Big Three Industries

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 963 (N.L.R.B. 1980)

BIG THREE INDUSTRIES
Big Three Industries and Charles F. Richardson.
Case 28-CA-5461
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEII.O
On June 19, 1980, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in answer to Respondent's ex-
ceptions.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order,2 as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Big Three Industries, Albuquerque, New Mexico,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraphs 2(a)
and (b) and reletter the subsequent paragraphs ac-
cordingly:
"(a) Offer Charles Richardson immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges previously enjoyed and make him
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
2 In its exceptions Respondent contends, inter alia, that it has uncondi-
tionally offered reinstatement to Charging Party Richardson, that Rich-
ardson has declined the offer, and that. accordingly, it has met its obliga-
tions in this regard However, the record does not establish the circum-
stances surrounding the alleged reinstatement offer and we shall therefore
leave the issue of whether Respondent has made a valid offer of reinstate-
ment to Richardson to the compliance stage of this proceeding.
a We have modified the Administrative Lasw Judge's recommended
Order to include the full reinstatement language traditionally provided by
the Board.
whole for any loss of earnings he may have suf-
fered due to the discrimination practiced against
him by paying him what he would have earned,
less any net interim earnings, plus interest, in the
manner provided in F. W. Woolworth Company, 90
NLRB 289, and Florida Steel Corporation, 231
NLRB 651 (1977). 7
"(b) Make Charles Richardson and Frank Sando-
val whole for any loss of earnings incurred by each
of them as a result of their being discriminatorily
denied a wage increase, with interest thereon to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). (See, generally,
Isis Plumbing & Heating Co., 138 NLRB 716
(1962).)"
2. Delete footnote 8 from the Administrative
Law Judge's recommended Order and renumber
the subsequent footnote accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or in any other
manner discriminate against employees to dis-
courage their activities in behalf of Chauffeurs,
Teamsters and Helpers, Local Union 492, or
any other labor organization.
WE WILL NOT deny wage increases to em-
ployees because of their union activities.
WE WILL NOT interrogate employees con-
cerning their union activities.
WE WILL NOT tell employees that wage in-
creases had been withheld because of their
union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights protected by the
National Labor Relations Act.
WE WILL offer Charles Richardson immedi-
ate and full reinstatement to his former job or,
if that job no longer exists, to a substantially
equivalent position, without prejudice to se-
niority or other rights and privileges previous-
ly enjoyed, and make him whole for any loss
of earnings he may have suffered due to the
discrimination practiced against him by paying
him what he would have earned, less any net
interim earnings, plus interest.
WE WIL.L make Charles Richardson and
Frank Sandoval whole for any loss of earnings
incurred by each of them as a result of their
252 NLRB No. 135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being discriminatorily denied a wage increase,
with interest.
BIG THREE INDUSTRIES
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at Albuquerque, New Mexico, on Febru-
ary 14, 1980, based on a complaint alleging that Big
Three Industries, herein called Respondent, violated Sec-
tion 8(a)(l) and (3) of the Act by discharging Charles
Richardson because of union activities, after previously
having denied wage increases to certain of its employees,
interrogated employees about organizing activities, and
told employees that wage increases had been withheld
because of their activities in behalf of Chauffeurs, Team-
sters and Helpers, Local Union 492, herein called the
Union.
Upon the entire record,' my observation of witnesses
and consideration of posthearing briefs, I make the fol-
lowing:
FINDINGS OF FACT 2 AND RESULTANT CONCI.USIONS
OF LAW
Around February certain truckdrivers commenced or-
ganizing activities by which they held meetings at em-
ployee homes, signed authorization cards on behalf of
the Union, and spoke about this with colleagues at the
work premises. 3 Richardson testified that he had en-
gaged in this undertaking for which he passed blank au-
thorization cards to several employees. Others compara-
bly involved were Frank Sandoval, David Sandoval, and
Andres Baca, the first named of whom expressly testified
that he too had passed authorization cards among fellow
employees. Soon thereafter, Transport Manager Michael
Chandler heard of the campaign from truckdriver Roger
Romero, a person assertedly opposed to it. He then
spoke to David Sandoval inquiring about rumors of the
Union, to which he was answered inconclusively.
The undertaking soon resulted in a representation peti-
tion being filed, and followinq proceedings thereon an
election was conducted on May 8 at which challenged
ballots were sufficient to affect results. Shortly thereafter
the Union withdrew its petition. Later, still in May,
Plant Manager John Adams communicated a recommen-
dation to Respondent's Houston, Texas, headquarters
that all employees of the Albuquerque facility receive a
wage increase. These were reviewed by now-deceased
Personnel Manager Bob Moore, who approved the rec-
I The transcript is corrected as requested by the General Counsel in an
unopposed motion.
2 All dates and named months are in 1979, unless shown otherwise.
3 Respondent maintains an office and place of business in Albuquerque,
New Mexico, where it is engaged in the production and sale of purified
gases, annually having a gross volume of business in excess of $500,000
while purchasinq qoods and materials valued in excess of $50,000 which
were transported and delivered to it directly from suppliers located out-
side New Mexico. I find that Respondent is an employer within the
meaning of Sec. 2(6) and (7) of the Act, and otherwise that the Union is a
labor organization within the meaning of Sec. 2(5).
ommendation except for Richardson and Frank Sando-
val. When the raises were implemented on or about May
23, Frank Sandoval spoke to Chandler about not receiv-
ing one, to which this admitted supervisor assertedly an-
swered, "Strictly between you and I . . . they are trying
to get rid of you and Charley." Baca also raised the sub-
ject with Adams, and was assertedly told that five driv-
ers who had supported the Union "are on Mr. Moore's
sh- list." At about this same time Richardson spoke with
Adams concerning the denial, and was told that it was
based on his unusual "attitude."
On both July 25 and 26 Richardson made round trips
to the NASA facility at Las Cruces, New Mexico. His
driver's log for the first of these days showed a returning
departure time of 11 a.m., while admittedly he did not
actually leave until 1 p.m. On the second day he experi-
enced a breakdown on the return portion of the run
when 40 miles from Albuquerque. Richardson testified
that he managed to personally reach the plant that after-
noon, and volunteered to assist Chandler in reclaiming
the disabled rig. Instead, Chandler gave him a termina-
tion notice reading:
Summary of Incident: Charles falsified his log on
July 25, 1979, while delivering to NASA at Las
Cruces. He logged leaving the facility at 11:00 a.m.
while NASA shows on their record Charles leaving
at 1:00 p.m. (verified by Albert Duran, NASA).
Therefore, Charles travelled from Las Cruces to
Albuquerque, 250 miles in less than 4 hrs. averaging
better than 60 mph.
Company Rule Violated: Drivers Manual Chapter 1
Ph. 11 "Falsification of any record or report consti-
tutes grounds for immediate dismissal."
Action Taken: Discharge
John E. Adams
Supervisor
Richardson nevertheless accompanied Chandler during a
drive out to the truck, conversing with him on many
subjects as they travelled. Richardson testified that in the
course of this Chandler intimated the "real reason" for
discharge was other than as given, and that, while other
drivers had comparably falsified logs, Richardson had
"got caught." After a wrecker had the disabled truck un-
derway and both Richardson and Chandler had returned
to the plant, another opportunity for discreet conversa-
tion was presented when Richardson drove Chandler to
the latter's home. Richardson testified that during this
trip together Chandler suggested recourse to the "NLR,"
adding that he would always have to deny what was
being said.
Adams testified that he alone had made the decision to
terminate Richardson on grounds that he had falsified a
log and relatedly violated the speed laws as deducible
merely by dividing actual time of travel into the one-way
Albuquerque-Las Cruces distance of 250 miles. 4 Adams
4 Respondent's driving manual contains various rules of conduct, two
of which expressly cover logs and speeding with disciplinary action up to
and including discharge as a possible consequence for any infraction.
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BIG THREE INDUSTRIES
driver was asked to do so as a convenience or coverup
for company operations. Chandler echoed this testimony
by denyinq that he ever told any driver to falsify a log,
contrasting this with instances when a mere
"correct[ion]" might be in order. Contradicting this,
Baca testified that falsification of driver logs was com-
monplace, primarily to skirt the maximum duty hours
limit in order to complete runs and keep equipment in
service. Relatedly, Adams described the progressive dis-
ciplinary policy he followed, pegging it ordinarily to
three steps out with considerable latitude for judgment in
terms of nature and frequency of offenses.
The threshold resolution here is one of credibility, as
to which the General Counsel's witnesses are clearly
more impressive and believable. This is buttressed by
highly unfavorable demeanor characteristics displayed by
both Adams and Chandler, the latter compounding his
performance by evasiveness and inconsistency of recall. I
thus credit David Sandoval in his description of being
asked about incipient union activites; Baca, who was told
that raises to union adherents were deferred; and Frank
Sandoval to whom Chandler admitted that Respondent
harbored a desire to be rid of him. More importantly, I
fully credit Richardson with respect to his conversation
with Chandler in which hidden motivation was acknowl-
edged, and that on two representative occasions invol-
vinq Cortez and Socorro, New Mexico, runs he routine-
ly obtained Chandler's permission to mismark the log.5
Richardson's discharge is apparently pretextual, if for
no other reasons than the near-preposterous assertion by
Adams that after recommending all employees for a raise
in May, he would soon verbally fault Richardson for at-
titude and shortly thereafter discharge him without valid
cause. It is evident that Houston-based superiors were
sufficiently disturbed by Richardson's known role (Chan-
dler had assumed him to be a vote for the Union) that
they countermanded Adams, and caused him to seek
some pretextual basis of action. The contrived nature of
Richardson's discharge, the supposed earlier warnings in-
volving guard clearance and fuel use procedure (neither
of which was established as matters of significance or
concern absent Richardson's identification with the
Union), and the prior verbalisms of both Adams and
Chandler intimating retaliatory motivation extant among
Houston management, all point compellingly to the infer-
ence of discrimination.
Accordingly, I render conclusions of law that Re-
spondent, by denying wage increases to certain employ-
ees, by interrogating employees about organizing activi-
ties, by telling employees that wage increases had been
withheld because of their activities on behalf of the
Union, and by discharging Richardson because of his
union activities, has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the Act.
I note Chandler's explanation that delivery to an oil well site, as the
case at Cortez. permits discretion in allocating unloading (duty) versus
nonduty time. This does not address the array of credible testimony
showing that Respondent could not have been genuinely disturbed by the
NASA delivery entries of July 25 after tolerating such looseness among
drivers in general
Disposition
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 6
The Respondent, Big Three Industries, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against employees to discouraqe their activities in behalf
of Chauffeurs, Teamsters and Helpers, Local Union 492,
or any other labor organization.
(b) Denying wage increases to employees because of
their union activities.
(c) Interrogating employees concerning their union ac-
tivities.
(d) Telling employees that wage increases had been
withheld because of their activities in behalf of the
Union.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the followinq affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Charles Richardson reinstatement to his
former position of employment without prejudice to se-
niority or other rights and privileges and make him
whole, along with Frank Sandoval, in the manner pro-
vided in F. W Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651, 7
for any loss of earnings incurred as a result of Richard-
son being discharged, and, in the case of both named in-
dividuals, for any further loss of earnings incurred be-
cause of general wage increases being denied them over
the periods May-July (Richardson) and May-November
(Sandoval). 8
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Albuquerque, New Mexico, place of
business copies the attached notice marked "Appendix."9
Copies of this notice, on forms provided by the Regional
Director for Region 28, after beinq duly signed by Re-
e 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 find-
ings, 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.
See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
I do not pass on the efficacy of a certain letter written October 17 by
Respondent's counsel and addressed to the attention of Board Agent Ed
Lope; at Albuquerque
I 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 Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
965
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent or an authorized representative, shall be con-
spicuously posted immediately upon receipt and be main-
tained for 60 consecutive days thereafter, in all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
966