
then told Harrison that he would go to the plant in case
Harrison did not get there on time and ask them to hold the
polls open for him to vote. Murphy came into the office
where the election was taking place at 6 p.m. He told the
Board agent that he had spoken to Chris Harrison shortly
before, and that Harrison was going to be coming in at any
minute. He said that he would appreciate it if the polls
could be left open to give Harrison a chance to vote. Union
Representatives Cochran and Havenhill objected. saying
that they had agreed to a 6 p.m. close, and no one would
get to vote who came in after 6 p.m. The Board agent told
them, in effect, that he would only keep the polls open if
they all agreed. The union agents said they would not
agree. The Board agent then closed the polls about 2 min-
utes after 6 p.m.'
A short time after the polls closed Harrison returned to
the plant and attempted to vote. He was told that the polls
had been closed. In a conversation with Villavicencio Har-
rison said that he was glad he did not get to vote, and that
no one could blame him if it did or did not go union."
With regard to the dispatch of Chris Harrison. there was
a substantial conflict in the testimony. Harrison testified
that between 3:15 and 3:30 p.m. Villavicencio asked him to
go on the clock and take the delivery, and that he said that
he would. Harrison averred that he believed he would be
putting his job on the line if he refused. In the past he had
refused certain deliveries because of safety factors, but he
had never done so for other reasons. Villavicencio testified
that he told Harrison that he could take the delivery if he
wanted to, but that he could wait until 4 p.m. if he wanted
to vote before taking out the load. He also averred that he
told Harrison that he could wait until 4 p.m. so that another
driver could take the load if another driver came in. As
between Villavicencio and Harrison, I credit Villavicencio.
It was apparent from Murphy's actions in trying in keep the
polls open that he wanted to give Harrison a chance to
vote. I do not believe that Murphy and Villavicencio were
working at cross-purposes. I credit Villavicencio's assertion
9 The testimony of Harrison and Murphy was substantially in agreement
on this point.
°These findings are based on the credited testimony of Murphy which
was corroborated by truckdriver Richard Faulconer. Union Business Agent
Cochran testified that Murphy might have said something about a driver
coming in and wanting to keep the polls open so that the driver could vote.
tie also acknowledged that either he or Havenhill probably did say that they
had agreed the polls would be open until 6 p.m. and no longer. and that they
wanted the ballots counted right then and there.
" This finding is based on the credited testimony of Villavicencio. Respon-
dent's plant manager, Wayne Norcross. also credibly testified that he heard
Harrison say that he was glad he did not get to vote and that it would show
that he had nothing to do with inciting the nion. Harrison ackowledged
that he told Villasicencio that because he did not ,ote he had a clean slate,
and no one would knov, whether he ,voted for or against the Union.
1096
ANDERSON COT()ONWOO() (CON(CRiT PRODUCTS
that he told Harrison that Harrison could wait until after he
voted before taking the load.
There was a great deal of testimony concerning whether
or not Respondent could have reasonably expected Harri-
son to return from his trip in time to vote. However, specu-
lation in that regard is not needed. Harrison made the trip
and returned shortly after 6 p.m. Even according to his own
testimony, the trip took longer than anticipated for two rea-
sons. One was that the geography of the site where the
concrete was to be poured was such as to take an unusually
long time to unload. The second was that his return was
delayed because he was following a logging truck he could
not pass. It is reasonable to assume that if the two unex-
pected delays had not occurred he would have been able to
return in time to vote.
Considering all of the above factors. I find that Respon-
dent did not prevent Chris Harrison from voting.
IV. THIE REPRESFNTAIION ASE
Conduct that occurs between the date of the filing of a
petition and the date of an election can he considered in
determining whether the election should be set aside. The
Ideal Electric and Manufacturing C'orpany. 134 N LRB 1275
(1961). The petition in Case 20-RC 14603 was filed on
April 24. 1978, and the election was held on June 7, 1978.
As found above. the evidence does not sustain the allega-
tion that Respondent prevented an eligible employee from
voting on the day of the election. I therefore recommend
that that objection be overruled. However, the credited evi-
dence does established that in late May or early June 1978
Murphy violated Section 8(a)( ) of the Act by telling lar-
land that Respondent would probably have to sell out and
close up if the employees selected the Union. In addition.
the credited evidence establishes that Respondent violated
Section 8(a)(1) by reinforcing prior threats to close or re-
duce the operation by having pictures taken of its trucks
and other equipment in the presence of employees on June
5, 1978.2
In Dal-Tex Optical Compan, Inc.. 137 NLRB 1782. 1786
(1962)"1 the Board held:
Conduct violative of Section 8(a)( I) is, a Iortio. con-
duct which interferes with the exercise of a free and
untrammeled choice in an election. This is so because
the test of conduct which may interfere with the "labo-
ratory conditions" for an election is considerably more
restrictive than the test of conduct which amounts to
interference, restraint, or coercion which violates Sec-
tion 8(a)(1).
More recently the Board has indicated that a per . ap-
proach is not to be followed where the misconduct is oft'
minimal impact. See CBS Records Division of ('BS, Inc.,
223 NLRB 709. fn. 2 (1976). In the instant case the miscon-
1 Neither of these matters was raised bh he objections. ltowever matters
litigated in a complaint case can form the basis for selting aside an electiol
even though those matters were notl raised hb objections. 4lnerilcan SO!i'L
Equipment orporaitn, 234 N RB 50i 1978). Da l vn Ulbtai Pr,ir -du , ,i
183 NRI.B 191. 2)0 (19701. enforcement denied on other grounds 450 1 2d
47 (8th Cir 1971)
" See also weas & Mcl I it. Incorpr-laed. 155 N RB 3)9 1965)
duct occurred in the context of a small bargaining unit of
approximately 19 employees. The vote was extremely close.
With seven for the U!nion, eight against the Union. and
three challenges. Respondent's conduct was serious and far
reaching and cannot be considered de niniiis in impact. I
find that Respondent's conduct interfered with the free and
untrammieled choice of the employees in the election. and I
theref;ore recommend the election of June 7, 1978. be set
aside, that Case 20 RC- 14603 be remanded to the Regional
I)irector. and that a new election be directed bh the Re-
gional l)irector at an appropriate time.
CON('ISSI(ONS OF LA,'
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local 137 and Operating Engineers Local 3
are and each is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)( I) of the Act by:
(a) Threatening Harland in late May or early June 1978
with the sale or close of the plant if its employees selected
the Union to represent them.
(b) Threatening Barstow on about February 20. 1978.
with the close or reduction in operations of the plant if its
employees selected the Union to represent them.
(c) Threatening Mike Harrison on about March 8 1978.
with reduction in operations of the plant if its employees
selected the Union to represent them.
(d) Reinforcing its prior threats to close or reduce the
operations of the plant if its employees selected the Union
to represent them. by having taken of its trucks and other
equipment in the presence of employees on June 5. 1978.
4. lThe ,foresaid unfair labor practices are unfair labor
practices affecting conmierce wn ithin the meaning of Section
2(6) and (71 of the Act.
5. Except as is set forth above, the Gieneral Counsel has
not established by a preponderance of the credible evidence
that Respondent violated the Act.
6. By engaging in the conduct described above in para-
graphs 3(a) and (d) Respondent has interfered with its em-
ployees' freedom of choice in the election conducted on
June 7 1978.
'. iltt 1-11 [( I () ile l, 1 AIR I VI[OR PRA( 11I( 1-t PON
( ()MMI R(
The activities of Respondent set forth in section IlI.
above. occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade. traffic, and com-
merce among the several States and tend to lead to, labor
disputes burdening and obstructing commerce and the free
flow of conm merce.
Ti' l RI II)Y
Having tound Respondent has engaged in certain unfair
labor practices. I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectulute the policies of the Act.
1097
DECISIONS OF NATIONAI LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions ol law.
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 4
The Respondent, Anderson Cottonwood Concrete Prod-
ucts, Inc., Cottonwood, California, its officers, agents, suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with plant closure or a reduc-
tion in operations if they select Teamsters Local 137 and
Operating Engineers Local 3 to represent them.
(b) Reinforcing prior threats to close or reduce its opera-
tions if its employees select said Unions to represent them.
by having pictures taken of its trucks and other equipment
in the presence of employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed by Section 7 of the Act.
14 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.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Post at its Cottonwood, California, facility copies of
the attached notice marked "Appendix."'' Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being duly signed by its authorized represent-
ative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order. what steps
it has taken to comply herewith.
II IS FURTHILR ORDIERED that those allegations in the com-
plaint as to which no violations have been found are hereby
dismissed.
II IS FURIIER ORI)ERED that the election conducted on
June 7, 1978, in Case 20-RC-14603 be set aside, that that
case be remanded to the Regional Director for Region 20,
and that a new election be directed by the Regional Direc-
tor at an appropriate time.
t In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1098