Armitage Sand and Gravel, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 162 (N.L.R.B. 1973)

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Armitage Sand and Gravel , Inc. and Finley Fox, Estill
J. Judd and Laborers ' International Union of North
America, Local 513, AFL-CIO. Cases 9-CA-
6885-1, 9-CA-6885-2, and 9-RC-9496
April 25, 1973
DECISION, ORDER, AND DIRECTION
By MEMBERS FANNING, JENKINS , AND PENELLO
On December 8, 1972, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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
Order of the Administrative Law Judge and hereby
order that the Respondent, Armitage Sand and Grav-
el, Inc., Morrow, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining with the Employer, the Regional
Director for Region 9 shall, pursuant to the Board's
Rules and Regulations, within 10 days from the date
of this Direction open and count the ballots cast by
Finley Fox and Estill J. Judd and thereafter cause to
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd 188 F.2d 362 (C.A. 3) We have carefully examined the record and find
no basis for reversing his findings
be served on the parties a second revised tally of
ballots including therein the count of the above-men-
tioned ballots. Thereafter, the Regional Director shall
issue the appropriate certification in accordance with
the Board's Rules and Regulations.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN. Adminstrative Law Judge: This matter
was heard at Cincinnati, Ohio, on September 19 and 20,
1972. The complaint, issued May 8, 1972, based upon
charges filed on March 14, 1972, in Cases 9-CA-6885-1 and
9-CA-6885-2, was consolidated by an order of the Region-
al Director dated June 30, 1972, with a hearing in Case
9-RC-9496 to determine the validity of challenges to the
ballots cast by Finley Fox and Estill J. Judd in a representa-
tion election conducted by the Regional Director on April
17, 1972.
The complaint alleges that Respondent violated Section
8(a)(I) of the Act by coercively interrogating employees
concerning union activities , threatening reprisals for union
activity, and warning employees that Respondent would
close its plant if the employees chose union representation;
and that Respondent violated Sections 8(a)(3) and (1) by
discharging and refusing to reinstate Finley Fox and Estill
J. Judd because of their union activities and in order to
discourage union membership . Respondent 's answer denies
the commission of any unfair labor practices, but admits
allegations of the complaint sufficient to justify the asser-
tion of jurisdiction under current standards of the Board
(Respondent purchased and imported in interstate com-
merce goods and materials of a value in excess of $50,000
in a recent annual period), and to support a finding that
Laborers' International Union of North America, Local
513, AFL-CIO, the Petitioner in Case 9-RC-9496 and in-
tervenor in this consolidated proceeding (herein called the
Union), is a labor organization within the meaning of the
Act.
Upon the entire record in this case , from observation of
the witnesses and their demeanor , and after due considera-
tion of the briefs filed by the General Counsel and the
Respondent,' I make the following:
i In its brief , Respondent , inter alia, asserts that it was prejudiced by the
denial of its request for the affidavit of a witness who had previously testified
and had been excused from the stand at the time the request was made, and
by the denial of its request for notes taken by General Counsel in preparation
for tnal which were not seen by or adopted by the witness For reasons stated
at the hearing , I find the request for the witness ' affidavit was untimely and
properly denied See Local No 320, International Union of Operating Engi-
neers, AFL-CIO (R W Hughes Construction Company), 150 NLRB 455.
Also in the absence of good cause shown, see McCormick Evidence 100
(1954), and because General Counsel 's notes are neither a verbatim account
of his interview with the witness , nor were seen or adopted by the witness,
I adhere to my ruling denying Respondent access to General Counsel 's notes
See Northwest Oil Equipment , Inc, 173 NLRB 534, 538, In 9
203 NLRB No. 26
ARMITAGE SAND AND GRAVEL 163
FINDINGS OF FACT AND CONCLUSIONS
I THE FACTS
A. Events Leading to the Sale of
Respondent's Operations
Respondent was engaged for many years at Morrow,
Ohio, in the sale of sand, gravel, and ready-mix cement. In
the conduct of its business, Respondent owned and operat-
ed certain cement batching plants, trucks and mixers, and
other equipment. For approximately the last five years Re-
spondent has been purchasing sand and gravel for its own
operations and for resale. Prior to that time it had operated
its own sand and gravel pits. During the period with which
we are concerned Respondent employed approximately 12
truckdrivers, who also did maintenance work and other
tasks about Respondent's property. Respondent's principal
business season was from spring until late fall, during the
normal construction period. However, Respondent sold
some sand, gravel, and ready-mix cement during the entire
year. It was Respondent's custom, however, not to lay off
its employees during the slow season, but to carry them on
the payroll the year round. During the off-season, the driv-
ers were employed in maintenance and repair work, and
other tasks , as well as transporting the small amounts of
material sold by Respondent during the winter.
Respondent, which was principally owned by Stanley Ar-
mitage, is claimed to have been a marginal operation for
some years, on the brink of being sold or dissolved.
Armitage's son-in-law, Miles Cullom, testified that he was
recalled from a position in Tennessee in late 1969, at a time
that Armitage suffered a broken foot, with a proposal that
the business would be incorporated (Cullom became a one-
eighth owner of the business), assertedly so that the two of
them could "see if the business justified making a long-
range proposal . . . if not, then for me to consider it a
temporary situation in helping dispose or liquidate or make
sale of the assets of the Company." 2 It would appear that
for the fiscal year ending October 31, 1971, Respondent was
substantially in "the black," though, according to Cullom,
Respondent was only marginally profitable in the preceding
year, the first after his return.3 Cullom stated that he does
not remember if the business ever operated "in the red."
In the spring of 1971, Respondent solicited an offer for
its equipment from an associate of Cullom's in Tennessee,
but thereafter rejected the offer when prospects for business
in that year appeared brighter. Cullom states that though
there was further talk about disposing of the business, Re-
spondent made no further effort in 1971 to sell the equip-
ment or business. About February 1, 1972, while Armitage
was on vacation in Florida, Cullom contacted a representa-
2 1 was not much impressed with Cullom's candor as a witness, and in
particular have the impression that this explanation for Cullom's return to
his father-in-law's allegedly uncertain business, so soon after he had availed
himself of a business opportunity in Tennessee , was tailored to conform with
Respondent 's position that Respondent has long been in a shaky economic
position.
3 Thus Cullom asserted that Respondent "surely was" operating at a profit
for the year ending October 31, 1971, but for the year previous , it "was very
close , but it was in the black "
tive of the Dravo Corporation about the sale of the business.
Cullom states that at the time Armitage was in poor health
and the two of them were again pessimistic about future
business prospects; also that though business was normally
slow about that time of year, it was then slower than usual 4
Dravo declined to negotiate for the sale of Respondent's
operation. During all of this period, however, Respondent
continued to consider the purchase of a new batch plant to
replace its antiquated equipment, in case the business was
not sold.
On February 2 and 3, 1972, union authorization cards
distributed among the drivers were signed by a majority of
them and turned in. On February 3, two of the drivers who
had signed cards, Estill Judd and Finley Fox, were dis-
charged. In March, Respondent was notified that charges
had been filed against it because of the discharges of Judd
and Fox, and that a petition for representation had been
filed by the Union. At that time, according to Cullom, "We
decided that the sale of our company . . . or the closing of
our company until we should find a buyer for our assets was
inevitable," that Respondent would become noncompeti-
tive in the area if it were unionized, and that Respondent
would shut its doors if the Union won the election. As noted
hereinafter, the employees were advised of this decision
prior to the election.
The results of the election held on April 17, 1971, were
(according to the revised tally of ballots): 5 votes for the
Union, 5 votes against, with 2 challenged ballots, those of
Judd and Fox. Upon the conclusion of the election, after an
immediate conference between Respondent' s management
and its attorneys, the employees were advised not to come
back to work unless recalled. Since that time Respondent
has not sold any sand, gravel, or ready-mix. The only em-
ployees employed by Respondent since the election have
been a clerical and two drivers engaged to clean up and
make repairs on equipment in preparation for sale. Respon-
dent has not, however, been dissolved and is still in the
process of liquidating its accounts receivable and payable.
Prior to the date of the election Respondent had an offer
for its equipment which would have required its transport
to Tennessee. This was rejected. After the election Respon-
dent began negotiations with a group of people who formed
a new corporation, Lebanon Concrete Products, Incorpo-
rated. This group eventually purchased the majority of
Respondent's physical assets for a price in excess of the
book value of those assets . It is clear that the parties under-
stood that the new company would employ these assets to
continue in the same business on the same premises as
Respondent had in the past .5 This sale was consummated on
July 17, 1972. Some of the Respondent's employees now
A financial statement prepared for a prospective customer of the business
shows that for the period from October 31, 1971, through April 30, 1972,
Respondent operated at a loss of $31,807. Other than Cullom 's testimony set
forth above , there is no basis in the record for comparing this with operations
for the same season of the year in previous years.
5In addition to other indications in the record, the purchase and sale
agreement provides that the purchase and sale is contingent upon the pur-
chaser securing the right to use the premises and facilities formerly used by
Respondent but owned by others. Respondent , Armitage , and Cullom fur-
ther agreed not to compete with the purchaser in the sale of ready-mix
concrete within 25 miles of Respondent's original premises . Respondent
further convenanted that it did not have "any contract with any union in
which its present or former employees are members."
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work for Lebanon Concrete Products, although the record
does not show how many. Neither Respondent, Armitage,
nor Cullom have any financial interest in the new corpora-
tion and there appear to be no blood ties between the new
owners and Armitage or Cullom, though they are old
friends.
B. The Alleged Unfair Labor Practices
1. The discharge of Judd and Fox
Finley Fox had been employed by Respondent since
April 13, 1962, and Estill J. Judd since March 1, 1964, when
they were discharged on February 3, 1972. Both were em-
ployed as truckdnvers at the time. During the afternoon of
February 2, union authorization cards were distributed
among the drivers by Paul Judd, Estill Judd's brother. The
drivers took the cards home with them; many of them,
including Estill Judd-and Fox, signed the cards and re-
turned them to driver Earl Younkers the next morning.
One of the cards was given to Alton Huff, Armitage's
brother-in-law and a driver for Respondent, at Huff's re-
quest. The next morning, February 3, Huff told Younkers
that he had decided not to sign to avoid possible conflict
with his wife, Armitage's sister.
About 1 p.m., on February 3, Cullom summoned Fox and
Estill Judd to his office and told them, "I guess you know
you're fired." When asked for the reason, Cullom would
only respond that as long as he paid half of the bills "around
here," "things are going to be done my way." According to
Cullom, he had called his attorney, Fred Jones, before dis-
charging the men, assertedly to express his concern that the
discharges would increase Respondent 's unemployment
compensation premiums, and states that he was informed
by Jones not to tell anyone the reasons for the discharges,
and for this reason did not even tell the men's supervisor,
William Wallace, why he was taking this action. Wallace,
indeed, was unaware that Cullom intended to discharge the
two men.' At a later time, Respondent advised the Ohio
Bureau of Unemployment Compensation of the asserted
reasons for the termination of the two men. In essence, the
reasons stated were that Fox had taken the afternoon off on
February 2, without permission , had missed too much time,
and was tardy; that Judd had failed to properly shut down
the batch plant the previous evening; that he had previously
threatened a dog belonging to one of the employees and its
owner; and that he had been negligent with equipment in
the past . It is admitted that neither of these men had been
warned concerning their alleged previous derelictions, and
there is an issue as to whether management had even spoken
to them about these matters.
Cullom asserts that Respondent did not make a practice
6 Respondent in its brief reiterates its contention that the testimony of
employee Younkers concerning his conversation with Huff is inadmissible
hearsay This is rejected
7 At one point in the hearing , Respondent raised an issue as to the supervi-
sory status of Wallace . However , the answer to the complaint admits that
Wallace is a supervisor and/or an agent of Respondent within the meaning
of the Act The testimony supports this conclusion and it is found that during
the period with which we are here concerned Wallace was a supervisor within
the meaning of Section 2(11) of the Act
of warning employees in connection with their work. How-
ever, on some occasions he stated that Armitage or Cullom's
wife spoke about or "mentioned" such matters to employ-
ees, indicating that he did not. On other occasions , he testi-
fied, usually vaguely, that he also had talked to employees
about such delinquencies .8 In such instances Cullom cus-
tomarily, in his testimony, disclaimed any recollection as to
the time, place, or details of such talks to employees.
We turn now to consideration of the reasons asserted for
the discharges.
a. Alleged misconduct of Finley Fox
Cullum testified that Respondent's problems with Fox,
prior to February 2, 1972, were, in his words, "Well, it was
just a failure to appear for work at the proper time or not
at all that day without us having knowledge that he wasn't
going to be there." On cross-examination, Cullom made
clear that the complaint was that Fox did not let Respon-
dent know when he wasn't coming in. Thus Cullom stated
that Respondent needed its employees at work, "or at least
[let] us know when [the are] not going to be there so we can
make arrangements ." Cullom stated that on some occa-
sions , during the busy summer season , Respondent would
send for Fox to come to work when it had need of him.
Cullom recalled visiting Fox's home on one such errand.
Nevertheless, Cullom has no recollection of ever talking to
Fox about this matter. He has, as Respondent puts it in its
brief , an "impression" that Armitage talked to Fox about
missing work. Fox credibly denied that management of Re-
spondent had complained to him concerning the days he
missed from work.
Cullom also asserted at the hearing certain problems with
Fox at Respondent's "satellite plant" in not making deliver-
ies as expected.
On the other hand, Wallace, who had been the supervisor
over both Fox and Estill Judd, testified that neither Fox nor
Judd had given him any trouble or problems, that they were
"pretty fair workers," and "anytime I told them to do some-
thing they always done it and there was no argument or
anything about it." Wallace further stated that Fox "came
to work . . . a couple of times that I know of late but when
he missed work they always called me from the office and
told me he wouldn't be there.. .." So far as Wallace re-
calls, neither Armitage nor Cullom ever advised him of any
problems with Fox or Judd. Wallace recalled going to Fox's
home on one occasion to get Fox to come to work when he
was needed . Fox recalled one instance when he was home
with visitors when Wallace came to get him, as well as one
other occasion when Wallace came to his home with the
As an example . Almost immediately after stating that Respondent "never
made a practice" of warning employees , Cullom testified that Ron Miller,
previously discharged for absenteeism . "had been talked to on several occa-
sions " When referred to this discrepancy, Cullom asserted that it was Armi-
tage who had talked to Miller, seemingly disassociating himself Later,
however, in discussing the circumstances of Miller 's discharge , Cullom indi-
cated that it was he who had talked to Miller about "his negligence." ("I don't
remember that there were several [discussions with Miller] on my part. There
could have been more than one, but I fired him
9 Thus Ron Miller , the only other employee discharged by Cullom for
absenteeism , was also terminated , according to Cullom, "for failure to appear
to work without us having any knowledge whatsoever of whether he was sick,
asleep , or out of the country or what
ARMITAGE SAND AND GRAVEL 165
same purpose. It appears that Fox went to work on each of
these occasions.10 Wallace's testimony is credited. Cullom's
testimony to the effect that Fox was a difficult or problem
employee in the past, or that he was habitually late or habit-
ually failed to advise Respondent when he was not coming
to work, is not credited.
On the morning of February 2, 1972, in the course of
speaking to several of the newly arrived employees, Cullom
called over to Fox and asked, "Why aren't you working on
your house today"? Fox answered that he would probably
take off at noon. Cullom said nothing, and walked away.
Fox did take off from work that afternoon. It is manifest
that Cullom knew, as Fox testified, that the latter was build-
ing an addition to his house, and that Fox's previous two
absences that year had been for that purpose. It is further
to be noted, in this respect, that there was little or no pro-
ductive work for the employees to do at the time. Only one
delivery was made by the drivers that day, that made by
Estill Judd. As Cullom testified, Respondent was, in effect,
carrying the employees through the slow season. Fox was
not paid for the time he took off, which undoubtedly
prompted Cullom's comment to Fox on the morning of
February 2.
It is Respondent's position that Fox's absence from work
on February 2 was unexcused and was the immediate cause
of his discharge the next day.
b. The work performance of Estill Judd
Judd was employed by Respondent since March 1, 1964.
At the time of his discharge on February 3, 1972, he was a
truckdnver. He, like Fox, signed a union card during the
evening of February 2, and turned it in to Earl Younkers the
next morning. Together with Fox, Judd was called into
Cullom's office about 1 p.m. that afternoon and discharged,
without being given the reason for that action.
Cullom asserted that the precipitating cause for Judd's
discharge was the latter's failure to properly shut down the
batch plant on the evening before. This was not a normal
part of Judd's duties, but that of Younkers. However, when
Judd returned from making a delivery on February 2, it was
late and Younkers had gone. Cullom asked Judd if he knew
how to shut down the plant, and the latter assured Cullom
that he knew the procedure and it would not be necessary
for Cullom to come and shut down the plant. The next
morning, Younkers reported to Cullom "that the pump that
supplied water to the booster pump that supplied water in
turn to our steam boiler which runs all night had been shut
off." However, since there still remained water in the boiler,
Cullom said "there was no extremely bad situation there."11
This same situation had occurred at the plant on several
previous occasions. On one occasion, apparently, Cullom
himself had turned off this same pump in shutting down the
10 A summary from Respondent's records shows that Fox was absent from
work on the following 1971-Jan 26, Feb 9, Mar. 8. May 17 & 18, June
21, July 19, Aug 4 & 5, Sept. 20, Nov 8 & 22, 1972-Jan 17 & 24, Feb 2
(afternoon) Cullom asserted that a majority of these were unexcused
11 The boiler was equipped with an automatic shutoff in case it ran dry.
Respondent asserts that if the boiler had run dry and if the automatic shutoff
had not worked , considerable damage might have occurred It appears that
this had never happened at Respondent 's operations , however
batch plant at night. When asked, Cullom said that he didn't
"really know as to what danger that could possibly present.
It does require repairs on the pump because the pump leaks
water after this situation." So far as Cullom recalls this
incident did not interrupt Respondent's operation on Feb-
ruary 3. Judd had never improperly shut down the batch
plant before this occasion.
Oddly, Cullom also testified on cross-examination that he
had been giving serious consideration to the discharge of
both Fox and Judd the previous night! When his attention
was directed to the fact that he did not become aware of
Judd's asserted negligence-the alleged cause for Judd's
discharge-until the following morning, Cullom replied,
rather nonresponsively, only that Respondent had no need
for all of these men, "it was a financial burden to us. But
we had assumed this responsibility in keeping our men on
the payroll 52 weeks a year. They received 2 weeks off with
pay. We even paid them some overtime pay," and when
further pressed, he answered that he had "accumulated rea-
sons, of which I have stated, and this was kind of a caption."
First among these prior incidents which Respondent
states contributed to Judd's discharge was an occurrence in
which a dog belonging to employee Burgess had made off
with a bottle of soda belonging to Judd. This occurred
within a month or so of Judd's discharge (possibly on Janu-
ary 27, the date supplied to Cullom by counsel). According
to Cullom, who was present during the incident, Judd
threatened to "kill that dog if it didn't leave his property
alone," and when Burgess protested, Judd told Burgess that
he had "better not try and stop me." Cullom made no effort
to intervene, and so far as the record shows, did not there-
after speak to either of the men about the incident. Respon-
dent now contends that the matter was important to it
because it considered Burgess' dog as a watchdog for its
property, though it is not shown that the other employees
were aware of this.
Judd admitted that on this occasion he told Burgess that
he "had better keep that damn dog away from here or I'm
going to hit it in the head with something." Judd denied
making any threat to Burgess . He stated that on this occa-
sion, Burgess' response to him was to laugh; that Burgess,
himself, had previously hit and kicked the dog. Judd's testi-
mony is credited.
Prior to this, in August or September 1971, Cullom states
that after he "had gotten after Estill for his neglect in drain-
ing the air tanks in the brake system of the truck" he was
driving, Cullom and his wife went to the plant on a Sunday,
and drained a considerable accumulated amount of water
from the brake system of Judd's truck. Cullom states that
his wife "mentioned" this to Judd, but that Judd made light
of it. Judd generally denied Cullom's testimony concerning
his (Judd's) asserted failure to drain the air tanks on the
brake system of his truck, or that Cullom complained to him
concerning maintenance of these brakes. Judd testified that
he drained the air tanks once or twice a week because he was
aware that if the air tanks got full of water, he would have
no brakes on the road. "I'd have nineteen ton of concrete
weight in that truck going down the road at 50-55 miles an
hour. With no brakes I wouldn't have a chance." I found
Judd's testimony to be quite persuasive and it is credited.
There is no evidence that in 8 years of service with the
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent he experienced any brake failure."
Finally, Cullom referred to an instance on January 13,
1972, in which a cast iron fitting on the mixer pump on
Judd's truck developed a crack as a result of water freezing
in the pump (which was incompletely drained). However,
Judd, at the beginning of the winter, and on several occa-
sions thereafter, had informed Cullom that the pump
wouldn't drain properly and needed repair. Though Cullom
agreed to have it repaired, this was not done. Judd states
that if he had not drained the pump as well as he did, the
casting would have broken open instead of cracking. The
crack, which was soon thereafter braised, did not render the
mixer inoperative. After that occasion, no similar problem
occurred with the mixer, while Judd, or his successor on the
truck, operated it.13
2. Alleged interference with employee rights
On one evening prior to the election, Cullom seized an
opportunity to talk to driver Harry Tindle alone, after send-
ing out for some cans of beer. Cullom asked Tindle what he
thought "about the mess at the company"? When Tindle
asked if Cullom was referring to Fox and Judd going to the
Board, the latter replied, "No, about the damn union." Tin-
dle told Cullom that the men were upset about raises and
bonuses promised, but which had not been received. He
further stated, "About this union, I don't know how you
found out so fast ....That's why you fired Estill and Fox,"
that he "knowed that there." Cullom denied that, but re-
fused to tell Tindle what his reasons were for the discharges.
Cullom asked Tindle who had brought the union cards in,
but the latter wouldn't tell him because Cullom wouldn't
give his reasons for firing Fox and Judd. Tindle asked Cul-
lom three times for his reasons for terminating the two men,
but he refused to divulge them. Cullom told Tindle that if
the Union did get in "they wouldn't be no vacation pay, no
Blue Cross/Blue Shield paid, wouldn't be no holidays
paid."
After Armitage came back from his vacation in March,
Supervisor Wallace spoke to Armitage about Wallace's fu-
ture with Respondent. Armitage told Wallace that if the
Union came in the plant, Respondent would close its doors.
Armitage suggested that Wallace look for other employ-
ment. Armitage further instructed Wallace on several occa-
sions to tell the employees that if the employees brought the
Union into the plant, Respondent would close down its
operations. Wallace did tell the employees that Respondent
would close if the men brought the Union in, and, further
that Respondent was not going to buy license plates for the
trucks (due in April).
12 In this connection , I have considered Wallace's testimony on cross-
examination that he remembered "an incident about Estill Judd not properly
draining the air tanks on his vehicle-of water ." However, this was not
further developed as to time or details . Inasmuch as Wallace considered Judd
a generally satisfactory employee who did what he was told and gave no
trouble , it is indicated that Wallace did not consider this "incident" of any
great moment.
13 There was some indication in the cross-examination of Judd, in one
question of Cullom, and a question to Wallace , that Respondent also claimed
that Judd was otherwise negligent in the maintenance of the chutes on his
cement mixer but this was not developed and is not mentioned in
Respondent's brief.
According to the uncontroverted testimony of Tindle,
Cullom also told Tindle that if the men voted for the Union,
Armitage would close the doors. Cullom also stated that
Respondent would not purchase license plates for the
trucks. 14
11 THE CONTENTIONS OF THE PARTIES
Respondent contends that (1) the case is moot because of
the termination of Respondent's business, (2) Respondent
had good cause for the discharge of Fox and Judd, and (3)
even if it be found that Respondent had no cause for the
discharges, the circumstances do not justify a finding that
Respondent had knowledge of their union activities, or that
Respondent had an illegal motive in terminating them. Re-
spondent further asserts that its statements to the employees
that Respondent would shut down its operations if they
voted for the Union were privileged as "free speech" under
Section 8(c) of the Act and the Constitution of the United
States, and were legal under the holding of the Supreme
Court in Textile Workers Union v. Darlington Mfg. Co., 380
U. S. 263 at 274 (fn. 20), where the Court stated (after
holding that an employer does not violate the Act by "clos-
[ing] his entire business" because of opposition to unioniza-
tion):
Nothing we have said in this opinion would justify an
employer interfering with employee organizational ac-
tivities by threatening to close his plant, as distin-
guished from announcing a decision to close already
reached by the Board of Directors or other manage-
ment authority empowered to make such a decision.
See also N.L.R.B. v. Gissel Packing Company, Inc., 395
U.S. 575, 618-619.
Lastly, on the merits, Respondent argues that the one
instance of interrogation of Tindle was de minimis and non-
coercive.
General Counsel, of course, disputes these contentions.
III ANALYSIS AND CONCLUSIONS
A. Alleged Mootness of the Issues
It is well settled that mere discontinuance in business
does not render moot issues of unfair labor practices alleged
against a respondent. "Irrespective of the ability of the re-
spondent to comply with the order, a decree of enforcement
is a vindication of the public policy of the statute..." N.L.
R.B. v. Electric Steam Radiator Corporation, 321 F.2d 733,
738 (C.A.6, 1963). This is particularly true where, as here,
Respondent apparently has sold its operations as a going
business. 15 In a similar situation, where it was contended
that a Board order should not be enforced because the
respondent had sold its business, the Supreme Court held,
i4 It was estimated that licenses for the trucks involved an expenditure of
between $4 and $5 thousand.
IS The continuing nature of the enterprise is not necessarily negated by the
fact that Respondent shut down operations for about 3 months while nego-
tiating a sale of the business See C G Conn, Ltd, 197 NLRB No 84.
Respondent obviously intended to sell its plant and equipment intact and in
place, rather than piecemeal Respondent refused offers to buy its equipment
as such , including one offer involving shipment of the equipment out of State.
It was clearly Respondent 's understanding that the purchaser of its plant and
equipment would continue the same business in the same place and appar-
ently is doing so
ARMITAGE SAND AND GRAVEL
in Southport Petroleum Company v. N. L. R. B., 315 U. S. 100,
107, "... it still is possible that the Board's order may yet
be the basis-and the indispensable basis-of liability on
the part of [respondent's 'officers, agents, successors, and
assigns '], regardless of any present incapacity of [respon-
dent] to perform, or liability on its part for failure to per-
form, its duty of reinstatement." See also Perma Vinyl
Corporation, 164 NLRB 968, enfd., sub nom. United States
Pipe and Foundry Company v. N.LR.B., 398 F.2d 544
(C.A.5, 1968).
In addition, in the present case, the status of Fox and
Judd must be determined, since their eligibility to vote,
which is an issue in this matter , may determine the results
of the pending representation election, and therefore, possi-
bly, the obligation to bargain with the Union (vel non) of the
corporation which purchased the business from Respon-
dent. Cf. N.L.R.B. v. Burns International Security Services,
Inc., 406 U. S. 272.
Nor is the Supreme Court's decision in Darlington in any
way inconsistent with these conclusions. As the Court stated
380 U.S. at 272 (fn. 14), "the Darlington property and equip-
ment could not be sold as a unit, and were eventually auc-
tioned off piecemeal. We are therefore not confronted with
a sale of a going concern, which might present different
considerations under §§8(a)(3) and (5)." See also N.L.R.B.
v. New Madrid Manufacturing Company, 215 F2d 908
(C.A. 8, 1954), cited with approval in Darlington.
B. The Discharges
I do not credit the reasons advanced by Cullom for the
discharges of Fox and Judd herein. Thus, in the case of
Finley Fox, assertedly discharged because he was absent
from work on a number of occasions, including February
2, without notification to Respondent or excuse: The record
shows, and it has been found, that Fox regularly notified
Respondent on the occasions that he was absent, in accord-
ance with Respondent's requirements. It is further shown
that when requested to come in to work when needed during
Respondent's busy season, Fox was cooperative. This un-
doubtedly accounts for the fact that Respondent did not
warn or talk to Fox about his prior absences.16
As noted, Fox was discharged assertedly for being absent
from work without notification to Respondent on the af-
ternoon of February 2, the day the union cards were distrib-
uted to Respondent's employees. This was at a time when
Respondent's business was quite slow (it made only one
delivery that day), and the employees were assigned to mis-
cellaneous maintenance and makeup work, in accordance
with Respondent's established policy of carrying its em-
ployees over the winter even though there was little produc-
tive work for them to do. Fox, of course, was not paid
during his absence from work on February 2, and Respon-
16 The record indicates that the situation was much different with respect
to Ron Miller , the only other employee discharged by Cullom for absentee-
ism There is no evidence concerning the conduct of one other employee
assertedly discharged by Armitage some years previous for not coming to
work
167
dent made no attempt to show that it was in any way incon-
venienced by his absence from work. Indeed, it was Cullom,
himself, who indicated to Fox in a bantering way that morn-
ing that he had expected Fox to be off that day. When Fox
replied that he would take off that afternoon, Cullom made
no protest or reply.
Fox's supervisor, Wallace, testified that both Fox and
Judd had been satisfactory employees who were coopera-
tive and gave no trouble. It is not credible that Respondent,
which did not complain of Fox's absences from work during
its busy season , felt compelled to discharge him for an ab-
sence in these circumstances when the absence did not inter-
fere with Respondent 's business , or cause it any harm, and,
in fact, had been impliedly suggested by Respondent's man-
agement.
Judd was assertedly discharged for an act of negligence
on February 2, in connection with a task not part of his
regularly assigned duties. The mistake was one which had
been made by others in the past, including Cullom, himself.
It had never been made by Judd previously. There is no
showing that such past mistakes were the basis for com-
plaint or discipline of employees, and the indications in the
record are to the contrary. The mishap caused no disruption
to Respondent's operations , and such damage as may have
occurred was clearly minor. (Cullom referred only to dam-
age which might be expected in such a mishap, and had no
recollection that repairs were actually required.)
Cullom's testimony concerning Judd's alleged prior de-
linquencies , for the most part credibly controverted, ap-
peared overstated and magnified in an effort to support
Respondent 's contention that Judd had been an unsatisfac-
tory employee in the past, as in the case of Judd's altercation
with the employee-owner of a dog about the dog's making
off with Judd's bottle of soda-a matter never complained
of to Judd by Respondent at the time or thereafter until
Judd sought unemployment compensation after his dis-
charge.
In addition, since Cullom only learned of Judd's negli-
gence (which Cullom states was the motivating cause of his
discharge) on the morning of February 3, Cullom's admis-
sion on cross -examination that he had , nevertheless , consid-
ered the discharges of both Fox and Judd on the evening of
February 2, further buttresses my conviction that his testi-
mony concerning the basis of these discharges should not be
credited.
A comment is required concerning Cullom's assertion
that he refused to give Fox and Judd any reason for their
discharges, and thereafter refused to disclose the reasons to
their supervisor or to other employees, on the advice of
Respondent's attorney, in order to avoid the risk of increas-
ing Respondent's premiums to the unemployment compen-
sation fund. It is stated in Respondent's brief that this
course of action was adopted "because of a possibility of
litigation before the Bureau of Unemployment Compensa-
tion of Ohio." It can only be assumed from this, since no
other explanation was offered, that Respondent and its at-
torney were in some doubt as to whether Respondent could
establish that it had good cause for the discharges, and
because of this refused to disclose its reasons . It is common-
place in normal employer-employee relations that employ-
ees are informed of the reasons for their discharges from
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment , at the time of discharge , where cause exists,
notwithstanding the fact that each such termination pre-
sents a potential unemployment compensation claim.
Where the employer can susbstantiate its claim that the
employee was discharged for misconduct in his employ-
ment, this position will prevail before the State Unemploy-
ment Compensation Commission. See 48 Amer. Juris., Soc.
Sec., sec. 38 (esp. 1972-73 supp.) The fact that the employer
refuses to divulge his reasons to the employee, who has a
paramount right to know , at the time of his discharge , unless
the refusal is otherwise justified , necessarily raises strong
suspicion as to the bona fides of the explanations later of-
fered.
Respondent strongly suggests in its brief, though this was
apparently not advanced before the Unemployment Com-
mission (it would probably have been fatal to Respondent's
position there), that the basic reason for terminating these
two employees was the fact that it was uneconomic to carry
them on the payroll at a time when they were not needed.
Indeed, this was Cul lom's asserted reason for considering
Judd's discharge the night before he discovered the negli-
gence now claimed to be the reason for Judd 's termination.
However, what is not explained is why Cullom chose that
particular evening, immediately after the distribution of un-
ion cards , to consider changing Respondent's longstanding
policy of carrying the employees through the winter, even
though it lost money doing so . The indication is that the two
events were connnected , as cause and effect.
Respondent appears to argue, however, that in the ab-
sence of affirmative evidence that the Respondent knew of
the union activity, such knowledge cannot be inferred. This
is incorrect . Knowledge is an issue of fact, and like any
other fact may be inferred from the totality of circum-
stances in the case, if they are sufficient to support such
interference . See, e .g., A. J. Krajewski Manufacturing Com-
pany, Inc. v. N.LR.B., 413 F.2d 673, 676 (C.A.1, 1969):
N.L.R.B., v. Long Island Airport Limousine Service Corp.,
468 F.2d 292 (C.A.2, 1972).
In the present case, the timing of the discharges , the lack
of any credible explanation for such action , Respondent's
refusal to tell the employees why they were being dis-
charged, and the subsequent advancement of pretextuous
reasons therefor , all lead to the conclusion that Respondent
did learn of the union activity and took this action to fore-
stall the nascent organizational activity. We are otherwise
left with the conclusion that Respondent had no reason for
discharging these men. That Respondent would not shrink
from such radical action to keep the Union out is abundant-
ly clear on this record. The fact that Respondent's work
force consisted of a small number of longtime employees,
some of whom did not sign union cards , makes it further
probable that Respondent would quickly learn of what was
going on. That probability is vastly increased by the fact
that one of the employees, Huff, who knew of the union
drive and refused to sign a card , was a member of the family
which owned business.'1 I do not believe, and therefore do
not credit, Cullom's testimony that he had no knowledge of
17 It was stated at the hearing that while Huff's family relationship was not
impressive in and of itself , its probative value must be determined in the
context of the record as a whole . This has been done.
the employees ' union activities when he decided to dis-
charge Fox and Judd, and find , in the circumstances of this
case, that he did have such knowledge when those decisions
were made.
On the basis of the above analysis and the record as a
whole , it is found that Respondnent , by discharging Finley
Fox and Estill J. Judd, discriminated against its employees
to discourage membership in the Union in violation of Sec-
tion 8(aX3) and (1) of the Act.
In coming to this conclusion , full consideration has been
given to the fact that neither Judd nor Fox was a leader in
the union movement (though Judd's brother was), and that
the Respondent did not discharge the two employees most
prominent in distributing and collecting the union cards.
However , discriminatory motivation is not necessarily nega-
tived because not all those who favor the union are singled
out for reprisal , or even by reason that more prominent
union men remain unscathed . Nachman Corp. v. N. L R. B.,
337 F.2d 421 (C.A.7, 1964). In this case , there is , indeed,
some indication that the Respondent may not have been
certain that it knew the real instigators of the union drive,
as evidenced by the interrogation of Tindle after the dis-
charges of Fox and Judd . In any event , selection of employ-
ees for reprisal for union activities is, of course , motivated
by the effect anticipated upon the employees who remain.
Tindle's testimony is convincing that Respondent 's employ-
ees received the message , which in this case was enhanced
by Respondent's refusal to state its reasons for the termina-
tions.
C. Threats and Interrogation of Employees
Cullom interrogated employee Tindle, during the period
when the representation proceeding was pending, as to what
he thought about the "mess" caused by "the damn union,"
and as to who was responsible for bringing the union cards
in. When Tindle refused the information sought unless Cul-
lom would give his reasons for discharging Fox and Judd,
Cullom threatened that if the men voted for the Union, they
would lose their vacation pay, holiday pay, and Blue Cross/
Blue Shield.
Thereafter, on instructions from Armitage, the employees
were told, in various ways and at different times, that if they
chose the Union as their representative, Respondent would
close down its operations. Respondent, as previously noted,
asserts that since it had decided to close its doors in such
an eventuality, it was justified in advising the employees of
the fact.
However, the disclosure was somewhat less than com-
plete and candid. As has been found, Respondent's inten-
tion was to sell the business, not dismantle or permanently
close it, as Respondent's total course of action demon-
strates. In such case, the employing enterprise would not
necessarily be destroyed by the change in ownership, and
the employees' right to the free choice of a bargaining repre-
sentative continued to have important legal consequences.
See, e.g., N.L.R.B. v. Burns, supra. As previously considered
in connection with discussion of mootness of the issues in
this matter, the situation here differs from that in Darling-
ton, upon which Respondent relies. Indeed, the Court in
Darlington particularly noted and relied upon the fact that
ARMITAGE SAND AND GRAVEL
the employer there was prevented by the "complete l iquida-
tion" of its business (in that case the dismantling of its
operations) from deriving "future benefits" from its activi-
ties discouraging "collective employee activities ," 380 U.S.
at 271-272, whereas Respondent here, by selling its opera-
tions intact , was in a position to, and did benefit from, its
prior unfair labor practices . Thus its threats to the employ-
ees to keep the business from being unionized were designed
to and apparently did make the property more saleable.18
For the reasons given , and upon the record as a whole,
it is found that Respondent interfered with , restrained, and
coerced its employees in the exercise of their rights under
Section 7 of the Act, by threatening to deny employee bene-
fits and to close down its operations if the employees voted
for the Union , and thereby violated Section 8(a)(1) of the
Act.
The interrogation of Tindle does not appear to be a mat-
ter of great substance , but since alleged in the complaint, it
must be dealt with . The interrogation clearly occurred in a
context of coercive conduct . Further, Tindle could rea-
sonably conclude that Cullom's request for the names of
those who brought the Union in was for the purpose of
reprisal, and it appears that he engaged in evasive tactics to
avoid giving Cullom an answer to this question . The ques-
tioning was not casual , or part of an idle conversation, but
arose in a situation deliberately contrived by Cullom for the
purpose . No legitimate reason for this action is suggested or
appears . In the circumstances , it is found that Respondent,
by its interrogation of Tindle, violated Section 8(a)(1) of the
Act.
D. The Challenges to the Ballots of
Fox and Judd
Fox and Estill Judd cast challenged ballots in the election
in Case 9-RC-9496, which ballots are determinative of the
results of the election. The validity of the challenges is be-
fore me in this matter . It follows from the findings and
conclusions heretofore made that both Fox and Judd were
employees on the date of the election and eligible to vote.
In accordance with the order of the Regional Director in
Case 9-RC-9496, that case is hereby transferred and con-
tinued before the Board with the recommendation that the
challenges to the ballots of Finley Fox and Estill J. Judd be
overruled and their ballots be counted and an appropriate
certificate thereafter be issued.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening employees with reprisal, coercively in-
terrogating employees in relation to their union activities,
and by the discharges of Finley Fox and Estill J. Judd, as
Is The purchaser's concern over unionization of the operations is reflected
in the provision of the sales and purchase agreement by which Respondent
warranted that no collective-bargaining agreement applied to the operations
being sold
169
found herein , Respondent engaged in unfair labor practices
in violation of Section 8(a)(1) and (3) of the Act, which
unfair labor practices affect commerce within the meaning
of the Act.
4. Finley Fox and Estill J. Judd were employees of the
Respondent eligible to vote in the election conducted by the
Regional Director of the Board on April 17, 1972, in Case
9-RC-9496 , and the challenges to their ballots were invalid,
and should be overruled, and the ballots counted.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act , it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer Finley
Fox and Estill J. Judd immediate and full reinstatement to
their former jobs or, if such jobs no longer exist , to substan-
tially equivalent jobs, without prejudice to their seniority
and other rights , privileges , or working conditions, and
make them whole for any loss of earnings suffered by reason
of such discrimination , by paying to each of them a sum of
money equal to the amount each would have earned from
the date of the discrimination against him , as found herein,
to the date of the Respondent 's offer to reinstate him as
aforesaid , less his net earnings during that period , in accord-
ance with the Board's formula set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at the rate of
6 percent per annum , as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employee
rights safeguarded by the Act, it will be recommended that
the Respondent be ordered to cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7
of the Act. See Brad's Machine Products, Inc., 191 NLRB
274.
Respondent is clearly responsible for backpay to Fox and
Judd through April 17, 1972. The extent to which Respon-
dent should be further required to comply with the affirma-
tive provisions of the recommended Order , and the extent
to which the purchaser of Respondent 's operations may be
obligated to comply with the recommended Order, or if it
has any such obligation, may be determined at subsequent
hearings if necessary. See, e.g., Perma Vinyl Corp., supra;
The Alexander Milburn Company, 78 NLRB 747.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 19
Armitage Sand and Gravel, Inc., the Respondent herein,
19 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.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees in order to discourage membership in or support of
Laborers ' International Union of North America, Local
513, AFL-CIO, or any other labor organization.
(b) Threatening to discharge or otherwise harm employ-
ees for joining a union or engaging in union activities or
supporting a union.
(c) Coercively interrogating employees concerning the
exercise of rights protected under the Act.
(d) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the purposes of the Act:
(a) Offer Finley Fox and Estill J. Judd immediate and
full reinstatement to their former jobs or , if those jobs no
longer exist , to substantially equivalent jobs, and make
them whole for any loss of earnings or benefits they may
have suffered by reason of the discrimination against them,
in accordance with the provisions of the section entitled
"The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all payroll
records , social security payment records , timecards , person-
nel records and reports , and all ether records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post all its operation at Morrow , Ohio , or at any
successor operation , copies of the attached notice marked
"Appendix." 20 Copies of said notice , on forms provided by
the Regional Director for Region 9, after being duly signed
by an authorized representative of Respondent (or its suc-
cessor or assign), 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 . Reason-
able steps shall be taken by Respondent to ensure that said
notices are not altered , defaced , or covered by any other
material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order , what steps Re-
spondent has taken to comply herewith.
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read " Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The law states that employees shall have the right:
To form, join , or assist labor organizations
To bargain collectively through representatives of
their own choosing
To engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection
To refrain from any or all such activities , except
as may be required by a legal agreement between an
employer and the representative of the employees.
WE WILL NOT discharge or discriminate against our
employees because they join or help Local 513 of the
Laborers ' International Union of North America,
AFL-CIO, or other labor organizations.
WE WILL NOT threaten to discharge or otherwise harm
our employees because they join or help a union.
WE WILL NOT coercively question employees concern-
ing membership in or activities on behalf of a union.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce employees in the exercise of the rights
protected by law.
WE WILL offer Finley Fox and Estill J. Judd imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equivalent
jobs, without prejudice to their seniority or other rights,
privileges, or working conditions.
WE WILL make each of them whole for any loss of pay
or benefits suffered by them as a result of the discrim-
ination against them.
Dated By
ARMITAGE SAND AND GRAVEL,
INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office Federal Office Building Room
2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.