Appleton Asphalt

National Labor Relations Board - Board Decisions

Nov 9, 1992

309 N.L.R.B. 440 (N.L.R.B. 1992)

440
309 NLRB No. 69
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In adopting the judge’s dismissal of the complaint, we find no
basis for his statement that the son of the Respondent’s coowner
‘‘attached no significance to the fact that [employee] Flanagan rather
than [alleged discriminatee] Riehl showed up on Monday morning,’’
since the son of the coowner did not testify. In light of the judge’s
other findings, however, we agree with his conclusion that the Gen-
eral Counsel has not established a prima facie showing of an unlaw-
ful discharge.
1 All dates herein are for 1991 unless otherwise indicated.
Appleton Asphalt, Inc. and Darrell J. Riehl. Case
30–CA–11368
November 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 11, 1991, Administrative Law Judge
Marvin Roth issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
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,1 findings, and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Mary Beth Onacki, Esq., for the General Counsel.
James R. Long, Esq., of Appleton, Wisconsin, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Appleton, Wisconsin, on October 31, 1991.1 The
charge and amended charge were filed respectively on May
15 and June 12 by Darrell J. Riehl, an individual. The com-
plaint, which issued on August 29 and was amended on Oc-
tober 17, alleges that Appleton Asphalt, Inc. (the Company
or Respondent), violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act. The gravamen of the complaint
is that the Company allegedly discharged employee Darrell
Riehl because it believed that Riehl engaged in union and
protected concerted activity, specifically, by seeking other
employment through a union hiring hall. The Company’s an-
swer denies the commission of the alleged unfair labor prac-
tices and asserts that Riehl quit his job. All parties were af-
forded full opportunity to participate, to present relevant evi-
dence, to argue orally, and to file briefs. Briefs were waived.
Upon the entire record in this case and from my observa-
tion of the demeanor of the witnesses, and having considered
the arguments of counsel, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a corporation with an office and place of
business in Appleton, Wisconsin, is engaged at that facility
in the business of construction, excavation and paving of mu-
nicipal, residential and commercial roads, drives, and parking
lots. In the operation of its business, the Company annually
derives gross revenues in excess of $500,000, annually re-
ceives at its Appleton facility goods valued in excess of
$5000 directly from suppliers outside Wisconsin, and annu-
ally derives gross revenues in excess of $50,000 from firms
which receive goods valued in excess of $50,000 directly
from outside Wisconsin. I find, as the Company admits, that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES: ALLEGED
UNLAWFUL DISCHARGE OF DARRELL RIEHL
The Company operates a seasonal business, from about
mid-April to mid-November, the day before start of deer
hunting season. Milton ‘‘Cub’’ Pelky owns the business in
partnership with Russ Obermeier. The Company has 30 to 32
employees, and has always been nonunion. Darrell Riehl
worked for the Company from 1986 to Monday, May 6,
1991, as an end loader operator. Like other employees he
was laid off at the end of each season and recalled in the
spring when the Company reopened. Riehl worked at the
plant. His job was to load the raw material into bins, putting
the right material into the right bin. Riehl worked as a team
with Pelky’s son Tim, who operated the plant and functioned
as a foreman, making work assignments. Company drivers
hauled the finished asphalt away from the plant to jobsites,
where the Company paving crews did their work. Riehl’s job
was in essence the beginning of the operation. If his job was
not done, no other work could be done. Riehl was recalled
to work on April 22, and for 2 weeks he and a few other
employees did preparatory work for resumption of operations
on May 6.
Riehl testified in sum as follows: For years he had been
asking, without success to transfer to the paving crew, whose
hourly wage was higher than his. On April 22, his first day
back at work, he told Pelky that he needed more pay because
he was building a house, and again asked for a transfer to
the paving crew. Pelky wanted him to remain on the loader.
He said he would talk to Obermeier, but Pelky never got
back to Riehl. On Friday, May 3, Riehl went to Pelky’s of-
fice in Mackville (some 12 to 15 miles from the plant).
Pelky’s son Todd, who also worked for the Company, was
present. Riehl asked Pelky if he could take a couple hours
off from work on Monday, probably until 10 a.m., because
he would probably look for other work and a better paying
job, and would probably go to the union hall to look because
441APPLETON ASPHALT
2 On the witness stand, Pelky displayed a habit of not looking di-
rectly at his questioner. I do not believe that this reflects on his
credibility. Apart from their testimony concerning the facts of this
case, I have no reason to question the overall credibility of either
Riehl or Pelky.
3 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.
they paid a lot better. Pelky told him it was alright if Riehl
had someone to operate the loader on Monday morning.
Riehl returned to work on Friday. He did not work on Satur-
day. He did not volunteer to do so, because he had other
things to do. That weekend he asked company truckdriver
Robert ‘‘Butch’’ Flanagan to fill in for him on Monday, and
Flanagan agreed. (Riehl was scheduled to begin work on
Monday at 6 a.m.). On Monday morning Riehl went to the
hall of Laborers Local 931 to put in an application. He spoke
to Al Wilder, who ran the hall. He could not go to the hall
before May 6 because the Union would not take applications
before that date. Riehl did not testify as to the result of his
visit. He returned home, changed clothes, and reported to
work about 9 a.m., taking over from Flanagan. Tim Pelky
told him that his father was ‘‘pissed off’’ because Riehl went
to the union hall and looked for work. About 10 minutes
later Tim said that Pelky wanted to see Riehl in his office.
Riehl went to Pelky’s office. Secretary Joanne Weiss was
present. Riehl asked what was going on. Pelky told Riehl:
‘‘If you want to pay union dues and work here you’re done.
You’re out of here.’’ Riehl protested in sum that he was a
good, longtime employee, and that he only put in an applica-
tion at the union hall and did not pay any money to the
Union. Pelky told Riehl to get out, ‘‘you’re done.’’ Riehl
asked if he could come back. Pelky initially said no, but then
said he would talk to Obermeier, and if Riehl could return,
Pelky’s secretary would notify him the next day. She did not
call Riehl. However Pelky subsequently offered Riehl a job
on the paving crew, i.e., the job Riehl had long wanted.
(Riehl evidently declined the offer). Robert Flanagan testified
that Riehl called him on Sunday, May 5, asked him to fill
in for Riehl on Monday, Flanagan did so, and Riehl returned
to work about 9:45 a.m. General Counsel did not call any
other witnesses.
Company Owner Pelky, the Company’s only witness, testi-
fied in sum as follows: Riehl had on prior occasions asked
him for a pay increase, but Riehl first mentioned his house
on Friday, May 3. On that day he came to Pelky’s office.
Riehl said he couldn’t make it on the wages he was getting
and would not be in on Monday because he was going to
look for a different job. Pelky answered that ‘‘you are going
to have to go.’’ Pelky understood that Riehl was quitting. He
called Tim Pelky and told him to put Flanagan on the loader
until Pelky decided on a permanent replacement. On Monday
afternoon Riehl came to his office. Riehl said he wanted his
job. Pelky told him he left. Riehl complained. Pelky said he
would talk to Obermeier, but didn’t know if he would let
Riehl return. The next day Pelky assigned driver Kent
Conrad to the loader. Pelky did not fire Riehl. Rather, Riehl
quit.
This case turns on a straight question of credibility, name-
ly, whether Riehl or Pelky should be credited concerning
their conversations on May 3 and 6. I credit Pelky, because
his version is more probable. Assuming that Pelky was an-
tagonistic toward unions (and even this depends on the credi-
bility of Riehl’s testimony), it is unlikely that Pelky would
trick a longtime employee like Riehl, by telling him it was
alright to go to the union hall, and then tell him he was fired
because he did so. Rather it is more probable that if so moti-
vated, Pelky would have warned Riehl on Friday that he
could or would lose his job by going to the union hall. How-
ever, Riehl did not so testify. Also, I agree with company
counsel that is improbable that Riehl could not apply for
work through the Union prior to May 6 or without leaving
work on that date. I do not attach significance to the fact that
Riehl requested Flanagan to fill in for him on Monday. Riehl
evidently tried to pressure the Company into giving him a
pay raise by saying that he would not be at work on Mon-
day, and implying, without actually using the word, that he
was quitting in order to seek a better paying job. Riehl
sought to cover himself by not using the word ‘‘quit,’’ if (as
apparently turned out to be the case), he was unsuccessful.
Therefore he asked Flanagan to fill in for him. Also Riehl
wanted to be sure that the Company was not left without an
operator on Monday morning. Pelky reasonably understood
that Riehl was quitting. As Pelky told his son Tim to tempo-
rarily put Flanagan on the loader, Tim attached no signifi-
cance to the fact that Flanagan rather than Riehl showed up
on Monday morning. Flanagan, in his testimony, did not
deny that Tim Pelky told him to operate the loader.2 As I
have credited Pelky, it follows that General Counsel failed
to make the requisite prima facie showing of an unlawful
discharge. Therefore I am recommending that the complaint
be dismissed.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Company did not violate Section 8(a)(1) and (3) of
the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The complaint is dismissed.